3 July 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 72 of the trial, July 2, 2001.
See other transcripts: usa-v-ubl-dt.htm
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2 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3 ------------------------------x
4 UNITED STATES OF AMERICA
5 v. S(7) 98 Cr. 1023
6 USAMA BIN LADEN, et al.,
7 Defendants.
8 ------------------------------x
9
New York,
10 N.Y.
July 2, 2001
11 9:00 a.m.
12
13
Before:
14
HON. LEONARD B. SAND,
15
District Judge
16
APPEARANCES
17
MARY JO WHITE
18 United States Attorney for the
Southern District of New York
19 BY: PATRICK FITZGERALD
MICHAEL GARCIA
20 Assistant United States Attorneys
21
22 FREDRICK H. COHN
DAVID P. BAUGH
23 Attorneys for defendant Mohamed Rashed Daoud
Al-'Owhali
24
DAVID RUHNKE
25 DAVID STERN
Attorneys for defendant Khalfan Khamis
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2 Mohamed
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2 (Pages 8508 through 8523 filed under
3 seal)
4 (In open court)
5 (Jury present)
6 THE COURT: Good morning.
7 THE JURY: Good morning.
8 MR. RUHNKE: Your Honor, what we
9 propose to do at this point is to read to the
10 jury a number of stipulations that have not
11 previously been read to the jury.
12 What I intend to do is not repeat the
13 boilerplate language and introduce all of them.
14 I will give the stipulation number before I
15 read it and repeat it after it is read it so
16 the record will be clear what those numbers
17 are.
18 The first is stipulation number 1,
19 K.K.M. stip 1.
20 Stipulated and agreed as follows:
21 If called as a witness, a person
22 expert in the Arabic language would testify
23 that the Arabic-language documents seized from
24 Cell No. 6 on the 10 South Unit of the
25 Metropolitan Correctional Center on November 1,
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2 2000, were prepared by a person or persons
3 displaying a fluent command of the Arabic
4 language and a level consistent with a native
5 speaker of Arabic.
6 And it's agreed that this stipulation
7 may be received in evidence and that is
8 stipulation number 1.
9 (Defendant's Exhibit K.K.M. 1
10 received in evidence)
11 MR. RUHNKE: Stipulation number 6.
12 Stipulated and agreed as follows:
13 Mamdouh Mahmud Salim, a/k/a Abu Hajer
14 al Iraqui, was charged in Indictment (S4) 98
15 Criminal 1023 with conspiracy to kill United
16 States nationals, but not with bombings of the
17 United States embassies in Kenya and Tanzania.
18 Salim was arrested on September 16, 1998 in
19 Germany. Based on the charges filed against
20 Salim, he did not face the death penalty.
21 Nonetheless, German authorities would not
22 extradite Salim to the United States unless
23 they were assured that Salim would not face the
24 death penalty. The United States Government
25 assured the German government in writing that
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2 it would not seek the death penalty for the
3 offenses for which Salim was extradited. Salim
4 was extradited from Germany to the United
5 States on December 20, 1998.
6 2. Khalid al-Fawwaz, Ibrahim
7 Eidarous and Adel Abdel Bary were charged in
8 Indictment (S7) 98 Criminal 1023. Fawwaz was
9 charged with conspiracy to kill United States
10 nationals and conspiracy to murder (Counts One
11 and Two), but not charged with the bombings of
12 the United States embassies in Kenya and
13 Tanzania. Fawwaz had been arrested on or about
14 September 27, 1998 in the United Kingdom.
15 Based on the charges filed against Fawwaz, he
16 does not face the death penalty.
17 3. Ibrahim Eidarous and Abdel Bary
18 are charged in Indictment (S7) 98 Criminal 1023
19 with various conspiracy charges, including
20 conspiracy to kill United States nationals,
21 Count One, as well as with the various
22 substantive counts arising out of the bombings
23 of the United States embassies in Kenya and
24 Tanzania. Eidarous and Abdel Bary had been
25 arrested on July 12, 1999 in the United
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2 Kingdom. The bombing charges filed against
3 Eidarous and Abdel Bary are capital offenses,
4 but to seek the death penalty the government
5 would have to prove sufficient participation
6 that the action to justify the "gateway
7 factors" for the death penalty. Without
8 resolving whether that can be done, it is
9 assumed (for purposes of this trial) based on
10 past experience that, as part of the ongoing
11 extradition proceedings, British authorities
12 will insist on commitment from the United
13 States that it will not seek the death penalty
14 against Eidarous and Abdel Bary (as well as
15 Fawwaz) before extraditing any of them to the
16 United States. It is further assumed that at
17 the time such a demand is made, the United
18 States will provide such assurance to the
19 United Kingdom.
20 That was stipulation number 6.
21 (Defendant's Exhibit K.K.M. 6
22 received in evidence)
23 MR. RUHNKE: Stipulation number 8.
24 It is stipulated and agreed:
25 1. Usama Bin Laden; Ayman al
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2 Zawahiri; Mohamed Atef, a/k/a Abu Hafs; Saif al
3 Abdel; Abdullah Ahmed Abdullah, a/k/a Saleh;
4 Mushin Musa Matwalli Atwan, a/k/a Abdel Rahman;
5 Mustafa Fadhil, a/k/a Khalid, a/k/a Hussein;
6 Fazul Abdullah Mohammed, a/k/a Harun; Fahid
7 Msalam; Ahmed Mohamed Hamed Ali, a/k/a Ahmed
8 the Egptian; Anas al Liby; Ahmed Khalfan
9 Ghailani, and Sheik Ahmed Salim Swedan, a/k/a
10 Sheik Bahamad, are currently fugitives in
11 Indictment (S7) 98 Criminal 1023, or its
12 successor indictments.
13 Usama Bin Laden; Ayman al Zawahiri;
14 Mohamed Atef, a/k/a Mohamed Hafs; Mustafa
15 Fadhil, a/k/a Khalid, a/k/a Hussein, a/k/a --
16 obviously, also known as -- Fazul Abdullah
17 Mohammed, a/k/a Harun; Fahid Msalam; Ahmed
18 Khalfan Ghailani; and Sheik Ahmed Salim Swedan,
19 a/k/a Sheikh Bahamad, are all fugitives charged
20 specifically with both the Nairobi, Kenya and
21 Dar es Salaam, Tanzania bombings and thus in
22 capital counts.
23 3. Although Abdullah Ahmed Abdullah,
24 a/k/a Saleh, clearly participated in the
25 Nairobi and Dar es Salaam bombings, he is not
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2 charged in either bombing at this time. It
3 remains a possibility that Abdullah Ahmed
4 Abdullah, a/k/a Saleh, may be charged at a
5 later time.
6 And that was stipulation number 8.
7 (Defendant's Exhibit K.K.M. 8
8 received in evidence)
9 MR. RUHNKE: This is stipulation
10 number 9. Stipulated and agreed:
11 The documents appended hereto are
12 true and accurate copies of the summaries of
13 information supplied to Dr. Cunningham by the
14 Bureau of Prisons and upon which he relied, in
15 part, in preparing to testify.
16 And those documents will be offered
17 in evidence pursuant to this stipulation as
18 K.K.M. Exhibit 29.
19 (Defendant's Exhibit K.K.M. 9
20 received in evidence)
21 MR. RUHNKE: Stipulation number 10.
22 It is stipulated and agreed: Between August
23 12, 1998 and August 21, 1998, Mohamed Rashed
24 Dauod Al-'Owhali was interviewed six times by
25 agents of the Federal Bureau of Investigation.
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2 The FBI reports related to those interviews are
3 contained in defense Exhibits K.K.M. 32A to D.
4 For legal reasons, these statements were not
5 admitted at the trial of Al-'Owhali.
6 And that was stipulation number 10.
7 (Defendant's Exhibit K.K.M. 10
8 received in evidence)
9 MR. RUHNKE: Stipulation number 11.
10 It is stipulated and agreed: 1. Exhibits
11 K.K.M.-PH-103 and K.K.M.-PH-104 were taken at a
12 prison hospital facility on November 6, 2000,
13 and the stipulation, stipulation 11, also
14 allows for the underlying photographs to be
15 admitted into evidence, which are photographs
16 103 and 104. That was stipulation 11.
17 (Defendant's Exhibits K.K.M. 11,
18 K.K.M.-PH-103 and K.K.M.-PH-104 received in
19 evidence)
20 MR. RUHNKE: Stipulation 12: It is
21 stipulated and agreed:
22 1. Khalfan Khamis Mohamed traveled
23 to South Africa in August 1998. Tanzania has
24 the death penalty, South Africa does not. When
25 he was arrested in South Africa in October
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2 1999, Khalfan Khamis Mohamed was surrendered to
3 U.S. authorities. A South African authority
4 did not seek or obtain assurances that the U.S.
5 would not seek the death penalty. In May 2001,
6 the highest court for the Republic of South
7 Africa, overruling a lower court decision, held
8 that Khalfan Khamis Mohamed should not have
9 been released to the American authorities by
10 South African immigration officials without
11 obtaining an agreement from the United States
12 that he would not face the death penalty in the
13 United States. In its decision, the court is
14 not critical of the action of any American
15 officials. And this is stipulation number 12.
16 (Defendant's Exhibit K.K.M. 12
17 received in evidence)
18 MR. RUHNKE: Stipulation number 14.
19 Stipulated and agreed: Prior to October 25,
20 2000, Khalfan Khamis Mohamed had never shared a
21 cell with Mamdouh Mahmud Salim. And that's
22 stipulation number 14.
23 (Defendant's Exhibit K.K.M. 14
24 received in evidence)
25 MR. RUHNKE: Stipulation number 15:
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2 Khalfan Khamis Mohamed has no prior history of
3 criminal conduct. And that's stipulation
4 number 15.
5 (Defendant's Exhibit K.K.M. 15
6 received in evidence)
7 MR. RUHNKE: Stipulation number 16.
8 It is stipulated and agreed: Throughout his
9 incarceration by the Bureau of Prisons, Mamdouh
10 Mahmud Salim was treated for asthma. A sample
11 of those records is appended as Exhibit K.K.M.
12 27. There is no record of Khalfan Khamis
13 Mohamed ever being treated for asthma. That's
14 stipulation number 16.
15 (Defendant's Exhibit K.K.M. 16
16 received in evidence)
17 MR. RUHNKE: Stipulation number 17.
18 Stipulated and agreed: In the audio portion of
19 the videotape depicting the drive from 213
20 Ilala to the former American Embassy on Laibon
21 Road, Dar es Salaam, the left turn described by
22 the narrator at Uhuru Road accurately reflects
23 the information provided to the FBI by Khalfan
24 Mohamed. And that's stipulation number 17.
25 (Defendant's Exhibit K.K.M. 17
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2 received in evidence)
3 MR. RUHNKE: Stipulation number 18.
4 Stipulated and agreed:
5 1. K.K.M. 35A is an accurate copy of
6 two pages from the Daily Activity Log
7 maintained on the 10 South Unit of the
8 Metropolitan Correctional Center. The dates
9 reflected in the documents are October 25, 2000
10 and October 31, 2000.
11 2. K.K.M. 35B is an accurate copy of
12 one page from the Attorney Visitation Log
13 maintained at the sallyport (entranceway) to
14 the 10 South Unit at the Metropolitan
15 Correctional Center. The dates reflected on
16 K.K.M. 35B are October 25 through a portion of
17 October 28, 2000. That's stipulation number
18 18.
19 (Defendant's Exhibit 18 received in
20 evidence)
21 MR. RUHNKE: This is stipulation 19:
22 Exhibits K.K.M. 14A and B are true and accurate
23 copies of medical records documenting injuries
24 sustained by Khalfan Khamis Mohamed on November
25 1, 2000. The name on the record identifies
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2 K.K.M. 14B, Harry Walters, was chosen for
3 security reasons when Mr. Mohamed was admitted
4 to the hospital in question. That's K.K.M.
5 stip 19.
6 (Defendant's Exhibits 19, 14A and 14B
7 received in evidence)
8 MR. RUHNKE: K.K.M. stip 21.
9 Stipulated and agreed: On October 9, 1998,
10 Special Agent Daniel Coleman of the Federal
11 Bureau of Investigation swore to an affidavit
12 in support of a request for extradition of
13 Mamdouh Mahmud Salim from Germany before the
14 Honorable Sharon E. Grubin, United States
15 Magistrate Judge for the Southern District of
16 New York. In that affidavit Agent Coleman
17 described the role played in this case by
18 Mamdouh Mahmud Salim, Mohamed Sadeek Odeh, and
19 Mohamed Rashed Dauod Al-'Owhali. That
20 affidavit is received into evidence as K.K.M.
21 36. That was K.K.M. stip 21 I just read.
22 (Defendant's Exhibits K.K.M. 21 and
23 36 received in evidence)
24 MR. RUHNKE: K.K.M. stip 22.
25 Stipulated and agreed: At some time within the
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2 past five years, a member of al Qaeda -- not
3 either of the two cooperating witnesses who
4 testified in this case -- has entered into a
5 cooperation agreement with the United States.
6 This individual has entered a plea of guilty to
7 a conspiracy to kill Americans anywhere in the
8 world. It does not include as an overt act the
9 bombings of the American embassies in Dar es
10 Salaam and Nairobi, and the government has no
11 evidence that the individual was involved in
12 either of the bombings or any other murder or
13 murders. By the terms of the plea agreement,
14 this individual faces a sentence of
15 imprisonment from zero to life, depending on
16 the sentencing judge's evaluation of all the
17 circumstances, and does not face the death
18 penalty.
19 That was stipulation number 22.
20 (Defendant's Exhibit K.K.M. 22
21 received in evidence)
22 MR. RUHNKE: Stipulation 26: K.K.M.
23 33 consists of accurate copies of commissary
24 receipts for Khalfan Khamis Mohamed for the
25 period October 7, 1999 through October 26,
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2 2000. That was stipulation number 26.
3 (Defendant's Exhibit K.K.M. 26
4 received in evidence)
5 MR. RUHNKE: Stipulation number 27:
6 Consistent with Bureau of Prisons policy,
7 Khalfan Khamis Mohamed was seen by a Bureau of
8 Prisons psychologist at approximately 30-day
9 intervals in order to assess (1) mental status,
10 (2) adjustment, (3) threat to self, and (4)
11 threat to others.
12 K.K.M. 41 contains true and accurate
13 copies of such reports current through March
14 16, 2001. And that was stipulation 27.
15 (Defendant's Exhibit K.K.M. 27
16 received in evidence)
17 MR. RUHNKE: Stipulation 28: The
18 documents contained in the folder marked K.K.M.
19 42 are true and accurate copies of the records
20 supplied by the Bureau of Prisons and comply
21 with subpoenas served on behalf of Khalfan
22 Khamis Mohamed.
23 The documents grouped as K.K.M. 42A
24 are special administrative measures imposed
25 upon Ramzi Ahmed Yusufu and Sheik Omar Abdel
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2 Rahman. The documents grouped as K.K.M. 42B
3 are the available sentence computation
4 documents for the inmates whose records were
5 subpoenaed. The documents grouped as K.K.M.
6 42C are the available chronological
7 disciplinary records for the inmate whose
8 records were subpoenaed. And that's
9 stipulation number 28.
10 (Defendant's Exhibits K.K.M. 28, 42A,
11 42B and 42C received in evidence)
12 MR. RUHNKE: Stipulation 25A.
13 Stipulated and agreed:
14 In a separate criminal proceeding
15 before another judge of this court arising out
16 of the assault of Officer Pepe, Mamdouh Mahmud
17 Salim is seeking to assert a defense claim that
18 his mental state at the time of the incident
19 was such that he lacked the requisite intent to
20 commit the crimes alleged. In connection with
21 these proceedings, Salim was interviewed by a
22 government-designated psychiatrist and
23 psychologist. The nature of the proceedings
24 therefor was in Salim's interest to maximize
25 the extent of his alleged mental disorders.
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2 The issue as to the validity of Salim's claims
3 has yet to be resolved.
4 2. One condition of these
5 examinations by the government experts was that
6 no statement made by the defendant in the
7 course of any examination by the government's
8 expert, no testimony by the expert based upon
9 statements by the defendant, and no other
10 fruits of the statement, i.e., no other
11 evidence learned as a result of the statements
12 that were made, could be admitted in evidence
13 against Mr. Salim in any criminal proceeding
14 except on an issue respecting mental condition
15 about which the defendant first introduces his
16 testimony.
17 3. On May 29, 2001, and June 22,
18 2001, Mr. Salim was examined by Stewart B.
19 Kleinman, M.D., a board-certified forensic
20 psychiatrist retained by the government, and
21 those sessions lasted a total of approximately
22 12 hours, 45 minutes. The report summarizing
23 the forensic evaluation was submitted on June
24 25, 2001.
25 4. The following information is
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2 reflected in Dr. Kleinman's June 25, 2001
3 forensic psychiatric report:
4 A. Mr. Salim stated "that he had
5 only limited interactions with Khalfan Khamis
6 Mohamed because Mr. Mohamed speaks only limited
7 English and Arabic."
8 B. Mr. Salim was asked to describe
9 his emotional/psychological/mental state during
10 the period prior to November 1, 2000. Among
11 other responses, Mr. Salim gave the following:
12 His weight dropped from approximately
13 185 pounds in 1998 to 165 pounds in 1999 to 160
14 pounds in mid 2000 to 155 pounds in November
15 2000; he progressively lost muscle tone;
16 increasingly feeling hateful, angry and
17 humiliated because of prison experience;
18 reporting that he was particularly enraged by
19 strip searches; he felt "sad all day"; he no
20 longer was a "very cheerful person"; he
21 constantly worried about his family; he lost
22 his ability to freely forgive others for
23 transgressions and he felt extremely lonely and
24 he thought about ending his life but never made
25 any effort toward doing so because Islam
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2 forbids such action.
3 C. Mr. Salim claimed that
4 "previously he had been battling for control of
5 himself with a part of himself which wants to
6 violate his 'principles,' including to act
7 violently."
8 D. When asked on June 22 to describe
9 his mental/emotional state on November 1, 2000,
10 Salim replied, "Hopeless, grieving, angry"; "no
11 control over myself"; "doing things against my
12 will"; "anything I did that day I was not the
13 same person; maybe it was my body." When asked
14 on June 22, 2001 how his mental state had
15 changed since November 1, 2000, Salim stated
16 that he previously often daydreamed about "how
17 to stop this persecution" and how to escape if
18 he could not, and that currently he adheres to
19 his "principles" and does not actively resist
20 "aggression, insults" against him.
21 E. When asked about the events of
22 November 1, 2000, Salim stated that "I took the
23 keys [from Officer Pepe's belt] to escape from
24 the door" and explained that "I took it [the
25 keys] from him" and "I took it from his belt."
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2 When asked how he managed to do so, he
3 repeated, "I took the keys." He thereupon
4 refused to provide any further details of the
5 offense stating, "Because this is legal matter,
6 has nothing to do with psychiatrists," adding,
7 "It's legal, confidential."
8 F. When asked to explain his
9 actions, Salim stated, "I wanted to escape this
10 ridiculous condition." "Since I did nothing, I
11 have the right to be with my family." He
12 stated around November 1, 2000, he believed
13 there was a "chance" that an escape attempt
14 would succeed and that such an effort would be
15 "difficult but not impossible." He declined to
16 provide further details. He also stated that
17 he returned to his cell when officers
18 approached because he understood "it's
19 finished" and that since he "was outside the
20 cell, this is against the rule" and related
21 that he feared he would be severely assaulted
22 if he remained outside his cell.
23 When asked when he first thought of
24 escaping in the manner he attempted on November
25 1, 2000, Salim replied, "There is a difference
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2 between thinking about it and deciding to do
3 it." When subsequently asked when he first
4 thought about escaping as he attempted on
5 November 1, 2000, he responded that he was not
6 sure, but added, "for sure not months." When
7 further asked when he decided to escape as he
8 intended and attempted, he replied that he
9 would not answer this question.
10 Salim declined to answer the
11 following question: Whether he made the
12 sharpened comb weapon used to stab Officer
13 Pepe; whether he fashioned the sharpened
14 hairbrush found around the site of the instant
15 offense; whether he sprayed hot sauce into
16 anyone's eyes on November 1, 2000; whether he
17 stored hot sauce in honey containers; whether
18 he had stored the sharpened comb or hairbrush
19 sometime prior to November 1, 2000; whether he
20 had covered the camera in his cell or stored
21 paper for that purpose prior to November 1,
22 2000; whether he made any effort to interfere
23 with the MCC's electricity; whether he
24 handcuffed Officer Pepe; whether he tried to
25 open the inner door to his housing area with
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2 Officer Pepe's keys; whether others helped him
3 in the offense; whether he knew who assaulted
4 Officer Pepe with a comb weapon; whether he
5 stabbed Officer Pepe in the eye; whether anyone
6 else physically restrained Officer Pepe during
7 the offense and what he planned to do if he
8 managed to open the inner door to 10 South."
9 That stipulation is stipulation 25A.
10 (Defendant's Exhibit K.K.M. 25A
11 received in evidence)
12 MR. RUHNKE: The final stipulation is
13 stipulation 25B. Stipulated and agreed: Barry
14 Rosenfeld, Ph.D., a clinical psychologist
15 retained by the government, examined Mamdouh
16 Mahmud Salim on June 26, 2001. Dr. Rosenfeld
17 concluded that "several factors limit the
18 conclusiveness of the evaluation, including
19 Mr. Salim's apparent lack of candor in both
20 reporting his psychological symptoms (i.e.,
21 apparently exaggerating his psychological
22 problems) and refusing to discuss many aspects
23 of the instant offense."
24 Dr. Rosenfeld concluded that, "While
25 the possibility of a more pervasive or severe
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2 psychiatric disorder cannot be limited and
3 Mr. Salim claimed to suffer from psychotic
4 symptoms, (e.g., hallucinations) both at the
5 time of the offense as well as at present, his
6 reported symptoms appear likely to be either
7 exaggerated or, in the case of the reported
8 hallucinations, fabricated."
9 During the interview conducted by
10 Dr. Rosenfeld, Mr. Salim noted his
11 dissatisfaction with the attorneys who had
12 represented him prior to November 1, 2000. He
13 also noted "increased anger and irritability,
14 particularly during the period leading up to
15 the alleged instant offense," and that he
16 "frequently argued with his cellmate during the
17 period in which they were housed together
18 (prior to the alleged instant offense)."
19 3. According to Dr. Rosenfeld's
20 report, Salim claimed the presence of
21 persistent auditory hallucination, which Salim
22 described as "a creature suggesting things to
23 me, sometimes ordering me. I don't see him,
24 but I feel him inside me." Salim stated, "I
25 hear him a long time ago, before I was
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2 arrested, but I never paid attention to him
3 because he can come once in two months or once
4 a year." Salim further stated that the
5 "creature" had "ordered him to break or destroy
6 things or steal objects" and that he was
7 convinced the "creature is real, although
8 living inside his own body."
9 Dr. Rosenfeld concluded that "Salim's
10 report of auditory hallucinations which predate
11 his incarceration but have worsened
12 considerably since is highly suspect for a
13 number of reasons." Dr. Rosenfeld reported
14 that although it was "possible" Salim suffered
15 from such hallucinations, he concluded that
16 "much more likely is the possibility that
17 Mr. Salim fabricated this symptom in an effort
18 to explain the instant offense as due to the
19 stress of his confinement, i.e., malingering."
20 4. Dr. Rosenfeld said Salim
21 described "unusual beliefs" such as "thinking
22 that he could shrink himself and escape the MCC
23 by crawling under the door."
24 5. In assessing Salim's mental state
25 at the time of the offense, Dr. Rosenfeld noted
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2 that Salim was unwilling to discuss his actions
3 with regard to the instant offense.
4 Dr. Rosenfeld noted that, "A complete
5 understanding of Mr. Salim's mental state at
6 the time of the instant offense is limited by
7 both his refusal to discuss this incident in
8 detail as well as the questionable accuracy of
9 the information he did provide."
10 With respect to the November 1, 2000
11 incident, Salim, according to Dr. Rosenfeld's
12 report, "acknowledged that he had taken -- I'm
13 sorry. I'll read it again -- "acknowledged
14 that he had been taken by Officer Pepe to his
15 cell unhandcuffed, and once in his cell 'I took
16 the keys away from him. I wanted to runaway
17 (escape).'" Salim said that the plan to escape
18 by taking the keys from a corrections officer
19 had occurred to him well in advance of the
20 actual incident: "It came to my head many
21 times before -- a week or so -- maybe ten
22 days." Salim also stated that, "Moments before
23 I took the keys, I was in a conflict with the
24 creature -- I was talking to it in an audible
25 volume -- the guard took me out of here and I
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2 was talking to the creature -- it was telling
3 me, 'now, now is the day you take the key --
4 it's a chance -- if you miss it today, you'll
5 regret it.'"
6 And that is stipulation number 25B.
7 (Defendant's Exhibit K.K.M. 25B
8 received in evidence)
9 MR. RUHNKE: In addition to
10 stipulations, we are now going to move into
11 evidence the following documents: K.K.M. 2,
12 which is a transcript at a hearing involving
13 Mr. Salim conducted before a magistrate judge
14 on October 26, 2000.
15 MR. FITZGERALD: No objection.
16 MR. RUHNKE: K.K.M. 13 is the initial
17 complaint filed with regard to Ali Mohamed when
18 he was arrested.
19 MR. FITZGERALD: No objection.
20 MR. RUHNKE: K.K.M. 25 are the
21 documents and slides that were computer shown
22 to you by Dr. Cunningham during his testimony.
23 MR. FITZGERALD: No objection.
24 THE COURT: Yes. Those three
25 exhibits are all received.
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2 (Defendant's Exhibits 2, 13 and 25
3 received in evidence)
4 MR. RUHNKE: Yes.
5 K.K.M. 27 are Salim's, a sample of
6 Salim's medical records referred to earlier
7 involving Asma.
8 MR. FITZGERALD: No objection.
9 THE COURT: Received.
10 (Defendant's Exhibit K.K.M. 27
11 received in evidence)
12 MR. RUHNKE: K.K.M. 29 are the
13 documents referred to earlier which have been
14 supplied to Dr. Cunningham for his testimony.
15 MR. FITZGERALD: No objection.
16 THE COURT: Received.
17 (Defendant's Exhibit K.K.M. 29
18 received in evidence)
19 MR. RUHNKE: K.K.M. 32 and 32A
20 through D are the statements of Rashid Daoud
21 Al-'Owhali that you had not previously heard
22 during this trial.
23 MR. FITZGERALD: No objection.
24 THE COURT: Received.
25 (Defendant's Exhibits K.K.M. 32 and
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2 32A through 32D received in evidence)
3 MR. RUHNKE: K.K.M. 34 is the MCC
4 medical record regarding the injury report
5 prepared with regard to Officer Pepe.
6 MR. FITZGERALD: No objection.
7 THE COURT: Received.
8 (Defendant's Exhibit K.K.M. 34
9 received in evidence)
10 MR. RUHNKE: K.K.M. 35A and B are
11 excerpts from the MCC Daily Activity Log and
12 Attorney Visitation Log which were referred to
13 in the stipulation.
14 MR. FITZGERALD: No objection.
15 THE COURT: Received.
16 (Defendant's Exhibits K.K.M. 35A and
17 35B received in evidence)
18 MR. RUHNKE: K.K.M. 36 is is the
19 affidavit of Agent Daniel Coleman regarding the
20 extradition of Mamdouh Mahmud Salim from
21 Germany.
22 MR. FITZGERALD: No objection.
23 THE COURT: Received.
24 (Defendant's Exhibit K.K.M. 36
25 received in evidence)
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2 MR. RUHNKE: K.K.M. 38 is an incident
3 report involving Mamdouh Mahmud Salim. I will
4 not read it into evidence at this point, but it
5 involves a response to being required to
6 undergo a strip search and refusing a direct
7 order by Mr. Salim.
8 MR. FITZGERALD: No objection.
9 THE COURT: Received.
10 (Defendant's Exhibit K.K.M. 38
11 received in evidence)
12 MR. RUHNKE: K.K.M. 39 is a summary
13 chart, which I will just hold up to you so you
14 can see what it looks like.
15 This is K.K.M. 39, and what it does
16 is, as its heading says, it's a summary chart
17 of Khalfan Khamis Mohamed's commissary orders
18 of certain items based on a review of the
19 underlying MCC records, and it points out that
20 the records themselves are in evidence as
21 K.K.M. 33.
22 MR. FITZGERALD: No objection.
23 THE COURT: Received.
24 (Defendant's Exhibit K.K.M. 39
25 received in evidence)
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2 MR. RUHNKE: K.K.M. 40 is the
3 original complaint seeking the arrest and
4 charging Mamdouh Mahmud Salim.
5 MR. FITZGERALD: No objection.
6 THE COURT: Received.
7 (Defendant's Exhibit K.K.M. 40
8 received in evidence)
9 MR. RUHNKE: K.K.M. 41 are periodic
10 assessment, psychological assessments
11 undertaken with regard to Khalfan Khamis
12 Mohamed which is referred to in the earlier
13 stipulation. Again, that's K.K.M. 41.
14 MR. FITZGERALD: No objection.
15 THE COURT: Received.
16 (Defendant's Exhibit K.K.M. 41
17 received in evidence)
18 MR. RUHNKE: K.K.M. 42 is a
19 collection of Special Administration Measures,
20 sentence computations and disciplinary reports
21 provided by the Bureau of Prisons to
22 Dr. Cunningham in response to a stipulation
23 served on the Bureau of Prisons.
24 MR. FITZGERALD: No objection.
25 THE COURT: Received.
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2 (Defendant's Exhibit K.K.M 42
3 received in evidence)
4 MR. RUHNKE: Finally, your Honor --
5 I'm sorry. Also in this list of exhibits are
6 summaries of the allegations regarding several
7 individuals taken from the indictments
8 regarding those individuals. I'll specify:
9 K.K.M. 43 is excerpts of the charges
10 against Mamdouh Mahmud Salim. K.K.M. 44 is not
11 so much a summary as it is taking out of the
12 indictment the actual allegations regarding Ali
13 Mohamed. K.K.M. 45 is a similar document with
14 regard to al-Fawwaz. 46 is a similar document
15 with regard to Abdel Bary. 47 is a similar
16 documents with regard to Ibrahim Eidarous.
17 MR. FITZGERALD: No objection.
18 THE COURT: Received.
19 (Defendant's Exhibits K.K.M. 43
20 through 47 received in evidence)
21 MR. RUHNKE: Finally, we move the
22 following photographs, all designated K.K.M. PH
23 followed by a number. And we offer K.K.M. 12,
24 28, 15, 31, 32, 5, 8, 19, 22, 11, 9, 3, and I
25 note with regard to 11 and 3 that there may be
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2 a confusion about the designation. They are
3 either 51 or 11 or 43 or 3. We'll straighten
4 that out. Photo 38, photo 39, photo 72, photo
5 20 from CD number 2, photo 11 from CD number 2,
6 photo 9 from CD number 2, photo 21 from CD
7 number --
8 I'm sorry. Am I misstating the
9 photograph numbers?
10 Let me start again. Start with
11 number 51. I misstated some of these.
12 Starting with number 51 it's photo 9, photo 43,
13 photo 38, photo 68, photo 72, photo 93, photo
14 83, photo 102, photo 94.
15 And your Honor, we formally rest our
16 penalty phase at this point.
17 (Defendant's Exhibits K.K.M.-PH-12,
18 PH-28, PH-15, PH-31, PH-34, PH-5, PH-8, PH-19,
19 PH-22, PH-11, PH-9, PH-3, PH-38, PH-39, PH-72,
20 PH-20, PH-2, PH-51, PH-43, PH-68, PH-93, PH-83,
21 PH-102 and PH-94 received in evidence)
22 THE COURT: K.K. Mohamed rests.
23 MR. FITZGERALD: Your Honor, the
24 government will offer some stipulations.
25 THE COURT: Yes.
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2 MR. FITZGERALD: Government Exhibit
3 4306. It is hereby stipulated and agreed by
4 the parties:
5 1. On or about November 8, 2000,
6 Paul McAllister and Charles Adler were relieved
7 as counsel for Mamdouh Salim because they were
8 now in the position of being factual witnesses
9 against Salim. Accordingly, Salim could not
10 proceed to trial with his codefendants in
11 January 2001.
12 The government advised the court that
13 a separate trial of Salim, who was charged in
14 Indictment (S7) 98 CR 1023 with conspiracy
15 offenses, which carried the maximum penalty of
16 life imprisonment, but not with the embassy
17 bombings, would involve recalling many of the
18 same witnesses who would testify at the trial
19 scheduled for January which was projected to
20 last nine to twelve months.
21 The government also advised the court
22 that a trial of Salim for the effort to take
23 hostages on November 1, 2000 in the attempted
24 murder of Officer Pepe could be conducted in
25 far less time and would provide the same
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2 maximum penalty of life imprisonment. The
3 government thus advised the court that it
4 intended to proceed to try Salim for the
5 November 1, 2000 crimes and that if Salim were
6 convicted of the November 1, 2000 crimes, it
7 might no longer be necessary to expend the
8 resources to try Salim for the conspiracy
9 charged in (S7) 98 CR 1023.
10 Trial of Salim for the charges
11 arising out of November 1, 2000 is scheduled
12 for September 2001. Trial on the other
13 conspiracy charges has been postponed without
14 date.
15 After November 1, 2000, Salim and
16 Khalfan Mohamed were transferred to another
17 Bureau of Prisons facility. However, they were
18 both returned to the MCC 10 South Unit on
19 January 2, 2001, as Khalfan Mohamed needed to
20 be at the MCC for purposes of trial and Salim
21 needed to be present for preparation for his
22 case.
23 Before Khalfan Mohamed and Salim were
24 returned to the 10 South Unit, the warden made
25 arrangements to bring in lieutenants from
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2 institutions other than the MCC on a rotating
3 basis to supervise the 10 South Unit.
4 And that's signed, dated, and that's
5 Government Exhibit 4306.
6 THE COURT: Received.
7 (Government Exhibit 4306 received in
8 evidence)
9 MR. FITZGERALD: A second stipulation
10 is Government Exhibit 4305, which says: It is
11 hereby stipulated and agreed, by and between
12 the parties, as follows:
13 1. Government Exhibit 4329 are
14 medical records for Mamdouh Mahmud Salim
15 maintained by the Metropolitan Correctional
16 Center. It is further stipulated and agreed
17 that this stipulation may be received in
18 evidence as a Government Exhibit. We would
19 offer 4305 and the underlying record, 4329.
20 (Government Exhibits 4305 and 4329
21 received in evidence)
22 THE COURT: Received.
23 MR. FITZGERALD: And just reading
24 entries from 4329, it says: Inmate screening,
25 Mamdouh Salim, December 20, 1998. Next to the
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2 box, "Do you wear a brace or back support?"
3 The box "yes" is checked. Next to the box,
4 "Have you ever had or have you now shortness of
5 breath?" The box "yes" is checked. And
6 there's an entry on the second page,
7 handwriting, "History of LBP after carrying
8 heavy objects, occasionally have pain."
9 Government Exhibit 4309. It is
10 hereby stipulated and agreed by and between the
11 parties that: Consistent with Bureau of
12 prisons policy, Mamdouh Salim was seen by a
13 Bureau of Prisons psychologist at approximately
14 30-day intervals in order to assess: One,
15 mental status; two, adjustment; three, threat
16 to self; four, threat the others.
17 Government Exhibit 4308 contains true
18 and accurate copies of such reports current
19 through October 26, 2000.
20 We would offer 4309 and the
21 underlying records, 4308.
22 (Government Exhibits 4308 and 4309
23 received in evidence)
24 THE COURT: Received.
25 MR. FITZGERALD: Your Honor, at this
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2 time we would offer in evidence Government
3 Exhibit 4324, page 1 and 2, through lines 22,
4 which is a transcript of a proceeding involving
5 defendant Khalfan Mohamed on October 8, 1999.
6 MR. RUHNKE: No objection.
7 THE COURT: Received.
8 (Government Exhibit 4324 received in
9 evidence)
10 MR. FITZGERALD: And I would just
11 read lines 2 through 22 of that transcript:
12 "The Court (addressing attorney):
13 Does your client require an interpreter?"
14 The attorney for Khalfan responds:
15 "He speaks English, but his primary language is
16 Swahili. We have an Arabic interpreter.
17 Apparently his Arabic is better than his
18 English. I think he understands what he and I
19 discussed in English and he is prepared to go
20 forward today. In the future, if we can, we
21 would like to have a Swahili interpreter."
22 And then a prosecutor: "We will make
23 sure that gets arranged, your Honor.
24 "The Court: Mr. Mohamed, are you
25 able to understand me?
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2 "The Defendant: Yes.
3 "The Court: If at any time anything
4 is said which you want interpreted or which you
5 don't understand, will you please raise your
6 hand?
7 "The Defendant: Yes.
8 "The Court: Would you answer in
9 words? You are nodding your head. Would you
10 answer in words? Will you raise your hand if
11 there is anything that you don't understand?
12 "The Defendant: Okay. Yes."
13 Your Honor, we would also offer
14 Government Exhibit 4331, which is a transcript
15 of a hearing involving Mamdouh Salim on October
16 20, 2000.
17 THE COURT: Yes.
18 (Government Exhibit 4331 received in
19 evidence)
20 MR. FITZGERALD: And then I would
21 just read from page 357 of the transcript,
22 questioning by Salim's counsel of Salim, and:
23 "Q. Now, let me ask you, when you -- at that
24 time, which is almost two years ago, how was
25 your understanding of the English language in
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2 relation to now?
3 "A. I may speak in English now to expedite
4 matters to reduce the time, but I wish to have
5 the interpreter stand next to me in case I need
6 any assistance.
7 "Q. Well, how is your English, was it good or
8 bad? How was your English, your knowledge of
9 the English language when you were examined?"
10 Answer by Salim in English: "I
11 already studied the electrical engineering in
12 university for four years, and this was up to
13 1980, which is 20 years ago, and my language at
14 that time until now, or at least until the day
15 that they arrested me, it was technical
16 language. I can speak with an engineer for
17 hours, but with a lawyer it's very difficult
18 for me to speak for minutes. But after I'd
19 been arrested and then, unfortunately,
20 extradited here, I decided to improve my
21 language because I think this will assist me to
22 defend myself, hoping that I can win the case,
23 because I am innocent."
24 And we have one more stipulation,
25 your Honor. Strike that. Two more.
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2 Government Exhibit 4332:
3 It is hereby stipulated and agreed by
4 and between the parties that Government Exhibit
5 4326 is a copy of the subpoena provided to the
6 Bureau of Prisons requesting information
7 concerning 20 designated inmates. Government
8 Exhibit 4331A to 4331Q are copies of the
9 computerized disciplinary records of 19
10 inmates. The 20th name requested, Abdel Rahman
11 Yasin, is a person who was a fugitive who has
12 never been in custody and for whom there are,
13 thus, no records.
14 Government Exhibit 4315 is a copy of
15 the computerized disciplinary record of Abdel
16 Hakim Murad convicted with Ramzi Yousef and
17 Wali Khan Amin Shah of conspiring to bomb
18 airliners in the Philippines after being
19 extradited to the United States in 1995.
20 The computerized disciplinary records
21 referred to above are distinct from the
22 incident reports provided to Dr. Mark
23 Cunningham concerning the administrative
24 maximum prison at Florence, Colorado. The
25 complete set of incident reports pertaining to
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2 the prison at Florence provided to
3 Dr. Cunningham consist of thousands of pages
4 and was thus not offered as an exhibit.
5 And we would offer Government Exhibit
6 4332 and the exhibits referred to therein,
7 Government Exhibits 4326, 4331A to 4331Q and
8 4315.
9 THE COURT: Received.
10 (Government Exhibits 4332, 4326,
11 4331A through 4331Q and 4315 received in
12 evidence)
13 MR. FITZGERALD: And I'm corrected
14 that it is 4331A to S, so we would offer 4331R
15 and S at this time also.
16 Finally, your Honor, Government
17 Exhibit --
18 THE COURT: Received.
19 (Government Exhibits 4331R and S
20 received in evidence)
21 MR. FITZGERALD: 4307 is a
22 stipulation. It is hereby stipulated and
23 agreed, by and between the parties, that:
24 Government Exhibit 3050 is a copy of
25 a portion of a videotape that aired on the
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2 Al-Jazeira channel (an Arabic-language
3 broadcasting service in the Middle East) on or
4 about September 20th, 2000. In addition to the
5 broadcaster, the speakers in the entire
6 videotape were Usama Bin Laden, Ayman al
7 Zawahiri, Refai Ahmed Taha Musa and Sheik
8 Asadallah, the son of Sheik Omar Abdel Rahman.
9 Government Exhibit 3050 is the portion of the
10 videotape which includes Usama Bin Laden's
11 statements.
12 Government Exhibit 3050T is a fair
13 and accurate translation from Arabic into
14 English of Government Exhibit 3050. The
15 persons referred to by Usama Bin Laden include
16 Sheik Omar Abdel Rahman, el Sayyid Nosair,
17 Mohamed Rashid Dauod Al-'Owhali and Osama
18 Mullah Haydar (an alias of Wali Khan Amin
19 Shah).
20 The date the videotape was made is
21 not known. However, it is believed to have
22 been made at some time in the year 2000, when
23 defendants Mamdouh Salim, Wadih El Hage,
24 Mohamed Sadeek Odeh, Mohamed Rashed Dauod
25 Al-'Owhali and Khalfan Khamis Mohamed were in
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2 American custody.
3
4 (Continued on next page)
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[Cryptome note: Repetition of page numbers in the original.]
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2
3 It is further stipulated that Sheik
4 Omar Abdul Rahman was arrested in August 1993
5 in the Metropolitan New York area and later
6 charged with various crimes, including the
7 crime of seditious conspiracy, in essence, the
8 crime of conspiring to make war against the
9 United States from within the United States,
10 which conspiracy included among its overt acts
11 the bombing of the World Trade Center and
12 efforts to bomb various locations in New York
13 City, the Holland Tunnel, the Lincoln Tunnel,
14 the FBI building at 26 Federal Plaza, and the
15 United Nations building.
16 However, Abdul Rachman was noted
17 charge with the crime of bombing the World
18 Trade Center. Abdul Rachman was convicted of
19 seditious conspiracy after a trial in the
20 Southern District of New York in 1995, and was
21 also convicted at that time of conspiracy to
22 murder Egyptian President Murabak in
23 retaliation for the arrest of Mahmoud
24 Aboulahima separately convicted for the
25 February 1993 World Trade Center bombing.
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2 It is further stipulated that El
3 Sayed Nosair was convicted at the same 1995
4 trial in the Southern District of New York with
5 Abdul Rahman and others participating in the
6 same seditious conspiracy. In addition, Nosair
7 was convicted of the November 5, 1990 murder of
8 Rabbi Mayer Kahane in New York.
9 It is further stipulated that Wadi
10 Khan Amin Sha, a/k/a Marhedra, a/k/a Asmiri was
11 convicted in the 1996 trial in the Southern
12 District of New York of conspiracy to bomb
13 approximately 12 commercial airliners
14 registered to American carriers based upon
15 conduct in the Philippines and elsewhere in
16 late 1994 and early 1995, and of attempted
17 escape while awaiting trial in the Southern
18 District of New York.
19 We would offer Government Exhibit
20 4307, the stipulation, Government Exhibit 3050,
21 the video, and a transcript Government Exhibit
22 3050-T.
23 THE COURT: Received.
24 (Government's Exhibits 4307, 3050,
25 and 3050-T received in evidence)
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2 MR. FITZGERALD: At this time, your
3 Honor, I'd like to just hand out the single
4 page transcript, 3050T, and play the exhibit.
5 THE COURT: Yes.
6 (Government Exhibit 3050 played)
7 MR. FITZGERALD: The government
8 rests.
9 THE COURT: The government rests.
10 We'll take a very brief recess.
11 (Continued on next page)
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2 (Jury not present)
3 THE COURT: What is the status of the
4 instruction to the jury with respect to
5 consideration of matters introduced during the
6 Al-'Owahli penalty phase?
7 MR. RUHNKE: Your Honor, the status
8 is that we decided to offer nothing.
9 THE COURT: Nothing. So that the
10 instruction to the jury ignores any reference,
11 they are to consider only what happened at the
12 liability phase and this phase. Is that
13 correct?
14 MR. FITZGERALD: Yes, Judge.
15 THE COURT: All right. We'll take a
16 very brief recess.
17 (Recess)
18 (Continued on next page)
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25
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2 (In open court; jury present)
3 THE COURT: As you have heard both
4 sides have rested and so we're now at the stage
5 where attorneys make their closing arguments.
6 Mr. Fitzgerald.
7 MR. FITZGERALD: Thank you, Judge.
8 Good morning. This morning I rise to
9 speak to you for the last time in this case, as
10 you consider the most serious questions a jury
11 could ever decide, whether the defendant Khamis
12 Mohamed should be punished by life imprisonment
13 or by the death penalty.
14 But I begin by reminding you of one
15 thing, why it is here, why you are here to
16 decide that. You are here to decide that
17 because of him, because he chose to kill and to
18 murder on August 7, 1998; because he chose to
19 participate with Salim in an attack on November
20 1, 2000. And I tell you that because some of
21 the evidence you have heard, some of the things
22 that have been said, some of the things
23 presented to you particularly quite recently,
24 might make you forget that.
25 You've heard about a year in South
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Summation - Fitzgerald
2 Africa at Burger World where he was a model
3 employee and a model guest. Well, recognize
4 that he's here today because he made choices.
5 Things didn't happen to him. There is an
6 impression created at times that we're here
7 because things happened, bombings happened and
8 assaults happened. No, he did them. He
9 murdered people. He assaulted them.
10 Counsel for Khamis Mohamed in the
11 opening had told you candidly, did it, when he
12 spoke to the FBI he had no remorse, and they're
13 not running from the facts. But since that
14 time there has been some quiet role marking.
15 At the end of the guilt phase, counsel for
16 Khamis Mohamed made it sound like the weather,
17 and I remember quote as the world turns, as
18 events go. If Khamis Mohamed had left to go to
19 London to start a new life probably the embassy
20 would have been bombed on August 7, 1998
21 anyway, and that would not have changed, but
22 everything would have changed for him, and he
23 would not be sitting here facing your judgment,
24 but that's not how the world turned, as if the
25 bombing was something that happened to Khamis.
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Summation - Fitzgerald
2 In the beginning of the penalty
3 opening it was stated that it was to Khamis'
4 everlasting bad fortune that he sat in a cell
5 with Mandouh Salim, but that's not what
6 happened. It was to Officer Pepe's everlasting
7 bad fortune that the two of them got together
8 in a cell and tried to take him hostage and
9 savagely assaulted him.
10 During the testimony of Ms. Miller a
11 question was asked of her: Now, there came a
12 time when Mr. Mohamed became involved with a
13 group of people in Dar es Salam and at the end
14 of that process the American Embassy was
15 bombed. It wasn't a process. It was a choice.
16 It was an act. It was murder and we have to
17 remember that. This man decided on August 7,
18 1998 that people could die in an embassy with a
19 bomb he helped build, lined it with TNT and
20 made sure the truck got there. He thought that
21 he would die and he could run away, he would
22 abandon his family, lie to them, where he went
23 to South Africa and pretend to be a nice guy.
24 He Didn't give a damn about the people he
25 killed. He didn't give a damn about the people
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2 he left behind and when he was caught he said:
3 I did it, not because he was sorry, he
4 threatened to do it again.
5 On November 1, 2000 he and Salim
6 struck again. This is not the weather. It's a
7 person who killed in cold blood and will do it
8 again if given the chance.
9 Let's review the facts. Review the
10 facts about the bombing and the assault, and
11 remember who he is, what he has done, why he is
12 here, and why you are asked to make this
13 judgment.
14 You may forget that when he went to
15 Afghanistan remember how far away Afghanistan
16 is from Tanzania, how little people can leave
17 that island. He made a choice to go. He made
18 a choice to go. He paid his own way. He went
19 to Afghanistan and what did he do in
20 Afghanistan? He received training. How much
21 training did he receive? I bet you just about
22 everyone in the room has forgotten.
23 We heard about that little year in
24 South Africa where he was making burgers and
25 making broiled chicken. He really was trained
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2 for a little less than a year, and of fantan,
3 check the reports, check Agent Perkin's FBI
4 report. He admitted he was trained for nine to
5 ten months. And he told you Khamis Mohamed
6 told you through Agent Perkin's that he was
7 trained in light weapons, handguns and rifles.
8 He was trained in surface to air missiles and
9 rocket launchers. That's what he was doing in
10 Afghanistan. He wasn't running to get fanta.
11 He was getting trained on how to kill people.
12 Then he received advanced training.
13 He went for advanced training in how to wire a
14 bomb, advanced training in detonators. He was
15 not trained in how to make the bomb. So when
16 he had this image of Khamis Mohamed sitting
17 there in Dar es Salaam he knew how to kill, he
18 knew weapons, he knew how bombs worked. And
19 what did he do after nine to ten months of
20 training in Afghanistan? You heard he later
21 went to Somalia. This is long after the
22 Americans are gone. This is 1997.
23 He went to Mombasa. He went to
24 Somalia and he went through Mombasa and
25 Somalia. That's when he met the Hussein
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2 fellow, Ustafa Fadl told you heard about at the
3 guilt phase. That's when you heard about
4 Mohammed Odeh. What did he admit to Agent
5 Perkins he did there? I was a trainer. He
6 wasn't getting trained in Somalia. He was
7 training other people. He said it was possibly
8 with Al Quaeda the group you heard about at the
9 guilt phrase. He sold guns. He sold rifles.
10 He sold rocket launchers. He sold surface to
11 air missiles. That's Khamis Mohamed. He's not
12 on the island of Pemba. He's in Afghanistan
13 and in Somalia being trained and training.
14 Let's talk about the bombing. What
15 happened with the bombing? He made a choice,
16 Hussein, the Hussein we hear about was a
17 phantom. Hussein came to him and asked him to
18 do a jihad job, and it was not asked because he
19 said if you don't do it you have to keep it a
20 secret that I asked you. He gave him a choice.
21 He had free will. He could decide to do the
22 jihad job or not. He's not brainwashed. But
23 he didn't equivocate. No moral struggle. He
24 did it. And what did he do as part of the
25 plot? He did a variety of things. He rented a
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2 house, the second house let's talk about, and
3 he brought the Suzuki, the Suzuki that was used
4 to transport things.
5 Well, we heard a lot about, well, you
6 know, he rented a house in his true name. How
7 much of a jihad guy is he? That was his role.
8 He was the local guy. He knew the people in
9 Tanzania. He can't walk up and say, let me
10 rent this house an let me use the name John
11 Smith. That would be suspicious. Let me buy
12 the Suzuki and use a fake name. That would be
13 suspicious.
14 What he's got to do is he's a local
15 guy to make sure things get done, to get things
16 rented, to get things bought and then the smart
17 jihad guy has to get them documents and get out
18 of town, which is exactly what he did. Besides
19 renting the house, besides getting the Suzuki,
20 he ground the TNT.
21 Now, let's talk about that. First of
22 all, you'll hear, sure, it's low-level work
23 that also important people did Abu Rahman the
24 guy who wired the bomb in Nairobi, the guy who
25 wired the bomb in Dar es Salam, Abdul Rahman,
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2 and that defendant were grinding the TNT. You
3 could almost forget because in abstract reality
4 in the courtroom sometimes because you're not
5 there watching what that means. You saw the
6 grinder. The TNT is in clumps. Somebody
7 sitting there grinding, grinding a bomb. He
8 knows it's to kill people. That's what a bomb
9 is for. And he's grinding and grinding away.
10 Abdel Rahman and Khamis Mohamed grinding away a
11 mixture of death.
12 What did he tell you? He told you
13 through Agent Perkin's that he knew what the
14 target was. Five days before the bombing he's
15 told the target is the American Embassy in
16 Tanzania. No moral struggle, no hesitation.
17 He continues. He knows they're bombing a
18 building an American building in Tanzania and
19 people will die.
20 He told you no one was fooled. He
21 knew what is going on. He was in the camps.
22 He's trained in wiring bombs. He watched them.
23 He described how the truck was loaded, cylinder
24 bomb parts, cylinder bomb part, this is to hold
25 the cylinders. He watches it get wired right
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2 up to the dashboard so Ahmed can press the
3 button. He does what he can. He stays behind
4 because he is the local guy who can get things
5 done.
6 They leave. They need a bomber and
7 they supplied someone to make sure the truck
8 gets to the embassy, and he does that. When
9 the truck is stuck in the sand and they get it
10 out of the sand, they're still worried, well,
11 we can't have people get stuck in the sand
12 again. He arranges to have a tow truck driver
13 on Uhuru Road in case there is a problem.
14 And then after the truck goes on its
15 mission of death to where it's going to kill
16 eleven people and injure dozens of others, what
17 does he do? He goes back home and he prays,
18 and he's listening for the sounds of the bomb.
19 It is unlike what he told Dr. Post
20 five weeks back, he knew it wasn't a bomb in
21 Somalia which he wouldn't hear. He knew it was
22 a bomb in Tanzania, and he waited for the
23 sound. When he heard the sound, the explosion
24 he couldn't hear it, he turned on the TV and
25 saw the building had been bombed.
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2 Let me display Government Exhibit
3 3,000. That's the fellow countrymen, a hard
4 working Tanzania man, working to put food on
5 the table to support his family, being carried
6 out to die. And when he hears from the TV that
7 the bomb went off and people are dead, he's
8 happy. Then he turns to bring his own nephew
9 uses his own nephew to get rid of things and
10 sends a grinder off to the islands, buries the
11 rest of the stuff in the pit in the backyard.
12 We hear a lot about, gee, that proves
13 he's a nice guy that he brought his nephew in
14 to get rid of the some of the bomb stuff from
15 the bomb factory, and he sent his family, first
16 he cleaned, and he told him to clean the bottom
17 line in that grinder in the family home in
18 Zanzibar in the island is not going to get him
19 caught.
20 To get there you have to figure out
21 where the bomb is in that house at 213 Ilala,
22 who did it. By the time they get to their
23 family's house they have long figured out, what
24 he did was he lied to his family and told them
25 he was going somewhere else.
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2 He took the identity card and went to
3 South Africa. He went to South Africa and
4 claimed political asylum, lied to the South
5 Africans that he's got to be protected from
6 other people. Certainly didn't tell them, I
7 just murdered eleven people in cold blood and
8 didn't care about them. Instead, went down
9 there seeking their protection.
10 You know what else? Before he left,
11 before the others left they gave Khamis Mohamed
12 three telephone numbers. Two were in Yemen,
13 and one was in Pakistan. We heard a lot about
14 Khamis Mohamed supposed to be expendable. But
15 remember, Al-'Owahli was expendable. He was
16 supposed to die, but did not. Azzam was
17 expendable. He did die, the driver of the
18 truck in Nairobi. Ahmed the German was
19 expendable. He did die in the truck in
20 Tanzania.
21 But they left numbers for him. They
22 gave him the same thousand dollars Odeh got.
23 He got his own passport like Odeh did, and they
24 gave him these numbers.
25 But did they care about him, they
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2 gave him three numbers he couldn't check.
3 Maybe they were to a toll booth on the Jersey
4 Turnpike. Well, you know in fact that the
5 numbers were real. One of the numbers in Yemen
6 was the number 415923. If you look up Yemen,
7 the phone number 4159123, and you want to
8 figure out, gee, is that a jihad number? Is
9 that a real contact? Look at Bin Laden
10 satellite telephone number. Remember that
11 number we used to hold up on the board?
12 Look at the bill for Bin Laden's
13 satellite phone called that number thirty-four
14 times in the phone records. There is another
15 record, another number he was given in Yemen
16 219036 for Abu Rahman that shows up was in
17 London. Yemen 219036, you can see at the third
18 entry Abu Rahman Ben Mohammed Alyafad. 219036.
19 It shows up in Wadih El Hage's pop up phone
20 book. That same number, 219036 in Yemen.
21 They gave him contacts. He admitted
22 he used it and called once in Yemen and spoke
23 to Abu Rahman, but his phone card ran out so he
24 didn't have a longer conversation. I submit to
25 you he was given contacts and money and told to
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2 escape to live to fight another day. Sadly he
3 did, because he fought another day and Officer
4 Pepe will pay for that the rest of his life.
5 He also took those numbers and he
6 wrote them backwards in a piece of paper not to
7 preserve them, but to hide them. Writing the
8 digits backwards. That's Khamis.
9 You heard how sad he was when someone
10 maybe asked him to go get a fanta, but that's
11 not what this case is about. He made a choice.
12 He chose to go to Afghanistan and train. He
13 chose to go to Somalia to train. It was he who
14 wanted to do a jihad job or not, and he was not
15 brain washed. The difference between Khamis
16 and a lot of others is Khamis does not have
17 fire in his eyes. What he has is ice in his
18 veins, and that's what makes him more dangerous
19 because he coldly coolly decides I'll kill, I
20 won't look back, I'll go, be nice to people in
21 South Africa and I'll come to America. When
22 the chance is given to attack Officer Pepe,
23 he's in there.
24 Cold, cool, zero remorse. And where
25 do you see that? In October of 1999 in South
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2 Africa. There he is in South Africa and he is
3 finally caught. We hear from other people that
4 October 1999 how he wouldn't hurt an ant, but
5 when he's caught, what does he tell the FBI?
6 Yeah, I did it. Not because he's sorry, not
7 because he cares that eleven countrymen, his
8 own countrymen are killed, fellow Tanzanians,
9 fellow Muslims, not because he cares about
10 their family, okay, and recognize it. He's
11 putting his family through a lot, but those are
12 his choices. His choice on August 7th, his
13 choice on October 1999, his choice in November
14 2000. He didn't give a damn about the people
15 he killed or their families. And he told the
16 FBI on these days after having a year to
17 reflect that he read very little about the
18 bombing. He wanted to know what happened.
19 Can you imagine anyone murdering
20 eleven people and not bothering to look what
21 happened? And what he said was: He wanted to
22 kill Americans. The soldiers were such a hard
23 target, so they went after embassies. The
24 bombings were a success because they tied up
25 investigators. He was not sorry that
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2 Tanzanians were killed. You saw those victims.
3 Hard working people, guards, just trying to put
4 food on the table and he didn't care. He said
5 if he hadn't been caught he would have
6 continued to kill Americans and hope that
7 others would carry on and he would carry on if
8 he could.
9 That brings us to the assault.
10 Remember one thing in this case that if there
11 is one person you heard about in this trial, in
12 fact, there is only one person on this entire
13 planet who participated both in the bombings of
14 August 7, 1998 is Khamis did in Tanzania, and
15 in that assault in November 1, 2000 on Officer
16 Pepe. Here is the man who's caught for one
17 terrorist act and engages in another while
18 awaiting a trial while awaiting a chance for
19 justice. Let's talk about the assault.
20 When you look at the assault I ask
21 you to focus on five different areas. First,
22 focus on the preparation, the chronology, the
23 days before the attack. Second, focus on the
24 location where the attack, the maiming, took
25 place. Third, focus on the conduct of fighting
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2 the officers when they respond to the attack
3 because it tells you several things we'll go
4 through. Fourth, focus on what Officer Pepe
5 told you through three different witnesses
6 about the fact that it wasn't a them who he was
7 fighting. Finally, look at the forensics with
8 the blood, what the evidence, what the DNA
9 shows you.
10 Make no mistake about it. Salim was
11 a prime mover in the attack. Salim was angry.
12 He was upset. Now he's playing crazy. He's
13 pulling a Klinger saying, how he's nuts, he
14 wasn't responsible. He's a prime mover. But
15 make no mistake about it, this man was in it
16 with him. And we'll walk through the proof.
17 Let's start with the ten days prior
18 to the assault. You know some things happened.
19 You heard about Salim complaining about his
20 attorneys. You heard about him trying to get a
21 severance. He wasn't charged in the bombing,
22 didn't like the result. There are things going
23 on. You've also heard a lot about Ali Mohammed
24 which you may recall last week when you heard
25 him, plead guilty, and you have the transcript,
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2 he pled guilty to all the charges naming him.
3 It was in open court, when he walked in and
4 said: I'm guilty in a straightforward way.
5 When he pled guilty the date was October 20,
6 2000, ten days before the attack. Six people
7 awaiting trial, this trial in this courtroom.
8 Ali Mohammed pleads guilty. Don't you think
9 that hit the other five hard? Don't you think
10 they'd be talking about that in the period
11 October 20th to November 1st. Move forward
12 five days.
13 October 25th, cell rotation. Salim
14 is brought from another cell to cell number 6
15 then October 25th. Khamis Mohamed is brought
16 to another cell, to cell number 6 on October
17 25th. The people in cell 6 are moved out.
18 Their belongings are taken away. Salim and
19 Khamis Mohamed are brought in. No shanks. The
20 Afro comb turned into a bayonet stuck into
21 Pepe's eye and brain. The hair brush turned
22 into a jabbing knife. You can feel it through
23 the plastic. It still has a sharp edge. Those
24 were made. You can't bring a shank with you to
25 the new cell. Those shanks were made between
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2 October 25th and November 1st. And you know
3 what? Look at the picture, look at the
4 picture, Government Exhibit 4039 which is a
5 picture of what's underneath that concrete desk
6 in the 10 South unit and remember one of the
7 things you'll see is the construction up in the
8 ten south unit, a lot of it is awful light,
9 that supersecure prison you heard about in
10 Florida, stainless steel showers, concrete
11 desks, things like that.
12 Agent Hatton told you Government
13 Exhibit 3049 is the markings of something going
14 back and forth underneath the concrete desk.
15 It's Salim and Khamis Mohamed at work making
16 weapons on October 25th and November 1st.
17 You'll hear about the cell rotation
18 the log, the activity log in the period of
19 October 25 and November 1, and you'll see that
20 sometimes Salim was out of his cell, sometimes
21 Khamis Mohamed was out of his cell. And I'll
22 do some rough math and you can check it
23 yourself, but it's 168 hours between the
24 morning of October 25th and the morning of
25 November 1st, Khamis Mohamed was out of his
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2 cell about seven hours in that time. Salim was
3 out of his cell about nine and a half, roughly
4 nine and a half ten hours during that time.
5 They were out at the same time in different
6 rooms for about two and a half hours. So they
7 were apart for about 14 hours. They're
8 together for 154 hours.
9 And think about Mr. Ruhnke's opening
10 about being stuck in a Holiday Inn room with
11 nothing to do for the rest of your life. Well,
12 think about being stuck in a smaller Holiday
13 Inn room with a cellmate. Think about being
14 stuck in that room when you're angry, and Salim
15 didn't hesitate to share his feelings with
16 anyone, about how he was feeling.
17 Think about being stuck in a room
18 when someone just plead guilty, and think about
19 Khamis being stuck in the room with someone who
20 is an authority figure an educated religious
21 person, and from what we've heard that's what
22 Khamis listens to, if you're educated and
23 you're religious, he follows you. That's the
24 two of them, October 25th to November 1st,
25 spending their time in a cell together, shanks
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2 being made.
3 Something you haven't seen yet. If
4 you look at Government Exhibit 4020 which is a
5 photograph, there is a stipulation you heard
6 that Khamis Mohamed had glasses. Those are his
7 glasses. That is his bed. That is bed number
8 one. On this big chart here you saw that bed
9 number one is here. Bed number two is on the
10 wall. Khamis' glasses are in bed number one.
11 Why is that important? Because you later heard
12 that there is a brush by bed number two.
13 Government Exhibit 4036. 4036 is a picture of
14 the brush in Salim's bed. Why is that
15 important?
16 Well, in the year 2000 the defendant
17 Khamis Mohamed brought two brushes, I believe
18 the record shows April and May, and Salim
19 brought a brush in August of 2000. That's
20 Salim's brush. The agents who searched ten
21 south and cell 6 say that's the only brush they
22 found other than this one. This is Khamis
23 Mohamed's brush turned into a weapon. This is
24 Khamis Mohamed's brush. And we'll show you
25 later it was stuck in Pepe's head, because
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2 there is blood on it. There was blood on it.
3 There was a picture of it and the blood is
4 determined by the DNA person to be Officer
5 Pepe's blood.
6 There are two weapons that attacked
7 Officer Pepe, one Afro comb to be clear is
8 bought by Salim; the brush we submit to your
9 common sense tells you was Khamis, unless of
10 course we think Salim was secretly making a
11 weapon hiding it from Khamis Mohamed, using
12 Khamis' own brush. He uses his brush everyday.
13 Khamis had longer hair back then. You probably
14 saw the Otisville video. He had longer hair.
15 There was a saran wrap rope hidden
16 underneath the prayer rug on Khamis Mohamed's
17 bed number one, and you saw a picture of how
18 the saran wrap was used around the shoes, but I
19 submit to you the ones that were hidden around
20 the shoes were short ones, and we'll show the
21 picture later.
22 The rope in his bed was different.
23 It was an area there is to put something in,
24 and there is a long string. This is not to tie
25 your shoes together. You can take this rope.
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2 It is strong. There were sheets, strips of
3 sheets, nine stips of sheets found in that
4 cell, cell number 6, ripped into strips of
5 cloth. And you saw, and let's just put this up
6 for a moment, you saw when they searched it
7 later, two of those strips had blood on them,
8 Officer Pepe's blood.
9 These items, 4082, Pepe's blood was
10 found on those strips. Mr. Ruhnke told you
11 that it was to Khamis' everlasting bad fortune
12 they were put together. I submit to you it was
13 to Officer Pepe's. The preparation notes, and
14 we'll agree, assume Salim wrote the preparation
15 notes. There are prints on the document
16 reference to asthma. There is some
17 handwriting. The point is what is he doing
18 with his cellmate? It says here: Preparation
19 notes indicate observation that the TV may not
20 be working. They're aware that the tapes may
21 not work, but to be careful. There is
22 indications about the 46 door which is what
23 Officer Jacobs told you was the first door when
24 you come up to the sally port to get to 10
25 South. There is talk about tying one hand to
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2 the door, obviously, tying the hand of Officer
3 Pepe to the door. Talk of dividing the work of
4 the preparation, the hunting and attack, and
5 you know that's what Salim would do, divide the
6 work with preparations the hunting and attack
7 was Khamis.
8 There is talk about keeping an eye on
9 the back. What does that mean? I should have
10 left this up. If you look the stairs that's
11 always used is over here. That's where people
12 come in. But there's a back stairs and they
13 are going to take hostages up there. You don't
14 want to be surprised from behind. You don't
15 want to run out front to be exposed from
16 behind. Where is Khamis when they come up?
17 He's back by the electrical room also by that
18 box that's been tampered with.
19 There has been some indication from
20 the psychiatric report by Salim that he had
21 trouble talking to his cellmate. Well, what
22 you now know from the transcripts is Khamis
23 talks well enough to understand the proceedings
24 in English. When he was first brought here,
25 Khamis indicated his Arabic was better, and the
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2 entire statement given to Agent Perkins in
3 South Africa was in English. It wasn't through
4 an interpreter. You can see a thirty page
5 report single-spaced that makes sense. He
6 speaks English. Salim, Salim learned
7 electronic engineering in English. He's
8 explaining in English how well he knows English
9 in that other proceeding. They both speak
10 English. They both speak Arabic better. There
11 is no problem with them communicating.
12 Now, let's talk about the location.
13 What you've seen from the chronology is there
14 is a plea on October 20th. They are put
15 together on October 25th. The shanks are made
16 in the cell. Khamis doesn't have a brush when
17 they search the cell later that he bought two
18 that's clear and Salim brought the Afro comb.
19 Mr. Ruhnke said in his opening that
20 Mr. Garcia was playing fast and loose and what
21 he said is, on the day in question when I talk
22 about Mr. Garcia playing fast and loose with
23 the facts, this is what I mean: He told you
24 that Officer Pepe went back to the cell, the
25 door was opened and he was attacked. He
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2 doesn't know that to be true. And no one knows
3 that to be true. In fact, the responding
4 officers believe that Officer Pepe was attacked
5 as he was escorting Salim back to his cell.
6 Close quote.
7 So he accused Mr. Garcia of playing
8 fast and loose with the facts and led you to
9 believe the assault occurred outside cell 6. I
10 submit to you the overwhelming evidence is that
11 Officer Pepe was savagely attacked inside cell
12 6.
13 Why don't we show Government Exhibit
14 4019. These are Officer Pepe's keys. Now, the
15 keys, there are other keys to the cell door
16 which he later heard Salim had in his hands and
17 when he was apprehended that keys of Officer
18 Pepe which he was trying to use with him when
19 he's apprehended. The balance of his keys
20 which have the chits which show Officer Pepe's
21 name that's by the blue box in cell number 6.
22 His keys taken off in cell number 6. To the
23 right is an identity badge the badge being on
24 the chest of his shirt. Officer Pepe's badge
25 found in cell 6.
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2 Show 4018, 4021, for something that
3 after hearing Mr. Adler's testimony mean more
4 to you. Mr. Adler told you that after he was
5 meeting with Salim and Salim wanted to go back
6 to his cell and Adler and McAllister in the one
7 room Salim took a Redwell his files and put a
8 jump suit on top, and was holding them a
9 Redwell and a jump suit when he left the cell
10 uncuffed, escorted by Officer Pepe.
11 And he walked and talk over by the
12 other cell near where Dratel and Schmidt were
13 meeting with El Hage and that's the last he saw
14 of him. But there's Salim going back to his
15 cell with a Redwell and orange jump suit. The
16 Redwell, look at 4018 and look at 4021 got all
17 the way back to Salim's bed. The jump suit,
18 you can see the jump suit in the picture that,
19 the jump suit in pictures covered with blood,
20 Officer Pepe's blood on the jump suit is back
21 right here in cell number 6.
22 No one is going to tell anyone that
23 Salim, who by the way is 42 years old, has a
24 bad back, has asthma, is short of breath,
25 that's what we know about his condition. His
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2 picture we'll put up Government Exhibit 4121.
3 This is his picture that was taken in December
4 of 1998.
5 Now, Mr. Ruhnke had told you in his
6 opening that there is one thing you didn't know
7 about Salim, and I'll get it correct. I want
8 to quote it correctly. Quote: Something you
9 don't know about Salim is that he's a very
10 physically powerful man, a tall and strong man.
11 Well, here's Hercules in December of 1998;
12 asthma, bad back, shortness of breath and that
13 stipulation you heard about says he lost thirty
14 pounds since that photograph, and lost muscle
15 tone.
16 So on November 1, 2000, this man
17 after losing thirty pounds and muscle tone with
18 a bad back and asthma was taking on Officer
19 Pepe, an officer who weighed 250 to 260 pounds
20 and is trained in disturbance response. He
21 didn't take him on in the cell, and at the same
22 time carry back his Redwell, place it on his
23 bed and bring the jump suit in there.
24 How about the hot sauce stains,
25 government Exhibits 4016 and Government Exhibit
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2 4032? Look at those stains on the wall. There
3 are some are yellow, some are blood red. And
4 look at 4032 you can see the yellow on the side
5 of the shower, yellow on the floor of the
6 shower, and, obviously, you have Officer Pepe's
7 tie and his tie clasp in the shower. It looks
8 like someone came at Officer Pepe with this hot
9 sauce, sprayed it in his eyes, sprayed it in
10 his eyes trying to distract him so someone else
11 can attack him, and someone else came from him
12 at the side in cell 6. There is hot sauce in
13 the shower. The tie is in the shower. The ID
14 is just around the corner. The keys are in the
15 corner and the jump suit and the Redwell place
16 Salim at the back of the cell for a while;
17 awful lot like someone coming from the side,
18 the way Khamis Mohamed did when the officers
19 responded. But, certainly, Officer Pepe was
20 attacked in cell 6.
21 Look at 4023 and 4034. Look at the
22 blood, 4023, sorry, 4034. But, again, that
23 shows you some of those strips that had
24 Officers Pepe's blood found in cell 6. Look at
25 the blood in 4023. Look at the blood on the
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2 floor that large piece of the jump suit, the
3 rest of the strips and you see a bit of Saran
4 wrap rope lying on the floor.
5 That blood, you can blow up 4023 by
6 itself, that blood is Officer Pepe's blood,
7 4023. That blood, look at the pile of blood
8 there. That's Officer Pepe bleeding profusely
9 from the attack in cell 6. Of course you have
10 a camera. The camera in the cell was blocked
11 and of course the most obvious fact, where do
12 you find Officer Pepe? Where do you find
13 Officer Pepe with a shank, a bayonet sticking
14 through his eye deep into his brain? Cell 6.
15 And what does Officer Pepe tell
16 people, three different people: I fought them.
17 They were in cell 6. I submit to you when Mr.
18 Garcia told you that the attack happened in
19 cell 6, that's exactly what the evidence
20 proved. And Mr. Ruhnke told you it happened
21 outside, that was wishful thinking, because
22 when you find out that the attack happened in
23 the cell with Salim and the man who looks up to
24 him as a religious and educated figure, your
25 common sense tels you he was part of it.
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2 What happened on November 1st? Well,
3 Mr. Ruhnke opened to you and said, quote: The
4 evidence will be that Khamis Mohamed was seated
5 on the floor outside of cell number 6 and never
6 left that spot after Salim attacked Officer
7 Pepe. Close quote.
8 He has no burden to prove anything.
9 But I tell you if you stand up here and say
10 something, it's not borne out. Where is the
11 evidence that he sat on the floor and did
12 nothing? The attack happened in cell 6, and
13 you know what? His shirt has Officer Pepe's
14 blood on it. His sweat pants have Officer
15 Pepe's blood on it and the tops of his shoe has
16 Officer Pepe's blood on it. You don't get that
17 sitting outside doing nothing.
18 Now we know from Adler and McAllister
19 what happened in the morning of November 1st,
20 but think about the chronology. McAllister
21 shows up first. Adler comes later. They talk
22 to Officer Pepe. Everyone concedes world's
23 nicest guy, and he says, let me go find out if
24 Salim, your client, will see you. And he comes
25 back and tells McAllister, he's thinking about
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2 it. What does that tell you? Salim's got this
3 plan in mind to escape, to attack, to work
4 together to divide the hunt, the preparation
5 the attack, while Officer Pepe is talking to
6 Paul McAllister Salim and Khamis Mohamed are
7 back in cell 6. And what do you think they're
8 talking about?
9 And when Adler arrives, he goes back
10 to check on Salim, and sees Salim is praying,
11 and you can see the prayer rug is right down
12 there in the middle of the blood spot and he
13 says: I'll give him another ten minutes. I
14 don't want to interrupt his prayer. So Officer
15 Pepe showing kindness, trying to help a
16 defendant prepare for this trial, leaves him to
17 pray for ten minutes, goes back and talks to
18 McAllister and Salim.
19 Who's alone with Salim, Salim the man
20 who wants to prepare the attack, divide the
21 hunt, prepare the preparations, Khamis Mohamed.
22 Then he comes back and says: Salim wants to
23 use the computer. So he takes Adler and
24 McAllister and locks them in that room, and
25 while he's doing that, Khamis and Salim are
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2 together. You think he talked to the other guy
3 who filed the hair brush into a shank? You
4 think the guy who turned the Afro comb into the
5 shank, the guy with the hair brush sat and
6 talked? Of course they did.
7 Now, let's talk about the first
8 response. After this happened 15 minutes are
9 going by and they finally get the keys, Officer
10 Jenkins, Maiden, Carrino and others come
11 running down the hall. When they turn the
12 corner, they see Salim with a key, opening the
13 door to cell 6, and running into cell 6 where
14 they did not know at the time Officer Pepe was
15 there bleeding.
16 Where was Khamis? When Officer
17 Jenkins the first guy on the scene grabs what
18 has been called a shield, but it's not a
19 shield, it's a sound shield. It wasn't meant
20 as a weapon or protection. It's to cover
21 sound. Grabs that shield and runs along.
22 Khamis jumps out on the side, tries to squirt
23 hot sauce on him.
24 Stop there a moment, focusing. Where
25 is the hot sauce? Here we have to understand
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2 Khamis. We have to understand Khamis, because
3 he went to a mosque, he didn't get to Bosnia,
4 all the things, the fanta praying on his mind,
5 and we put on our microscope. Officers knowing
6 they're in deep trouble, they know Officer Pepe
7 is unaccounted for 15 minutes. They see blood.
8 He doesn't answer the phone, and they see
9 inmates on the loose. They are running through
10 that room. You saw the ADX video watching some
11 guys fight. You wouldn't want to be the one to
12 have to go out and break up that fight, and
13 that was nothing compared to the scene of
14 horrors of 10 South. They're running through,
15 and we're expecting them to remember that the
16 hot sauce on the shield, the hot sauce in this
17 way and which way it broke, and which way did
18 it go. Seconds it happened. What's more
19 important?
20 First of all, what's Khamis doing
21 outside the cell? Salim's got depo all his
22 prey locked up. Officer Pepe's locked in cell
23 6. He's the enemy. He's the hostage. Adler
24 and McAllister cleverly are locked in the other
25 room.
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2 You want the people who are against
3 you locked up. Khamis's on the loose. The two
4 people allowed to be on the loose are Salim and
5 Khamis. And what's Khamis doing with hot
6 sauce? They are not part of the attack. You
7 don't run a let me escape the cell, grab the
8 hot sauce. What's the hot sauce for? The hot
9 sauce was part of the plan. The hot sauce is
10 how they first attacked Pepe to distract him to
11 try to blind him and jump him, and then he's
12 getting ready to do exactly what he did, when
13 the next people come, grab the hot sauce spray
14 it in their eyes, try and distract them.
15 What's he doing with hot sauce? What
16 innocent reason? There is none. Would you
17 ever in the middle a blood bath reach over,
18 reach over in there, grab the hot sauce and run
19 out of the cell unless you're part of it?
20 Remember the hot sauce stains on Pepe's pants?
21 Officer Pepe's pants, and on the clothes of
22 Jenkins and Maiden and the other fellows?
23 That's the key.
24 Meanwhile, Khamis Mohamed, he
25 struggles with the various people and there is
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2 confusion about who pushed the shield, who
3 lunges at the shield, which way it breaks.
4 Okay. He's fighting with them. They conceded
5 that in the opening. They said we agree we
6 fought back against the officers. He struggled
7 with the officer, and they are trying to put a
8 cuff on him, and think about this, aren't we
9 lucky that no one else got stabbed in that
10 process?
11 Aren't we lucky that Khamis wrestling
12 around with three officers, that Salim's coming
13 back out of the cell, he could have grabbed the
14 other shank to kill someone else? That's the
15 whole point.
16 People are dangerous just from the
17 fact that in the middle of a melee where people
18 are trying to be killed you jump in and attack
19 the officers, but don't think it's limited to
20 that. On August 7, 1998 he made a choice to
21 murder people in cold blood. In October of 199
22 he says, I'll do it again.
23 And the first time someone, from an
24 officer who can still testify, who still has
25 their brain, sees him, he's attacking someone.
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2 Do you think he was peaceful in between? Do
3 you think that shank got built in the cell
4 without him? He was part of that assault.
5 And there is no way anyone can do the
6 damage to Officer Pepe on their own. Officer
7 Pepe came out and he had one cuff on his arm.
8 The camera got blocked. His tie came off. The
9 ID came off. Salim took the keys. That's what
10 he told you. Then he had the keys. Later the
11 sheets on the floor, saran wrap, two shanks,
12 and we'll talk about the other shank with Dr.
13 Koslow. The electrical box is tampered with
14 and you have to watch the back. It is not one
15 person acting on their own, and let me tell you
16 this.
17 You have to visualize for a reason
18 the force it took to stick that knife into
19 Officer Pepe's brain. Imagine a 250 to 260
20 pound trained officer, trained in disturbance
21 response. How do you take an Afro comb shaped
22 into a knife and take that and drive a piece of
23 hard plastic through the eye destroying the eye
24 and orbit, striking the bone at the back and
25 plunging it eight centimeters, two and a half
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2 inches into his brain?
3 Look at picture Government Exhibit
4 4110. That's how far in that knife got stuck
5 in Officer Pepe's brain. 250, 260 against
6 someone. If it's Salim, Salim is 155 pounds,
7 thirty pounds lighter than that. Note, lost
8 muscle tone. How much force does it take to
9 stick a bayonet through someone's eye like
10 that? Unless someone else is helping unless
11 someone's holding unless you have them pinned
12 on the ground. One man can't do it.
13 Now, let's talk about Pepe's
14 statements because you know what? We heard
15 that, gee, but for the camera we would know
16 what happened and how unfortunate for Khamis.
17 Well, the camera didn't record in fact the
18 notes show that when Salim wrote the note he
19 knew the camera wasn't recording, but had left
20 nothing to chance because if it did record you
21 would have seen the other side of the piece of
22 toilet paper but you know what, there was a man
23 in cell 6 who saw what happened. There was a
24 man in cell 6 who lived and almost died what
25 happened. There was a man in cell 6 who knew
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2 who assaulted him. Right now he can't talk.
3 But on November 1, 2000, he did. He did. He
4 told witnesses and through those witnesses told
5 you that was they who attacked him. He didn't
6 say him. They. Let's talk about those
7 witnesses.
8 Carrino, he told you from his
9 testimony that Officer Pepe said quote Lieu --
10 Lieu is probably short for lieutenant -- I gave
11 them a fight. I fought back and you know what?
12 That's true. Officer Pepe's a hero. He was 15
13 minutes up there for Officer Pepe to fight them
14 off, we're lucky there wasn't a lot more
15 damage. And he's in there fighting. You can
16 see the blood in cell number 6. And he was
17 remarkably strong to be able to walk off that
18 floor with that bayonet sticking in his eye and
19 walk down the stairs to the hospital. And he
20 told Lieutenant Carrino. I gave them a fight.
21 And what do we hear in
22 cross-examination? Previously he said the
23 words, I got them, I gave them a fight. The
24 report he said, they slipped the cuffs but I
25 gave them a fight. And in the statement to the
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2 FBI he said, they slipped the cuffs and I
3 fought back. The bottom line, it's always
4 they. It's always them.
5 There is only two people who could
6 have been them, Salim and Khamis Mohamed. I
7 submit to you through lieutenant Carrino,
8 Officer Pepe told you that this was not Salim
9 acting alone. This was not Hercules acting
10 alone sticking the bayonet into Officer Pepe's
11 eye.
12 Patel, the physician's assistant, he
13 wasn't part of the response team. He wasn't
14 part of the response team. He went up to 10
15 South. He saw Officer Pepe and then he took
16 him downstairs and what did Mr. Patel tell you?
17 Officer Pepe told him, I gave them a good
18 fight.
19 What was the cross-examination? You
20 were told it wasn't put in his medical injury
21 report. Now the injury report's in evidence
22 and when the physician assistant is writing
23 down the medical things he doesn't write, I
24 gave them a good fight. And what did he say on
25 cross-examination when he was asked that? Did
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2 you make any note of it at the time it was
3 said? Display Government Exhibit 4074. And
4 his answer was: It was around the time when he
5 was on the gurney. We were trying to start an
6 IV on him. He's in there, the physician's
7 assistant to save Officer Pepe's life. And
8 look at that picture. What you have to
9 appreciate is look at Officer Pepe's nose and
10 mouth. Get a sense of the distance there. The
11 shot where the difference between his nose and
12 his mouth is very short. Look at that gauze
13 and look at the bayonet still sticking out of
14 his eye. Remember they wrapped the gauze
15 around it to keep the bayonet still?
16 Look at that weapon sticking into his
17 eye and to his brain, and we're going to say,
18 Patel, you're making it up? Sure, you told the
19 FBI the first time you're asked in the report,
20 but you didn't stop saving his life to write it
21 down? Mr. Patel's testimony is devastating
22 because he told you it was them. It was they.
23 Elise Santilli. Take the picture
24 down. She was an officer employee at the MCC
25 out getting mail out, getting mail for inmates
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2 at the MCC. She comes back and doesn't know
3 what, she's not up on 10 south, but when she
4 gets back she finds out Officer Pepe is hurt
5 badly hurt, and has to go to the hospital and
6 she rides in that ambulance with Officer Pepe.
7 And what does she tell you?
8 Officer Pepe is remarkable because he
9 has this thing sticking in his brain where
10 Dr. Koslow tells us is the injury is cascading,
11 there is more and more damage to the brain over
12 time. So at that time that moment his brain
13 remarkably is still functioning, and how do you
14 know it's still functioning? Because he's
15 getting rushed to Bellevue and what she tells
16 us is as they are driving along, Officer Pepe's
17 saying: Where are we? Where are we? What
18 street are we at? Tell me the name of the
19 street. He knows he's in trouble. He's got
20 this thing sticking out of his eye. He wants
21 to know when is he getting there.
22 And then the paramedic says: What's
23 your date of birth? And he remembers it. He
24 knows enough to know the way to Bellevue. He
25 knows enough to ask about the streets. He
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2 knows enough in his brain at that time to know
3 his date of birth.
4 What does he say? I got them. Now
5 you heard when she spoke to the FBI agent as
6 she's sitting in a hospital with everything
7 going on, she doesn't mention that statement
8 that day while he's in a room having a bayonet
9 taken out of his eye while he's bleeding, while
10 doing x-rays.
11 I submit to you those three witnesses
12 are the last words Officer Pepe will say that
13 make sense. And they tell you, they tell you
14 that on November 1, 2000 the people who took
15 Officer Pepe's life for what it was, was them,
16 Salim and Khamis Mohamed. You can't forget
17 that.
18 You know from the crime scene that
19 one more thing you heard from the testimony of
20 Adler and McAllister that after the assault
21 when Salim was being taken away, that Adler and
22 McAllister both saw an officer take what looked
23 like a key and punch Salim near the eye. And I
24 submit to you Adler and McAllister both told
25 you about it. It happened. You can see from
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2 the forensics there is blood of Salim there.
3 It must have happened. Adler and McAllister
4 are telling you the truth.
5 I submit to you under the stress of
6 the situation it wasn't as bad an injury as
7 they thought because they both saw the next few
8 days they saw him and Adler even wondered
9 whether that was the guy who had been punched,
10 because they saw the record. There was a
11 laceration in his head. No excuse for it.
12 None. Should not happen.
13 But I want to talk about a different
14 cut you haven't heard much about and the cut
15 you haven't heard much about is the other cut
16 on Officer Pepe's head. I'm going to jump
17 ahead to Dr. Koslow. Dr. Koslow told you that
18 sure there was this bayonet sticking in the
19 eye. And the eye was destroyed and the orbit
20 and damaging to the brain, but he also told you
21 about another cut, a cut that went into Officer
22 Pepe's head and inch deep to the bone. That
23 was up here.
24 So whatever that bayonet did, got a
25 bayonet in the eye there is another cut inch
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2 deep to the bone and in fact they used that cut
3 to start the surgery when they had to do all
4 sorts of things to pull Officer Pepe's head to
5 reconstruct it after they took if apart to take
6 the knife out.
7 And I submit to you if you look at
8 Government Exhibit 4042, let's look at it the
9 way it was found on the floor, Government
10 Exhibit 4029, after the assault. This is after
11 the lab got it. Look at 4029. Look at that
12 brush. Look at the blood and the hole and the
13 bristles. You don't get blood soaked in the
14 holes of the bristles from dropping it on the
15 floor. That was used on Officer Pepe. That is
16 how the DNA expert told you that shank, that
17 comb had Officer Pepe's blood on it.
18 Now, we don't know who plunged it
19 into Officer Pepe. There is some evidence that
20 at some point Salim may have wielded it later
21 against someone. There are shanks in there.
22 There are weapons, there is hot sauce, a lot of
23 weapons, a lot of different tactics being used.
24 I submit to you when you look at the
25 forensic evidence and you look at the brush
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2 which has Pepe's blood on it, and the bayonet,
3 when you look at the sheet strips in the cell
4 with Pepe's blood on it, when you look at both
5 Khamis Mohamed's clothes and Salim's clothes,
6 both shirts have Pepe's blood on it both sweat
7 pants Pepe's blood on it, Khamis Mohamed's
8 shoes has Pepe's blood on it on the top. He
9 didn't get that sitting outside the cell.
10 Let me take you back to Mr. Ruhnke's
11 opening and talking to you about Khamis Mohamed
12 and how it is that he might have to spend the
13 rest of his life in the Holiday Inn, what's
14 like a Holiday Inn hotel room, except maybe
15 it's more like a hotel bathroom.
16 Maybe the first day it's okay, but to
17 spend the rest of your life there how horrible
18 would that be? Let's look at the danger that
19 Khamis Mohamed and Salim pose to everyone they
20 come into contact with, not just correction
21 officers, but staff, psychologists, people who
22 come to visit.
23 Let's compare even if Khamis Mohamed
24 were sentenced to the conditions for the worst
25 of the worst of the worst to what Officer Pepe
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2 has. Don't you think Officer Pepe if he could
3 would get down on his knees and pray for what
4 Khamis has? Khamis with access to a law
5 library. Pepe, what would he do with a law
6 library? One of his eyes is missing. A field
7 of the sight removed from the other. He
8 can't --
9 MR. RUHNKE: Objection.
10 THE COURT: Overruled.
11 MR. FITZGERALD: Khamis Mohamed will
12 have a TV. What will Officer Pepe do with a
13 TV? Khamis Mohamed will have exercise an hour
14 a day. Officer Pepe wishes he could exercise
15 and hour a day. Khamis Mohamed if he goes to
16 penitentiary will be unescorted. If he goes to
17 the worst of the worst of the worst, they may
18 give him a three-man escort to try to make sure
19 he doesn't kill or maim again.
20 Officer Pepe will have an escort
21 because he's partially paralyzed. Khamis
22 Mohamed is allowed visits. Officer Pepe
23 doesn't recognize the people who visit. You
24 heard about Khamis Mohamed's loss of human
25 contact, Officer Pepe lost his humanity. He
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2 didn't lose his humanity, lost his human
3 dignity, stolen from him by Salim and Khamis
4 Mohamed.
5 That's how they treated someone who
6 is there to help them. Sure, he's an officer
7 guardian, but he was helping them. He would go
8 to Salim and let him pray and make a decision
9 make sure he had the material to come to court
10 to get justice. And in a cold calculated
11 deceitful way they led him to believe they were
12 nice guys.
13 They led him to believe that they
14 were like the Nasser who worked down in Burger
15 World. And when he turned his back, when he
16 trusted too much, when he made the human
17 mistake of being human, they committed a savage
18 act on him, tried to take him hostage, tried to
19 take Salim's attorneys hostage. He's paying
20 the price, Officer Pepe, ever since.
21 Having said that, I submit to you
22 that what you now know about Khamis Mohamed
23 that he made a cold choice, a free choice and
24 unhesitating choice to murder people on August
25 7, 1998. He was honest in October 1999 when he
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2 said, I did it and I'll do it again.
3 In November 1, 2000 to the
4 everlasting misfortune of Officer Pepe he and
5 Salim struck again, and what's dangerous about
6 Khamis Mohamed is that he does not have the
7 fire in the eyes. He has the ice in the veins,
8 and he can play Mr. nice guy, but he sits there
9 waiting to kill again.
10 Now, in determining what sentence
11 Khamis Mohamed should receive, in determining
12 what sentence he should receive for the brutal
13 murder, callous murder of eleven of his
14 countrymen on August 7th, you should bear in
15 mind that you cannot afford to give Khamis
16 Mohamed mercy or extra justice. He's sentenced
17 everyone else he comes in contact with for the
18 next fifty years to all the dangers that he
19 presents as a trained killer who kills in cold
20 blood with no remorse.
21 Now in looking at the factors when
22 you analyze the factors set forth in this case
23 I'll talk briefly about the gateway factors.
24 The gateway factors we can display
25 them on the screen, there are four of them.
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2 That the defendant intentionally
3 killed the victim or victims of a particular
4 capital offense charged in a respective count
5 in the indictment. 2. The defendant
6 intentionally inflicted serous bodily injury as
7 a result resulting in death of the victim the
8 particular count you're considering. 3. That
9 he intentionally participated in an act
10 contemplating that a life would be taken and
11 the victim or the victims basically died as a
12 result. 4. That he intentionally participated
13 in an act creating a grave risk of death that
14 people would be killed and the victim died as a
15 result.
16 I submit to you that all four have
17 been easily proven the same reasons you found
18 the defendant guilty, the same reasons you
19 found the defendant himself killed those eleven
20 people. He chose to do a jihad job. He rented
21 the premise. He bought the vehicle. He helped
22 grind the TNT. He did what it took to get the
23 truck out of the sand and to get it to a Uhuru
24 Road on its mission of death and he agreed to
25 clean up afterward and get out of town. He
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2 killed people. I submit to you that the
3 gateway factors should be easily found.
4 Let's talk more importantly about the
5 statutory aggravating factors, because remember
6 the gateway factors once you find one of them
7 you do not weigh the gateway factors in making
8 the ultimate decision. The statutory
9 aggravating factors are weighed in that
10 process. And, in fact, any one statutory
11 aggravating factor alone could, if you found,
12 justify a death sentence in itself.
13 (Continued on next page)
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2 MR. FITZGERALD: (Continuing) Let's
3 talk about the four statutory aggravating
4 factors.
5 The first is that the deaths and
6 injuries resulting in death occurred during the
7 commission or attempted commission of another
8 offense; that is, for each of the counts you
9 are looking at, when Khalfan committed that
10 crime, was he also doing it in the course of
11 committing other crimes. I submit to you when
12 you review the judge's charge, review the
13 evidence, that is clearly done. You will find,
14 I submit, that factor.
15 But you may wonder how much weight to
16 give that particular factor. I will tell you
17 candidly, that factor should be given less
18 weight. But I'll tell you why. That is a
19 statute that says you know when a person
20 commits murder, they are eligible for the death
21 penalty, and you are trying to decide of those
22 people who commit murder -- and there are
23 people who deal drugs, there are people who
24 commit murders for lots of reasons, lots of
25 different places -- should they be selected out
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2 as being the persons who merit or are eligible
3 for the death penalty.
4 And sometimes the underlying crime
5 connected to the crime makes it seem a lot
6 worse. A person may kill as part of a drug
7 deal or may kill as part of an effort to take
8 over an airplane. In this case, this factor
9 doesn't jump out at you. And you know why?
10 Because the underlying crime is so horrible.
11 This is mass murder. You are in a room with
12 someone who coldly killed 11 people. It's hard
13 to look at the other crimes and be wowed by it
14 because you are numbed by the offense he
15 committed. Bear that in mind.
16 The second factor is the fact that
17 the defendant, in the commission of the
18 offense, knowingly created a grave risk of
19 death to one or more persons in addition to the
20 victim.
21 I remind you to think about Lizzy
22 Slater. She testified at the guilt phase of
23 the trial. She was the woman who was in an
24 office and when the building blew up. The wall
25 fell on her. She had to crawl out. And when
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2 she finally got outside, remember she saw a man
3 with skin off, burning. It was so horrible,
4 she said, "I wish he would just hurry up and
5 die."
6 That's Pat Wagner, who was in her
7 office when the wall got blown around behind
8 it, and she is crawling out and she is stuck
9 and she sees Cynthia Kimble with a piece of
10 concrete stuck in her eye and has to rush her
11 to the hospital, where she is bleeding next to
12 a man face-down on a cot where the blood is
13 flowing over the side.
14 That's Henry Kessey, who told you
15 that as he leaves the building, there's so much
16 damage to his eye and so much blood, people are
17 yelling, "Kessey is going to die. Kessey is
18 going to die."
19 And you know what else it is? It's
20 Government Exhibit 1130. That's the building
21 across the street where the children's play
22 group meets. Fortunately, the Connolly family
23 who had the children's play group there was out
24 of town that week. That's the crater from the
25 bomb. That's the house -- what's left of the
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2 house where the children's play group met.
3 The damage on August 7th in Dar es
4 Salaam Tanzania was horrible. 11 dead, 60, 70,
5 75 injured. It's horrible. It could have been
6 worse. It could have been the children's play
7 group.
8 He doesn't get credit for the fact
9 that the Connolly family went away. You will
10 hear that he didn't know where the embassy was.
11 And that's true. And he didn't care. He
12 didn't give a damn. He didn't care who was
13 around it, who was in it, who was there. He
14 didn't kill before he bombed it, he didn't care
15 afterward. That's a grave risk of death, and
16 that statutory aggravating factor is worth an
17 awful lot. It is heavily weighted, because he
18 put all sorts of lives at risk and didn't care.
19 The third factor, substantial
20 planning and premeditation to cause death of
21 one or more persons or to commit an act of
22 terrorism.
23 This defendant planned. This
24 defendant knew what was going on, knew where
25 the target was. He got the house. He got the
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2 truck. He helped load the truck. He made sure
3 that the tow truck was there in case it didn't
4 work.
5 This factor should be given some less
6 weight by the fact that others planned a lot
7 more, but recognize what you are weighing here
8 in deciding a sentence. It is not just who
9 else involved with these guys is worse, but is
10 Khalfan Mohamed, from the collection of all the
11 people who committed murder, someone who should
12 be selected out.
13 And this substantial planning tells
14 you something very different. Forgetting who
15 did the most planning. He planned, he
16 premeditated, he wanted to do an act of
17 terrorism. This wasn't killing in the heat of
18 passion. This wasn't an argument. This wasn't
19 a fight. This wasn't something where people
20 got upset and lost their emotions or were
21 disturbed for a while. He killed in cold
22 blood.
23 I submit to you when you think about
24 three, think about what it tells you about his
25 dangerousness, what it tells you about the
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2 evilness of his conduct. It was preplanned to
3 commit an act of terror, to take innocent
4 people, blow them up to make your point.
5 And the final statutory aggravating
6 factor, the fact that he intentionally killed
7 or attempted to kill more than one person in a
8 single episode. And again, that should jump
9 out to you. This is not a person who murdered
10 one person. He murdered 11 and could have
11 murdered a lot more.
12 I submit to you if you take the grave
13 risk of death, the premeditation, and killing
14 more than one person in an episode, those three
15 factors together, without any non-statutories
16 necessary, justify the death penalty in this
17 case.
18 But let's talk about the
19 non-statutory aggravators, and I'll start with
20 the second one, victim impact, since we have
21 been discussing that. Let's talk not just
22 about Liz Slater, not just about Pat Wagner,
23 but think about what Pat Wagner goes through.
24 We heard just last week at the end of
25 the week about how it is that someone down in
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2 South Africa, nice person, but in denial, is
3 upset; they miss Nassor, who used to make
4 garlic chicken. Compare that to Pat Wagner.
5 She sees a woman and a child, she thinks of a
6 miscarriage, the baby she lost, and thinks of
7 the bombing.
8 Think about Cynthia Kimble, her eye
9 ruined. And Pat Wagner told you she's in touch
10 with her and she's sad and she's depressed.
11 Her life is ruined by the injuries she received
12 on the bombing that day.
13 Think about Edward Ruthashewra and
14 how he almost died, went to get tea and he came
15 back and his buddy is dead, the guy who
16 replaced him. Think about Ruthashewra's
17 brother, Valentyne Katunda. He was there and
18 he was one, one of the guards who survived.
19 Look at the Government Exhibit 3012.
20 That's a chart. There are six names on the
21 chart. All six are guards. The blue name is
22 Valentyne Katunda. He is the one who
23 testified. He testified because he is alive.
24 The other names, all dead, all guards who
25 worked to put food on their table, to support
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2 their families, and Khalfan murdered them.
3 Has anyone in history murdered more
4 guards, attacked more guards? He murders five
5 guards on August 7th, and then we have the
6 incident November 1st in the MCC. Valentyne
7 Katunda told you he's buried in the rubble,
8 buried in the rubble for hours.
9 And you know what? Mtendeje,
10 Mtendeje Mbegu. We'll put her picture up,
11 Government Exhibit 3030. That's Mtendeje.
12 Remember Henry Kessey told you she was a very
13 nice, very happy woman, he liked to talk to her
14 every day. She stuck out above all the other
15 guards. And that's one of her two children.
16 She was killed on August 7th, 1998
17 when she was going in for an interview to get a
18 better job as a secretary in the embassy,
19 leaving her husband, bringing her papers,
20 bringing her Koran, and saying to her husband,
21 "Pray for me. I want a better job."
22 What did Valentyne Katunda tell you,
23 where did she die? He told you she died in the
24 room with him. As he said, "She was lying on
25 my stomach." that beautiful woman, a mother, a
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2 wife, blown to bits by Khalfan Mohamed. She
3 lies across the stomach of Valentyne Katunda,
4 buried in the rubble for hours. And he didn't
5 give a damn. Get rid of the grinder, get my
6 name, go to South Africa and be a nice guy.
7 Who else was killed? Omari Nyumbu,
8 Government Exhibit 3029. That's Omari Nyumbu.
9 That's him at his job as a security guard. He
10 had a wife, Asha Kambenga, who testified. And
11 Asha told you she had a daughter from a prior
12 marriage, and then when this man Omari came
13 into her life, he raised her daughter like she
14 was his own.
15 And then Government Exhibit 3000,
16 this is what Khalfan did to that nice man, left
17 Asha Kambenga, at 22 years old, without a
18 husband, left a daughter, 4 years old, without
19 a father. Remember what Asha told you. She
20 can't send her; daughter to school. And she
21 said before she left, "Sometimes we don't eat."
22 That's what she has got to live with. That's
23 what's left with Khalfan, who has no remorse.
24 Government Exhibit 3023, Elisa Paul,
25 another security guard, ironically posing very
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2 near where he was killed, a person so brutally
3 killed he had to be identified by body parts
4 and DNA. He left behind his wife Grace, his
5 young daughter Merisiana.
6 What does Merisiana do? What does
7 she have for a father? Bear this in mind when
8 we hear Khalfan had a rough childhood, he grew
9 up without a father. And that is a shame, but
10 it's not a justification for what he did to
11 this father. Merisiana carries a picture of
12 her dad to show people, this is my father. She
13 had a father. She's left with plastic, glass,
14 wood, a photograph. She can't be sent to
15 school.
16 Government Exhibit 3027 is a picture
17 of Abbas Mwila, another guard, who left behind
18 his wife and three children, William was one,
19 Edna was five, and on August 7th, 1998, when
20 Khalfan Mohamed killed him, when he killed that
21 man, the youngest child was named Happiness,
22 six months old. Happiness had no father due to
23 Khalfan Mohamed.
24 We don't have a social history of the
25 man in Government Exhibit 3027, but his widow
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2 told you that there was six families living in
3 the house. Their home was one room. No
4 electricity. No running water. She raises the
5 children, she raises the father-in-law, and she
6 earns $25 a month.
7 So when you hear about the mitigators
8 later, about Khalfan not growing up with a
9 golden spoon in his mouth, remember what he
10 did, how he brutally slaughtered people, left
11 them behind and didn't give a damn.
12 Government Exhibit 3028, Yusufu
13 Ndange. He was killed. He was a water truck
14 driver at the embassy, and you heard from his
15 wife, Hanuni Ndange. And he left six children,
16 none of whom have a job. They ranged in
17 various ages from 12 to 25 for the time he was
18 killed. None of them work. They are left
19 without their breadwinner.
20 You heard about Mahundi, Mr. Mahundi,
21 Government Exhibit 3025, another driver,
22 another person who worked as a driver, his life
23 taken by Khalfan Mohamed. We have no social
24 history of him.
25 Government Exhibit 3031, Saidi
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2 Rogathi, another person who worked on the water
3 truck, killed.
4 Just think, for each of these
5 persons, you don't know where they were born
6 and, some of them, where they came from, and
7 all they struggled through in life, but all
8 they did was work hard to put food on their
9 table, to do their life.
10 And one thing we have to remember
11 here is we hear a lot about different cultures;
12 and sure, Tanzania is a different place and
13 they speak a different language, but let's not
14 lose sight of something. They are people just
15 like us, and the bond between us are far closer
16 than they have been described. They are
17 hard-working people. They are people who love,
18 who laugh when they can, who cry when they are
19 hurt, who go to school, who try to get jobs,
20 try to get education, try to raise families.
21 And one thing they do is they know right from
22 wrong, and let's not let this case take Khalfan
23 Mohamed and hide behind the Muslims, hide
24 behind the Tanzanians and not like this is
25 something we don't all understand.
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2 It's something none of the people
3 around him understood. When you heard from his
4 family, they never would have thought he would
5 have engaged in violence. When you heard from
6 the imam in South Africa, he never thought that
7 Khalfan would engage in violence. When you
8 heard from the Dalvies, they thought he
9 wouldn't hurt an ant. That's because Khalfan
10 has a side to him, a cold-blooded killing side
11 that he kills, remorseless, by choice, and
12 doesn't show it to people. That's not a
13 cultural thing. That's an evil character trait
14 of the defendant. That's what killed those
15 people on August 7th. That's what happened on
16 November 1st, 2000.
17 And let's not try to hide behind
18 culture or religion. Many, many people grew up
19 in Tanzania with a lot less. Many people grew
20 up in America with a lot less. He had a loving
21 family. There is no abuse. That family didn't
22 have violence in it or drugs or alcohol abuse
23 or other stuff. A lot of people grow up with
24 rough lives a lot closer to this courthouse
25 than Tanzania. He had a loving family and he
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2 made a cold choice. He decided to do what he
3 did and kill people and have no remorse.
4 Government Exhibit 3022, Mohamed
5 Jelani Mohamed, a man who helped his family,
6 who helped his village, with a wife, who had
7 children from a prior marriage that he tried to
8 see but obviously will never see again.
9 Khalfan Mohamed killed him, too.
10 And Doto Rahadhani, Government
11 Exhibit 3032. Remember Doto. Doto, his twin
12 Kulwa testified. The two of them played
13 together. They actually played on a soccer
14 team together, but they had a rough life.
15 Their mother and father both died. They were
16 left with four brothers and sisters, and it was
17 Doto who was the family breadwinner.
18 In fact, it's not coincidence that
19 all the people killed were the family
20 breadwinners. A job in the embassy is a good
21 job. The people who work there were the
22 mainstays of their families and their
23 communities. They could earn money to help
24 others.
25 And Doto was raising his family,
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2 raising his brothers and sisters, raising his
3 twin brother. He had a fiance, Martha. They
4 were going to be married in September of 1998.
5 If Khalfan Mohamed hadn't killed him, hadn't
6 killed Doto a month before, he would be married
7 and he would have his plan, his plan for two
8 children.
9 I submit to you that the victim
10 impact in this case, we cannot get numb to it.
11 We cannot get numb to it because of all the
12 death we have heard. We cannot be numbed to it
13 because people speak a different language, are
14 soft-spoken, from a different country. They
15 were good, decent, hard-working, law-abiding
16 people who were slaughtered. Khalfan doesn't
17 care, but we all should. I submit to you that
18 the victim impact in this case, the magnitude
19 of the crime, what he did to people is a
20 sufficient reason to vote for the death
21 penalty.
22 And you may ask yourself, well, you
23 know what, all those people are dead. Voting
24 for the death penalty doesn't bring anyone
25 back. What does it do? I submit to you we
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2 have to start thinking, we can't stop looking
3 at Khalfan saying, what can we do for him? We
4 can't think of the victims as water under the
5 bridge, because that's what Khalfan wants them
6 to be. Khalfan, the whole point to the
7 bombing, the whole point to the bombing is to
8 terrify people, slaughter them, bomb them, kill
9 them.
10 Omari Nyumbu's daughter doesn't go to
11 school. She doesn't eat. What Khalfan did
12 with the others is unspeakable. And at some
13 point, at some point when you do crimes so
14 heinous, when you kill people, when you leave
15 them with no one to visit and no one to write
16 mail, to be blunt, you forfeit your right to
17 live on this earth.
18 When you take other people's lives
19 away to coldly, to callously, after a moral
20 choice to do so, you have lost your right. And
21 then, in the process, when you are standing for
22 justice to try to beg for mercy for what you
23 did, if you turn and do what you did to Officer
24 Pepe, who was part of that process, we can't
25 afford to let him do that to anyone else.
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2 Let's talk about the second
3 non-statutory aggravating factor: Future
4 dangerousness. This is another key factor. I
5 submit to you that you have to understand that
6 this case is not about what happened to Khalfan
7 or what Khalfan did or what Khalfan chose to
8 do, what he happened on the world. He went for
9 training. He did the bombing. He made the
10 threats. He did the assault. I submit to you
11 there is no remorse. Any crocodile tears he
12 sheds are for him and not for the people he
13 left fatherless, without meals, without
14 educations. He cries only for himself.
15 I submit to you the danger he poses
16 is precisely because there is no fire in his
17 eyes, there is ice in his veins. And to leave
18 him, for ten, twenty, thirty, forty, maybe
19 fifty years in the prison system, to have
20 guards have to watch him, three eight-hour
21 shifts a day, seven days a week, fifty-two
22 weeks a year for four, five decades in a prison
23 system, where maybe he goes to Florence ADX --
24 and remember, when you see those pictures that
25 Dr. Cunningham shows you of stainless steel
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2 cells, the pictures he shows always leave out
3 the inmate. The danger isn't from the shower
4 or the concrete bed, it's the person in there.
5 And this man has proven himself to be a danger
6 time and time again.
7 I submit to you his future
8 dangerousness is something you have to weigh
9 heavily. When you decide between a death
10 sentence and a life sentence, clearly there is
11 a lot to weigh on the side of a death sentence.
12 You do not wish to impose a death sentence
13 inappropriately. Of course not. But you do
14 not wish to impose a life sentence
15 inappropriately when you leave the staff, the
16 psychologists, the warden, the physician's
17 assistants, the corrections officers, all those
18 people to go by day after day after day. And
19 you learn that the people in the ADX prison,
20 they leave, they go to penitentiaries where
21 they can walk among thousands. And he couldn't
22 be trusted in the 10 South Unit up on MCC on
23 November 1, 2000.
24 It only takes once. It only takes
25 one person to be human, like Officer Pepe, one
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2 person to lose their guard. And Khalfan
3 Mohamed is someone who was very good at fooling
4 people. The Dalvies are nice people. They
5 took him in. They are in denial. They
6 couldn't believe he would hurt an ant. He
7 fooled the imam, who said, "I can spot people
8 with two faces." He didn't see that. He
9 fooled his own family and he fooled Officer
10 Pepe. Let's not let 50 years of people have to
11 deal with that risk.
12 About that, let's talk about
13 Dr. Cunningham. He was the psychologist who
14 told you nothing about psychology. You heard
15 all about psychology degrees, but he really
16 came to be an expert on prisons. What a
17 perfect defense witness on prisons he is,
18 because he has never worked in one.
19 When I submit to you is there is a
20 real world out there, and Dr. Cunningham, he
21 told you about conditions at ADX. Let me place
22 the comparison chart up. Let's compare what
23 ADX is supposed to be from the rules. Let's
24 compare what the MCC was supposed to be on
25 November 1st, 2000.
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2 MCC: In your cell 23 hours a day;
3 solid steel outer door -- these are from the
4 rules that are posted in evidence -- each
5 inmate checked every 30 minutes; before removed
6 from cell, inmate is handcuffed through food
7 slot, pat searched; triple escort when out of
8 cell; recreation within the unit only; meals
9 taken in the cell; no television; phone calls
10 monitored; visits - no contact; non-legal mail
11 opened, copied, analyzed.
12 The main difference in ADX is a
13 second outer door. That's what it's supposed
14 to be like in theory. Dr. Cunningham shows you
15 a nice picture of a cell which doesn't look all
16 that different from an MCC cell when it's empty
17 and clean. That's the Internet. Those are the
18 rules. That's the way it's supposed to be.
19 And this is what Khalfan Mohamed can make it.
20 You are sentencing him in the real
21 world. Make that decision in the real world.
22 The last non-statutory aggravating
23 factors is the fact that high public officials
24 were targeted abroad, and Khalfan knew that
25 because he knew that the embassy was a target.
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2 I submit to you that has been proven. It has
3 been proven that it pertains to Mohamed,
4 Khalfan Mohamed, but I submit to you that
5 should be given less weight than the other
6 factors.
7 He was less involved in that
8 decision. You can consider it. Don't give it
9 great weight. What I submit you should
10 consider from the government's aggravating
11 factors is the fact that he killed 11 people.
12 And remember, we're not just comparing Khalfan
13 Mohamed just to other people involved in the
14 offense. Your job is to say, does he meet the
15 gateway factors; is he one of those persons who
16 committed murder, who committed the gateway
17 factors, which, I submit, is obvious, that
18 makes him eligible for the death penalty and
19 then say is he one of the persons who should
20 receive it?
21 And what makes him stand out from the
22 rest of the people who commit murder is the
23 people who do it in drug dealing in the Bronx
24 or Texas or anywhere else, he's a mass
25 murderer. Factor in he killed 11 people. He
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2 wanted to kill more. He created a grave risk
3 of death and the victim impact he imposed on
4 people was devastating. Factor in the future
5 dangerousness, the threat he poses, unlike
6 other people, he has proven himself to be a
7 danger within confinement, and he is
8 remorseless.
9 Now I'll talk to you about mitigating
10 factors. In considering the mitigating
11 factors, remember this is not a numbers game.
12 It is not how many factors can you come up
13 with. Some of the factors offered are true,
14 some are not. Some are worth some weight and
15 some are not. And some, I submit to you, are
16 frankly downright offensive.
17 We'll go through them.
18 A. His role in the offense. I think
19 we have them up here. If you focus on A,
20 Khalfan's role in the offense and relative
21 culpability, that is broken into three parts.
22 He was not a leader or organizer of the
23 conspiracy which led to the bombing of the Dar
24 es Salaam Embassy.
25 Second, although guilty of the
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2 murders, his participation was minor; and,
3 third, he was recruited by others as someone
4 who was an expendable member of the conspiracy.
5 Let's deal with the first. I don't
6 factually dispute that he was not a leader or
7 organizer of the bombing. I submit to you that
8 that should be given some weight, but not a
9 lot. I'll tell you why.
10 Khalfan Mohamed is a follower. He
11 listens. He has a choice, but he listens, and
12 if people tell him to kill, he kills. If
13 people tell him to attack, he attacks. I
14 submit to you in many ways he is not someone
15 lathered into a frenzy, he is not brainwashed.
16 According to Dr. Post, he told you they weren't
17 even talking about America and Afghanistan. He
18 wasn't worked up. He wasn't brainwashed. He
19 could sit there and think, coldly and
20 calculating. And he did. He didn't struggle
21 morally. He just chose to kill.
22 I submit to you the fact that other
23 people played a leader or organizer role is
24 worth something, but not all that much. When
25 you think about the fact that none of those
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2 leaders or organizers did what he did November
3 1, 2000, that puts a lot in perspective.
4 Because he not only did what he did with the
5 bombing, but then, when here in confinement,
6 when waiting for the trial before you, just two
7 months before, a hundred yards away, that
8 bayonet went into Officer Pepe's brain from
9 Salim and Khalfan Mohamed.
10 Secondly, his participation. Was it
11 relatively minor? We'll say this. He was a
12 lower-level guy in the group. He did some
13 work, but "minor" overstates it. It wasn't
14 unimportant. It was necessary. They needed
15 someone to get the bomb factory. Without a
16 bomb factory, there is no bomb.
17 They needed the truck to make sure
18 they could transport things -- the Suzuki.
19 Sorry. They needed to make sure the truck was
20 out of the sand, and he stuck around to make
21 sure there were no problems. Without him, it
22 doesn't happen. This is not something as the
23 world turns. He was needed, he was necessary,
24 he was part of it.
25 And he was recruited by officers as
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2 someone who was expendable. Well, sure. Is he
3 as important as Harun or Saleh or Abdel Rahman?
4 No. But the expendable ones are the ones that
5 are killed or left to be killed. He was left.
6 He was needed. He took it on his own to clean
7 up the bomb factory. Read the report. He
8 wasn't asked to do that. He thought that was
9 his role -- make sure he could clean up, so
10 people didn't find it.
11 He chose. He wasn't expendable.
12 They gave him the three numbers. They gave him
13 the numbers to get in touch with Bin Laden's
14 satellite phone, the number in Yemen, in Wadih
15 El Hage's phone book, which is also in Khalid
16 Fawwaz's phone book. He lived to fight another
17 day and Officer Pepe is paying the price.
18 I submit to you it's far more
19 important to you in factoring in the weight of
20 this factor that Khalfan Mohamed thought with
21 11 hard-working people in the embassy on August
22 7th were expendable. I submit to you it is far
23 more important in October 1999 when he thought
24 that people that should be killed in the future
25 were expendable. And I submit to you it's far
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2 more important that on November 1, 2000 he
3 thought Officer Pepe and anyone else they could
4 take as a hostage, they were expendable.
5 I submit to you he sits here today
6 and he looks out at all the people he will come
7 into contact with if he is sentenced to prison
8 for the rest of his life, that to him they are
9 expendable, and they should not be.
10 Second, we have the factor that
11 others of equal or greater culpability in the
12 murders will not be sentenced to death. Let's
13 talk about that. There are a variety of people
14 who may face the death penalty or may not. You
15 heard, for example, there are a number of
16 fugitives and they may be caught, they may not
17 be. Don't assume they will or will not face
18 the death penalty.
19 Some people were not involved in the
20 murders. You heard about Salim, the promise
21 made to the German authorities. But don't
22 overlook the fact you didn't hear evidence that
23 Salim was involved, Mamdouh Salim, for all his
24 evilness and all he did, he was not involved in
25 the embassy bombings. He was not charged with
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2 it, so the German authorities were told he will
3 not face the death penalty. He didn't face it
4 anyway.
5 Salim, an evil man, clearly a key
6 role in the attack on Officer Pepe, you heard
7 from Mr. Ruhnke the law does not provide the
8 death penalty for the attack on Officer Pepe
9 because he lived. It was unlucky for Officer
10 Pepe in many respects that he be so badly
11 maimed, but for Salim and Khalfan, it was lucky
12 that they don't face the death penalty. That's
13 what the law is.
14 You have heard about others for whom
15 there may be trouble or not to find the gateway
16 factors that you have to find here about
17 participating in an act. You heard about
18 Eidarous and Abdel Bary who received the claims
19 of responsibility in England and whether or not
20 that would count as a gateway factor, which
21 doesn't matter because you will assume that
22 England has put in the condition that do not
23 impose the death penalty if people are sent
24 over.
25 You heard about people who entered
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2 into plea agreements. And you have seen two of
3 them, Al-Fadl and Kherchtou. You saw that they
4 didn't participate in the bombing. They didn't
5 face the death penalty. They don't face it
6 now. But I submit to you from what you have
7 seen with those deals with those two witnesses,
8 the government smartly entered into those deals
9 to get information, to try and work against
10 people trying to kill us.
11 To the extent that people want to
12 speculate that there are other people
13 cooperating, I submit trust the track record.
14 If the government enters into a deal, don't be
15 distracted by what is happening with someone
16 else. Because you know what the bottom line
17 is? There are a lot of different things that
18 happen when people scatter all around the world
19 into different situations, and that's the doing
20 of the group, the group the defendant was part
21 of.
22 They decided to attack America
23 overseas. They decided to attack it in
24 Tanzania and Nairobi. They decided to attack
25 and run. And you know what? Khalfan was part
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2 of that decision. They came to Khalfan. They
3 said we're getting out of town. We need
4 someone who knows how to get the truck there.
5 And he cleaned up the place where the bomb was
6 built to help them get away with it.
7 They brought terror, they brought
8 death, and they brought anarchy into the world,
9 and now he wants to turn around and say, hey, I
10 shouldn't get the death penalty. After all,
11 look at all those people who got away, all the
12 people who got away because he helped clean up
13 the bomb factory, the people who got away
14 because they could leave because he was willing
15 to stay behind to get the job done.
16 Why reward, why reward Khalfan
17 Mohamed with a benefit because he chose to be a
18 part of a larger group. Why does someone who
19 works on their own and sets off a bomb in New
20 Jersey or Texas or somewhere else, why should
21 they die and suffer the ultimate punishment
22 when he can say, hey, I chose to be part of an
23 international group, I chose to run away, I
24 chose to help the others run away and we have
25 to have it nice and neat, you have to catch
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2 everyone before you can put me to death.
3 He chose to create the anarchy. He
4 chose to help other people runaway. I submit
5 to you, let's stop treating terrorists
6 different. If you murder, if you kill, if the
7 crime is evil, if you try and stab an officer
8 again, you get the punishment you deserve and
9 stop pointing at other people.
10 What about the 11 people he killed?
11 What justice do they have? They weren't
12 equally culpable. They weren't culpable at
13 all. What kind of sentencing hearing did he
14 give them? What kind of justice or due process
15 did he give the children, the children who
16 don't go to school and sometimes don't eat?
17 C. The postarrest statement. To
18 argue that his postarrest statement was
19 complete and truthful, it demonstrated
20 acceptance of responsibility and provided the
21 interviewing agents with information, valuable
22 information, I submit to you, was it largely
23 truthful? Yes.
24 You can have your doubts when he
25 talks about not knowing much about Bin Laden,
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2 not knowing much about the group, when he spent
3 nine to ten months in Afghanistan training and
4 he spent time with Al Ittihad, training over in
5 Somalia, but I submit to you, what is the
6 point? If you are talking about whether he is
7 being truthful, look at the moral element.
8 Why was he being truthful? Was he
9 saying, I'm sorry, I did a horrible evil thing
10 and I have had a year to think about it, a year
11 plus in South Africa, I've had people be nice
12 to me, I abandoned my family, but I thought
13 back to them and I realized what I did was
14 horribly wrong? No. What he told Agent
15 Perkins and the testimony was, he said that
16 basically because we had found him where he was
17 in Cape Town, that we already knew everything
18 so there was no reason for him to tell us one
19 thing when we knew that in fact another was
20 true. He said it because they knew it. And he
21 said it to say, I'm proud of the bombing, it
22 was a success.
23 It tied the investigators up because
24 it took them 14 months to find him. And he
25 said he would do it again. He gets no credit
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2 for being complete and truthful. And you know
3 what? Five weeks ago he is over there telling
4 Dr. Post, I deny the FBI report. He wants
5 credit for that? Admit it because you are
6 caught. Don't say you're sorry, lie to your
7 own witness afterward, and then say, no, treat
8 me differently because I was complete and
9 truthful.
10 Demonstrated acceptance of
11 responsibility? Hi, I murdered 11 people. I
12 injured many. I'm not sorry. I'm not sorry
13 Tanzanians died. I'm not sorry my countrymen
14 died. I'm not sorry my fellow Muslims died. I
15 wanted Americans to die. I hope people keep
16 killing Americans. That's not acceptance.
17 What he did to Officer Pepe, part of
18 the process to make sure that he gets a chance
19 for a fair trial, that's not acceptance.
20 We'll talk about Dr. Post in a
21 moment. That's not acceptance either.
22 I submit to you it's offensive to put
23 before you credit for acceptance of
24 responsibility and truth when he threatens and
25 attacks an officer. I submit to you his lack
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2 of remorse, his coldness, his feeling nothing
3 for the victims is something that will stay
4 with him forever. Part of what makes him
5 dangerous while confined. He doesn't see
6 anything wrong. He has no conscience. He will
7 do it again.
8 Provided the agents with valuable
9 information: Remember that he told them they
10 had papers which showed him he was charged when
11 they caught him. It came out in
12 cross-examination that they basically knew
13 everything. They had been to the bomb factory.
14 They had seen the Suzuki truck. They had the
15 lease. They had analyzed the house. They had
16 talked to the person who rented the house.
17 They talked to the neighbor. They talked to
18 the house girl. They talked to the juice cafe
19 owner who knew he went to Afghanistan. They
20 had been to his house. They had been to his
21 family. They had the explosives results. No
22 showing he told them anything significant they
23 didn't know.
24 And the judge has told you in the
25 guilt phase the last time that statements of a
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2 defendant after, when they were being
3 interviewed for an arrest, were only admitted
4 against him. They weren't admitted against
5 anyone else at the last trial. They are
6 useless against anyone else. No showing that
7 he helped identify anyone else involved in this
8 plot, no showing that he identified anyone who
9 could be arrested, no showing that that
10 statement could ever result in someone being
11 brought to justice. What value?
12 D. Mitigating factor is that the
13 alternative to a sentence of death is that he
14 will spend the rest of his life in prison. I
15 submit to you that's true. We don't dispute it
16 is true. You can check it as being proven.
17 You have been told that by the judge, but it's
18 worth zero weight. In fact, it is not worth
19 zero weight, it's worth negative weight.
20 That's the future dangerousness. That's the
21 point. If he is not sentenced to death, he
22 will be sitting there ticking like a time bomb
23 waiting for the next Officer Pepe to come
24 along.
25 E. No prior history of criminal
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2 behavior. Check that as true. It's been
3 proven. We agree. Zero weight.
4 I see, so we know about the bombing
5 of 11 people and the maiming of and injuring of
6 five dozen others, and before he assaulted
7 Officer Pepe with Salim sticking a bayonet in
8 his eye, no record of criminal history. He's
9 offered nine to ten months training in
10 Afghanistan how to kill, how to make bombs, how
11 to wire them. No history of criminal behavior.
12 Give it the weight it deserves. None.
13 F. If he is put to death, his family
14 will suffer grief and loss.
15 That's a tough one to talk about, but
16 let's be blunt. That should be given little
17 weight, not because anything about his family;
18 his family, to a person, are very nice, loving
19 people. But he can't hide behind them here.
20 They raised him with love. It was a good
21 family. That family is not the cause of these
22 problems.
23 He used his family. He used his
24 nephew to help clean out the bomb factory and
25 he abandoned them. In 1998, he lied about
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2 where he was going. He took his identity and
3 he headed to South Africa. He left them so he
4 could escape from the jihad. And I submit to
5 you he didn't give a damn about anyone else's
6 family. He didn't care about the 11 people he
7 killed, people he left fatherless, the people
8 he left from breadwinners.
9 Let him come here before you and say,
10 yeah, I killed a bunch of families, I ruined
11 family's lives, I participated in an attack a
12 Officer Pepe, and now feel sorry for me because
13 of what I have done to my own family.
14 Let's not wait for another Officer
15 Pepe to happen. Let's not wait again until
16 Officer Pepe's family, well, we spared him
17 because he's from a different culture, he had a
18 family. He's a danger. We have to face that.
19 We have to face the fact that if you give him
20 mercy, he poses a danger.
21 Remorseful? Let's talk about G.
22 Khalfan Mohamed is remorseful for the death,
23 injuries and other consequences. And what did
24 we hear? We heard from the opening from Mr.
25 Ruhnke, "You will hear testimony from both
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2 Dr. Post and Jill Miller that they have
3 discussed at great length Khalfan Mohamed's
4 view of what occurred at the embassy in Nairobi
5 and what occurred at the embassy in Dar es
6 Salaam, and that the experience and how the
7 experience of hearing from the victims had not
8 changed his beliefs, not changed his core
9 beliefs, but it changed his view of what jihad
10 should be and should not be, and that jihad
11 should not involve the killing of innocents,
12 that it was wrong.
13 And you heard from Dr. Post. You
14 heard he was Yale-educated. He has a very
15 impressive background. I submit to you, what
16 was he doing here? He came before you as an
17 expert on terrorism. He told you, I believe,
18 "I continued my research in religious extremist
19 leader Usama Bin Laden and his group al Qaeda."
20 And you found out what his research
21 was. He talked to one al Qaeda member, that
22 was Odeh, for 30 to 45 minutes; took two pages
23 of notes; didn't ask him if he was involved in
24 the bombing. That didn't come up. Didn't know
25 Ayman al Zawahiri, the man who signs the
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2 fatwahs and claims responsibility for the bomb;
3 didn't know Abu Ubaidah or the two al Qaeda
4 witnesses you heard from for days, Jamal
5 Al-Fadl and Kherchtou.
6 I submit if Dr. Post wanted to
7 continue his education, he should have served
8 as a juror. He should have learned what you
9 did. You knew a lot more about al Qaeda than
10 he did. What was he doing here? To give a dog
11 and pony show, to stand up and say I'm an
12 expert, I spent a half an hour with Odeh. He's
13 a low-level gofer. Didn't bring up the phone
14 numbers in Fawwaz's phone book or Wadih El
15 Hage's phone book -- not suggesting he knew
16 about it; didn't spend much time on this.
17 He came in with a Yale degree to tell
18 you where the defendant fit in. I submit you
19 don't need a Yale degree to figure that out.
20 He also came in, more importantly, much more
21 importantly, to dress up a tale of remorse from
22 Khalfan Mohamed. And what did he do? Well,
23 you heard, you heard the Fanta story. You
24 heard about the crushing blow to poor Khalfan
25 Mohamed, sitting there, making a bomb to blow
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2 people up and told, don't ask questions, get me
3 a Fanta.
4 Well, he left out an awful lot. Let
5 me say one other thing. He told you about the
6 evolution of Khalfan Mohamed. How, yes, in
7 October of 1999 he told the agents he did it
8 and wasn't sorry, but now he has evolved and
9 now I think over the time he really sees the
10 errors of his way and feels really sorry.
11 The evolution was Dr. Post's
12 testimony, because what he did when he took
13 Khalfan Mohamed, sitting here after all the
14 evidence at the trial, after hearing about the
15 victims, after hearing all that, denying it, I
16 didn't do it, denied the FBI report, the U.S.
17 Embassy, I didn't know it was a target until
18 after the bombing. He thought the bomb was in
19 Somalia.
20 I submit to you Dr. Post laughed when
21 we said, Did you invite the government in or
22 did you videotape? Of course not. Well, if he
23 really was remorseful, if Khalfan Mohamed
24 really was remorseful, wouldn't Dr. Post want
25 to make a videotape of the interview to show
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2 the victims? Hey, I did it. I did wrong. I
3 made a moral choice. It was wrong. You are
4 suffering. I care and I want to do something
5 about it.
6 Dr. Post was a dress-up, a dog and
7 pony show for you. He had a Yale degree, a
8 nice resume, come in, tell you Khalfan is a
9 gofer and tell you Khalfan feels bad, and he
10 left out the facts. He left out that Khalfan
11 is now worse, Khalfan is less remorseful,
12 Khalfan denies what you know he did.
13 Dr. Post was a fraud. That was a
14 fraud put on you to make you think that Khalfan
15 Mohamed was remorseful.
16 I'll say one other thing. Jill
17 Miller came, and I take my hat off to her.
18 After you were promised that she would tell you
19 the same thing, she said something different.
20 "Q. There came a time when Mr. Mohamed became
21 involved with a group of people in Dar es
22 Salaam. At the end of that process, the
23 American Embassy was bombed
24 "A. Yes.
25 "Q. And have you discussed that with him? It's
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2 in the FBI report, correct?
3 "A. Yes. I have not discussed it at great
4 length with him.
5 "Q. Your role was not to discuss the offense; is
6 that correct?
7 "A. That's correct."
8 We give her credit for not doing what
9 Dr. Post did. She did not participate in a
10 fraud. She did not put before you remorse from
11 someone who is not remorseful. And to come
12 into this courtroom, someone like Dr. Post, to
13 come into this courtroom, with the seriousness
14 of your decision and the seriousness of what
15 hangs in the balance, and try and basically
16 slip one past people and make it seem that
17 Khalfan Mohamed cares, when he doesn't, is
18 wrong.
19 You won't be shocked if I tell you
20 that "G" should get zero weight.
21 H. Sincere religious belief. It is
22 asserted that Khalfan Mohamed acted out of
23 sincere religious belief. You can check the
24 box as proven if you want. We suggest it was
25 not sincere religious belief.
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2 What weight do you give that? Think
3 about this. His religious belief is not as a
4 zealot. He's not crazy. There's no fire in
5 his eyes. You know what? Why does he get
6 credit for defending his religion? He killed
7 Muslims. He killed Tanzanians. There are a
8 billion Muslims in the world. They don't blow
9 up buildings. There are how many Tanzanians in
10 the world, from humble backgrounds, who work
11 hard and don't blow up buildings.
12 The fact that he acted out of sincere
13 religious belief makes it frightening, makes it
14 frightening they still hold for those core
15 beliefs and want to sit in one of our prisons
16 or penitentiaries for another 50 years waiting
17 to strike again. He is not brainwashed. He
18 knows what he has a choice to do and he makes
19 choices. The argument that he thinks that that
20 is what his religion compels him to do, the
21 fact that he is in more denial now than he was
22 before makes him all the more dangerous from
23 here on out. We don't want to explain to the
24 next Officer Pepe he got shanked because he
25 still holds to his religious beliefs.
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2 I. Khalfan Mohamed was 25 years old
3 at the time of the offense. Conceded to be
4 true. Check the box. Worth nothing. 25 years
5 is an old person, a person old enough to make
6 mature decisions, a person to decide whether to
7 kill or not kill, to go to Afghanistan or not
8 go to Afghanistan, to go to Somalia or not go
9 to Somalia, to participate in a jihad job,
10 knowing it's a bombing of an embassy or not.
11 Look at what he did to Happiness, who was six
12 months old. Look what he did at 27 to Officer
13 Pepe.
14 Zero weight.
15 J. Martyrdom. If Khalfan Mohamed is
16 executed, he will be seen as a martyr and his
17 death may be exploited by others to justify
18 future terrorist attacks. Let's think about a
19 couple of things.
20 First of all, you saw today, the last
21 exhibit you saw was a videotape. That was
22 Usama Bin Laden last fall, September 2000,
23 saying, free the brothers from prison. Free
24 Sheik Omar Abdel Rahman, who you know is a
25 leading figure. And clearly we're not trying
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2 to equate Sheik Omar Rahman and Khalfan
3 Mohamed, but he is saying free el Sayyid
4 Nosair, another person who engaged in terrorist
5 acts. He is saying free Mohamed Rashid Dauod
6 Al-'Owhali, who obviously was a defendant at
7 the trial, and he is in prison. He is saying
8 free Wali Khan Amin Shah, who is a little
9 higher, someone else who is in jail.
10 Usama Bin Laden is screaming to free
11 people from jail. Just being a prisoner is
12 enough. I submit to you Khalfan Mohamed, maybe
13 his stock has risen, maybe helping to carry out
14 a bombing, he is worth maybe more. Maybe he
15 assaults an officer and tries to take a hostage
16 and still serves a life sentence, maybe he is
17 worth more.
18 I submit punishing someone with life
19 imprisonment or death, no one is going to give
20 anyone credit. No terrorist attack is going to
21 be stopped because someone gets a life sentence
22 versus death. Usama Bin Laden hates us. There
23 is no way around it. Everyone in his group
24 hates us. They hate everything we do,
25 everything we try to do, everything we don't
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2 do. This trial, in their eyes, is a fraud.
3 Everything we do is a fraud. We are evil. Do
4 you really think this is an operation that is
5 going to be wiped off the books if Khalfan
6 Mohamed gets a life sentence? I submit to you
7 not.
8 Look at this case. The claims of
9 responsibility for the bombing he did in
10 Tanzania is in the name of Salmon al Odeh and
11 Zafra Al-'Owhali. Not related to Al-'Owhali,
12 not related to Odeh, two scholars in a Saudi
13 prison. Look at the stipulation. Sheik Omar
14 was convicted for trying to murder President
15 Mubarak of Egypt because of the arrest of
16 Mahmud Abouhalima. Bin Laden is screaming
17 about Al-'Owhali because of his arrest.
18 I submit to you, look at the note,
19 look at the hostage-taking note left on
20 November 1, 2000. "Please release," fill in
21 the blank, "from custody." If you are in jail,
22 they want you out. And they are going to bomb,
23 they are going to do what they want to do to
24 get people out of jail. If they decide to do a
25 bombing and name it after people, they will
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2 fill in the blank of whomever they want.
3 But don't let Khalfan Mohamed try to
4 get, a terrorist, gee, give me life, maybe it
5 will be the last bombing. It ain't happening.
6 His name will be on the list of 50 others names
7 when he is in jail or whether he is executed as
8 a reason to go forward.
9 K. Khalfan Mohamed should not have
10 been released by South African authorities.
11 Mr. Ruhnke opened on the fact that this was
12 almost like being struck by lightening. And
13 again, it's sort of passive stuff. It's like
14 the weather. Khalfan Mohamed blowing in the
15 wind, struck by lightening to face the death
16 penalty.
17 Let's step back and think about it.
18 It is not lightening. Okay, the law of our
19 country, the law of our nation is if you commit
20 murder, certain murders, you face the death
21 penalty. Khalfan Mohamed committed murder 11
22 times over. If he faces the death penalty,
23 it's not because he got struck by lightening,
24 but because he killed. He made a choice and he
25 killed and he'll get a punishment provided by
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2 the law.
3 He killed in Tanzania, where there is
4 a death penalty. He killed Tanzanians. He
5 killed trying to kill Americans, and the death
6 penalty is here. He killed Muslims, as the
7 imam told you in that video. Islam makes no
8 apologies for the death penalty. He killed in
9 a country with a death penalty, against a
10 country with a death penalty, and people of a
11 religion who have the death penalty.
12 And then he went to South Africa,
13 went to South Africa, which happened not to
14 have the death penalty. He went to South
15 Africa, where he got caught, and two years
16 later, the highest court decided he shouldn't
17 have come back without a promise not to have
18 the death penalty.
19 What almost happened was
20 happenstance. He almost got a break for having
21 run to South Africa. Why reward him for that?
22 Isn't he morally different? If you are caught
23 in New Jersey or Connecticut or Texas or
24 California and you bomb something, you are put
25 to death. But to run to a country without the
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2 death penalty, whether knowing it or not, why
3 should that count as a break?
4 I submit to you, don't reward
5 terrorists. Think about this. If there is
6 anything arbitrary in this case, it's the
7 miracle of Dr. Koslow. And Dr. Koslow is not
8 waiting in the hospital. If Bellevue isn't
9 where it is, they don't make the efforts to do
10 what they do and save Officer Pepe's life,
11 Salim and Khalfan Mohamed would face the death
12 penalty for that. I submit to you K is worth
13 zero weight.
14 L. L is the last mitigating factor
15 and I submit to you the most offensive. I
16 submit to you to sit before you and tell you
17 Khalfan Mohamed's personal characteristics as
18 an individual human being include the
19 following: One, Khalfan Mohamed has exhibited
20 responsible conduct in other areas of his life;
21 two, Khalfan Mohamed has shown himself to be a
22 person capable of kindness, friendship and
23 generosity; and, three, Khalfan Mohamed lost
24 his father at an early age and worked to help
25 his family, which struggled financially after
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2 the death of the major breadwinner.
3 He's a bomber. He killed people.
4 What was his life? The sociologist, a very
5 good job, very straightforward. Did you hear a
6 story that made your hair stand on end from
7 growing up in an abusive household? No, he
8 grew up in a loving family. We're sorry his
9 father died at a young age. We're sorry he got
10 partway through high school. A lot of people
11 get partway through high school. We're sorry
12 he went to a mosque. A lot of people went to a
13 mosque. We're sorry he didn't go to Bosnia. A
14 lot of people who wanted to go to Bosnia
15 didn't.
16 We are sorry a lot of things
17 happened. He had a loving home and he chose to
18 turn on his family, to turn on his true
19 religion, to turn on his countrymen and to kill
20 and to try to kill Americans. To come before
21 you and talk about his unique characteristics
22 as a kind human being.
23 A. He has exhibited responsible
24 conduct in other areas of his life. Sure, he
25 has exhibited them. That's what fools people.
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2 That's what fools the Dalvies. He can be very
3 kind. Teach a child. You want him to marry
4 your daughter. You wouldn't think he would
5 hurt an ant. The next day he is in custody,
6 saying, yeah, I bombed 11 people and I'll do it
7 again. That's what he is. He's got two faces.
8 And he can exhibit responsible conduct and he
9 may well exhibit responsible conduct in a
10 prison until he has a chance to strike. He
11 fooled his family, the Dalvies, he fooled
12 Officer Pepe.
13 The second: He has shown himself to
14 be capable of kindness and generosity. I
15 submit to you he is capable of that. Everyone
16 is capable of that. He is capable of savagery.
17 What happened to Officer Pepe, what
18 they did to him in that cell room in November
19 1, 2000 was a savage act, and Officer Pepe is
20 no longer capable of a lot of things.
21 And finally, he lost his father at an
22 early age. I submit to you a lot of people
23 lost their fathers because of him. Don't give
24 him credit for that. Don't give him a break
25 because he had a loving family, a loving
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2 mother, brothers and sisters and chose to kill.
3 Think of all the families without fathers.
4 Think of the woman who married Nyumbu's wife,
5 widowed, Asha Kambenga saying, "My daughter,
6 sometimes she doesn't eat." I submit to you
7 that in the balancing --
8 Your Honor, I'll have to do it in
9 under ten minutes.
10 I submit to you that in the balancing
11 of the factors -- and I apologize for keeping
12 you late. Obviously this is important, and I
13 want to say a couple of things to you.
14 In the balancing, you should weigh
15 the aggravating factors of killing multiple
16 people. Remember what you are doing. You are
17 saying, okay, assuming you find the gateway
18 factors, this person is eligible for the death
19 penalty.
20 From the group of people who commit
21 that type of murder, all of the groups of
22 people, people in America who do bombings, who
23 kill, who commit murders, who kill one person,
24 you have to sort out does Khalfan deserve the
25 death penalty, and in doing that you have to
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2 separate out your own views of the law, your
3 own personal views.
4 Some of you may think the death
5 penalty is a good thing. Some of you may think
6 it's a bad thing. Many of you may not really
7 be sure, not for lack of thinking. What you
8 have to decide is, given that it is the law of
9 our land, given that it is the jury's role to
10 say which of those people are so bad, that
11 committed such a bad crime deserve the ultimate
12 punishment, you have to vote that straight.
13 You cannot say in that group this
14 person really isn't the one who deserves the
15 death penalty, but I'm for the death penalty so
16 I'll vote for it. That would be wrong. You
17 can't look and say this person, based upon what
18 they did, deserves the death penalty, but I'm
19 against the death penalty. That would be
20 wrong.
21 You have to call it. You have to
22 sort out, is this person sufficiently
23 distinguished from the others to merit the
24 ultimate sanction. And I say, in this case,
25 when you look at that, think about 11 murders,
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2 11 people killed. Think about the fact that he
3 planned to do more. He wanted to do more.
4 Think about the children's play group that
5 wasn't there that day. Think about Pat Wagner,
6 walking around, afraid to see a wife and a
7 child because she thinks back to her
8 miscarriage. Think Cynthia Kimble's life,
9 ruined. Think about Mtendeje, a beautiful
10 woman, lying dead on Valentyne Katunda's
11 stomach, she's buried beneath the rubble for
12 five hours. Think about the grave risk of
13 death to others. Think about the injuries, the
14 blinding, the terror. Think about the victim
15 impact, all those families ruined, lost their
16 breadwinners, lost their loved ones, lost their
17 people. That's who the human bond is with.
18 Think about the future danger.
19 Think about the danger posed by a man
20 who was in that cell on October 25th to
21 November 1, when his hairbrush was made into a
22 shank, when Salim's afro comb was made into a
23 shank, and think about what they did to Officer
24 Pepe. Think about the risk he poses three
25 eight-hour shifts a day, seven days a week,
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2 fifty-two weeks a year for five decades in the
3 prison system. And weigh against that someone
4 who played a lesser role, but someone who did
5 it with a coldness, a coldness that is more
6 scary because you can't see zealotry in his
7 eyes, you don't see fire in his eyes. The ice
8 in his veins is something you see after he is
9 done killing people. The ice in his veins is
10 his masquerade as a kind, gentle human being
11 before he kills.
12 I submit to you the one thing about
13 this man is he made a free choice. He was not
14 brainwashed. He made his choice in August
15 1998. He chose to threaten in October 1999, he
16 chose to strike on November 1, 2000, and he has
17 no remorse.
18 And let me talk to you about your
19 oath and your promise and what it means, what
20 it means in this case. You gave an oath, made
21 statements in voir dire that you would try and
22 do justice. And justice means separating out
23 Khalfan Mohamed from the others.
24 I submit in this case, recognizing
25 him as someone who deserves the death penalty
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2 for the nature and magnitude of the crime he
3 committed, his absence of remorse and his
4 threatening to do it again, his future danger,
5 I submit to you that when you return your
6 verdict, when you return your verdict, put your
7 personal views aside and you make a decision
8 where he fits in.
9 I submit to you, you should strive to
10 be a unanimous verdict, strive to be unanimous
11 one way or the other. This jury is the
12 conscience of the community. You are sending a
13 message to the community. Usama Bin Laden
14 doesn't care one way or the other what you say.
15 He will hate us. You send a message to the
16 community.
17 MR. RUHNKE: Objection, "sending a
18 message."
19 THE COURT: It's argument. Obviously
20 it's not intended literally.
21 MR. FITZGERALD: What you say, if you
22 decide that life imprisonment is a death
23 sentence, a unanimous verdict that says, 12 to
24 nothing, we think life is appropriate makes a
25 statement. A unanimous decision 12/nothing
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2 that in light of the fact that the death
3 penalty is on the books, this defendant
4 deserves it says something. We all know if
5 there is a deadlock, life results. That's not
6 a unanimous statement that is the right result.
7 I urge you all to work to respect the
8 process and work for a unanimous verdict, to
9 take 12 different people and try to come
10 together and say, when we return a verdict, we
11 speak with one voice. We have taken the law,
12 we have put our personal views to the side, and
13 we have said we have to decide, does he deserve
14 the death penalty or not, and we have come
15 together as 12 and spoke with one voice.
16 I submit to you think about this.
17 Mr. Ruhnke opened to you about a firing squad
18 and everything else in this case just happens.
19 When he wants you to think about a firing squad
20 and say there are no blank bullets, don't get a
21 guilt trip for what Khalfan did. You are not a
22 firing squad. You are not killers.
23 If Khalfan Mohamed gets the death
24 penalty, if you sentence him to the death
25 penalty, it's because the law is there. There
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2 is a law of our country and he broke it. He
3 broke it when he chose to kill. He broke the
4 law when he chose to kill in cold blood.
5 The fault for him receiving the death
6 penalty is sitting on his shoulders, and I
7 submit to you that when you think about the
8 firing squad, recognize that this is the firing
9 squad. 12 bullets. He killed 11 people on
10 August 7th, 1998. Let's remember who they are.
11 These 11 people were killed by the firing
12 squad, that is, Khalfan Mohamed: Mr. Abdulla,
13 Mr. Elisha, Mr. Ndange, for whom there is no
14 photo, Mr. Mahundi, five, six, seven, eight,
15 nine, ten, eleven.
16 He was that firing squad, with no
17 jury, with no trial, with no mitigating
18 factors. He just killed. And you know what?
19 He is a bullet. He is a bullet that ripped
20 through these 11 people and hasn't stopped. He
21 is a bullet that, when is caught in South
22 Africa and said, yeah, I killed, yeah, I'm not
23 sorry, I don't give a damn about the people I
24 killed and I'll strike again, and he did.
25 When he struck again, you saw what he
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2 did to Officer Pepe. This was his 12th bullet.
3 That's a man who wanted to make sure the
4 defendants could go and meet with their lawyers
5 for a fair trial, this trial. And I submit to
6 you that this man is a firing squad and a
7 bullet, and you are 12 pieces of a shield; and
8 only if the 12 of you all come together, the 12
9 of you form one shield, can you stop him from
10 killing again.
11 And I submit to you that when you
12 consider the magnitude of the crime, the awful
13 crime which he did coldly and with no remorse,
14 that a just sentence is the death penalty. But
15 I submit to you when you take a person, the
16 only person on the planet who is part of the
17 Tanzania bombing, and then participated in that
18 heinous assault on Officer Pepe, when you take
19 that, a death sentence is not just a just
20 verdict, I submit to you it's the responsible
21 verdict.
22 Thank you.
23 THE COURT: Thank you, Mr.
24 Fitzgerald. And we'll break for lunch and
25 we'll resume at 2:20.
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2 (Luncheon recess)
3
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2 A F T E R N O O N S E S S I O N
3 2:20 p.m.
4 (In open court; jury present)
5 THE COURT: Good afternoon.
6 Mr. Stern.
7 MR. STERN: Good afternoon.
8 You are not from Khalfan Mohamed's
9 world and he is not from yours and yet today,
10 nearly six months after we began, you sit here
11 to judge him, to decide his fate.
12 We all were raised in a world of air
13 conditioning and Corn Flakes and color TV. He
14 was raised in a mud hut. He went to a school
15 where coconut tree trunks stood in for desks.
16 You have never smelled the wind off an Indian
17 Ocean. You have never heard the cry of the
18 prayers in dusty Dar es Salaam. But today,
19 it's your job to decide if he should live or
20 die. Today you are his peers, and the only
21 ones who matter.
22 Although he came here from half a
23 world away, you also cannot forget what you
24 have in common, and that is your humanity.
25 Like you, he loves and feels pain. His life
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2 experience is not yours, none of you share it.
3 But he is closer to you than you know.
4 Mr. Fitzgerald would have you believe
5 that the tears you saw him shed were crocodile
6 tears. That means somehow that he cried for
7 your benefit, that he wasn't really moved by
8 his family and friends. But you sat here and
9 saw those weren't for your benefit. He tried
10 his best to hide them, but, like all of you, he
11 feels.
12 There are not many things I suppose
13 that Mr. Fitzgerald and I agree on but one is
14 this: On August 7th of 1998 Khalfan Mohamed
15 participated in a terrible, terrible act and
16 eleven people lost their lives. You found it
17 to be true. Khalfan Mohamed said it was true
18 and it is true. And for that terrible act he
19 will pay a terrible price. The only question
20 that remains is what price he should pay.
21 So let's talk for a moment about the
22 choices you have to make. There are only two.
23 The Judge has told you either you will sentence
24 him to death or you will sentence him to spend
25 the rest of his life every single day in
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2 prison.
3 Let's talk about the option of death.
4 Death in the end punishes those who remain.
5 Maybe there is a moment of pain, maybe the fear
6 that precedes it, but in the end it grieves
7 family, simple people who don't know why he's
8 here, who can't understand how he came to be
9 involved in the things he was involved in. He
10 won't have any more pain, and they will.
11 Maybe worse than that, other people
12 will cynically exploit his death.
13 Mr. Fitzgerald told you, well, no matter what
14 happens, whether he's put in prison, he'll be
15 exploited, whether he's executed, he'll be
16 exploited, but you know from something they
17 showed you that he's not even on the radar
18 screen. When Usama Bin Laden went on TV, he
19 mentioned a lot of people, Ramzi Yosef,
20 al-'Owhali. Did you hear him mention Khalfan
21 Mohamed? He's in jail, too, just like
22 al-'Owhali.
23 But part of the proof of how tiny he
24 really is, is that Usama Bin Laden's firing
25 people up. When he's telling people, this is
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2 why we fight, his name doesn't come up.
3 Now, all of you know the power of
4 martyrdom. It's not just an Islamic thing.
5 All of us know the name of Joan of Arc because
6 she was burned at the stake. But it's not just
7 big people who are immortalized by martyrdom.
8 Small people, too. You all know the name
9 Nathan Hale: I regret that I have but one life
10 to give for my country. He was just a soldier
11 in the revolutionary war, just a Vermont
12 soldier. No one would know who he was, had he
13 be held in a prisoner of war camp, but,
14 instead, once he was executed, he became a
15 rallying cry, a martyr, and we remember him to
16 this day.
17 Send him to jail and he'll quickly be
18 forgotten by all except those who love him.
19 Kill him, and you've guaranteed him
20 immortality.
21 In the end if you kill him, you'll
22 allow him to be used twice. Now, when I say
23 used, don't think that I am saying he didn't
24 know what he was doing. Don't think I am
25 saying he was not responsible for what he did.
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2 He knew and he is. That doesn't mean that
3 people bigger than him don't use all they've
4 learned over years and years to manipulate
5 people, to look for people with the kind of
6 zeal he has, with the kind of belief he has.
7 And so they got him, and he agreed of his own
8 free will to participate, and he was just what
9 the doctor ordered for this operation. He was
10 a local man. It would be no real loss in the
11 end if something happened to him. And he was
12 there to help him speak Swahili and get cars
13 and whatever, and so he served their purposes.
14 If you kill him, in death he will serve their
15 purposes again. Don't make that kind of
16 mistake.
17 The other option of course is life
18 imprisonment. And I want to talk to you about
19 two things that life imprisonment does to a
20 person. It affects you in the simplest most
21 day-to-day ways, and in the most profound ways
22 that we all know as human beings.
23 For him in the most basic way he will
24 never hear his native language spoken again.
25 He will never eat his native food. Now you can
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2 say boo hoo, too bad for him, and at some level
3 that of course is right, because there are
4 people who have suffered much, much more.
5 But as Mr. Fitzgerald has told you,
6 this will go on 24 hours a day, 7 days a week,
7 12 months a year, maybe for 50 years for him to
8 think about what he's done to his life and
9 everyday. When Thanksgiving comes and everyone
10 one else says, oh, at least we get turkey here
11 in the joint. At least we have that bitter
12 sweet memory of what it was like to be together
13 with our families, it will mean nothing to him.
14 Think of the things that make your
15 lives sweet. Think of picking what restaurant
16 to eat in, what movie to see, what clothes to
17 wear. Think of going to the bathroom by
18 yourself and no one is looking at you. That
19 will be taken from him. Every choice that he
20 will make will be determined for him by someone
21 else. Those are simple ways, ways that he'll
22 feel everyday for the rest of his life, but in
23 more profound ways as well, he will be
24 punished.
25 When his holiday Ramadan comes, he'll
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2 fast alone without his family. He'll never
3 marry. He'll never hold his child in his arms.
4 He'll live and die without seeing his nieces
5 and nephews born. And one day somehow he'll
6 get word that his mother has died, and he will
7 not be able to go and be in the arms of his
8 family. He'll be in jail and when that day
9 comes, five, ten, 15, 20 years from now, he'll
10 know I did this to myself.
11 Now, all of us, all of us have had
12 the experience of growing up and of saying to
13 ourselves: How did I do that? If we're lucky,
14 it's, how did I get a tattoo? But for him,
15 he's cost himself the rest of his life.
16 Those are the options you have and no
17 others. And the Judge will tell you the law
18 you must decide in following them. But I can
19 make it easier for you because we agree with
20 Mr. Fitzgerald again when he says the gateway
21 factors, you recall what they are, are proven.
22 They were proven by your verdict in the
23 original phase of this trial.
24 The statutory aggravators are proven.
25 They were proven by your initial verdict.
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2 Then there are the three nonstatutory
3 aggravators. Two of them are identical to
4 those in al-'Owhali, and only one is different
5 and that one of course is future dangerousness,
6 because it's the government's position that
7 Khalfan Mohamed is one of the people who
8 attacked Officer Louis Pepe, and it must be
9 obvious to you that that's really the crux of
10 this case.
11 On November 1st a terrible, terrible
12 thing happened. Officer Louis Pepe, a nice
13 person, a good man, was attacked, and for him
14 and his family nothing will ever be the same.
15 That's a given.
16 The question is, is Khalfan Mohamed
17 responsible for that attack? And the simple
18 answer is no, the government has not proven it.
19 The Judge will tell you that future
20 dangerousness, like the other aggravators, must
21 be proven to you beyond a reasonable doubt, and
22 you must all agree if it's to be used against
23 Mr. Mohamed. But the government has failed to
24 do that.
25 Now, Mr. Fitzgerald told you a
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2 version of the facts and it is a plausible
3 version of the facts, but that is not proof
4 beyond a reasonable doubt. So let me suggest
5 to you another plausible version of the facts,
6 a version supported by the evidence that you've
7 heard.
8 Let's say that seven days before
9 November 1st, Khalfan Mohamed and Mamdouh Salim
10 are put in the cell. They are not told they
11 are going together, but they're put in a cell
12 together. And Mamdouh Salim doesn't really
13 like Khalfan Mohamed very much and can't really
14 communicate with him very well. Look at the
15 stipulations from the psychiatric reports.
16 That's what he says.
17 And they're in the cell, but they're
18 not always in there together. And the cell is
19 filled with boxes. Agent Hatton I think told
20 you there were 68 boxes in that cell. You look
21 at the pictures and you'll see at the foot of
22 this bed the foot of that bed, next to the
23 sink, boxes everywhere.
24 And sometimes Khalfan Mohamed is out
25 of that cell and while he's out of that cell,
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2 he can't possibly know what Salim is doing, and
3 sometimes Khalfan Mohamed is sleeping and maybe
4 he doesn't really pay attention to what Salim
5 is doing, and Salim goes about his business,
6 and Khalfan Mohamed goes about his.
7 And then one day Salim gets a visit
8 from his lawyers, McAllister and Adler, and he
9 goes down the hall and on his way out he tucks
10 into his Redwell a sharpened comb, and a
11 sharpened brush.
12 Now, a lot was made of that brush.
13 Where is his brush? Do you know that the brush
14 next to Salim's bed isn't his that he used? Do
15 you know if there are brushes in any of those
16 68 boxes? You can't know because the FBI
17 didn't give you a record of what was in them.
18 So don't let them tell you it must be his
19 brush. What you do know is that no one ever,
20 ever says they see him with that brush.
21 So Salim goes down the hall and he
22 goes into one of those little interview rooms
23 and he he's sitting with his lawyers, and he
24 sees Officer Pepe and he's miserable, he's
25 angry, he hates being where he is, and he says
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2 to himself: I've got to get out of here.
3 And Officer Pepe comes and he says:
4 I have to go back to my cell for a minute,
5 Officer. And Officer Pepe is a good human
6 being and makes the mistake of not cuffing
7 Salim. And on the way back to the cell Salim
8 pulls out that comb and he attacks Officer Pepe
9 and plunges it into his eye.
10 What should make you think that
11 that's what happened? Well, look back at what
12 Lance Maiden tells you. He tells you: We saw
13 blood at cell number 4 on our way in. And
14 Jenkins, Rodrick Jenkins reluctantly tells you:
15 I concluded that Officer Pepe was attacked by
16 Salim on the way back to his cell.
17 One thing you know, that cell is
18 locked, and Khalfan Mohamed is locked inside.
19 So if there is blood in that hallway as the
20 officers are coming up then that blood got
21 there before Khalfan was out. Now, he takes
22 Officer Pepe and they say you know he's a
23 skinny man. This man was mujahadeen. You
24 remember he was one of the old ones, a guy who
25 fought in Afghanistan for years, and years. Do
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2 you think he can't take care of himself?
3 So he drags him back to the cell, and
4 he takes those keys and he opens that cell, and
5 what is Khalfan supposed to do?
6 If I could see picture 4020 for a
7 minute, please?
8 This is Khalfan Mohamed's bed. Take
9 a good look at it. You see the folded pillow
10 and the glasses set down. It looks like
11 somebody was sitting there reading or writing,
12 doesn't it? And it looks like after they got
13 up stuff was thrown on that bed.
14 So Khalfan Mohamed is sitting here,
15 minding his own business, and here comes Pepe,
16 and here comes Salim. What should Khalfan do?
17 Should he stay? Wouldn't the government have
18 said he was guilty if he stayed? Should he run
19 into the front? Wouldn't the government say
20 he's a lookout if he ran up to the front?
21 So Khalfan gets up and Officer Pepe
22 is being man handled by Salim, maybe stabbed
23 again with that hair brush, and Khalfan walks
24 out, and the only way he can walk out is here
25 where there's a pool of Officer Pepe's blood,
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2 and he goes out that door, he stops right
3 outside the cell. What should he do?
4 In what circumstance would the
5 government not come here and tell you he was
6 guilty? Then he waits, and he waits, and you
7 remember Rodrick Jenkins sees Salim up near the
8 front by the pillar. Is Khalfan with him? No.
9 Now the government will say about
10 that, well, I guess he was the lookout at that
11 back door at 10 South. And what if he went up
12 front, what would they say? He and Salim were
13 acting together.
14 Then they see Salim going with the
15 keys and Salim opens that door with the keys
16 and goes back inside. Did he say, Khalfan come
17 with me, buddy, we're in this together? Just
18 leaves Khalfan there.
19 Is what I'm telling you speculation?
20 No more than what the government told you. And
21 so when you're asked yourselves, what is proof
22 beyond a reasonable doubt, you know the answer.
23 No one really knows what happened there, and
24 you certainly can't kill someone on
25 speculation.
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2 Let's look more carefully at the
3 evidence the government produced. They began
4 by calling corrections officers and one of the
5 things in this case that's most interesting is
6 that these corrections officers cannot or will
7 not tell the same story.
8 Now, the government says we attribute
9 that to their fright or the hectic pace of
10 things that were going on, but they want you to
11 believe them about some things and disbelieve
12 them about others, and some of the things they
13 tell you cannot be true. Let's start with
14 Rodrick Jenkins.
15 He tells you he sees Salim alone near
16 the door with blood on his hands. He's
17 instructed the disturbance control team. And
18 he makes this conclusion that Pepe was attacked
19 returning Salim to his cell. He sees Salim
20 entering cell number 6 and now for the first
21 time we hear him say something that others
22 don't agree with.
23 He says: We come around the corner
24 near cell number 6, it's a blind corner. I
25 have the shield in front of me, and I'm
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2 attacked, boom, out of nowhere, I'm attacked.
3 Could be true, I guess, except that
4 Lance Maiden doesn't see it that way Lance
5 Maiden says, Khalfan is back up against the
6 wall, sort of bouncing on the balls of his feet
7 with his hands clenched. And Lt. Carrino says,
8 Khalfan is crouched down in a corner. So all
9 those things can't be true, but maybe that's
10 just attributable to the excitement and how
11 hectic things were.
12 Robert Jenkins doesn't recall the
13 shield breaking, and we know it broke. So
14 maybe that's attributable to how hectic things
15 were, but he does recall something. And if it
16 weren't so serious I guess maybe it would be
17 funny how it comes out, because what he recalls
18 is that Khalfan Mohamed had blood on his hands,
19 and here's how it comes out.
20 He's being questioned on redirect
21 examination by Mr. Garcia and it goes like
22 this:
23 Do you recall seeing blood on the
24 inmates Mohamed's hands?
25 "Q. Salim?
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2 Q. This defendant?
3 A. Oh, I don't rec
4 Q. I'm going to sh
5 Government Exhibit marked for
6 identification only 35164 and ask you to
7 read the last few lines on page 1.
8 Jenkins beginning to read: Got a
9 visual.
10 Q. Not allowed, I'
11 yourself?
12 A. Okay.?
ot allo
13 Q. Does that refre
14 recollection as to whether or not you
15 saw anything on Mohamed's hands? Your
16 recollection, not what the report says.
17 A. Yes.ction, not
18 Q. And what, if an
19 recall yourself seeing on this
20 defendant's hands?
21 A. Says blood.nds?
22 Q. Not what it say
23 officer. Your recollection, do you
24 recall -- and I'll take the report back.
25 Do you recall on your own whether or not
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2 you saw anything on Mohamed's hands when
3 you saw him in the corner?
4 A. Yes, just a bot
5 in his hand.
6 Q. And do you reca
7 withdrawn.
8 Does this refresh your recollection
9 as to anything else you saw on Mohamed's hands?
10 Does this report refresh your recollection,
11 your recollection as to anything else you saw
12 in Mohamed's hands?
13 A. Yes.ands?
to a
14 Q. What was that?
15 And he finally says: Oh, blood. I
16 saw blood on his hands.
17 Now, you'll remember that Rodrick
18 Jenkins is a specialist on this disturbance
19 squad and he was asked some questions about
20 some of his training, and these are the
21 questions he was asked by me.
22 Q. One of the thin
23 from your training that any evidence
24 needs to be preserved, isn't that fair
25 to say?
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2 A. Yes.Summation -
3 Q. And so for exam
4 had blood on their hands you wouldn't
5 allow them to wash their hands, would
6 you?
7 A. No. em to wash
8 "Q. You wouldn't allow them to wipe if off if
9 you could help, would you?
10 A. No.p, would you
11 Q. And from the ti
12 top of Mr. Mohamed, you never let him
13 wash his hands, did you?
14 A. No.is hands, di
15 Q. And you never g
16 anything to wipe his hands off on, did
17 you?
18 A. No." to wipe h
19 Now he says he has blood on his
20 hands. He says he never wiped them off and now
21 we have luckily an external source, a neutral
22 source that we can examine to see if indeed he
23 has blood on his hands.
24 So you should watch what we're about
25 to show you. Take a good luck. Take it back
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2 with you. Look at his hands. You get a good
3 luck at the palms of both his hands so when
4 Rodrick Jenkins says: Oh, yeah, he had blood
5 on his hands, he's not telling you the truth.
6 But we have another opportunity to
7 test what he says through a neutral source
8 because he tells you Khalfan Mohamed was
9 squirting something at him.
10 And he tells you it got on him, but
11 he tells you something else. What he was
12 squirting at me got on a shield I was using.
13 And you know you remember Mr. Kessner I think
14 his name was, came here and told you about
15 testing for capsicum and dihydrocapsicum, so
16 that if there was something on that shield all
17 they have to do is take the plexiglas shield,
18 test the plexiglas shield and see if it's
19 spattered with hot sauce.
20 But Agent Hatton, not part of the
21 Bureau of Prisons says: Nothing in my record
22 indicates that hot sauce was on any of the
23 plexiglas items. How could that be true?
24 Now one thing they do is they say,
25 well, we do have hot sauce on our clothes.
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2 That must prove that he was squirting hot
3 sauce. But you know that Salim was squirting
4 hot sauce. So the hot sauce on their clothes
5 doesn't prove who squirted it.
6 They could have proven it if it was
7 on that shield because everyone tells you he
8 was squirting it on the shield. Where is it?
9 If you're being told the truth, where is the
10 proof?
11 There is one other amazing thing in
12 this case, and it's something that comes up
13 again, and again, and again. You know that
14 Mamdou Salim and Khalfan Mohamed were badly
15 injured. You have a chance if you choose to
16 look at their medical records. Salim had a
17 broken jaw, and a cut on his left eye. Khalfan
18 Mohamed had a fractured orbit, a broken nose,
19 multiple fractures in his orbit. You can see
20 if you look at that video how badly bruised he
21 was. But not one person comes into this
22 courtroom and says: I hit him. I punched him.
23 Now, would it be understandable if
24 one of their own had been hurt? You can
25 understand them being angry. But someone had
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2 to tell you the truth. Read back through every
3 single person and see if one person sees
4 Khalfan Mohamed getting hit? See if one person
5 sees Mamdouh Salim getting hit? People are
6 with them all the time. People are standing
7 with them in a front near cell number 1.
8 People are standing with him in the hall
9 between cells number 4 and 5. Why is that
10 important? Why does that matter? What does
11 that have to do with anything?
12 Well, I guess what it has to do with
13 something in the end is that you'll find you've
14 been deprived of one of the most important
15 pieces of evidence and you'll have to decide
16 for yourselves why it doesn't exist, but maybe
17 the reason has something to do with that these
18 officers know that they beat these guys and
19 that they shouldn't have. But let's see, let's
20 see as we go on what we hear about that video.
21 Let's go next to Officer Maiden,
22 Lance Maiden. He's the person who tells you
23 there's lots of blood on the floor near cell
24 number 4, and that's interesting, because cell
25 number 4 is right where they take Khalfan
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2 Mohamed's clothes off, and I suppose that they
3 are going to say to you at some point, he has
4 Officer Pepe's blood on his clothes. How could
5 that happen? He has it on his shoes. How
6 could that happen? Although I already
7 suggested to you one way, that when Mamdou
8 Salim drags him in, Khalfan has to go right
9 past him to get out.
10 But you know there's another way.
11 They are fighting with him on the floor,
12 there's blood all over right inside the cell,
13 and Lance Maiden tells you there's blood all
14 over right in cell of number 4, and that's
15 right where they take his clothes off right
16 where you have photographs of his clothes lying
17 on the ground.
18 Anyway, he sees Khalfan, and he sees
19 Khalfan's hands, too, and there is not a
20 mention of blood on his hands from Officer
21 Maiden. He contradicts Rodrick Jenkins,
22 Officer Jenkins about what happened when they
23 approached. He said Khalfan stood back and
24 they approached him. He never sees Khalfan run
25 at them. But be that as it may, he also has no
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2 idea how anyone gets here, but there is
3 something much more interesting about Lance
4 Maiden.
5 You all recall seeing a videotape of
6 someone named Joe Rementer talking about what
7 happened. Joe Rementer is talking about what
8 happened within minutes of this incident. So
9 you should take a look at this and keep in mind
10 that Lance Maiden is the cameraman when this
11 video is made ten minutes after the incident.
12 That's what Lance Maiden tells you, ten minutes
13 after the incident.
14 (Video played)
15 MR. STERN: Now, there is a lot of
16 interesting things about that video, but the
17 first thing to consider is this: Officer
18 Maiden was asked questions about that video and
19 this is what he had to say:
20 As this crime scene video was being
21 made you knew that it could be evidence or
22 could be evidence in a case at some point,
23 right?
24 A. Correct.in a ca
25 Q. And so you knew
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2 be as accurate as it could possibly be,
3 did you not?
4 A. Yes. not?
ïÿ
5 Q. And you would n
6 let innacuracy enter a crime scene
7 video, would you?
8 A. That's correct.
9 Q. That would be a
10 practice, would it not?
11 A. That wouldn't h
12 So what's said in that video? What
13 does Rementer say, with Maiden standing right
14 there? He says Khalfan Mohamed is crouched
15 behind a plexiglas shield and Salim comes out
16 spraying and he point to two bottles, and it's
17 interesting, because his report is also in
18 evidence, Joseph Rementer's report, and he says
19 in there, he comes out with two bottles over
20 his head spraying, and you know for a fact that
21 only two bottles are found outside that cell,
22 and you know for a fact that Khalfan Mohamed
23 never goes back into the cell.
24 So when they say Khalfan was spraying
25 that sauce you begin to wonder if it could be
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2 true, and it's not just that videotape that
3 should make you think that, because, again,,
4 Officer Hatton, Agent Hatton, I'm sorry, from
5 the FBI, you remember him. He went around
6 collecting things and taking photographs. Just
7 like Officer Jenkins, Agent Hatton reached the
8 conclusion -- go back to his testimony and read
9 it if you like. His conclusion was that hot
10 sauce was sprayed from the door of cell number
11 6. Khalfan was never in the door of cell
12 number 6. He was opposite the door of cell
13 number 6. And when Mr. Fitzgerald was telling
14 you his version of what had happened, he said:
15 Oh, and, look, here's hot sauce on the wall
16 inside. That must have gotten there when
17 someone squirted it at Officer Pepe, and that
18 someone must have been Khalfan Mohamed.
19 Well, you know, Salim locked himself
20 in that cell and if you look there's a little
21 puddle of hot sauce in the shower, so maybe
22 what happened is Salim filled up those bottles
23 and tried them out, squirting them on the wall.
24 Oh, they work. Then he opened that door and
25 went after these officers.
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2 It's all speculation, mine and his.
3 Don't confuse that for proof beyond a
4 reasonable doubt.
5 They next called Glenn Carrino, and
6 he again had what I would consider minor
7 inconsistency, things that I suppose could be
8 the result of the hectic activity or something,
9 but he says I had the shield. I had the
10 plastic shield, not Jenkins. He says that
11 Khalfan stayed all the way back in the corner
12 as far from him as he could get and they had to
13 approach him.
14 He then talks about a statement that
15 Officer Pepe made, and those statements are
16 interesting because in some ways they are the
17 cornerstone of the government's case. The
18 government says, we have a witness. That
19 witness is Louis Pepe. And he told you, they
20 did it.
21 Well, Carrino tells you about a
22 statement and he tells you he's not 99 percent
23 certain that that is the statement. He says,
24 I'm 99 percent certain. He says, Lu, I gave em
25 a fight. I fought back. And the government's
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2 case relies on this. Is it I gave em a fight,
3 or did Officer Pepe in the condition he was in
4 say, I gave them a fight? He says I gave him a
5 fight, I give them a fight, I gave him a fight.
6 You think he was really saying those precise
7 words? You know he didn't say, Lu, I give them
8 a fight. I fought back, even though Carrino
9 says he's 99 percent certain that's true,
10 because he'd earlier said they slipped the
11 cuffs and I fought back was the statement that
12 was made to him, so maybe he doesn't have such
13 a perfect memory of this statement, but the
14 government will say to you, that word he's sure
15 about. He's another one who says: Oh, the
16 sauce was spattering on the shield. Where?
17 Where? He sees no one hit.
18 And then the most disturbing part of
19 his testimony, because he says, I am aware of
20 the taping system on 10 South. I am aware of
21 the way that system works and five months ago I
22 made a complaint about it, because it wasn't
23 working, and it hasn't worked since. There's
24 your explanation to why there is no tape. Does
25 that tape really matter?
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2 Well, I guess you can't know. Maybe
3 it would show he was innocent. Maybe it would
4 show he was guilty. Certainly it would show
5 who covered up that camera if it showed nothing
6 else. But I guess the system hasn't been
7 working for five months, then you wouldn't
8 expect there to be a tape.
9 So we go on to Robert Parrish. You
10 remember Mr. Parrish. I think he's retired
11 now. And he also has a lot to say to you about
12 the tape, but surprisingly it is a completely
13 different story.
14 He tells you, well, the FBI came once
15 and I gave them a tape and that was the wrong
16 tape. And they came again and I gave them
17 another tape, but that was the wrong tape. And
18 then after that, we just didn't have any tape.
19 And he was asked if he told Agent Felch that
20 the tape was a copy and he was asked if he told
21 Agent Felch that the original tape had been
22 copied over, and he said, you know, I've racked
23 my brains and I just don't remember that. But
24 luckily Agent Felch does, and we all remember
25 who Joseph Felch shall was. And he says:
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2 Q. Let me show you
3 marked KKM12. Does that refresh your
4 recollection as to the date on which you
5 called Mr. Parrish?
6 A. Yes, November 9
7 Q. And on that day
8 conversation with Mr. Parrish about
9 whether or not that tape was available,
10 right?
11 A. I had a convers
12 Parrish, asking him or telling him and
13 asking him the tapes that we had did not
14 appear to be the tapes of the incident
15 where Officer Pepe was assaulted. And I
16 was asking him if he knew what the tapes
17 were that we had or where a tape that
18 would show that assault might exist or
19 if it did exist.
20 Q. And Mr. Parrish
21 he not, that he believed that the tapes
22 started at 11 p.m. on October 31, 2000
23 and stopped recording at 104 a.m. on
24 November 1, 2000? Didn't he tell you
25 that?
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2 A. That's what I r
3 Q. And he then tol
4 believes that the tape he had given to
5 the FBI to an agent of the FBI was a
6 copy and not the original, right?
7 A. Yes, he did say
8 Q. And he finally
9 original was reused and was therefore
10 unavailable, right?
11 A. Yes."ble, right
12 Now, this is a truly amazing turn of
13 events because you're told by Glenn Carrino
14 that for five months it hasn't worked. You're
15 told by everyone that there's no system for
16 changing the tape, and so it's really okay that
17 there's no tape.
18 And then you find out that up until
19 very early the very morning of this incident a
20 tape was running, and then the FBI is told they
21 don't have it, and you can look at it, there is
22 a tape from October 31st into November 1st and
23 it shows what's happening on 10 South. That
24 tape as it happens is at night, but you can
25 look at the tape. It's in evidence.
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2 And incredibly what terrible luck at
3 1:04 the tape stops functioning, no one
4 replaces it, and they just don't have anything
5 to show what happened that day.
6 Now, you can say it's speculation
7 that maybe it is just bad luck, but it's no
8 different than what Mr. Fitzgerald asks you to
9 do when he puts together the facts his way.
10 It is curious at best that Carrino
11 says it hasn't worked for five months and that
12 Felch never mentions that the original tape was
13 reused, and that only an outsider, I'm sorry I
14 said the wrong person, I meant that Parrish
15 never mentions the original tape had been
16 reused. It's only an outsider Agent Felch who
17 tells you that that is what was said to him.
18 That's half the government's whole
19 case. They call Officer Santulli who says that
20 Officer Pepe tells her, I got them, and I think
21 Mr. Fitzgerald said to you she failed to
22 mention it when she was interviewed by the FBI.
23 But that's really not what happened.
24 You can have the agent's testimony
25 read. What really happened is he said to her:
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2 Did he say anything to you about the incident
3 and her answer was: No. And they know that's
4 a problem, so they say, well, it was so hectic,
5 she was so frantic she couldn't remember the
6 answer to that question, but a few months later
7 or a month later it came to her.
8 But it wasn't so hectic that she knew
9 to go to the doctors and say, give me the comb.
10 I have to establish a chain of custody. And
11 her statement, too, is, make sure I get it
12 right, I got him.
13 Now they want you to read as, I got
14 them. I got them. Therefore, it must be him
15 and Salim. And, finally, they offer you
16 Mr. Patel and Mr. Patel says, too, oh, he made
17 a statement something about them, but he does
18 write down a statement contemporaneously
19 notwithstanding what Mr. Fitzgerald says about
20 how impossible it was to do that, he does write
21 down a statement, and the statement he writes
22 down, take a look at Officer Pepe's medical
23 record is: An inmate stabbed me in the eye.
24 An inmate.
25 So if we're so concerned about how
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2 many people are mentioned in a statement, then
3 factor that in, too. An inmate, a inmate,
4 stabbed me in the eye. Well, that's not two.
5 But I guess that one you should
6 ignore, but I got 'em, you should take to mean,
7 I got them, I got him and Salim.
8 Now, the government might tell you
9 that Khalfan Mohamed has ordered hot sauce and
10 honey and that is true. When you look at his
11 commissary records you will see that Khamis
12 Mohamed has a sweet tooth, and you'll see it
13 from the day he came into MCC. Look at all of
14 his commissary records. He always was ordering
15 hot sauce and honey. It was a regular part of
16 what he ordered.
17 They also want you to ignore what is
18 powerful evidence of his innocence. They don't
19 mention the fact that he's never seen with
20 Salim, that Salim ignores him entering the
21 cell. They say, well, sure, we know all the
22 notes are Salim's. We know that it's Arabic
23 handwriting, written in the hand of a native
24 Arabic speaker, but that's all right, we know
25 that the note that, we are the Muslims of 10
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2 South is so dissimilar from his writing that
3 they didn't even submit it for analysis.
4 We know that Salim's prints are the
5 only ones found on these documents, but Salim
6 must have told him. Well, that's interesting,
7 because if those documents were hung on the
8 wall then even if Salim didn't tell him, he
9 should have seen, because these documents were
10 found in a box right next to his bed.
11 You could say, well, they must be his
12 or he must have known about them. On the other
13 hand, if they were found deep in the bottom of
14 a box next to Salim's bed you might say: How
15 could he have seen? This is a mess in here.
16 It's a pig stye, Salim could have written these
17 at any time. But you don't know.
18 The best they can tell you we know
19 these are from cell number six. Sorry,
20 counsel, that's all we can tell you. So they
21 try to take Salim and make him, tag him along.
22 Salim wrote nasty disgusting vicious things and
23 they want you to attribute those things to
24 Khalfan Mohamed. It was Salim who was angry
25 and upset fighting with his lawyers, going in
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2 front of judges. You can read when he went in
3 front of Magistrate Eaton how he was
4 complaining and fighting with the judge.
5 You know from McAllister and Adler
6 that he was angry. He wouldn't meet with them.
7 He finally did. You'll see that Salim comes as
8 close to admitting this crime as he could come,
9 without actually doing it.
10 He says when he's seen by the
11 psychiatrist and the psychologist, I took the
12 keys off his belt. I saw my chance and I took
13 it. I took them off Salim's belt in my cell.
14 Maybe the government will say he's so
15 close to Khalfan Mohamed that he's protecting
16 him somehow. But that's sure not what he says
17 when he talks to the psychiatrist and the
18 psychologist. He says: I was not getting
19 along with my cellmate, and I could barely
20 communicate with him, because his English and
21 his Arabic weren't really that good.
22 Khalfan Mohamed can't control how the
23 evidence is collected. Khalfan Mohamed can't
24 control if a videotape is put in the machine.
25 He's stuck with the job they do. And so when
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2 you ask yourselves if his future dangerousness
3 has been proven beyond a reasonable doubt, when
4 you ask yourselves should we blame him for the
5 attack on Officer Pepe, first say this:
6 It is a terrible, terrible thing.
7 And then say: There is not proof beyond a
8 reasonable doubt that he did this.
9 I tell you that whatever he would
10 have done the government would have said, it
11 looks like he's guilty. If you listen to
12 Joseph Rementer, the only person who within
13 minutes of this incident is telling you about
14 it and the only person who tells you about it
15 on videotape, a person who's telling it at a
16 time when no one could talk about it or think
17 about it, or plan about it, he says: Khalfan
18 Mohamed is in the corner behind a plexiglas
19 screen. No squirting, no weapons, just there.
20 (Continued on next page)
21
22
23 MR. STERN: (Continuing) and Salim
24 comes running out with these two squirt bottles
25 in his hands and a crazed look on his face, and
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2 Lance Maiden, who says, "I would step in if
3 there was misinformation in a crime scene
4 video," doesn't say a word.
5 It's not the kind of proof a
6 reasonable person would rely on without
7 hesitation in the most important matters of
8 their affairs. It's just government
9 speculation, and you cannot sentence someone to
10 death on speculation.
11 Now, the government may tell you
12 whether you find the attack on Peppe is
13 attribute to Mohamed or not, he is still a
14 future danger. They will say when he was
15 arrested, he said, I would do it again, I'm
16 glad Americans were killed.
17 And Mr. Fitzgerald crafted a very
18 good line: He doesn't have fire in his eyes,
19 he has ice in his veins. Really excellent.
20 You will remember it. Newspapers will write
21 it. But is that really completely true? And
22 you have the chance to read his statement. You
23 have a handwritten copy of it. That's the
24 statement taken as he was speaking. And you
25 will see that he tells the agents, "I think of
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2 the Kenyans all the time." He is asked a
3 question: "If there was a fatwah to kill
4 Americans anywhere you found them, what would
5 you do?" And his answer is: "I would have to
6 think about it. Some are good and some are
7 bad."
8 So when Mr. Fitzgerald says to you he
9 is a stone-cold killer, he is a person who
10 hides behind a mask of meekness, waiting for
11 his chance to kill, he has never had a moment's
12 remorse, you should doubt it, because even then
13 he was beginning to think for himself about
14 what he had done.
15 Well, that really is the government's
16 case. It must be clear that their whole case
17 really is about what happened with Officer
18 Pepe.
19 You heard from Dr. Cunningham, and
20 Mr. Fitzgerald ridiculed him, but the core of
21 what he said was completely unchallenged. At
22 ADX Florence, a guard has never been
23 hospitalized or killed as a result of an inmate
24 attack.
25 Now, do I know that Khalfan Mohamed
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2 will go there? No. He fits all the criteria.
3 But the only reason he won't go there is if the
4 Bureau of Prisons, who is, as you might
5 imagine, with 129,000 people in their system,
6 very experienced, says he needn't go there.
7 Otherwise, he will. It is a place that houses
8 the worst of the worst of the worst, and no
9 guard has ever been killed or hospitalized.
10 You saw what it's like, how they take
11 real care with a prisoner when you saw the
12 videotape of Khalfan being moved at Otisville
13 with the three officers and sticking his hands
14 through and the Martin chain and shackles on
15 his ankles, and I guess Mr. Fitzgerald's point
16 is that there is always human error. And I
17 guess that's true, there is. But that's why
18 they have three people -- to act as a check on
19 one another. That's why they change people all
20 the time -- so there is no familiarity.
21 Well, Mr. Fitzgerald ridiculed all of
22 the mitigation from Mr. Mohamed. He said
23 almost every time: Give it what it's worth.
24 Zero. Give it what it's worth: Less than
25 zero. So let's talk about it.
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2 One of the things to talk about is
3 his role compared to others who participated in
4 the offense, and Mr. Fitzgerald concedes that
5 he was not a planner. As a matter of fact, you
6 will read a stipulation from someone in the
7 U.S. Attorney's Office knowledgeable about this
8 case who says he is a low-level participant.
9 Not only is he not a leader, but there was no
10 one lower than he.
11 Mr. Fitzgerald says it couldn't have
12 happened without him, but that's not true.
13 Laborers, low-level people are a dime a dozen.
14 If they didn't find him, they were finding
15 someone else. The only skills he needed was to
16 speak Swahili and know how to do what he was
17 told.
18 Dr. Post came in and I think that Mr.
19 Fitzgerald referred to him as a dog and pony
20 show, as someone who had sold his dignity to
21 help out a terrorist. Now, you should think
22 for a moment about who Dr. Post is. Dr. Post
23 worked for the CIA for 21 years. Dr. Post did
24 profiles of world leaders for presidents.
25 Dr. Post is a psychiatrist. Dr. Post is a
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2 professor. Do you think for a second that he
3 is coming in here for him to destroy his own
4 reputation? He has spoken to 30 terrorists.
5 He has written on terrorism. He lectures on
6 terrorism. Do you think he is some sucker who
7 he is taking advantage of, or do you think
8 really that Dr. Post just said, I love this
9 little terrorist, I'm going to help him any way
10 I can? It's ridiculous.
11 Dr. Post came in here and tried to
12 explain to you his role in this offense, as he
13 understood it, and Mr. Fitzgerald says, well,
14 he didn't go talk to Bin Laden, he didn't talk
15 to Atef, he didn't talk to Zawahiri, he didn't
16 talk to this person, he didn't talk to Jamal
17 Al-Fadl, he didn't talk to Kherchtou, he didn't
18 say Odeh was the final word on al Qaeda.
19 He did say that Odeh described to him
20 how al Qaeda worked, and it's really the same
21 as what everyone else said. And what Odeh told
22 him was that there are members of al Qaeda --
23 and it's conceded that he is not a member of al
24 Qaeda -- and that the members of al Qaeda have
25 a say in what happens. I suppose maybe they go
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2 to meetings or secret handshakes, I don't know
3 exactly, but they have a say.
4 Khalfan Mohamed had no say. Mr.
5 Fitzgerald ridiculed the story about the Fanta.
6 Oh, poor Khalfan. He had to get somebody a
7 Fanta. But that wasn't really the point of the
8 story. The point of the story is that his only
9 job is to do what he is told, so when it comes
10 time to buy the Suzuki, read the transcript,
11 think back. Someone was there and gave him the
12 money to do it, and he put his name -- not an
13 Abu name, not a fake name, his name -- on the
14 car.
15 And when it came time to rent a
16 house, you remember someone, I think his name
17 was Mohamed Jaquanda was the broker for a
18 house, a slender elderly man, he said Khalfan
19 was there, someone who didn't speak Swahili was
20 there, and that person gave Khalfan the money
21 and Khalfan passed it over and Khalfan put his
22 name on there. And Mr. Fitzgerald acts like,
23 well, what's the big deal? He was running away
24 anyway. They were all running away, but they
25 weren't all putting their names on any
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2 documents.
3 He's the last one told of the
4 destination of the bomb. You know that al
5 Qaeda has this real knack for making passports.
6 You remember in El Hage's computer there were
7 all these different Yemen and Saudi Arabia,
8 different fake passport kind of things. He
9 didn't get one of those. He didn't get one of
10 a dead mujahadeen. He went to his friend
11 Zahran Malwi and said, hey, buddy, how about
12 changing a few things on this document and
13 letting me get a passport? That's how he got
14 his passport. He paid for it himself.
15 He was left there in the end, and Mr.
16 Fitzgerald said, well, he was left there but he
17 was supposed to go underground and they gave
18 him three phone numbers. They gave him three
19 phone numbers. They all went. They all went
20 to Yemen or Pakistan or Afghanistan before the
21 bomb ever went off. There was no risk for
22 them, but him, if he got caught, big deal.
23 Maybe they would get another martyr out of it.
24 Mr. Fitzgerald mocks the idea that
25 others of equal or greater culpability will not
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2 be sentenced to death, and he says, well, Bin
3 Laden's not caught, Atef isn't caught, Zawahiri
4 is not caught. We don't know what will happen
5 to them if they are caught. I suppose that's
6 true, but we do know about the people who are
7 caught.
8 We do know Mamdouh Salim is one of
9 the most powerful members of al Qaeda. We know
10 that Mamdouh Salim is on the Shura Council.
11 You remember the description of al Qaeda.
12 There's Bin Laden, the emir and then the Shura
13 Council, and that's where Abu Hajer al Iraqui
14 has his place and he lectures people. He is
15 one of the people who eggs on young men. Go
16 ahead, it's all right to do these bombings,
17 because Ibn Tamiyeh told us when we were
18 fighting the Tartars, if you kill people near
19 them, if they were innocent, God bless them,
20 they will go to heaven, and if they were
21 guilty, they deserve to go to hell anyway. So,
22 don't worry, if I tell you to go ahead, it's
23 okay.
24 Salim is a person who tried to buy
25 nuclear fuel to build a bomb. Remember Jamal
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2 Al-Fadl came in here and he told you how he was
3 sent into the middle of Khartoum somewhere to
4 meet with someone who had South African
5 uranium, and he was told he had to get in
6 contact with Salim and get something to weigh
7 it. Salim is one of the big moneymakers for al
8 Qaeda, and I want to talk to you for a minute
9 about that, because the top people in al Qaeda
10 seem to live pretty good lives.
11 You know that Ubaidah, before he died
12 in Lake Victoria, had a wife in Kenya and a
13 wife somewhere else and had cars and
14 businesses. You know that in Khartoum all
15 these people had businesses. And you remember
16 at one point Jamal Al-Fadl said, oh, no, no,
17 it's not true that just the most powerful
18 people, just the most connected people do well.
19 And I said, name one person who doesn't own a
20 factory or have a good business. Get back to
21 me when you think of it. And I'm still waiting
22 for him to get back to me.
23 Those people all do okay, and Salim
24 did okay until he got arrested in Germany.
25 Al-Fadl himself is doing pretty good. He got
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2 his whole family moved here. Wadih El Hage
3 doesn't face death.
4 And then we get to people much, much
5 closer to home. How about Ali Mohamed.
6 Remember who that is, Ali Mohamed, the guy who
7 lurks in the background? Well, now who should
8 lurk in the foreground, because you were read
9 his plea in which he admitted to what his role
10 was. And part of what he did was that he took
11 pictures of various embassies and aid centers,
12 I guess. And he took those pictures, and among
13 the things he did was he went back to Usama Bin
14 Laden.
15 Now, he has never gone to Usama Bin
16 Laden with anything. And he went back to Usama
17 Bin Laden and he said: Hey, Usama, or Bin
18 Laden, or whatever he calls him, I have this
19 picture here. It's of an embassy in Nairobi.
20 And Bin Laden said: Hey, that looks like a
21 good spot for a bomb, huh? And guess what
22 happened a few years later: Blown up. Ali
23 Mohamed, he doesn't face the death penalty.
24 How about Mohamed Sadeek Odeh. You
25 found that he was responsible for 213 deaths in
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2 Nairobi, and you had good reason to find it
3 because in his home in Witu he had a drawing of
4 the entryway to the embassy and he had a
5 drawing of his understanding of how the bomb
6 blast worked.
7 Now, that was tough to explain. I
8 remember Ed Wilford said, maybe it's a snow
9 cone or a boat, or he had some try at
10 explaining it, but you know that he was
11 directly involved. Not only was he directly
12 involved, but he was a leader. Because one
13 thing most of these leaders do is they have the
14 sense to never leave anything connecting them
15 to what happens. Did Salim know or not about
16 these bombings? No way of knowing. Did El
17 Hage know or not about these bombings? Who
18 knows?
19 But Odeh, you know, did. Why didn't
20 he face the death penalty here? How is that
21 fair? How is that just? Mr. Fitzgerald says
22 to you this is only about Khalfan Mohamed, but
23 it's about justice. It's about doing what's
24 right and doing what's fair, and if Odeh,
25 responsible for 213 deaths, doesn't face the
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2 death penalty, then how can Khalfan Mohamed?
3 A lot of people -- not a lot. Three
4 people are being extradited here from London.
5 One of them is named Eidarous, one al-Fawwaz
6 and one Abdel Bary, and you know that none of
7 them face the death penalty. One of them
8 can't. Al-Fawwaz apparently was not -- they
9 don't have the information to connect him to
10 the bombing, but Eidarous and Abdel Bary, they
11 do.
12 And Mr. Fitzgerald is right when he
13 says it's just a quirk of fate that they don't
14 face the death penalty. They're lucky to have
15 been arrested in a country like England. But
16 is that how this system should work, where your
17 life or death depends on a quirk of fate? Him,
18 that quirk of fate was just a little late. It
19 was just a mistake by someone in South Africa
20 or he would be just like Abdel Bary and
21 Eidarous.
22 Mr. Fitzgerald says to you, let's get
23 who we can, and where that leaves you is, let's
24 kill the least responsible person. Because the
25 last person you have to consider, all of you,
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2 is Mr. Al-'Owhali. You found him responsible
3 for 213 deaths. And while there is no way that
4 any death is okay, there is no way you can
5 balance one against the other.
6 Khalfan Mohamed is responsible for
7 11. He specifically chose to do the job he
8 did. Not only that, but he went and
9 reconnoitered. He looked around and said, wow,
10 that is crowded neighborhood. There's houses
11 and trains and banks and this and that. And he
12 even tried to get them to change it, but when
13 they didn't, ah, that's all right. We'll go
14 ahead anyway.
15 Khalfan Mohamed had never been to the
16 embassy. Everyone agrees with that. He didn't
17 really know what was there. Does that mean
18 he's not responsible? No. Don't mistake what
19 I am saying for that. But Al-'Owhali knew
20 specifically what damage would be done and he
21 went ahead.
22 He was actually there at the bombing.
23 He went there, he made sure it was carried out
24 and then he ran away. You know, it's hard, I
25 think, to understand how someone could do this.
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2 It's hard for me. I'm sure it's hard for you.
3 But it happened, and you have to somehow
4 compare people and what they did.
5 Part of what you can compare is how
6 they acted, because you didn't know it at the
7 time, but Mr. al-'Owhali straight-up lied when
8 he was arrested. And you will see there is a
9 stipulation of reports he filled -- not he
10 filled out, that were filled out about what he
11 said over about a two-week period. And he lied
12 and lied and lied and lied.
13 He said, I'm Khalid Saleh. I was
14 here to see my uncle. I was with a friend,
15 Harun, who was killed in the bombing, but we
16 were just walking by. I have no idea what
17 happened. I'm here from Yemen. I'm here from
18 here. Every word was a lie, until he was
19 cornered and had to tell the truth.
20 Mr. Fitzgerald says he is entitled to
21 nothing for having told the truth, and let's be
22 clear about something. Telling the truth,
23 accepting responsibility is a separate issue
24 from remorse. There is something to be said
25 for owning up to what you have done, and the
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2 government can't point to one fact in his
3 statement that is not true. From the biggest
4 to the smallest Mr. Fitzgerald says, well,
5 maybe you don't believe him when he says he
6 didn't know about Bin Laden. Do you have
7 evidence of that, or is that him asking you
8 again to speculate?
9 He gave them all kinds of information
10 in that statement. The FBI says that in that
11 statement he told them the names of the members
12 of his group. Take a look at it. It's an
13 interesting document. He gave physical
14 descriptions of each member in that group. He
15 told them the places where things had happened.
16 He told them what he had done and what others
17 had done.
18 And the government knows it's true
19 because they had the information before he ever
20 told them, but they didn't tell him. He told
21 them the truth without prompting, even down to
22 the tiniest things. You will remember that one
23 of the people, I think Khalfan Ghailani, maybe
24 rides a mountain bike, he can't drive, and he
25 said I think he rides a mountain bike. And
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2 remember someone came from the Al Noor Hotel
3 and said, oh, yeah, I remember one guy was on a
4 fancy bike with a lot of gears. He told them
5 something they didn't know -- that he had
6 mailed a package for Ahmed the German back to
7 Egypt after Ahmed the German was killed in the
8 bombing. It turned out to be true.
9 Every word he told them turned out to
10 be true. And it was in that same statement
11 that he talked about how he thinks about the
12 Kenyans, and I would have to think twice about
13 following a fatwah to kill Americans because
14 some are good and some are bad.
15 Now, again, I want to talk about
16 Dr. Post, who Mr. Fitzgerald ridicules as a dog
17 and pony show. He says, oh, that remorse,
18 that's fake remorse. That's the kind of
19 remorse one has because one doesn't want to be
20 executed and that he, sucker, Dr. Post, fell
21 for it and then he came in here and told you
22 all. Huh. Well, I've already talked about
23 Dr. Post and I think you would have to go a
24 long way to pull the wool over his eyes.
25 But beyond that, if Khalfan Mohamed
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2 wanted to try and fake remorseful, he would
3 have started from minute one with Dr. Post. He
4 would have said, oh, Dr. Post, I'm so sorry. I
5 can't believe what I have done. He didn't do
6 that. He didn't trust Dr. Post at first. Some
7 old white guy from the CIA comes in and starts
8 to talk to him and he says, I don't know
9 anything about anything. Mr. Fitzgerald says,
10 ah, he lied, but it's a lie that contradicts
11 the argument he makes. If it's false remorse,
12 he would think I had better pour it on every
13 chance I get, and that's not what he did.
14 It's another one of those things that
15 Mr. Fitzgerald says in his ringing way: Give
16 it what it's worth. Zero. Everything to him
17 is worth zero because he wants Khalfan Mohamed
18 dead. But you should give it what it's worth
19 because part of what we are as human beings is
20 mutable. We're able to change and learn.
21 Khalfan Mohamed had never really met
22 Americans before he came here, and all of a
23 sudden he has Americans lawyers and American
24 corrections people, American judges. And you
25 know, it's funny. I've heard that there's a
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2 tremendous amount of AntiSemitism in Japan,
3 where there is no Jews, and we all know that
4 very often in all white suburbs there's a lot
5 of racism, because we're all afraid of what we
6 don't know and we like to hate the people we
7 don't know.
8 But as you meet people, if you live
9 in New York City, you realize that everyone is
10 who they are as a person, and that's something
11 he has come to learn. And so when he says he
12 feels sorry, that, having thought about it, he
13 knows what a bad thing it was, must it be fake?
14 How many of you have changed as you thought
15 about things? How many of you, for example --
16 well, it doesn't matter. You have all changed.
17 Mr. Fitzgerald says there's a special
18 terrorist standard you should not apply, and
19 that standard that you should not apply is one
20 that says because your beliefs are sincere, you
21 don't deserve a break. And by that I suppose
22 he means to say that the person who murders out
23 of greed or out of lust is just the same as the
24 person who murders out of conviction.
25 And I want to talk to you about that
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2 for a minute, because it's sometimes hard to
3 know what's right and what's wrong in the
4 world. 90, 95, maybe 99 percent of these kinds
5 of movements are wrong, but just in our
6 lifetimes, we know that people call terrorists
7 have won the Nobel Prize. Yasser Arafat, when
8 I was a boy, was a terrorist, and next thing I
9 know, he's winning the Nobel Prize. Was he no
10 longer a terrorist? Is he no longer a
11 terrorist? I'm not suggesting one thing or the
12 other. Nelson Mandela was a terrorist, the
13 ANC, he was in jail on Robbins Island for 19
14 years or something, and then he was president
15 of South Africa. His movement, it turned out,
16 was right, not wrong.
17 Israel was begun by terrorists.
18 Menachem Begin was accused of blowing up the
19 King David Hotel. He was a terrorist. But
20 then later he was president, Prime Minister of
21 Israel. So when you say sincere beliefs don't
22 matter, sometimes they do. George Washington's
23 did. He was a terrorist to King George, I'm
24 sure.
25 You think it's hard to understand how
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2 he could be like that acting just for his
3 people. And I know it's not the same thing,
4 but as I think about it, I think of my grandma
5 who used to say whenever there was an election,
6 what's this person going to do for the Jews?
7 That's all. Not, how are they on the
8 environment? How are they going to be on
9 education? Is it good for the Jews was all she
10 ever asked. Now, she didn't bomb anywhere, she
11 went and played bridge instead, but that
12 doesn't mean that that impulse to look out for
13 your own is an impulse only someone like him
14 can have. So it does mean something.
15 That he acted out of sincere
16 religious beliefs. You know they are sincere,
17 but of what he did? South Africa. Mr.
18 Fitzgerald apparently would have you believe
19 that the whole time he was in South Africa he
20 was putting on a show; that when he was going
21 to mosque and teaching the mother the Koran and
22 teaching the kids the Koran and praying in the
23 little corner of his restaurant, that that was
24 all a show to tide him over until he could do
25 his next killing, but you know that's not
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2 really true. The idea that people are all one
3 thing or all the other is not the way the world
4 works.
5 We are not all evil or all good. All
6 of us have some of each. And when you saw
7 Sharhima Dalvie and you saw the people in her
8 family, you knew that that good was genuine.
9 He was working every day in a menial job, and
10 when he wasn't working, he was focused on his
11 faith. You may think it's foolish. You might
12 not be able to understand how he was so driven
13 just to focus on his faith, but he was, and no
14 one saw it.
15 You think he did it in preparation
16 for this? Hey, maybe some day I'll be arrested
17 and I'll be facing the death penalty, so I
18 better take this year out of my life and act
19 real, real religious. No.
20 How did he end up here? Well, it is
21 his fault. Mr. Fitzgerald is right about that.
22 He put himself here. But those sincere beliefs
23 were formed over years. I suppose you would
24 have to be in a mosque in Dar es Salaam and
25 hear what is said about Afghanistan and Bosnia
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2 and Somalia. You know, you know from his
3 statement, which the government has not been
4 able to show you in any way as untrue, that he
5 went to Afghanistan to be trained to fight in a
6 war, in a war. And he went to Somalia, seeing
7 if he could go to the front lines in a war.
8 That's not so foreign.
9 Americans have been to fight in wars
10 to defend their people, and he wanted to fight
11 in a war to defend his people but he didn't get
12 the chance, and instead that made him
13 susceptible to being easily led; his very
14 religiosity, his very belief made him a perfect
15 target. Again, don't think I'm saying it's not
16 his fault. It's his fault. He put himself
17 here, but there's a road he took to get here
18 and if you don't understand that road, you
19 can't possible judge him fairly.
20 He has proven with his family and
21 with people in South Africa that he has good in
22 him. The government says to you not kill the
23 most culpable, but kill the least
24 sophisticated. In the end, each of you has to
25 make a uniquely personal judgment whether the
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2 government has proven beyond a reasonable doubt
3 that the only appropriate punishment for
4 Khalfan Mohamed is death, whether that act
5 negated everything else he is and everything
6 else he will be.
7 If you kill him, you say there is no
8 hope not just for him, but for us. You say
9 there is no hope for the astounding human
10 capacity for change. You destroy the chance
11 that he will age and have the experience we all
12 share. We say if I had only known that before
13 and then pass it on to others. You eradicate
14 the hope that others will see the price Khalfan
15 has to pay for what he did. That price,
16 getting old and dying in jail, frightens the
17 young more than death.
18 In the end, if you give him life,
19 Khalfan will disappear. No one except those he
20 loves will remember him. Someone has to say
21 enough. Someone has to say I will not hurt
22 another family. Someone has to say I will not
23 become those I detest by doing what they do and
24 killing in the name of justice.
25 Let that be you.
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2 THE COURT: Thank you, Mr. Stern.
3 We'll take a very brief recess and then we'll
4 complete the opening statements.
5 (Jury not present)
6 THE COURT: Very brief recess.
7 (Recess)
8 THE COURT: Is someone here from CNN?
9 I'll see you in the robbing room after we
10 adjourn today.
11 There is a request from CNN about
12 post verdict interviews with jurors.
13 (Jury present)
14 THE COURT: Mr. Garcia.
15 MR. GARCIA: Thank you, Judge.
16 Good afternoon.
17 THE JURY: Good afternoon.
18 MR. GARCIA: It's been a very long
19 day, and thank you, as always, for your
20 attention and for your patience.
21 In the short time that we have left
22 together today, I would like to look at some of
23 the arguments Mr. Stern made to you while he
24 was up here this afternoon.
25 And it got a little emotional, and
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2 Mr. Stern said that Mr. Fitzgerald said you
3 should give zero weight to some mitigators
4 because he wants Khalfan dead. And he called
5 you killers a few times again, and I think we
6 have to get back to the fact that the reason
7 why you are here and the reason why you have to
8 decide whether this defendant receives a life
9 sentence or the death penalty is because of
10 what Khalfan Mohamed did, the crimes he
11 committed, and what he did in the prison on
12 November 1, 2000.
13 Everyone in this courtroom realizes
14 that this is not an easy road, that this is not
15 a simple decision, but you will know that it's
16 the right decision in this case. It's the
17 right decision because of this defendant, who
18 he is, what he has done and what he will do,
19 that the right decision in this case is a death
20 sentence.
21 Let's talk first about some of the
22 things that were said about causing pain and
23 suffering, causing pain to Mr. Mohamed's
24 family. When you think about that, I would
25 like you to keep one thing in mind: That
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2 Khalfan Mohamed hasn't been that person from
3 Pemba that they knew for a long, long time. He
4 hasn't been that student. He hasn't been that
5 son or that brother for a long time, since the
6 time that he became a killer, since the time
7 that he agreed to murder and murder without
8 remorse.
9 The family lost Khalfan Mohamed, the
10 Khalfan Mohamed they knew, a long time ago.
11 And the Dalvies, they never knew Khalfan
12 Mohamed. They didn't even know his name. They
13 knew the face he put on in South Africa, the
14 face he put on while he waited, the face that
15 said I wouldn't hurt an ant, when he had just
16 come from killing 11 people and when, the day
17 after, he's nabbed, the day he's arrested, he
18 says to the agents, I'd do it again, I'd help
19 in another bombing, I would kill more
20 Americans, I hope other people do it now that
21 I'm caught, and I would carry on if I could.
22 Let's talk about equally culpable
23 defendants. Other people don't face the death
24 penalty. Khalfan Mohamed chose this group. He
25 chose to be part of this global terrorist
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2 conspiracy and he helped some of the other
3 people get away, and that's who he wants you to
4 compare him with. He wants you to use Usama
5 Bin Laden as the yardstick and those others.
6 He should be compared to the group of murderers
7 who face the death penalty, and in that group
8 he stands out.
9 Why should a drug dealer in New
10 Jersey face the death penalty? Because he is
11 involved in such a heinous crime with such a
12 heinous crowd. And Mr. Stern made some
13 arguments, arguments about other people, and
14 those may have been very good arguments or they
15 may have had some weight at some time. And you
16 know what time Mr. Stern could have come up
17 here and talked to you about those arguments?
18 On October 31, 2000.
19 On October 31, 2000, there may have
20 been some weight to the arguments that other
21 people did more than me, because on November 1,
22 this defendant participated in that vicious
23 attack on Officer Pepe and he is the only one
24 who directly participated in the bombings in
25 Tanzania, killed 11 people, himself murdered 11
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2 people, and then once inside prison in the
3 United States, once here, awaiting a trial,
4 awaiting justice, participated in a vicious,
5 murderous attack on a guard in which the guard
6 was maimed and will never be the same.
7 You heard some talk about becoming a
8 martyr. Well, you have heard that Usama Bin
9 Laden wants people out of jail and that are
10 serving life sentences. Well, we hear that
11 those people were leaders before. You are
12 going to bring Khalfan Mohamed up to their
13 level. Well, Khalfan Mohamed got a lot of
14 attention by being tried here. Those other
15 defendants, Ramzi Yousef and Sheik Omar Abdel
16 Rahman, got a lot of attention for being
17 sentenced to life in prison. Should we not try
18 Abdel Rahman because we are going to make him a
19 martyr? Should we not try Ramzi Yousef because
20 we'll make him a martyr? It's fill in the
21 blank, as Mr. Fitzgerald told you.
22 Do they need another, do they need
23 another martyr? He's a terrorist. It may make
24 him a martyr. No. No. No. Let's have justice
25 for this crime. Let's have justice for this
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2 defendant. There are a million reasons out
3 there for Usama Bin Laden to attack America.
4 The fact this defendant may become more
5 notorious if he gets the death sentence should
6 not figure into your calculation.
7 There was some talk and there's been
8 talk about Salim, about his mental state before
9 this crime was committed on November 1st. In
10 his opening, Mr. Ruhnke said: We do not
11 contend, like Salim, that our actions are
12 somehow driven or justified or excused by
13 mental illness. And then we have heard a lot
14 about Salim's excuse. We have heard that he
15 talked to psychologists who went in to examine
16 him, to hear what he had to say and to evaluate
17 him. And you heard that Dr. Rosenfeld, when
18 talking about his hallucinations, he said, I
19 talk to this creature, Salim says, and the
20 creature told me to do things, and I fight with
21 the creature and should I do it and should I
22 not do it. And Dr. Rosenfeld concluded that it
23 is much more likely the possibility that Salim
24 fabricated his hallucinations in an effort to
25 explain the instant offense as due to the
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REBUTTAL - Mr. Garcia
2 stress of his confinement, that is,
3 malingering.
4 So what Khalfan Mohamed would do
5 would be piggyback on Salim's excuse, which the
6 psychiatrist or psychologist concluded was
7 malingering, was fabricated, and to say Salim
8 was crazy, Salim must have done it himself.
9 And you know that's nonsense. Salim fabricated
10 those voices as his excuse, and now Khalfan
11 Mohamed would use it to say that Salim
12 committed this atrocious crime by himself.
13 Let me talk to you a little bit about
14 something the defense has done in this case.
15 It's been very subtle. They have tried to have
16 it both ways. They talk about Khalfan Mohamed
17 and the bombing. You heard Dr. Post say that
18 Khalfan Mohamed was very able to be recruit, he
19 was very susceptible. And I'll read to you
20 from Dr. Post's testimony, direct, 8328, lines
21 11 through 25 on that page and the first line
22 of the next page:
23 "A. Let me back up some. He was brought into
24 contact," this is Khalfan Mohamed, "with a
25 small group in Mombasa by Fahid, who introduced
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2 him to Hussein. Hussein was described to me by
3 Odeh, a member of al Qaeda, as a very strong
4 leader, a man of compelling personality. He
5 didn't use the word 'charismatic,' but that was
6 the basic quality that he communicated --
7 strong, persuasive, authoritarian. When I
8 talked to Khalfan Mohamed about Hussein, he too
9 described him as a very strong leader, a very
10 powerful personality.
11 "I want to remind you he had been
12 told, by the way, he also mentioned that he was
13 a highly religious man and a very educated man.
14 He had been told back in Zanzibar at age 7 or 8
15 or so, when he was in schools, the importance
16 of paying unquestioning respect to learned men
17 who are pious and religious men, who are
18 authorities, and Hussein conveyed himself as an
19 authority to the young Khalfan Mohamed.
20 "So when it comes to Hussein, the
21 young Khalfan Mohamed, Hussein believes that
22 this pious religious scholar is irresistible.
23 This Hussein said kill, and Khalfan Mohamed
24 killed."
25 Now we have also heard a lot about
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2 Salim and, in the relative culpability section,
3 as being a scholar, someone who memorized the
4 Koran. He was on the Shura council. He issued
5 religious decrees and fatwahs. In fact, when
6 Mr. Stern crossed Al-Fadl at the guilt phase of
7 this trial, he asked him about that. I'm
8 reading from page 517, Mr. Stern's cross of
9 Al-Fadl:
10 "Q. And Salim would give explanations based on
11 the Koran for why things al Qaeda was doing
12 were okay, were good, right?
13 "A. Yes.
14 "Q. And he would quote from the Koran and try to
15 convince people through those quotes what al
16 Qaeda was doing and what you were being asked
17 to do was something that a good Muslim would
18 do, right?
19 "A. Yes."
20 Page 518, line 13:
21 "Q. Okay. Now, you yourself don't know every
22 line of the Koran, do you?
23 "A. No.
24 "Q. And so when he would talk," this is Salim,
25 "when he would talk to you about lines from the
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2 Koran, according to you, he would tell you
3 these things and you would accept them as the
4 truth, wouldn't you?
5 "A. Yeah."
6 Again page 521:
7 "Q. And that was his way of saying to you and
8 everyone else," this is Salim again, "it's okay
9 to kill civilians if you have to because I say
10 it and another scholar says it and the scholar
11 interpreting the Koran says it, right?
12 "A. Yes.
13 "Q. So that was to mean to say to everybody,
14 it's okay, don't worry if you kill civilians,
15 it's part of what we have to do?
16 "A. Yes, under war.
17 "Q. And when you heard that, you accepted it,
18 did you not?
19 A. Yes." heard tha
20 So Salim, to Al-Fadl, is a leader, a
21 religious scholar, a very pious man, big player
22 in al Qaeda, and he is saying, based on the
23 Koran, based on my interpretation, go kill
24 civilians, and Al-Fadl saying, yes, we did it.
25 And that's the man that Khalfan Mohamed is in
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2 the cell with. That was the man who, for seven
3 days, is talking about violations of his legal
4 rights, about taking hostages, about doing
5 something.
6 In that case Khalfan Mohamed says,
7 oh, no, no, no, Hussein is charismatic. Young
8 Khalfan falls for that. But in the cell with
9 the leader of al Qaeda, Khalfan Mohamed is no,
10 no, and he's very surprised when Salim shows up
11 at the door, dragging Officer Pepe, and runs
12 out and hides behind the shield. There's a
13 fundamental tension between those arguments.
14 If Khalfan Mohamed is so susceptible to the
15 arguments and persuasion of pious and religious
16 men, he is susceptible to Salim.
17 Let's talk a little bit about remorse
18 before we get to the stabbing of Officer Pepe.
19 Mr. Stern came up to explain about remorse and
20 that it was a process. Dr. Post was in a
21 process with this defendant. He didn't trust
22 him. He was a white man. He was from the CIA
23 and it was a little bit of a process to develop
24 as to accepting and expressing remorse.
25 Well, it was five weeks ago. Within
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2 the last five weeks, Khalfan Mohamed denies he
3 knew the embassy was the target; says that if
4 he knew the details, he would have tried to
5 stop it. He did not know the target as Ahmed
6 drove off in the bomb truck. He didn't know
7 where it was going until he heard about it
8 later. That's all within the last five weeks.
9 Then he says, as to the 302, there was a
10 language problem. There's another language
11 problem there, and he denies the 302.
12 And then he says, well, if I did it,
13 I'm sorry. And that's remorse. That's the
14 expression of remorse. That's not remorse.
15 That's not remorse. The truthful statement is
16 what he said to the agents, that he would do it
17 again, he would do it again if he could. And
18 you know actions speak louder than words and
19 you know he did it again.
20 Let's talk a little bit about the
21 language problem. He's in his cell with Salim.
22 You know he speaks English. Salim speaks
23 English. You know they both speak Arabic. On
24 the tape, South Africa, the imam from South
25 Africa says Khalfan was glad when he met me
REPORTERS CENTRAL
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REBUTTAL - Mr. Garcia
2 because we could speak Arabic. That's on the
3 South African video.
4 Now let's talk a little bit about the
5 attack in Cell 6. Before we do that, let's
6 talk about the tapes. A lot was made of the
7 tapes in Mr. Stern's summation. Officer
8 Carrino Lt. Carrino said as far as I knew, the
9 tape wasn't working. That's how worthless it
10 was. There was no procedure for changing the
11 tape. There was no written directions for
12 changing the tapes. The protocol for 10 South
13 was in evidence. As far as I knew, the tapes
14 weren't working. Salim thinks the tapes aren't
15 working. Written in the notes: What about the
16 video, it may not work.
17 What did you hear about the tapes on
18 November 1? Shortly after the incident, agent
19 goes over to 10 South, sees Robert Perrish, who
20 does not know about the taping system; it's not
21 his responsibility. He's there at the crime
22 scene. He goes back at the lieutenant's
23 office, he pops out one tape. Brings it out,
24 hands it to the agent. They leave. They play
25 it, they watch it, wrong tape. Shows 9 South
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REBUTTAL - Mr. Garcia
2 and shows a few of the corridors; does not show
3 the cells.
4 45 minutes to an hour, they bring the
5 tape back. They call the FBI agent, tell him
6 it's the wrong tape; he says come back, see
7 Perrish again. They go back, they leave this
8 tape downstairs. They don't give it back to
9 Perrish.
10 Perrish says okay. He goes in the
11 back, finds another tape, pops it out of the
12 machine, tries to play it in the front. It
13 gets stuck. They pull it out of the machine.
14 They hand it to the agent. As it turns out, it
15 is the view of the cells, but it's from 11 p.m.
16 to 1 a.m. the night before. Sometime later,
17 Agent Foelsch goes back and retrieves what he
18 thinks is the first tape which shows the 9
19 South view. So you have the two tapes here.
20 They're in evidence. You can watch them.
21 Perrish, who is being called, he says
22 I have a lot of conversations with agents about
23 tapes. On November 7 or 9 he talks to Agent
24 Foelsch again. He says, you know, I gave you
25 the tape. It shows 11 to 1. Maybe you heard
REPORTERS CENTRAL
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REBUTTAL - Mr. Garcia
2 that from another agent. He talked to a lot of
3 agents about it. He said maybe, Agent Foelsch
4 tells you, best recollection, he says the
5 original was taped over and you have got a
6 copy. Well, maybe he's thinking about that
7 tape they brought back that was left
8 downstairs.
9 Does he know if they had the
10 original? Do we know? There's a copy.
11 There's the original. That's what he is
12 talking about. There were two tapes. They
13 were taken out of the machines. Perrish
14 testified. He came in here. He told you what
15 happened. He looked at you, and here are the
16 two tapes, and that's the story of the tapes
17 and they're in evidence.
18 Let's talk about what happened on
19 November 1st. Now, Mr. Stern runs through a
20 story about Salim and Officer Pepe walking back
21 to the cell and the attack happening out there.
22 And I submit to you that that has to be,
23 because if the attack happens in the cell, it's
24 devastating. If the attack happens in that
25 small space of Cell 6 with Khalfan Mohamed and
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2 Salim, that's devastating. So the attack can't
3 happen there, has to happen outside. Well,
4 let's look at the forensics.
5 What do you see? And we'll look at
6 the photos too. You have some blood here.
7 Blood here is Peppe's. You have Khalfan
8 Mohamed's blood in front of Cell 4. That's the
9 blood in front of Cell 4. And then you have a
10 tremendous amount of blood back here.
11 And we will look at the photographs
12 of how that blood is. The blood here, blood
13 sample 3, it's on the walls. It's on the
14 walls. And you remember, and look at the
15 photographs. Salim is running to the front.
16 He is running to the front. He's behind the
17 post and he has blood on his hands. Nobody
18 says he doesn't. And he's running back through
19 the wing to get back to Cell 6. And there's
20 blood on the walls and there are a few little
21 blood stains here on the floor. There's a
22 fountain, a fountain of blood inside Cell 6,
23 all over here, all over the jumpsuit, all over
24 the prayer rug. You can see it in the
25 photographs.
REPORTERS CENTRAL
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8712
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REBUTTAL - Mr. Garcia
2 What else do you know? All over here
3 is hot sauce, sprayed in this area of the
4 shower. There is even a hot sauce top if you
5 looked at one of the photos Mr. Carrino showed
6 you; a yellow top, right here. The Redweld is
7 on the bed, bed 2. The jumpsuit is on the
8 floor. When Salim exits this room here and
9 comes around, he has the Redweld and the
10 jumpsuit. Redweld, jumpsuit inside the cell;
11 hot sauce against the shower.
12 Now, think, 155-pound Salim and
13 270-pound Officer Pepe, he stabs somewhere
14 here, doesn't leave a big pool of blood,
15 there's some splashes on the walls. He drags
16 him back with his Redweld and his jumpsuit all
17 the way around here, drags him here. There's
18 no blood, there's no smears like there is for
19 Salim over here, and they drag Salim and he's
20 leading. Look at the photograph. Look at the
21 smear. Look at the blood that's in this cell,
22 how much Officer Pepe bled. It's all over
23 their clothes.
24 No blood. Drags him back here with
25 his Redweld and with his jumpsuit, throws that
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2 onto the cell. Much to the surprise of Khalfan
3 man Mohamed? No. No. What the forensics show
4 you is blood all over the cell. Blood all over
5 their clothes. Hot sauce here, behind the
6 corner here. Redweld on the bed. That's what
7 the forensics show you and that's what
8 happened.
9 "Lure the hunt." Remember the notes:
10 "Lure the hunt." They lured the hunt.
11 Unfortunately for Officer Pepe, he was the hunt
12 this day. They lured him back. He opened the
13 cell, sprayed him with blinding hot sauce and
14 stabbed him with two weapons, two weapons, the
15 sharpened brush and the comb -- comb through
16 the eye, sharpened brush to the skull. To the
17 skull.
18 Two weapons. Let's talk about the
19 brush weapon. Let's talk about the brush
20 weapon. It's found out here covered with
21 Officer Pepe's blood, soaken to the bristles.
22 The commissary reports show that Khalfan
23 Mohamed ordered two brushes in the time before
24 this and Salim ordered one. Hatton tells you
25 when they search the cell, they find one
REPORTERS CENTRAL
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2 complete brush. It is here, right behind
3 Salim's bed. The other brush, the only other
4 brush they find, has been sharpened into a
5 shive.
6 Salim still has his brush. If you
7 look at the photograph of bed number 2, and
8 that's 4036, you can see that brush behind
9 Salim's bed. And you know it's Salim's bed.
10 If you focus, if we can, on that note right
11 there, that's written in Arabic. And much has
12 been done in this trial to show you that
13 Khalfan Mohamed doesn't write in Arabic.
14 So Salim has his brush back here.
15 Khalfan Mohamed's brush is sharpened into a
16 lethal weapon and is outside the cell.
17 And then you heard -- just look
18 quickly. Here's Salim's blood. Here's Salim's
19 blood and here's going back to Cell 6, blood on
20 the walls here, his hands, blood here. This is
21 the cell between these two Cells 4 and 5. That
22 is Khalfan Mohamed's blood, little spatters
23 going back here until you get to the cell,
24 which is a blood bath. Look at the corner
25 here, hot sauce here.
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2 And when the guards come around this
3 way to rescue Officer Pepe, when they get here
4 to this blind corner, hot sauce this way, hot
5 sauce this way, Salim comes out and attacks
6 them after Mohamed comes out of the blind side,
7 right here. What could he have done? He could
8 have put his hands on the wall; he could have
9 not fought with them; he could have not sprayed
10 them with hot sauce, that's what he could have
11 done. But that's not what he did.
12 Three officers came in here and
13 testified about it. They testified that
14 Khalfan Mohamed sprayed them with hot sauce.
15 Their clothes are in evidence if you want to
16 look at it. The photos are in evidence. Where
17 do they get sprayed? They get sprayed on their
18 sleeves from around the shield and it tests for
19 hot sauce.
20 What else? If you look at the other
21 diagram, which I won't put up, you will see
22 there's hot sauce over the doorway on the
23 outside of the cell. Now, Mr. Stern told you,
24 yes, Agent Hatton concluded from the stain over
25 here that hot sauce had been sprayed this way.
REPORTERS CENTRAL
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8716
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REBUTTAL - Mr. Garcia
2 What do you conclude from the fact that there's
3 hot sauce stains over the cell door of Cell 6?
4 That someone is spraying it this way, and
5 that's what happened. That's what happened.
6 So what do you know? You know
7 Officer Pepe's attacked in a little space with
8 two weapons and that when the guards come up,
9 they are attacked by Khalfan Mohamed first and
10 then Salim comes out to help him.
11 Finally, you also know what Officer
12 Pepe said. You know that he said, "I fought
13 them. I gave them a good fight." There were
14 three witnesses that came in here, Carrino,
15 Patel and Santulli, and they sat in this
16 witness chair and they told you Officer Pepe's
17 last words, describing what happened on
18 November 1st. You saw them. You heard them.
19 You watched them.
20 Your decision. You heard the direct.
21 You heard the cross. Your decision. Do you
22 think they were right? Do you think they were
23 accurate? And I submit to you they were.
24 Every one of them, from an officer
25 responding to a physician's assistant to
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REBUTTAL - Mr. Garcia
2 somebody who just rode along in the ambulance
3 who didn't know what had happened before, all
4 say the same thing, all tell you Officer Pepe's
5 last words, his last words before his brain
6 started to shut down, before he suffered that
7 stroke in Bellevue Hospital, and it's "them"
8 and it's "they."
9 It's Salim and it's Khalfan Mohamed.
10 That's how you know. You know it from the
11 statement. You know it from the forensics.
12 You know it from the evidence. You know it
13 from what he was doing when the guards got up
14 to that floor.
15 And remember, all of that, all of
16 that activity in the back of that cell, the
17 stabbings, the taking out of the sheets, the
18 blocking the camera, the prying open of the
19 electrical box, Salim going into the front, all
20 happened in 15 minutes. That's what McAllister
21 said. That's what McAllister said. From the
22 time Salim walks around the corner to the time
23 the guards come through the door is 15 minutes.
24 Two people, two people attacking, two people
25 attacking Officer Pepe and maiming him.
REPORTERS CENTRAL
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8718
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2 Ladies and gentlemen, I submit to you
3 at the end of the day you know two things,
4 after you have seen all the evidence, after you
5 have seen the plans and the videotapes and the
6 stories about Burger World, you know that this
7 defendant, this defendant, you found himself
8 killed 11 people. He murdered, slaughtered 11
9 innocents on August 7th, 1998. That's the
10 crime he is convicted of: Murder of 11
11 innocents in cold blood.
12 And you know that he's a danger. You
13 know that he's a danger to everyone he comes in
14 contact with because he said it, he told it to
15 the agents, he said he would do it again, and
16 he did it. He participated in the attack on
17 Officer Pepe and he attacked the guards that
18 came up to help him.
19 He's a calculating killer who wants
20 to kill again, and he will kill again. And
21 when he does, when he does hurt someone, maim
22 someone, kill someone again, you know what?
23 You know what, ladies and gentlemen? He will
24 still be from Pemba. He will still be from
25 Pemba. He still will have worked in Burger
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2 World and there will still be atrocities that
3 have been committed in Bosnia.
4 The only difference the next time,
5 the only difference the next time is there will
6 be a different victim, there will be a
7 different grieving family, there will be
8 someone else maimed, there will be someone else
9 killed. That's the only difference.
10 Khalfan Mohamed has killed and he
11 tried to kill again, and a life sentence for
12 Khalfan Mohamed is a death sentence for the
13 next guard in one of those prisons who makes a
14 mistake. That's the choice.
15 Now, you all said you could vote for
16 the death penalty where it was appropriate, and
17 there is no more appropriate circumstances than
18 this mass murderer who tried to kill a guard.
19 Stop Khalfan Mohamed's mission of murder, and
20 the only penalty that will do that, the only
21 penalty that addresses this crime and the
22 threat this defendant poses every day is the
23 death penalty.
24 It is not easy. It is not a
25 comfortable decision, but Khalfan Mohamed left
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2 you no choice.
3 Thank you.
4 THE COURT: Thank you, Mr. Garcia.
5 Ladies and gentleman, tomorrow the first order
6 of business will be the court's charge. You
7 should begin your deliberations midmorning
8 tomorrow. Have a pleasant evening. We are
9 adjourned until tomorrow morning.
10 (Adjourned to 9:30 a.m. on July 3,
11 2001)
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REBUTTAL - Mr. Garcia
2 DEFENDANT EXHIBITS
3 Exhibit No.
4 Received
5 K.K.M. 1 ...................................8524
6 K.K.M. 6 ...................................8526
7 K.K.M. 8 ...................................8527
8 K.K.M. 9 ...................................8528
9 K.K.M. 10 ..................................8528
10 K.K.M. 11, K.K.M.-PH-103 and K.K.M.-PH-104 .8528
11 K.K.M. 12 ..................................8529
12 K.K.M. 14 ..................................8529
13 K.K.M. 15 ..................................8529
14 K.K.M. 16 ..................................8530
15 K.K.M. 17 ..................................8530
16 18 .........................................8530
17 19, 14A and 14B ............................8531
18 K.K.M. 21 and 36 ...........................8531
19 K.K.M. 22 ..................................8532
20 K.K.M. 26 ..................................8532
21 K.K.M. 27 ..................................8533
22 K.K.M. 28, 42A, 42B and 42C ................8533
23 K.K.M. 25A .................................8537
24 K.K.M. 25B .................................8540
25 2, 13 and 25 ...............................8541
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REBUTTAL - Mr. Garcia
2 K.K.M. 27 ..................................8541
3 K.K.M. 29 ..................................8541
4 K.K.M. 32 and 32A through 32D ..............8542
5 K.K.M. 34 ..................................8542
6 K.K.M. 35A and 35B .........................8542
7 K.K.M. 36 ..................................8542
8 K.K.M. 38 ..................................8543
9 K.K.M. 39 ..................................8543
10 K.K.M. 40 ..................................8543
11 K.K.M. 41 ..................................8544
12 K.K.M 42 ...................................8544
13 K.K.M. 43 through 47 .......................8544
14 K.K.M.-PH-12, PH-28, PH-15, PH-31,
15 PH-34, PH-5, PH-8, PH-19, PH-22, PH-11, PH-9,
16 PH-3, PH-38, PH-39, PH-72, PH-20, PH-2, PH-51,
17 PH-43, PH-68, PH-93, PH-83, PH-102
18 and PH-94 ..................................8545
19 GOVERNMENT EXHIBITS
20 Exhibit No.
21 Received
22 4306 .......................................8547
23 4305 and 4329 ..............................8547
24 4308 and 4309 ..............................8548
25 4324 .......................................8549
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REBUTTAL - Mr. Garcia
2 4331 .......................................8550
3 4332, 4326, 4331A through 4331Q and 4315 ...8552
4 4331R and S ................................8552
5 4307, 3050, and 3050-T .....................8555
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