20 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 20 of the trial, 20 March 2001.
See other transcripts: usa-v-ubl-dt.htm
2926
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7) 98 Cr. 1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 March 20, 2001
10:25 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
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25
2927
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 KENNETH KARAS
PAUL BUTLER
5 Assistant United States Attorneys
6
ANTHONY L. RICCO
7 EDWARD D. WILFORD
CARL J. HERMAN
8 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
9
FREDRICK H. COHN
10 DAVID P. BAUGH
LAURA GASIOROWSKI
11 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
12 DAVID STERN
DAVID RUHNKE
13 Attorneys for defendant Khalfan Khamis Mohamed
14
SAM A. SCHMIDT
15 JOSHUA DRATEL
KRISTIAN K. LARSEN
16 Attorneys for defendant Wadih El Hage
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2928
1 (Trial resumed)
2 (Jury present)
3 THE COURT: Good morning.
4 JURORS: Good morning.
5 THE COURT: We are a little late getting started, for
6 which we apologize but that is because the attorneys have been
7 working on some stipulations to have the trial proceed in the
8 most efficient manner possible, and I believe that the next
9 orders order of business is with regard to stipulations. Mr.
10 Butler.
11 MR. BUTLER: I would like to read a stipulation
12 marked Government's Exhibit 74 for identification. It reads:
13 It is hereby stipulated and agreed by and between the
14 parties that if called as a witness an employee of Telkom
15 Kenya, formerly known as Kenya Posts and Telecommunications
16 Corporation, familiar with the records maintained by that
17 company would testify as follows:
18 1. Government's Exhibits 578A through 578G are
19 authentic business records of Telkom Kenya that were made at
20 or near the time of the events recorded in them from
21 information transmitted by a person with knowledge and were
22 prepared and kept in the regular course of Telkom Kenya's
23 business activity.
24 2. Government's Exhibits 578A through 578D are
25 billing records from Telkom Kenya from international calls
2929
1 made from the telephone number 25124320 during the period May
2 1998 through August 1998. A billing record reflects, among
3 other things, outgoing calls made from a telephone number or
4 numbers, the outgoing telephone number called from a
5 telephone, the time and date of the call, the length of the
6 call, operator-assisted calls, and other related information.
7 3. Government's Exhibit 578E are authentic business
8 records of Telkom Kenya that were made at or near the time of
9 the acts or events recorded in them from information
10 transmitted by a person with knowledge and were prepared and
11 kept in the regular course of Telkom Kenya's business
12 activity. Specifically, Government's Exhibit 578E are billing
13 records from Telkom Kenya for operator-assisted international
14 calls made from the telephone number 2512430 during the period
15 August 2, 1998, through August 7, 1998. A billing record for
16 international operator assisted calls reflects, among other
17 things, outgoing calls made from the telephone number or
18 numbers, the outgoing number called from the telephone, the
19 time and date of the call, the length of the call and the
20 identity of the caller as provided to the operator at the time
21 of the call, the P.O. Box address of the caller, and other
22 related information.
23 4. Government's Exhibit 578F are billing records
24 from Telkom Kenya for international calls made from the
25 telephone number 2766793 during the period August 1998. The
2930
1 subscriber for telephone number 2766793 during the period
2 August 1998 was Abdulari M. Hassan, Box 16010, Eastleigh,
3 Kenya, and the telephone was located at 11th Street in
4 Eastleigh. The billing record reflects, among other things,
5 outgoing calls made from a telephone number or numbers, the
6 outgoing telephone number called from a telephone, the time
7 and date of the call, the length of the call,
8 operator-assisted calls, and related information.
9 5. Government's Exhibit 578G are billing records
10 from Telkom Kenya for international calls, telephone calls
11 made from the telephone number 2767437 during the period
12 August 1998. The subscriber for telephone number 2767437
13 during the period August 1998 was All Communications Services,
14 Box 71687, Eastleigh, Kenya, and the telephone was located on
15 9th Street in Eastleigh. A billing record reflects, among
16 other things -- the same information -- outgoing calls made
17 from a telephone number or numbers, the outgoing number called
18 from a telephone, the time and date of the call, the length of
19 the call, operator assisted calls, and other related
20 information.
21 6. Authentic business records of Telkom Kenya that
22 were made at or near the time of the acts and events recorded
23 in them and were prepared and kept in the ordinary course of
24 business of Telkom Kenya show that the subscriber for the
25 telephone number 2250601 during the period May 1998 through
2931
1 August 1998 was the Hilltop Hotel in Nairobi, Kenya.
2 7. Authentic business records of Telkom, Kenya, that
3 were made at or near the time of the acts and events recorded
4 in them and were prepared and kept in the ordinary course of
5 business of Telkom Kenya indicate that the subscriber for the
6 telephone number 2765999 during the period May 1998 through
7 August 1998 show the subscriber as the Ramada Hotel in
8 Eastleigh, Kenya.
9 It is further stipulated and agreed that Government's
10 Exhibits 578A through 578G may be received in evidence at
11 trial and it is further stipulated and agreed that this
12 stipulation may be received in evidence as a Government's
13 Exhibit at trial.
14 Your Honor, we would move the stipulation which is
15 Government's Exhibit 74 and the underlying Exhibits, which are
16 Government's Exhibits 578A through 578G, at this time.
17 THE COURT: Received.
18 (Government's Exhibits 74 and 578A through 578G
19 received in evidence)
20 MR. KARAS: Your Honor, there is a stipulation among
21 the parties that Government's Exhibit 1067 is a photograph
22 taken of Khalfan Khamis Mohamed on October 5, 1999, and at
23 this time we move Government's Exhibit 1067 into evidence.
24 THE COURT: Received.
25 (Government's Exhibit 1067 received in evidence)
2932
1 MR. KARAS: If we could display Government's Exhibit
2 1067.
3 THE COURT: Yes.
4 MR. KARAS: At this time we would like to display
5 some exhibits that were entered by stipulation yesterday. The
6 first would be Government's Exhibit 1000-1.
7 THE COURT: Yes.
8 MR. KARAS: These are from the stipulation dealing
9 with documents in the Home Affairs Office file in South
10 Africa.
11 Then we would like to display Exhibit 1015-P1.
12 THE COURT: Yes.
13 MR. KARAS: 1016. 1017. 1018-1. Dash 2. And
14 1018-3. Next, 1019.
15 Next, your Honor, we would like to read from a
16 stipulation that has been marked for identification as
17 Government's Exhibit 52.
18 It is hereby stipulated and agreed by and between the
19 parties as follows:
20 1. If called to testify as a witness, a family
21 member of Hamden Khalif Allah Awad would testify that during
22 the evening of August 6, 1998, Hamden Khalif Allah Awad called
23 his family in Alexandria, Egypt, and asked that other family
24 members be summoned for a telephone call the next morning.
25 2. The same family member would testify that on
2933
1 August 7, 1998, Hamden Khalif Allah Awad called his family in
2 Alexandria, Egypt, and said that he was about to "leave this
3 life."
4 3. If called as a witness, a relative of Hamden
5 Khalif Allah Awad would testify that he provided a blood and
6 saliva sample in December 1998.
7 4. If called as a witness, a laboratory technician
8 from the FBI would testify that she compared the mitochondrial
9 DNA, mtDNA, contained in the blood sample provided by the
10 relative of Hamden Khalif Allah Awad with the mtDNA sequence
11 obtained from a yellow razor and a hair found in the same
12 yellow razor seized from 213 Ilala, Dar es Salaam, Tanzania --
13 the razor is previously received into evidence as Government's
14 Exhibit 1358 -- and concluded that the mtDNA sequences are the
15 same. Thus, Hamad cleave al Wadih could not be eliminated as
16 the source of the hair found on the yellow razor marked as
17 Government's Exhibit 1358A.
18 At this time, your Honor, we move Government's
19 Exhibit 52 into evidence.
20 THE COURT: Received.
21 (Government's Exhibit 52 received in evidence)
22 MR. KARAS: Next, your Honor, we would like to read
23 from a stipulation marked as Government's Exhibit 68.
24 It is hereby stipulated and agreed by and between the
25 parties as follows:
2934
1 1. If called to testify as a witness an employee of
2 DHL Worldwide Express in Dar es Salaam, Tanzania, would
3 testify that Government's Exhibit 1450 is a copy of an air
4 bill receipt for a DHL package sent from Dar es Salaam,
5 Tanzania, on August 6, 1998, to a location in Alexandria,
6 Egypt; that this air bill receipt was made at the time by a
7 DHL employee who processed the shipment request; and that the
8 receipt was copied and maintained in the course of DLH's
9 regularly conducted business activity.
10 At this time we move Government's Exhibits 68 and
11 1450 into evidence.
12 THE COURT: Received.
13 (Government's Exhibits 68 and 1450 received in
14 evidence)
15 MR. KARAS: If we could display Government's Exhibit
16 1450.
17 Next, your Honor, we will read from stipulation
18 marked for identification as Government's Exhibit 69. It is
19 hereby stipulated and agreed by and between the parties as
20 follows:
21 If called to testify as a witness, a consular officer
22 from the Yemeni Embassy in Tanzania would testify that
23 Government's Exhibit 1451 is a copy of an application for a
24 Yemeni visa dated July 28, 1998, in the name Zahran Nassor
25 Maulid, and a photograph of Khalfan Khamis Mohamed submitted
2935
1 with the application, both of which were maintained in a file
2 at the Yemeni Embassy in Tanzania. Government Exhibit 1451-T
3 is a fair and accurate English translation of Government's
4 Exhibit 1451.
5 At this time, your Honor, we offer Government's
6 Exhibits 69, 1451 and 1451-T.
7 THE COURT: Received.
8 (Government's Exhibits 69, 1451 and 1451-T received
9 in evidence)
10 MR. KARAS: And if we could display 1451.
11 THE COURT: Yes.
12 MR. KARAS: Next, your Honor, we would read from
13 stipulation marked for identification as Government's Exhibit
14 71.
15 It is hereby stipulated and agreed by and between the
16 parties as follows:
17 1. Government's Exhibit 1000 is a copy of a
18 temporary permit to prohibited person from the Department of
19 Home Affairs, Republic of South Africa, in the name Zahran
20 Nassor Maulid, dated September 15, 1998. This document
21 contains a photograph of Khalfan Khamis Mohamed.
22 2. Government's Exhibit 1001 is a copy of a
23 temporary permit to prohibited person from the Department of
24 Home Affairs, Republic of South Africa, in the name of Zahran
25 Nassor Maulid, dated July 6, 1999. This document contains a
2936
1 photograph of Khalfan Khamis Mohamed.
2 3. Government's Exhibit 1002 is a handwritten
3 statement in the name Zahran Nassor Maulid, which is written
4 in the Swahili language. Government's Exhibit 1002-T is a
5 fair and accurate English translation of Government's Exhibit
6 1002.
7 4. Government's Exhibit 1003 is a copy of a
8 Tanzanian passport in the name of Zahran Nassor Maulid and
9 contains a photograph of Khalfan Khamis Mohamed.
10 5. The exhibits listed in paragraphs 1 through 4
11 were maintained in the file of the Home Affairs Office in
12 Capetown, South Africa, in the regular course of business of
13 that agency.
14 Your Honor, at this time we would offer Government's
15 Exhibits 71 and 1000, 1001, 1002, 1002-T, 1003.
16 THE COURT: Received.
17 (Government's Exhibits 71, 1000, 1001, 1002, 1002-T
18 and 1003 received in evidence)
19 MR. KARAS: If we could display Exhibit 1001.
20 Next if we could display 1002-1, and 1002-T. Just
21 for the record I will read out 1002-T.
22 Nassor Zahran Maulid, date of birth 24th April 1997.
23 My name is Zahran Nassor Maulid and I am a native of Zanzibar
24 in Tanzania. I came here in South Africa due to problems and
25 those problems are the ones that prompted me to flee my
2937
1 country. My job was to arrange venues for political meetings
2 that were held by the CUF opposition party. Those activities
3 did not please the leaders of the ruling party, the CCM. So
4 they decided to use the force in their hands to harass us
5 members of that opposition party. Then I decided to run away
6 and look for means to come here in South Africa. I left Dar
7 es Salaam on the 9th August 1998 and entered Mozambique the
8 very same day. From there I proceeded and came to South
9 Africa, where I arrived on the 16th August 1998. That is my
10 statement in short.
11 And then if we could display 1003-1.
12 Your Honor, next the government would propose to read
13 from a stipulation marked for identification as Exhibit 57:
14 It is hereby stipulated and agreed by and between the parties
15 that Government's Exhibit 1106 is a copy of the lease of the
16 property on which the United States Embassy in Dar es Salaam,
17 Tanzania, was located as of August 7, 1998.
18 At this time, your Honor, we offer Government's
19 Exhibit 57 and Exhibit 1106.
20 THE COURT: Yes, received.
21 (Government's Exhibits 57 and 1106 received in
22 evidence)
23 MR. KARAS: Next, your Honor, we would read from
24 stipulation marked for identification as Government's Exhibit
25 59.
2938
1 It is hereby stipulated and agreed by and between the
2 parties as follows:
3 1. If called as a witness an employee of Mobitel,
4 MIC Tanzania Ltd., hereinafter Mobitel, familiar with the
5 records maintained by that company would testify that
6 Government's Exhibit 1459 is a collection of authentic
7 business records of Mobitel made at or near the time of the
8 acts and events recorded in them from information transmitted
9 by a person with knowledge and were prepared and kept in the
10 regular course of Mobitel's business activity. Insofar as the
11 records and documents are taken from a computer, the computer
12 equipment used was at all material times operating properly
13 and used in the regular course of Mobitel's business and there
14 are no reasonable grounds for believing that any record or
15 document attached hereto is inaccurate because of improper use
16 of the computer.
17 2. Government's Exhibit 1459 represents billing
18 records from Mobitel for the local mobile telephone number
19 328848 during the period April 1998 through August 1998.
20 3. A billing record reflects, among other things:
21 The person listed as a subscriber to the phone, outgoing calls
22 made from a mobile telephone number, the outgoing telephone
23 number called from a mobile telephone, the foreign country in
24 which the number called is located, the local time and date of
25 the call, the length of the call, and other related
2939
1 information.
2 At this time, your Honor, we offer Government's
3 Exhibit 59 and 1459.
4 THE COURT: Received.
5 (Government's Exhibit 59 and 1459 received in
6 evidence)
7 MR. KARAS: If we could display 1459-19.
8 Your Honor, at this time the government calls Margo
9 Hitpas.
10 (Continued on next page)
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25
2940
1 MARGO HITPAS,
2 called as a witness by the government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. KARAS:
6 Q Good morning, Ms. Hitpas.
7 A Good morning.
8 Q Can you tell us how you are employed.
9 A I am employed at the U.S. Attorney's Office here in
10 Manhattan.
11 Q What do you do at the U.S. Attorney's Office?
12 A I am a paralegal specialist.
13 Q Among your duties include the review of documents
14 connected with this case?
15 A Yes.
16 Q Have you had the opportunity to review telephone records
17 from Mobitel for the Tanzanian mobile phone number 328848?
18 A Yes, I have.
19 Q Have you had the opportunity to review the transcript from
20 this trial, or at least a portion of it?
21 A Yes, I have.
22 Q In particular, have you had a chance to review the portion
23 of the transcript from the testimony of the landlord at 43
24 Runda Estates in Nairobi, Kenya?
25 A Yes, I have.
2941
1 Q Can you tell us whether you have had an opportunity to
2 review a stipulation regarding subscriber records for the
3 Hilltop Hotel in Nairobi, Kenya?
4 A Yes, I have.
5 MR. KARAS: Your Honor, may I approach the witness?
6 THE COURT: Yes.
7 Q Ms. Hitpas, I have presented to you what have been marked
8 for identification as Government's Exhibits 1459A through E.
9 Can you tell us what those are?
10 A These are summary charts of outgoing calls from the
11 Tanzanian Mobitel mobile phone. 328848 is the number.
12 Q Did you prepare these charts yourself?
13 A Yes, I did.
14 Q Can you tell us, with respect to the outgoing call
15 information, where did you derive that outgoing call
16 information?
17 A This information came from Mobitel's records given to us,
18 April through August 1998.
19 Q And the information there, is it accurate as against those
20 records for Mobitel?
21 A Yes, it is.
22 MR. KARAS: Your Honor, at this time we offer 1459A
23 through E.
24 MR. RUHNKE: No objection.
25 THE COURT: Received.
2942
1 (Government's Exhibits 1459A through 1459E received
2 in evidence)
3 MR. KARAS: And if we could display 1459E, please.
4 Q Ms. Hitpas, if you could just tell us, the first five
5 columns there, the date, the local time, the length of call,
6 the number called and the location called, where was that
7 information derived from?
8 A That was derived from the Mobitel records.
9 Q And the last column there, subscriber, do you see down at
10 the bottom where it says towards the bottom Hilltop Hotel?
11 A Yes, I do.
12 Q Where did you derive that information?
13 A That is from Kenyan subscriber records.
14 Q Telephone records?
15 A Telephone records.
16 Q The subscriber that says 43 Runda, where did you derive
17 that information?
18 A That is from previous testimony, from the landlord of 43
19 Runda.
20 (Continued on next page)
21
22
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24
25
2943
1 MR. KARAS: Thank you. I have no further questions.
2 THE COURT: Anything further?
3 Thank you. You may step down.
4 (Witness excused)
5 MR. FITZGERALD: Your Honor, I have several more
6 stipulations to read before the next witness. First,
7 Government's Exhibit 155.
8 It is hereby stipulated and agreed by and between the
9 parties that if called as a witness an employee of Southern
10 Bell familiar with the records maintained by that company
11 would testify that:
12 1. Government's Exhibit 451A is an authentic
13 business record of Southern Bell that was made at or near the
14 time of the acts and events recorded in it and was prepared
15 and kept in the regular course of Southern Bell's business
16 activity. Specifically, Government's Exhibit 451A are
17 subscriber records for the telephone number area code
18 407-363-6981 during the periods indicated, which reflects
19 among other things a telephone number or numbers, the address
20 where the telephone number is listed, the customer who
21 subscribes to that telephone number, a name for purposes of
22 billing, an address for purposes of billing, and other related
23 information.
24 2. Government's Exhibits 451B through 452B are
25 authentic business records of Southern Bell that were made at
2944
1 or near the time of the events and acts recorded in them and
2 were prepared and kept in the regular course of Southern
3 Bell's business activity. Specifically, Government's Exhibit
4 451B consists of long distance toll records for the telephone
5 number 407-363-6981 during the period May 1995 through April
6 1998 and July 1998. Government's Exhibit 452B consists of
7 long distance toll records for the telephone number
8 407-658-6371 during the period August 1996 through November
9 1998.
10 3. Toll records reflect among other things outgoing
11 calls made from a telephone number or numbers, the outgoing
12 telephone number called from the telephone, the time and date
13 of the call and the length of the call, and other related
14 information.
15 At this time, your Honor, the government would offer
16 Government's Exhibit 155 and the exhibits referred to within
17 that stipulation, which would be 451A, 451B, 452B.
18 THE COURT: Received.
19 (Government's Exhibits 155, 451A, 451B and 452B
20 received in evidence)
21 MR. FITZGERALD: The government would next read from
22 a stipulation marked as Government's Exhibit 156. It is
23 hereby stipulated and agreed by and between the parties
24 follows: If called as a witness, an employee of Pacific Bell
25 familiar with the records maintained by that company would
2945
1 testify that:
2 1. Government's Exhibits 364A through 365A are
3 authentic business records of Pacific Bell that were made at
4 or near the time of the events recorded therein and were
5 prepared in the regular course of Pacific Bell's business
6 activities. Specifically, Government's Exhibit 364A are
7 subscriber records for the telephone number 408-244-1209 for
8 the dates indicated.
9 2, Government's Exhibit 365A is a subscriber record
10 for the telephone number 916-338-1699 for the dates indicated.
11 A subscriber record reflects among other things a telephone
12 number or numbers, the address where the telephone number is
13 listed, the customer who subscribes to that name, a name for
14 purposes of billing, an address for purposes of billing, and
15 other related information.
16 Government's Exhibits 364B through 365B are authentic
17 business records of Pacific Bell that were made at or near the
18 time of the acts and events reported in them and were prepared
19 and kept in the regular course of Pacific Bell's business
20 activity. Specifically, Government's Exhibit 364B are long
21 distance toll records for the telephone number 408-244-1209,
22 covering the period from October 1993 to May 1995, and
23 November 1995 through May 1997.
24 Government's Exhibit 365B are long distance toll
25 records for the telephone number 916-338-1699 during the
2946
1 period May 1997 through August 1998. Toll records reflect,
2 among other things, outgoing calls made from a telephone
3 number or numbers, the outgoing telephone number called from
4 the telephone, the time and date of the call in Pacific coast
5 time, the length of the call, and other related information.
6 The government would offer Government's Exhibit 156
7 and the exhibits referred to therein, which are 364A, 365A,
8 364B and 365B.
9 THE COURT: Received.
10 (Government's Exhibits 156, 364A, 365A, 364B and 365B
11 received in evidence)
12 MR. FITZGERALD: At this time, your Honor, the
13 government would display an exhibit in evidence, Government's
14 Exhibit 702-P. As you can see, that is a document in a
15 foreign language, and then we will be displaying the
16 translation -- one moment with counsel.
17 Judge, we will now display to the jury Government's
18 Exhibit 702-T, page 1, and I will note for the record a
19 stipulation with counsel for Odeh. These are documents from
20 the Witu search. They do not have a year appearing on the
21 documents. There are references from August and it is not the
22 government's contention that these refer to 1998. We contend
23 they refer to a prior year. I believe that is the
24 stipulation.
25 Looking at Government's Exhibit 702-T, page 1, if you
2947
1 would look at the bottom of the page and I will read aloud:
2 Note. Ahmed al Saghir was sent to Mombasa to brother Khalid
3 carrying a report.
4 If we could display 702-T, page 2. The entry for
5 July 13, the first entry, reading currency 800 for work. This
6 rope was purchased to build a camp and to also sharpen the
7 swords.
8 Looking at the entry for July 16, spotlight, 520 for
9 work for training.
10 If we could display Government's Exhibit 702-T, page
11 3, and the next to last entry, if we could enlarge August 7,
12 it says: Weapons and artilleries, quantity 1,000, price in
13 Kenyan currency 50,000, price in dollars, weapons 1,100,
14 arteries 300, beneficiary, work, note. The money was sent to
15 purchase weapons and arteries for work purposes since the
16 dollar is worth 35 Kenyan shillings.
17 That is the last we will be reading from 702-T.
18 At this time the government would read from
19 Government's Exhibit in evidence 710-96T, and then it will
20 call its next witness. If we can display 710-96T. We will be
21 reading from Government's Exhibit 710-96T.
22 (Mr. Fitzgerald read to the jury from Government's
23 Exhibit 710-96T in evidence)
24 MR. BUTLER: The government calls Special Agent Dan
25 Gorman, your Honor.
2948
1 DANIEL GORMAN,
2 called as a witness by the government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. BUTLER:
6 Q Agent Gorman, how are you employed?
7 A I am a supervisory special agent with the FBI in the New
8 York office.
9 Q How long have you been with the FBI?
10 A For 13 years.
11 Q Drawing your attention to September of 1998, where were
12 you assigned during that time?
13 A During that time I was assigned to Nairobi, Kenya.
14 Q Drawing your attention specifically to September 17, 1998,
15 do you recall where you were working that day?
16 A Yes, I do.
17 Q Where was that?
18 A It was at the CID office in Nairobi, Kenya.
19 Q What was your assignment at the CID headquarters of
20 Nairobi, Kenya, on September 17?
21 A That day I was tasked to review some of the evidence that
22 was obtained in the Comoros islands.
23 Q Where did you go to obtain that evidence?
24 A I obtained from the evidence room in the CID headquarters.
25 Q When you got evidence room, what did you ask for?
2949
1 A I asked for whatever items were obtained from the Comoros.
2 Q Who did you ask that from?
3 A It was the evidence custodian.
4 Q What did the evidence custodian give you?
5 A He gave me a gold-colored nylon bag, and also there was
6 another item, there was a blue vinyl suitcase.
7 Q What did you do with the yellow bag?
8 A I reviewed, looked at the items inside and I initialed all
9 the items and the bag itself.
10 MR. BUTLER: May I approach, your Honor?
11 THE COURT: Yes.
12 A This is the bag.
13 Q Just a moment. I place before you what has been
14 previously admitted into evidence as Government's Exhibit 947,
15 and you recognize that as the bag that you received from the
16 evidence room that day?
17 A Yes, I do.
18 Q Once you received the bag, what did you do with it?
19 A I went through each of the items, I initialed each of the
20 items that were inside the bag. I also initialed the bag
21 itself here.
22 Q Turning to the items that you found inside the bag, could
23 you describe briefly what you found inside the bag.
24 A The bag was filled with papers. There were some telephone
25 calling cards, plastic disks, and there were some other
2950
1 notebooks inside.
2 Q Do you recall anything specifically about these notebooks?
3 A The notebooks caught my attention because when I initialed
4 them, I opened them up, they had some diagrams in them that
5 appeared to be military-type diagrams.
6 MR. BUTLER: Your Honor, may I approach?
7 THE COURT: Yes.
8 Q Agent Gorman, I have placed before you what have been
9 previously marked as Government's Exhibits 940 and 942 for
10 identification. Do you recognize those documents?
11 A Yes, I do.
12 Q How do you recognize those documents?
13 A They have my initials on them and also I recall them from
14 the day when I removed them from the bag.
15 Q Again, what in particular are those documents?
16 A These are the notebooks that came out of the bag.
17 Actually, they are probably one of the first things that I
18 pulled out of the bag.
19 Q Except for the Post-Its on them, are they in substantially
20 the same condition that you found them on September 1517,
21 1998?
22 A Yes, they are.
23 MR. BUTLER: Your Honor, I move Government's Exhibits
24 940 and 942 at this time.
25 THE COURT: Received.
2951
1 (Government's Exhibits 940 and 942 received in
2 evidence)
3 Q Talking for a minute about the Post-Its, did you have a
4 chance to review Government's Exhibits 940 and 942 before you
5 came to court today?
6 A Yes, I did.
7 Q Who placed the Post-Its on those documents?
8 A I did.
9 Q What do those Post-Its reflect?
10 A They show where some of the diagrams are located in these
11 books, some of the diagrams that caught my attention on the
12 day that I reviewed the evidence.
13 MR. BUTLER: Your Honor, with the court's permission
14 I would like to review some of the items on the overhead.
15 THE COURT: Yes.
16 Q Turning first to Government's Exhibit 940, do you
17 recognize that page, Agent Gorman?
18 A Yes, I do.
19 Q As you were reviewing it, what did you believe this page
20 to be?
21 A It looked like some type of timing device with wires
22 attached to it. This in conjunction with other diagrams in
23 there were suspicious, looked like possibly the type of item
24 that would be used for an explosive.
25 Q Bring up the next one.
2952
1 A This one also caught my attention, because the thing that
2 looks like a clothespin at the low part of the screen appears
3 to be an activator type of device, something that would be
4 used for an improvised explosive device. The two ends come
5 together.
6 Q If we could go to the next one. What in particular did
7 you notice about this diagram, Agent Gorman?
8 A This one I remember well because when I saw this diagram,
9 I brought it to the attention of my supervisors at Nairobi,
10 because it appeared to be a type of something that would be
11 placed in a drawer. So it appeared to be a type of, some
12 people call boobytrap, because of the clothespin-type device
13 with the wires, and I believe next to it it also says
14 detonator in English.
15 Q Did this cause you any particular concern at that time?
16 A Yes, it did, because we had people who were doing searches
17 at the time --
18 MR. SCHMIDT: Objection, your Honor.
19 THE COURT: Sustained.
20 Q Why don't we move to the next one. Would you just
21 describe for the jury what is depicted on this page of the
22 manual?
23 A It appears to be another diagram like --
24 MR. SCHMIDT: Objection, your Honor.
25 MR. BUTLER: I am sorry, withdrawn.
2953
1 Q Could you please describe what is depicted on this page of
2 Government's Exhibit 940, Agent Gorman.
3 A It appears to be another of these type diagrams, utilizing
4 the clothespin with the battery, and also there is another
5 part of the diagram that has the word explosive at the bottom
6 part of the diagram, which is in the upper part of the page.
7 Q Can we go to the next one. Could you describe what you
8 saw on this page.
9 A This diagram to me appears to be a type of --
10 MR. SCHMIDT: Objection, your Honor.
11 THE COURT: Overruled.
12 MR. SCHMIDT: As to what appears. I don't believe he
13 is a qualified expert.
14 Q Agent Gorman, do you have any military experience in
15 addition to your experience with the FBI?
16 A Yes, I do.
17 Q Could you describe briefly to the jury what that
18 experience is.
19 A I currently hold the rank of major in the US Marine Corps
20 Reserve.
21 Q How long have you been with the Marine Corps?
22 A Almost 20 years, 19 good years.
23 Q Have you had any explosives training in connection with
24 your tenure with the Marine Corps?
25 A Every Marine Corps officer is trained to be an infantry
2954
1 platoon commander, trained to recognize the basic rudiments of
2 explosives and also how to use them in a field role, in a
3 combat role.
4 MR. BUTLER: May I continue questioning, your Honor?
5 THE COURT: Yes.
6 Q Agent Gorman, what did you notice about the figure on this
7 page?
8 MR. SCHMIDT: Objection.
9 THE COURT: Overruled.
10 A It appeared to be a type of explosive device. From what I
11 have seen, my experience, it looks like an antipersonnel mine,
12 something you would stick in the ground.
13 Q How about this page, Agent Gorman?
14 A This one also appears to be another type of
15 antipersonnel -- the top part of the page appears to be an
16 antipersonnel mine, what we call in the Marine Corps a
17 Claymoor mine. They are usually command detonators.
18 Q If we could go to Exhibit 942. In reviewing Government's
19 Exhibit 942, Agent Gorman, what did you notice about this
20 page?
21 A This appears to be a diagram on how to do an ambush.
22 MR. SCHMIDT: Objection.
23 THE COURT: Overruled.
24 A The little stick figures would represent troops firing at
25 a target or at their opponents. The little guidelines I have
2955
1 seen in the past are utilized to designate fields of fire.
2 The direction that the representation should fire at.
3 MR. BUTLER: No further questions, your Honor.
4 THE COURT: Mr. Schmidt on behalf of the defendant El
5 Hage.
6 CROSS-EXAMINATION
7 BY MR. SCHMIDT:
8 Q Agent, you were able to tell us what you believed the
9 diagrams show based on your military training; is that
10 correct?
11 A Yes.
12 Q And your military training was basic military training,
13 not any special ops?
14 A I received some additional military training while on
15 active duty.
16 Q Military training, not counterterrorism training, for
17 example?
18 A I did receive counterterrorism training while on active
19 duty in the US Marine.
20 Q What did that entail?
21 A I went to two separate courses. I attended a class at the
22 Army Special Warfare School. The course was called Terrorism
23 in Low-Intensity Conflict.
24 Q But the diagrams that you have identified were explosives;
25 is that correct?
2956
1 A I said they appeared to be.
2 Q The appearance to you was based on your actual military
3 training of explosives, like mines, detonators, etc.; is that
4 correct?
5 A I have had some training in that area, yes.
6 Q That was in the military; is that right?
7 A Yes.
8 Q The last diagram, which showed an ambush or an attack, is
9 that the diagram you were able to identify from your military
10 training; is that correct?
11 A Yes, that is correct.
12 MR. SCHMIDT: I have nothing further.
13 THE COURT: Anything further of this witness?
14 MR. BUTLER: Nothing further.
15 THE COURT: Thank you. You may step down.
16 (Witness excused)
17 MR. FITZGERALD: The government calls Special Agent
18 Barry Bush.
19 BARRY LEE BUSH,
20 called as a witness by the government,
21 having been duly sworn, testified as follows:
22 THE WITNESS: Special Agent Barry Lee Bush, FBI
23 Newark.
24 DIRECT EXAMINATION
25 BY MR. FITZGERALD:
2957
1 Q Good morning, sir.
2 A Good morning.
3 Q You mentioned that you are an FBI agent in Newark. Can
4 you tell the jury how long you have been an FBI agent.
5 A Almost 14 years.
6 Q During that time have you been assigned to the special
7 task force in Newark?
8 A Yes. From April '93 through November '98 I was a team
9 leader on the Newark Evidence Response Team.
10 Q Let me direct your attention to August 1998. Did there
11 come a time that you were deployed overseas during that month?
12 A Yes.
13 Q Where were you deployed?
14 A I went to Nairobi. I was team leader for the Newark ERT
15 team and we responded to Nairobi, Kenya. I believe we got
16 there August 13 of '98.
17 Q Did you spend most of your time in the crime scene around
18 the area of the embassy?
19 A That is correct.
20 Q Let me direct your attention to a specific date, August 20
21 of 1998. Do you recall that date?
22 A Yes, I do.
23 Q Were you given an assignment on that date to conduct a
24 search of a location away from the embassy area?
25 A That is correct, sir.
2958
1 Q Tell the jury where you conducted the search.
2 A I was assigned to take a team to a building known as the
3 Mercy International Relief Agency. I believe it was at 100
4 Mufulo Avenue in downtown Kenya.
5 Q M-U-F-U-L-O for the record, I believe?
6 A Yes, I believe that is correct.
7 Q Can you tell the jury what the area looked like around the
8 Mercy International Relief Agency, the neighborhood.
9 A I believe it was a residential neighborhood, if I am not
10 mistaken.
11 Q Can you tell us how many stories the building was where
12 the Mercy International Relief Agency was located?
13 A I believe it was a 2-story structure.
14 Q Can you tell the jury what the procedure was in conducting
15 the search that day.
16 A Yes. Myself and Mike Brooks from Washington field office
17 coordinated the search plan for this particular search. We
18 were assisting the Kenyan National Police, the Criminal
19 Investigative Division. I believe chief inspector Sammy
20 Wakesa was the commander of their unit. We met with them to
21 brief shortly before the search. The inspector and his men
22 made the initial entry into the MIRA building. They detained,
23 I believe, several individuals who were inside and identified
24 those people, secured the premises, and then myself --
25 actually, as the team leader I did the initial walk-through of
2959
1 the premises, and then myself and a lab technician by the name
2 of Greg Bishea went back in, and Mr. Bishea began residue
3 swabbings of the individual rooms of that building.
4 Q For the record, B-I-S-H-E-A.
5 After the swabbings were done, what next did you do
6 in your role as team leader?
7 A As Mr. Bishea was doing the swabbings, I had assigned my
8 photographer Keith Freitag to begin exterior shots of the
9 building and then to proceed to do interior photographs. He
10 also, along with me, started a rough sketch of the interior of
11 the building.
12 Q Did you later further refine that sketch?
13 A Yes, I did a final sketch.
14 Q Let me show you what has been marked for identification
15 purposes only at this point Government's Exhibit 656-1, and if
16 we could display that to counsel only. Looking at what has
17 been marked as page 1 of Government's Exhibit 656, do you
18 recognize what is on the screen to your left?
19 A Yes, I do.
20 Q What is that?
21 A That is my sketch, finished sketch of the first floor of
22 the MIRA building.
23 Q Does that to the best of your ability fairly and
24 accurately reflect what the interior of the first floor of the
25 building looked like in terms of layout?
2960
1 A Yes, it does.
2 MR. FITZGERALD: Your Honor, I would offer
3 Government's Exhibit 646 page 1.
4 THE COURT: Received.
5 MR. DRATEL: No objection.
6 Q For the jury, it says the letters in circles, A, B, C, D,
7 E, F, G and K. Can you tell the jury the reasons you put
8 those letters and circles on the sketch.
9 A Yes. On any crime scene sketch I generally designate a
10 separate letter for each room that is involved in the search,
11 and that way we are able to track what evidence comes from
12 each room. The room itself gets a letter designation. Each
13 item of evidence found in each room gets a number designation,
14 which goes on to our evidence log.
15 Q Let me show you for identification purposes page 2 of
16 Government's Exhibit 646. Looking at that, can you tell us
17 what that is.
18 A Yes. That is my sketch, which reflects the second floor
19 of the MIRA building.
20 Q To the best of your ability, does that fairly and
21 accurately reflect the second floor of the Mercy International
22 Relief Agency?
23 A To the best of my recollection, yes.
24 MR. FITZGERALD: I would offer that as well. I think
25 both pages are collected and marked 65.
2961
1 THE COURT: Received.
2 MR. DRATEL: No objection.
3 (Government's Exhibit 65 received in evidence)
4 MR. FITZGERALD: If we could publish that to the
5 jury.
6 Q Did you follow the same procedure in putting in letters to
7 designate particular areas?
8 A Yes, I did.
9 Q If you could look at the place designated room J. Could
10 you explain to the jury what room J was?
11 A That was a front office area on the second floor.
12 Q Did you take photographs as well, or have photographs
13 taken that day of the interior of the Mercy International
14 Relief Agency?
15 A Yes, I did.
16 Q If I could show to Agent Bush for identification purposes
17 only 657A. I ask if you recognize what is depicted in
18 Government's Exhibit 657A?
19 A Yes, I do.
20 Q Is that a fair and accurate picture of a location within
21 the Mercy International Relief Agency in August 20, 1998?
22 A Yes, it is, the desk area of that room.
23 MR. FITZGERALD: I would offer Exhibit 657A.
24 THE COURT: Received.
25 (Government's Exhibit 657A received in evidence)
2962
1 Q If we could publish that to the jury and describe what is
2 depicted in the picture?
3 A That is the corner of the room where the desk was located.
4 I believe the fax was also located in that area.
5 Q So we are clear, is that room J on the second floor?
6 A That is room J, that is correct.
7 Q If I could show for identification purposes only at this
8 time Government's Exhibit 657B.
9 I ask you, Agent Bush, if you recognize what is
10 depicted in that photograph?
11 A Yes, that is the other half of what I designated to be
12 room J, the office area, second floor of the front of the
13 building.
14 Q Does that fairly and accurately reflect the room called
15 room J looked on the day that you searched it?
16 A Yes, it does.
17 MR. FITZGERALD: Your Honor, I would offer
18 Government's Exhibit 657B.
19 MR. DRATEL: No objection.
20 THE COURT: Received.
21 (Government's Exhibit 657B received in evidence)
22 MR. FITZGERALD: If we can publish it.
23 Q What area are we looking at?
24 A This is generally behind and to the side of the desk. It
25 was a closet type structure which appeared to have been
2963
1 converted into bookshelves.
2 Q Using room J as an example, what did you do, what did you
3 and your team do with the various items found in room J?
4 A I had assigned various team members to each room in the
5 building, and they were to search the room for any documents
6 or evidence of interest and put them in boxes which were
7 provided to us, and at that point I was making my rounds
8 between the various rooms and I was initialing and dating each
9 box before it left the individual rooms.
10 MR. FITZGERALD: Now let me read, if I may, a
11 stipulation, Government's Exhibit 154.
12 It is hereby stipulated and agreed by and between the
13 parties as follows:
14 1. That on August 20, 1998, the building located at
15 100 Mufulo Avenue, Nairobi, Kenya, which were the offices of
16 the Mercy International Relief Agency, MIRA, was searched by
17 Kenyan and American officials and the following items, among
18 others, were recovered.
19 Listed below that are three columns, a government's
20 exhibit number column, a Bates number column and a description
21 of the item column. I will just read into the record the
22 Government's Exhibit numbers at this time:
23 435A; 438A; 439A and B; 601A to 601AD; 602; 603; 605A
24 to C; 606; 607; 608A through F; 609; 610; 611; 614; 615A and
25 B; 618; 621A through E; 622A; 622B; 624A through F; 624H
2964
1 through K; 625A and B; 625A and B; 626; 627A and B; 628A and
2 B; 629; 630; 631; 632A through D; 633; 634; 635; 636A through
3 E; 637 through 646; 647A and B; 648; 649A through D; 650A
4 through G; and 651.
5 (Continued on next page)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2965
1 12. The front office on the second floor was
2 designated Room J for purposes of documenting the search. The
3 items seized from that floor were placed in eight boxes which
4 were labeled J1 through J8 to indicate the rooms from which it
5 was seized and the box number.
6 Thereafter, for inventory purposes those eight boxes
7 were each assigned an inventory number by the Washington field
8 office of the FBI, which numbers began with the prefix 1B.
9 For example, box J6 was assigned inventory control number 1B6
10 for the Washington case number.
11 In or about August 1998 the items in the Mira search
12 were transported from Nairobi, Kenya to Washington, D.C. where
13 small multiple items, while packaged separately, were placed
14 in a shipping box. For larger items the box was shipped as
15 is. For purposes of transportation, each shipping box was
16 assigned a number. For example, box 86I would be inventory
17 control number 1B96 was designated box 8 for transportation
18 purposes.
19 3. In or about August 1998 the investigation was
20 reassigned from the Washington field office to the New York
21 field office for administrative reasons and the 1B numbers
22 were reassigned. For example, box J6 which had been assigned
23 the number 1B96 for the case when it had a Washington field
24 office number was then renumbered to 1B93 when the case was
25 assigned to the New York field office.
2966
1 On or about September 4, 1998 items seized in the
2 Mira search were transferred to the custody of the New York.
3 Office.
4 4. When logged in the New York office items seized
5 in the Mira search were assigned particular items numbers.
6 For example, items within box J6 were now assigned inventory
7 control number 1B93 were further particularized with item
8 numbers such as the first identifying number of that box was
9 designated 1B93 item 1.
10 Those items were then photocopied for court purposes,
11 production to defense counsel, translation and a limited
12 number of items were sent for forensics analysis.
13 In addition, some items were used to examine
14 witnesses in the grand jury and were given grand jury exhibit
15 numbers.
16 5. A number of Government Exhibit numbers for
17 translation. I won't read those into the record now. The
18 agreement is that as to translations the parties stipulate
19 that if called as a witness a person fluent in Arabic and
20 English would testify that the translations listed above are
21 fair and accurate translations.
22 If I could just approach Agent Bush with one box.
23 THE COURT: We haven't taken a break. Maybe this
24 would be a good time to take the break. We'll take our
25 mid-morning break.
2967
1 (Recess)
2 (In open court; jury present; witness resumed)
3 THE COURT: Ladies and gentlemen, there have been
4 received, and you have heard various stipulations, some of
5 which have related to items that were seized in the course of
6 the investigation, and you should know that where a
7 stipulation refers to items seized, the terms authentic or
8 authenticity simply refer to the fact that the documents or
9 objects in question are the ones that were seized.
10 MR. FITZGERALD: Thank you, Judge.
11 At this time the government would offer in evidence
12 Government Exhibit 154, the stipulation read from before, and
13 the exhibits referred to within that document.
14 THE COURT: Received.
15 (Government's Exhibits 154 and items referenced
16 received in evidence)
17 Q Agent Bush, I placed before you a box which has a number
18 of markings on the outside and was the stipulation described
19 the box J6.
20 A That's correct.
21 Q Is that the box J6?
22 A Yes, it is.
23 Q How do you recognize it as the box that you initially saw
24 on August 20, 1998?
25 A My markings are on it, the Room J was written I believe by
2968
1 SA Kursten who was one of the searching agents in that room.
2 The 6 is my marking and my initials in the case appear on the
3 box.
4 MR. FITZGERALD: Thank you. I have nothing further,
5 Judge.
6 THE COURT: Mr. Dratel for the defendant El Hage.
7 CROSS-EXAMINATION
8 BY MR. DRATEL:
9 Q Good afternoon, Agent Bush.
10 A Good afternoon.
11 Q When you went to the Mercy offices they're in the South
12 Sea neighborhood, is that correct?
13 A I really wasn't familiar with the actual neighborhood. It
14 was a residential, it seemed it be a residential area towards
15 the outskirts of Nairobi.
16 Q Well, do you recall whether it was the South Sea
17 neighborhood?
18 A No, I do not.
19 Q I show you what's marked for identification as defendant
20 El Hage's exhibit F and ask you just to look at paragraph --
21 look at the first page and then paragraph 5 to see if that
22 refreshes your recollection.
23 A Paragraph 5, sir?
24 THE COURT: Yes.
25 THE WITNESS: Thank you.
2969
1 Q Does that refresh your recollection that it was in the
2 South Sea neighborhood of Nairobi?
3 A I recall having read this document. At the time that I
4 was given directives to do this search the information given
5 to me was simply the Mira building.
6 Q Did you come later to learn that it was in the South Sea
7 neighborhood of Nairobi?
8 A This document would have been the first time that I would
9 have seen designated as the South Sea neighborhood.
10 Q Betty Duran was part of your team that searched the
11 premises at Mercy?
12 A Betty Duran was part of the team, that's correct.
13 Q She prepared a document that you looked over?
14 A That's correct.
15 Q That was for a separate proceeding; is that correct?
16 A I'm sorry, sir?
17 Q That was for a different proceeding, the document that was
18 prepared by Agent Duran?
19 MR. FITZGERALD: Objection, your Honor.
20 THE COURT: Sustained.
21 Q Agent Duran prepared a document that you read?
22 A Is that the document you handed me?
23 Q Yes.
24 A That was her document.
25 Q Correct?
2970
1 A I was under the impression that was an affidavit that I
2 had signed --
3 THE COURT: I think we don't need this. Let's move
4 on.
5 Q You testified about the search and you say the Kenyan CID
6 went in first and then your team went in afterwards, is that
7 correct?
8 A That's correct. They made the initial entry.
9 Q So you don't know who was where in the building when the
10 Kenyan CID arrived; is that correct?
11 A That's correct.
12 Q And with respect to the photographs there were many more
13 photographs that your photographer took other than the two
14 that are in evidence already, correct?
15 A Correct.
16 Q If I could put WEH-X-E1 for the witness and counsel,
17 please. I ask you if that's another photograph that was taken
18 that day by your team of the Mercy facility?
19 A It appears to be the front of the Mira building.
20 MR. DRATEL: I move that in evidence, your Honor.
21 MR. FITZGERALD: No objection.
22 THE COURT: Received.
23 (Defendant's Exhibit WEH-X-E1 received in evidence)
24 MR. DRATEL: If we could publish it to the jury
25 please.
2971
1 Q The persons who are in that photograph, are they part of
2 your team?
3 A I don't recognize those individuals. They may have been,
4 but I don't recognize their photographs as they appear here.
5 Q That is the front of the Mercy building, correct?
6 A To the best of my recollection.
7 MR. DRATEL: If you could show the witness and
8 counsel WEH-X-E-2, please.
9 Q Agent Bush, if you could identify that photograph?
10 A It appears to be the second floor of the Mira building.
11 Q From the outside?
12 A From the outside an exterior shot.
13 MR. DRATEL: I move that in evidence, your Honor.
14 THE COURT: Received.
15 (Defendant's Exhibit WEH-X-E-2 received in evidence)
16 MR. DRATEL: If we could publish that to the jury.
17 Q That's the front of the Mira, of the Mercy building,
18 correct?
19 A To the best of my recollection it appears to be a front
20 view of the building. I didn't spend a lot of time on the
21 outside. I was primarily inside the building.
22 Q Now, the interior, you also took photos of the interior,
23 correct, not you, but your photographer?
24 A Correct.
25 Q And among the rooms that's reflected on your sketch there
2972
1 was a prayer room, correct?
2 A That's correct.
3 MR. DRATEL: And if we can show the witness and
4 counsel WEH-X-E-5. Is that a photograph of the prayer room?
5 A It appears to be the room in the back designated as the
6 prayer room.
7 MR. DRATEL: I submit that in evidence, your Honor.
8 THE COURT: Received.
9 (Defendant's Exhibit WEH-X-E-5 received in evidence)
10 MR. DRATEL: If we can publish that to the jury,
11 please.
12 THE COURT: Yes.
13 Q That is the prayer room, correct?
14 A To the best of my recollection, yes.
15 Q There was also in that room there was clothing hanging on
16 the wall, isn't that correct?
17 A That I do not recall.
18 MR. DRATEL: If we could show the witness and counsel
19 WEHX-E6.
20 Q Is that a photograph of the same room?
21 A I believe that's the bedroom that was adjacent to the
22 actual prayer room if I'm not mistaken.
23 Q But that is one of the photos you took that day?
24 A It appears to be, yes.
25 MR. DRATEL: I move that in evidence, your Honor.
2973
1 MR. FITZGERALD: No objection.
2 THE COURT: Received.
3 (Defendant's Exhibit WEHX-E6 received in evidence)
4 MR. DRATEL: Please publish that to the jury.
5 THE COURT: Yes.
6 Q And you mentioned it was a bedroom, correct?
7 A Yes.
8 MR. DRATEL: If we could show counsel and the witness
9 WEH-X-E-8, please, I'm sorry, E-7.
10 Q Is that the bedroom?
11 A Yes, it is.
12 Q Is that the photo of the bedroom?
13 A It appears to be the bedroom adjacent to the prior room.
14 MR. DRATEL: I move that in evidence, your Honor.
15 THE COURT: Receive.
16 (Defendant's Exhibit WEHX-E-7 received in evidence)
17 MR. DRATEL: If we could publish that the jury,
18 please?
19 THE COURT: Yes.
20 Q In fact, above the bed on the right it looks like clothes
21 are hanging, is that correct?
22 A Yes.
23 Q That may very well be the clothes that are hanging in the
24 other photo that you thought was in the bedroom?
25 A It appears to be the same items, yes.
2974
1 Q There is also a kitchen; is that correct?
2 A There was a kitchen in the house itself, yes.
3 MR. DRATEL: And if we could show the witness and
4 counsel WEH-X-E-8, please.
5 Q That's a photograph of the kitchen at Mercy?
6 A Yes, it is.
7 MR. DRATEL: I move that in evidence, your Honor.
8 THE COURT: Yes, received.
9 (Defendant's Exhibit WEH-X-E-8 received in evidence)
10 MR. DRATEL: If we can publish that to the jury,
11 please.
12 THE COURT: Yes.
13 Q That's the photo of the kitchen, correct?
14 A Yes, it is.
15 Q There was also a room with a safe, correct?
16 A I believe the safe was in a bedroom area on the second
17 floor adjacent to the office in the front of the house.
18 MR. DRATEL: If we could show the witness and counsel
19 what's been marked for identification as WEHX-E-23.
20 Q I ask you if you recognize that photograph?
21 A That is a photo of the safe in the upstairs front room.
22 Q Front bedroom, correct?
23 A I believe it was a bedroom.
24 MR. DRATEL: I move that in evidence, your Honor.
25 THE COURT: Received.
2975
1 (Defendant's Exhibit WEHX-E-23 received in evidence)
2 MR. DRATEL: If we could publish that to the jury.
3 THE COURT: Yes.
4 Q There is also office space at Mercy International,
5 correct?
6 A That's correct.
7 Q And there were desks, correct?
8 A Yes.
9 Q Computers?
10 A Yes, there were.
11 Q Files?
12 A Yes.
13 Q And there were items on the wall like a chart written in
14 Arabic?
15 A There was a chart in the office area on the first floor,
16 that's correct.
17 MR. DRATEL: If we could show the witness and counsel
18 what's been marked for identification as WEHX-14, please.
19 Q Is that a photograph of that chart?
20 A That appears to be the chart I mentioned, yes.
21 MR. DRATEL: I move that in evidence, your Honor.
22 THE COURT: Received.
23 MR. FITZGERALD: No objection.
24 (Defendant's Exhibit WEHX-14 received in evidence)
25 MR. DRATEL: If we can publish that to the jury.
2976
1 Q And there was also -- withdrawn.
2 MR. DRATEL: Can we also show the witness WEH-X-E-15,
3 please.
4 Q Is that a closeup of that same chart?
5 A It appears to be the same chart, sir.
6 MR. DRATEL: I move that in evidence, your Honor.
7 MR. FITZGERALD: No objection.
8 THE COURT: Received.
9 (Defendant's Exhibit WEH-X-E-15 received in evidence)
10 MR. DRATEL: May we publish that the to the jury,
11 please.
12 Q Now, with respect to the offices at Mercy there were two
13 offices on the first floor, correct.
14 A That's correct.
15 Q And two separate offices on the second floor, correct?
16 You can refer to your chart if you don't recall.
17 A Yes, that's correct.
18 Q And you took photos, your photographer took photos of
19 those areas as well, correct?
20 A Yes, he did.
21 MR. DRATEL: If we could show the witness and
22 counsel, please, what's been marked for identification as
23 WEH-X-E-9.
24 Q That is a photograph of the one of the office areas in
25 Mercy?
2977
1 A I believe that's the downstairs office area.
2 MR. DRATEL: I move that in evidence, your Honor.
3 MR. FITZGERALD: No objection.
4 THE COURT: Received.
5 (Defendant's Exhibit WEH-X-E-9 received in evidence)
6 MR. DRATEL: WEH-X-E-10, please.
7 Q Is that another shot of the downstairs office space?
8 A It appears to be the other side of the downstairs office
9 area.
10 MR. DRATEL: I move that in evidence, your Honor.
11 THE COURT: Received.
12 (Defendant's Exhibit WEH-X-E-10 received in evidence)
13 MR. DRATEL: If we can publish that to the jury,
14 please.
15 THE COURT: Yes.
16 MR. DRATEL: I think I neglected to publish E9, so if
17 you can just publish E9 and then we'll move on.
18 Thank you.
19 If we could show the witness and counsel what's been
20 marked as WEH-X-E-11.
21 Q Is that another desk from the downstairs office space?
22 A It appears to be a desk in the downstairs office area.
23 MR. DRATEL: I move that in evidence, your Honor.
24 MR. FITZGERALD: No objection.
25 THE COURT: Received.
2978
1 (Defendant's Exhibit WEH-X-E-11 received in evidence)
2 MR. DRATEL: If we can publish that the to the jury,
3 please.
4 If you can show the witness and counsel what's been
5 mark for identification as WEHXB-12, please.
6 Q Again, I ask you if you recognize that photograph?
7 A I'm not positive of the location but I believe that's also
8 the downstairs office area.
9 MR. DRATEL: I move that in evidence, your Honor.
10 THE COURT: Received.
11 (Defendant's Exhibit WEHXB-12 received in evidence)
12 MR. DRATEL: If we can publish it to the jury,
13 please.
14 THE COURT: Yes.
15 MR. DRATEL: If we could show the witness and counsel
16 now what's been marked as WEH-X-E-13.
17 Q Is that another photo of the same office space just from a
18 different angle?
19 A That's correct, sir.
20 MR. DRATEL: I move that in evidence, your Honor.
21 THE COURT: Received.
22 (Defendant's Exhibit WEH-X-E-13 received in evidence)
23 MR. DRATEL: If we can publish that to the jury,
24 please.
25 THE WITNESS: Yes.
2979
1 MR. DRATEL: If we can show the witness WEH-X-E-16,
2 please.
3 THE COURT: 16?
4 MR. DRATEL: 16, your Honor, yes.
5 THE COURT: One-six.
6 MR. DRATEL: Yes.
7 Q I ask you if that's a shot of one of the desks in the
8 downstairs office space?
9 A It appears to be.
10 MR. DRATEL: I move it in evidence, your Honor.
11 THE COURT: Received.
12 (Defendant's Exhibit WEH-X-E-16 received in evidence)
13 MR. DRATEL: If we can publish it to the jury,
14 please.
15 THE COURT: Yes.
16 MR. DRATEL: If we could also show the witness now
17 what's been marked for ID as WEH-X-E-17.
18 Q Is that another photograph of a different angle of the
19 desk in the downstairs office space?
20 A To the best of my recollection that was one of the
21 downstairs desks also.
22 MR. DRATEL: I move it in evidence, your Honor.
23 THE COURT: Received.
24 (Defendant's Exhibit WEH-X-E-17 received in evidence)
25 MR. DRATEL: If we can publish it to the jury.
2980
1 THE COURT: Yes.
2 MR. DRATEL: If you can show what's been marked as
3 WEH-X-E-18, please.
4 Q Can you tell us what that is, please?
5 A I'm not certain which room that photograph.
6 Q But is that one of the photographs that you took of Mercy?
7 A I believe so, but I just, from that angle that's the
8 closeness of that photograph, I'm not sure which room that
9 looks like.
10 Q Do you know whether it's from the upstairs or the
11 downstairs from looking at the photograph?
12 A I believe it's from the upstairs. I'm just not certain
13 whether that would be the back office or the front office
14 area.
15 Q When you say the front office, is room number J on your
16 room letter J on your diagram?
17 A Yes.
18 Q The other one would be H?
19 A That's correct, sir.
20 Q The files that were put in evidence today are received
21 from the J office, is that correct?
22 A That's correct.
23 MR. DRATEL: I move the photo in evidence, your
24 Honor.
25 THE COURT: Received.
2981
1 (Defendant's Exhibit WEH-X-E-18 received in evidence)
2 MR. DRATEL: If we can public it to the jury, please.
3 THE COURT: Yes.
4 MR. DRATEL: Show the witness and counsel WEH-X-E-19,
5 please.
6 Q I ask you if that's a closeup photograph of the same
7 cabinet?
8 A It appears to be.
9 MR. DRATEL: I move it in evidence, your Honor.
10 THE COURT: Received.
11 (Defendant's Exhibit WEH-X-E-19 received in evidence)
12 MR. DRATEL: If we can publish it to the jury.
13 THE COURT: Yes.
14 MR. DRATEL: If we can show the witness and counsel
15 what's been what's been identified as WEH-X-E-20, please.
16 Q I ask you if that's a photograph of the bottom of a
17 closest at Mercy?
18 A That would have been in the building. Again, given the
19 closeness of that photo I'm not sure which office area in
20 particular that's depicting.
21 Q Would you know whether it's the upstairs or the
22 downstairs?
23 A I believe that's one of the upstairs offices, but again
24 I'm not a hundred percent sure based on that view.
25 MR. DRATEL: I move it in evidence, your Honor.
2982
1 THE COURT: Received.
2 (Defendant's Exhibit WEH-X-E-20 received in evidence)
3 MR. DRATEL: If we can publish it to the jury.
4 THE COURT: Yes.
5 MR. DRATEL: Thank you, your Honor.
6 Now, show the witness and counsel what's been marked
7 as WEH-X-E-21.
8 Q I ask you if that's a photograph of the same cabinet but
9 from a distance?
10 A That's correct.
11 Q Does that --
12 MR. DRATEL: I move that photograph in evidence, your
13 Honor.
14 THE COURT: Received.
15 (Defendant's Exhibit WEH-X-E-21 received in evidence)
16 MR. DRATEL: If we can publish it to the jury.
17 THE COURT: Yes.
18 MR. DRATEL: Thank you.
19 Q And does that photograph help you determine the location
20 of that cabinet?
21 A I'm still not certain which office area that would have
22 been from. It may have been from the back one.
23 Q But would that tell you whether it's the upstairs or the
24 downstairs?
25 A That would be the upstairs.
2983
1 MR. DRATEL: If we can show the witness and counsel
2 what's been marked as WEH-X-E-22.
3 Q From that last photo, could you tell whether it was the H
4 room or the J room?
5 A No.
6 Q I ask you if that's a photograph of one of the upstairs
7 offices at Mercy?
8 A I don't, I'm not certain. I don't recall.
9 Q Did you search the rooms yourself?
10 A I did the initial walkthrough and then assigned agents to
11 each room so I was in each room, but I spent the bulk of my
12 time on the first floor in the office area down there.
13 MR. DRATEL: We'll move on to WEH-X-E-23, please.
14 Publish it. 24 then.
15 Q Is that a desk at the Mercy offices?
16 A That appears to be Room J the desk in the front office
17 area on the second floor.
18 Q You recognize that as Room J?
19 A To the best of my recollection.
20 Q That's the same room from which the two photographs that
21 you put in earlier on direct examination, correct?
22 A I believe so.
23 MR. DRATEL: I move it in evidence, your Honor.
24 THE COURT: Received.
25 (Defendant's Exhibit WEH-X-E-24 received in evidence)
2984
1 MR. DRATEL: If we can publish it to the jury,
2 please.
3 THE COURT: Yes.
4 Q So this photograph is from a different angle than the two
5 that were put in evidence earlier, correct? If you want to
6 see those photos?
7 A If you could refresh my memory? Yes, this is a closer
8 view of Government Exhibit 657 A.
9 MR. DRATEL: If we could show the witness and counsel
10 what's been marked as WEH-X-E-25.
11 Q And is that again another photo from Room J?
12 A That's correct.
13 MR. DRATEL: Move it in evidence, your Honor.
14 THE COURT: Received.
15 (Defendant's Exhibit WEH-X-E-25 received in evidence)
16 MR. DRATEL: If we can publish it to the jury, your
17 Honor.
18 THE COURT: Yes.
19 Q This is the angle towards the closet; is that correct?
20 A To the best of my recollection, yes, sir.
21 Q Do you know where in Room J the boxes or the materials
22 that were seized were seized from?
23 A According to what Agent Kerston had told me as he was
24 searching it the evidence that he placed into the boxes in
25 Room J came from the desk area as well as from the closet
2985
1 slash book shelf area.
2 MR. DRATEL: If we can show the witness and counsel
3 what's marked as WEH-X-E-26.
4 Q Is that another photograph from Room J of the closets in
5 Room J?
6 A To the best of my recollection, yes, sir.
7 MR. DRATEL: I move it in evidence, your Honor.
8 THE COURT: Received.
9 (Defendant's Exhibit WEH-X-E-26 received in evidence)
10 MR. DRATEL: If we can publish it to the jury.
11 THE COURT: Yes.
12 Q Do you know where the documents that were seized were in
13 the closet or on the desk, their exact location?
14 A No, I do not.
15 MR. DRATEL: If we could show the witness -- did I
16 move that in evidence, your Honor, 26?
17 THE COURT: Yes, it was received.
18 MR. DRATEL: Thank you, your Honor. If we can show
19 the witness WEH-X-E-27.
20 Q I'm going to ask you if that's a photograph of Room J as
21 well?
22 A It appears to be behind the desk in that same room.
23 MR. DRATEL: I move it in evidence, your Honor.
24 THE COURT: Received.
25 (Defendant's Exhibit WEH-X-E-27 received in evidence)
2986
1 MR. DRATEL: If we can publish it to the jury,
2 please.
3 THE COURT: Yes.
4 Q And were these photographs taken before or after the items
5 were seized and removed from the room?
6 A This would have, I believe these were the initial photos
7 taken which would have been before the items were actually
8 boxed up.
9 Q Did you examine materials before they were boxed up, you
10 yourself?
11 A No.
12 Q So you don't know how they appeared initially in terms of
13 either in files or envelopes, or how they initially were
14 packaged, so to speak?
15 A No, I don't know where specific items were within the
16 room. Generally I have the searching agent write on the box
17 the types of documents that are coming out of that particular
18 area, and then as I'm preparing the log he will tell me what
19 areas within the room those items were located.
20 Q But I'm saying you don't know how the files were divided
21 or enclosed themselves?
22 A No, I don't.
23 Q Did you take any photographs of the files themselves
24 before they were put in the boxes and sent away?
25 A My team did not.
2987
1 Q In fact, you not only took items from Room J, but you took
2 items and documents from every room in the house, in the
3 building in which there were documents; is that correct?
4 A I believe nearly every room there were items taken, that's
5 correct, sir.
6 Q In fact, you were there for five hours searching and
7 seizing documents and other materials is that correct?
8 A Yes, we were.
9 MR. DRATEL: I have nothing further, your Honor.
10 THE COURT: Anything further of this witness?
11 MR. FITZGERALD: No, your Honor.
12 THE COURT: Thank you. You may step down.
13 (Witness excused)
14 MR. FITZGERALD: Judge, at this time the government
15 would display certain of the items just received in evidence
16 starting with Government Exhibit 103.
17 I believe this is previously received in evidence and
18 previously read, so I'll just read the first line and the
19 signature.
20 (Government Exhibit 103 read as indicated)
21 Secondly, I would display Government Exhibit 4-I
22 believe 2, a picture that has the words Abu Ubaidah on it.
23 Then I would also display Government Exhibit 103 which is the
24 picture in the upper-left corner both sides. I'm just using
25 them for comparison purposes.
2988
1 The first two photos were not seized in the search
2 area. I'd like to compare Government Exhibits 605A which was
3 seized with this photo.
4 I'd like, your Honor, to pass the original of 605A to
5 the jury, and have them then compare that with Government
6 Exhibit 103, the photograph.
7 THE COURT: Does this device permit putting them both
8 on screen?
9 MR. FITZGERALD: If we can put both on the same
10 screen, that will be fine, 103 and 605A.
11 If we could new display Government Exhibit 606. If
12 could focus in the upper-left corner the handwriting
13 underneath daily, enlarge that.
14 (Portion of Government Exhibit 606 read)
15 If we can display Government Exhibit 607. If we can
16 enlarge the picture of the boat where the handwriting is.
17 Blue ink. If you can make it a little bit bigger.
18 (Portion of Government Exhibit 607 read)
19 If we can display Government Exhibit 610. Just read
20 the address.
21 (Portion of Government Exhibit 10 read)
22 And if we could display Government Exhibit 611. If
23 we could just zoom in on the signature line underneath
24 sincerely. Sincerely Norman.
25 Now display it full sized again. And then if we
2989
1 could display Government Exhibit 647 A-T. Read that aloud.
2 (Portion of Government Exhibit 647-A-T read)
3 If we can display 647B-T translation.
4 (Portion of 647T-B read)
5 If we can show the original exhibit untranslated,
6 Government Exhibit 647B. Place that he will on the Elmo we'll
7 show first.
8 (Portion of 647B read)
9 Finally for now, your Honor, we would display
10 Government Exhibit 651 for in evidence. I'll read aloud from
11 the card.
12 (Government Exhibit 651 read)
13 At this time Assistant US Attorney Michael Garcia
14 will call Special Agent Michael Ernst.
15 MR. GARCIA: Government calls Michael Ernst.
16 MR. SCHMIDT: Can we have a moment before we do that?
17 May I have a moment to speak to the government?
18 THE COURT: Yes.
19 (Pause)
20 MR. GARCIA: Government calls Michael Ernst.
21 MICHAEL J. ERNST,
22 called as a witness by the government,
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MR. GARCIA:
2990
1 Q Agent Ernst, where do you work?
2 A For the FBI.
3 Q What's your position there?
4 A Special Agent.
5 Q How long have you been an agent with the FBI?
6 A 18 years.
7 Q Back in August of 1998 where were you assigned?
8 A In Sacramento, California.
9 Q Directing your attention to a specific date, August 24,
10 1998, were you working that day?
11 A Yes I was.
12 Q What was your assignment?
13 A I was to conduct a search of the residence of Ali Mohamed
14 located at 7233 Pepperwood Knoll Lane, apartment 81,
15 Sacramento, California.
16 Q Approximately what time did you arrive at that residence
17 on August 24th?
18 A Approximately 9 o'clock.
19 Q A.m. or p.m?
20 A A.m.
21 Q Could you just briefly describe for us the residence as it
22 appeared to you from the outside?
23 A It's a single-story apartment building containing four
24 apartments.
25 Q At the time you conducted this search on August 24th was
2991
1 there anyone home in apartment 81?
2 A No, there wasn't.
3 Q Was it your intention to conduct the search when the
4 apartment was empty?
5 A Yes, it was.
6 Q Why was that?
7 A That's the authorization that we had from the federal
8 warrant that was issued.
9 Q Did you intend to have anybody know that you had been in
10 the apartment?
11 A No.
12 Q How did you gain entry to apartment 81?
13 A We had a key that was given to us by the apartment complex
14 manager.
15 Q Again, could you briefly describe for us the layout of
16 apartment 81?
17 A It was a two-bedroom, one-bath apartment, with kitchen,
18 living room, dining room area.
19 Q What did you do upon first gaining entry into the
20 apartment?
21 A The apartment was secured and verified that no one was
22 home, and after that, we started the search.
23 Q Could you tell us approximately how many people were on
24 your search team?
25 A About ten.
2992
1 Q Could you generally describe for us the type of personnel
2 you had with you?
3 A We had people who were familiar with computers, we had
4 photographers and language specialist.
5 Q And what was the specialty of that language specialist?
6 A Arabic.
7 Q Inside the apartment what was the role of the computer
8 specialists?
9 A They were to make an image copy of any computers that we
10 found in the apartment.
11 Q Did you in fact find any computers in the apartment?
12 A Yes. We found a laptop and a desk top computer.
13 Q Were both of those, were image copies made of both of
14 those computers?
15 A Yes, they were.
16 Q Did you find any discs or CD Roms inside the apartment?
17 A We found computers floppies, and we copied those.
18 Q What was the role of the English-Arabic translator?
19 A He was to translate any documents that were written in
20 Arabic.
21 Q For what purpose?
22 A He would tell me what the document was about and I would
23 decide whether we needed to photograph it or not.
24 Q So we're clear, did you remove any original documents from
25 apartment 81 on that day?
2993
1 A No, we didn't.
2 Q After the original documents were photographed, what did
3 you do with them?
4 A We put them back where they came from.
5 Q Approximately how long were you inside apartment 81 on
6 August 24th?
7 A About four hours.
8 Q What happened to the rolls of film that were shot inside
9 the apartments on that day?
10 A The photographs were taken by a team from the FBI
11 Quantico, Virginia office. They were taken back with them
12 where they were processed and put on CD Roms, and the CD Roms
13 were then sent to me.
14 Q How about the image copies that were made of the hard
15 drives of the laptop and the desk top that day?
16 A Those were taken by the computer people back to our office
17 in Sacramento, where the images were put on a hard drive on an
18 FBI computer.
19 Q Did you have access to that FBI computer that now
20 contained the hard drives?
21 A Yes, I did.
22 Q Did you access that hard drive and print off files from
23 those hard drives?
24 A Yes, I did.
25 MR. GARCIA: Your Honor, if I might approach and show
2994
1 the witness Government Exhibits marked for identification only
2 350, 350A, 351, 351A, 353 and 353A, 354, 354A, 355, 355A, and
3 356 and 356A.
4 Agent, did you have an opportunity to review those
5 Government Exhibits prior to coming to court today?
6 A Yes, I did.
7 Q Generally, what are they?
8 A These are documents that were contained on the computers,
9 the desk top computers that I printed.
10 Q You personally printed those out from the hard drive?
11 A Yes, I did.
12 Q The corresponding A exhibit, for example 350A, is that a
13 printout of the screen of the properties of the particular
14 file for the corresponding exhibit number?
15 A Yes, it is.
16 MR. GARCIA: Again, Judge, if I might approach and
17 show Agent Ernst Government Exhibits for identification 357,
18 358, 359, 361 and 367.
19 Agent, again, have you had the opportunity to review
20 those particular documents prior to coming to court?
21 A Yes, I did.
22 Q Generally speaking, what are they?
23 A Copies of documents that we photographed on the day of the
24 search.
25 Q Would that be August 24, 1998?
2995
1 A Yes.
2 Q Are those fair and accurate copies of documents you
3 photographed during that search?
4 A Yes. They are.
5 MR. GARCIA: Your Honor, at this time I would like to
6 read into the record a stipulation marked as Government
7 Exhibit 150.
8 THE COURT: Yes.
9 MR. GARCIA: It is hereby stipulated and agreed by
10 and between the parties if called as a witness a person fluent
11 in the Arabic and English languages would testify that
12 Government Exhibits 357T, 358T, 359T and 361T are fair and
13 accurate English translations of Government Exhibits 357, 358,
14 359, and 361 respectively.
15 It is further stipulated and agreed that the
16 stipulation may be received in evidence as a Government
17 Exhibit at trial.
18 At this time, your Honor, the government would move
19 the stipulation, Government Exhibit 150, as well as the
20 translations referred to in that exhibit, 357T, 358, 359T,
21 361T into evidence as well as the underlying exhibits,
22 Government Exhibits 357, 358, 359, 361, and 367, and the
23 computer printouts, 350, 350A, 351, 351A, 353, 353A, 354,
24 355A, 356 and 356A into evidence.
25 THE COURT: Received.
2996
1 (Government's Exhibits 150, 357T, 358, 359T, 361T,
2 357, 358, 359, 361, 367, 350, 350A, 351, 351A, 353, 353A, 354,
3 355A, 356 and 356A received in evidence)
4 MR. GARCIA: Your Honor, at this time I'd like to go
5 into the specific exhibits, but would this be a convenient
6 time to break?
7 THE COURT: We'll break for lunch and we'll resume at
8 2:15. We're adjourned until 2:15. Have a good lunch.
9 (Luncheon recess)
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2997
1 AFTERNOON SESSION
2 2:15 p.m.
3 (Jury not present)
4 MR. SCHMIDT: The government and defense have agreed
5 to a stipulation relating to the location of documents that
6 were published just before the last witness was on the stand,
7 to avoid any confusion, and I would like to read the
8 stipulation into evidence and show the document before we
9 continue with this witness.
10 THE COURT: All right.
11 MR. SCHMIDT: Notwithstanding the stipulation, two
12 documents -- three, two documents and translation were placed
13 into evidence this morning and published by the government,
14 and having reviewed the material we received this morning as
15 to the location of the material, we are moving to strike those
16 exhibits from the evidence as not related to the charges
17 before the court.
18 THE COURT: Is that on consent?
19 MR. FITZGERALD: I didn't know about it until now and
20 I oppose that motion.
21 THE COURT: Is that witness still available? This is
22 just purely stipulations?
23 MR. FITZGERALD: This is, I think, a legal objection.
24 MR. SCHMIDT: This is a legal objection now. The
25 government has stipulated to allow me to read the stipulation
2998
1 as to the location of those documents, but having reviewed
2 those documents and reviewed the location, notwithstanding the
3 stipulation I believe that those documents are not relevant to
4 the charges before the court and are certainly not relevant to
5 my client.
6 THE COURT: Because?
7 MR. SCHMIDT: They were seized at the Mercy, they
8 have never been shown to be in the possession of my client,
9 about my client, from my client. They were seized on a
10 different floor. They are from Mercy.
11 THE COURT: What is the nexus between these exhibits
12 and the defendant?
13 MR. FITZGERALD: The relationship has been shown
14 between Mercy International and one of the people affiliated
15 named Ahmed Tawhil. These were seized from the Mercy
16 International premises, and the fact that a document came from
17 a different room doesn't mean it is not connected to the
18 enterprise. The enterprise charged in the document is with
19 using nongovernment organizations as a front. Just as a
20 picture of a prayer room downstairs is a document that rebuts
21 that, what we have here are documents -- I have never seen a
22 search parsed by room. It is an office where documents were
23 seized. These documents show that Mercy International, while
24 it does have legitimate charitable purpose, has other purposes
25 that are contrary to that.
2999
1 THE COURT: The motion to strike despite the
2 stipulation is predicated on the fact that it appears that the
3 exhibits were seized in a room other than the room occupied by
4 your client?
5 MR. SCHMIDT: My client doesn't occupy it. There are
6 documents that the government has a valid basis of indicating
7 are documents that either belonged to my client or were
8 somehow related to my client because it was found in a similar
9 location or concerns a person where they have produced
10 evidence that my client had contact with. Those we are not
11 objecting to. But found in another room was a poem that
12 relates to anti-Israeli situation and the receipt that has not
13 been linked to anybody in this case --
14 THE COURT: A poem, and what is the other one?
15 MR. SCHMIDT: The receipt.
16 THE COURT: A receipt for what?
17 MR. SCHMIDT: It was a receipt from a hotel where
18 there was some writing on the back.
19 MR. FITZGERALD: Receipt dated July 24, 1998, and on
20 the back it said getting weapons from Somalia.
21 THE COURT: In handwriting not identified.
22 MR. FITZGERALD: Yes, your Honor, and that was the
23 translation of the Arabic.
24 Your Honor, in many, many cases, in drug cases when
25 you go to an apartment and there are drug records there, the
3000
1 records are what they are. We don't have to show that a
2 particular person authored them. This is the place that was
3 chosen to store the files that Harun Fazhil removed from Wadih
4 El Hage's house when he was concerned that the FBI might raid
5 Wadih El Hage's apartment. When the FBI searched it in 1997
6 they did not recover those files. When they searched Mercy
7 International, they found a number of documents, included
8 among which Wadih El Hage's files and files concerning Abu
9 Ubaidah.
10 THE COURT: What argument is the government going to
11 predicate on these two exhibits?
12 MR. FITZGERALD: I understand that Mr. Schmidt is
13 trying to maintain that the nongovernmental organizations were
14 purely charitable and that Wadih El Hage's association with
15 those groups was purely charitable.
16 THE COURT: They are relevant to the nature of the
17 organization, the fact that the organization --
18 MR. FITZGERALD: Appears to be involved in jihad
19 activity, not just charity.
20 THE COURT: The motion to strike is denied.
21 MR. SCHMIDT: If I may, your Honor, there is no
22 indication when and who prepared those documents. This is not
23 a drug conspiracy where everything in a room or an apartment
24 of drugs can be seized. This is an office. And while the
25 government is correct that somehow Mr. El Hage's documents
3001
1 ended up in Mercy, if there is any kind of showing that other
2 documents are somehow related to Mr. El Hage or the documents
3 that he once possessed, I can understand it. But this is
4 found on a different floor, in a different place, and there
5 has been no connection to anything involving this conspiracy.
6 That means any jihad document anywhere in the world becomes
7 relevant? That's what the government is saying.
8 THE COURT: You know, if you would just sort of calm
9 down a little bit.
10 An issue in the case is the nature of this
11 organization, whether it was an organization devoted solely to
12 charitable purposes or whether it was an organization which
13 functioned at two levels, a charitable organization which
14 among other things was a front for actions in furtherance of
15 the conspiracy. Therefore, a document which was seized from
16 those premises and which is indicative of activities not of a
17 charitable nature becomes relevant.
18 Why don't you submit a proposed instruction which
19 will cover this matter. But the motion to strike is denied.
20 MR. COHN: 4:30, your Honor, conditions of
21 confinement and if the government would have Mr. Brady here it
22 would move things along. That's all I care.
23 THE COURT: That's a request for a conference at
24 4:30?
25 MR. COHN: It is a request, your Honor, yes.
3002
1 THE COURT: And a request that Mr. Brady be present?
2 MR. FITZGERALD: I didn't know about it but if
3 Mr. Brady is around we will see if he is available, and we may
4 join him as well.
5 MR. DRATEL: There was one photograph not put in
6 evidence because the agent did not recognize it, but we agree
7 with the government to put that photograph in, WEH XE-22. It
8 was marked for identification although the witness himself did
9 not recognize the photograph.
10 THE COURT: Yes. So you are moving its admission
11 now?
12 MR. DRATEL: Yes.
13 MR. FITZGERALD: Consent.
14 THE COURT: All right. WEH XE-22 is received.
15 (Defendant's Exhibit WEH XE-22 received in evidence)
16 THE COURT: You want now, you want to interrupt his
17 testimony to do what?
18 MR. FITZGERALD: Can we do it right when he is done?
19 MR. SCHMIDT: I will wait till after he is done.
20 THE COURT: Let's bring in the jury and the witness.
21 (Pause)
22 THE COURT: One of the jurors says he is not feeling
23 well, and if there is no objection, with the court reporter I
24 would like to talk with this juror to discover what his
25 problem is. Any objection to my doing that?
3003
1 COUNSEL: No objection.
2 (Pages 3004 through 3009 sealed)
3 (Continued on next page)
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3010
1 (In open court)
2 MICHAEL ERNEST, resumed.
3 (Jury present)
4 THE COURT: Good afternoon. Sorry for the delay.
5 Mr. Garcia, you may continue.
6 MR. GARCIA: Thank you, Judge.
7 DIRECT EXAMINATION continued
8 BY MR. GARCIA:
9 Q Before we broke, we were discussing a search at 7233
10 Peppeswood Knoll Lane, apartment 81, Sacramento.
11 Specifically, we had gotten to a few exhibits that are in
12 evidence and I would like to go through a few of them now. I
13 would like to start with Government's Exhibit 350A, and if we
14 could have that displayed.
15 Agent Ernst, could you tell us, what are we seeing
16 here?
17 A This is a copy of the properties of the particular
18 document.
19 Q That is a document that was found on one of the computers
20 taken during the search that you talked about earlier?
21 A Yes, it was.
22 Q Looking at 350A, what is the file in which the document
23 was found?
24 A Cocktail, C-O-C-K-T-A-I-L.
25 Q That is the name of this particular document, is that
3011
1 correct?
2 A Yes, it is.
3 Q You say this describes properties. Does it have the date
4 this file was created?
5 A Yes, it was.
6 Q What was that?
7 A Monday, January 8, 1996.
8 Q If we could now put up on the screen Government's Exhibit
9 350. If we could zoom in on the first four entries there and
10 enlarge that.
11 Agent, this is the actual file, cocktail, that you
12 were talking about earlier, 350A
13 A Yes.
14 Q Could you read the top line on this document.
15 A How the group is functioning. 1. Not more than four
16 people. Computer guru. Computer assistant (Classify info,
17 helping in some issues). Darkroom expert. Communication
18 expert. P.S. Every member knows how to do everything.
19 2. The area of operation will be divided into
20 stations. Every group will assigned a station.
21 3. Every member has a legal job as a cover (Student,
22 worker, trade)
23 4. There are a base. Could be apartment, part of
24 store or in a farm.
25 Q If you could go to page 2 of the same document, 350.
3012
1 A Did you want me to read the rest?
2 Q That's OK, thank you. If we could zoom in on method of
3 operation.
4 A 4. Each mission has different plan, some regular
5 measurements as follows.
6 A. Group will be divided into two teams.
7 B. Each team consists of two persons.
8 C. It might be that two teams will be working on the
9 same target in shifts. One team replaces the other. To
10 continue the job with new faces. One team on the target and
11 the other team in the base, and so on.
12 D. Safety is the main concern, so the contingency
13 plan is very important. Before working on the target you
14 have:
15 1. Specify a rally point to meet in case of
16 separation for any reason. You might have to have more than
17 one with different time for 12 hours.
18 2. Signals.
19 3. How to avoid arrest.
20 Q If we could display Government's Exhibit 351A. Agent,
21 again, this is a screen showing the properties of that
22 particular file, Exhibit 351?
23 A Yes.
24 Q So we are clear, is this screen generated by the Microsoft
25 Windows program on the computer hard drive?
3013
1 A Yes, it is.
2 Q Then you printed out that particular screen?
3 A Correct.
4 Q If we could go to page 1, the actual Exhibit 351, and if
5 we could zoom in on section B, in the middle of the page and
6 if you would read that for us.
7 A B. The system of the netaq to serve no 2. The netaq is
8 term used in the security system. For example: An embassy of
9 a foreign country will have several netaq. The first netaq
10 will be inside the fence and the security from this foreign
11 country will take care of it. The second netaq is the police
12 outside the gate. The third netaq might be a patrol car
13 stationed about two blocks from the embassy. The fourth netaq
14 might be a police unit responsible to protect some sensitive
15 targets in that area, about 2 kilometers away. The system of
16 the netaq and the important part of the town to serve No. 3.
17 Q If we could display Government Exhibit 354, page 1.
18 Before we discuss those entries, Agent Ernst, could
19 you tell us what is the name of this particular file as
20 reflected on 354A?
21 A It is tahary.
22 Q If you could read for us those entries displayed on the
23 screen.
24 A Definition. Gathering info about a target in a specific
25 time.
3014
1 Types ANWA3 al-tahary.
2 1. Normal tahary such as criminal investigation.
3 3ADY.
4 2. Personal tahary for a specific target. Shakhsy.
5 3. Tahary for spies. Jasoukeya.
6 Q If we could have Government's Exhibit 355H2, and if we
7 could zoom in on entry 22 -- no, in the middle of the page
8 under examples. And could you read that for us.
9 A Example, how the four groups works together.
10 Number 1. Each group does not know anything about
11 the other group, even Majmou3at. Al-qeyada does not know how
12 many group under its leadership. Only the one group know each
13 other because the members of one group only working with each
14 other.
15 Number 2. The communications between the different
16 groups are conducted through the dead mail drop only.
17 Q Could you tell us looking back at 355A in front of you,
18 what date does that list this file being created?
19 A Saturday, May 30, 1998.
20 Q Agent, I would like to put the computer printouts aside
21 now and turn to the other exhibits that are in front of you
22 and I would like to start with Government's Exhibit 361, which
23 I believe is the Egyptian passport. Could you tell us, that
24 passport, was that photographed inside the residence as you
25 described it earlier?
3015
1 A Yes, it was.
2 Q Nationality?
3 A Egyptian.
4 Q And the name on that passport, if you could read it for
5 us?
6 A Ahmed, A-H-M-E-D, Bahaa, B-A-H-A-A, Eldin, E-L-D-I-N,
7 Mohamed, M-O-H-A-M-E-D, Adam, A-D-A-M.
8 Q Thank you. If we could put that aside and go to
9 Government's Exhibit 357. Could you just tell the jury
10 generally what is that item 357?
11 A This is a photograph of a telephone address book that we
12 found during the search.
13 Q If we could display the last page of that address book on
14 the screen. If we could zoom in on the written entry. Agent,
15 are you able to read that off the screen for us?
16 A Yes.
17 Q Would you.
18 A Well, it is some type of writing or symbol number. Fax
19 254-2-820067.
20 Q Agent, do you have in front of you the corresponding
21 translation in 357T, which I believe is in the other pile?
22 A Yes, I do.
23 Q Could you turn to the corresponding translation page for
24 that entry, and if it is possible if we could have that also
25 on the screen, the translation 357-T final page. If we could
3016
1 do it at the same time that would be better. Agent, if you
2 would just read for us the corresponding entry from
3 Government's Exhibit 357-T for the page that we have
4 displayed.
5 A Yes. Wadieh, W-A-D-I-E-H.
6 Q And now if we could go to Government's Exhibit 359.
7 Again, is that a document that you photographed in the search
8 you described for us?
9 A Yes, it is.
10 Q If we could have Government's Exhibit 359T displayed.
11 Could you read that for us, Agent.
12 A Details of the accident in which Galal died.
13 This is the third big accident in Tanzania after the
14 seventies train accident, but this time it was very painful as
15 the accident was on Lake Victoria. This is the second ship
16 accident and the first was on the Zanzibar Sea where the two
17 ships collided on 29 June 1990.
18 Q If we could display the rest of that document page and if
19 you could read the entire document beginning with the
20 accident.
21 A The accident began with the departure of a passenger ship
22 working between -- the spelling on the word is M-W-A-N-Z-A
23 (Arabic) and B-U-K-O-B-A (Arabic) a long time during the night
24 of 21 May 1996. It was heading from Bukoba to Mwanza. The
25 legal capacity of the ship was 500 passengers, but with a
3017
1 bribe it left Bukoba with more than 600 passengers and these
2 (LUI) whose names were not found in official records found in
3 Bukoba. The trip lasted approximately 10 or 11 hours. The
4 official reason for the accident was the greed of those in
5 charge of the boat wherein a large number of passengers were
6 allowed to go on the deck of the ship even though the ship was
7 in bad condition as it left Bukoba. The ship was originally
8 tilting when it arrived at the port of Kemendo, K-E-M-E-N-D-O,
9 located approximately three kilometers from the port of
10 Bukoba, where it permitted more passengers to (board) as well
11 as cars and other things. The ship began its trip at 3:30 on
12 the morning of the 21st, and it continued, listing and at a
13 slow speed. Close to the island of (Jumah) and about 13
14 kilometers distant from the port of Mwanza, and sometime
15 between the hours of 6 and 7 in the morning, the ship's
16 passengers were surprised when the ship listed very quickly
17 and in a few minutes most of the ship was under water. A
18 small portion had a quantity of air and it didn't go down. As
19 the ship continued to quickly drown, they were not able to
20 escape except the individuals who were on the deck who jumped
21 into the water. Less than 50 survived the accident and those
22 were the ones that through themselves into the water and among
23 those the ones that excelled at swimming or had grabbed on to
24 bananas, as there was a load of bananas on board the ship.
25 Some of them held small rings such as 8 (people) who held
3018
1 together, and from time to time, and with effort, one of the
2 eight people would release his hands and go under water and
3 move to the other life. (Koranic references here)
4 At 9:30 a boat coming from Uganda threw lifelines to
5 anyone remaining, and most of them were totally naked. At
6 approximately 11:30, the city of Mwanza was weeping.
7 Strangely, the (helmsman/skipper) felt the ship listing and
8 contacted the port of Mwanza. But they were (drunk), and when
9 fishermen came and informed them of the accident but they were
10 called liars. The authorities didn't arrive until 2 in the
11 afternoon and a piece of the ship was still sticking our of
12 the water. When the official came and heard noise coming from
13 inside the ship, he decided to extract those that were in the
14 portion still protruding from the water. He issued an order
15 to make holes in part of the ship despite the warning of
16 experts that making a hole in the ship would allow the air to
17 escape and the entire ship would sink. One of the owners of
18 the ship suggested pulling the ship into the port as is and
19 then proceeding with the extraction, but (the official)
20 insisted on his position of making a number of holes. They
21 removed three people. Then the ship submerged completely to a
22 depth of 30 meters. That was around 4 in the evening. Now it
23 is more than 30 meters under the water and the cabin, the
24 first and second class cabins are buried under mud which
25 pushed along by the underwater current based upon the
3019
1 expectation of local residents.
2 The day after the accident they found more than 50
3 corpses and likewise on the third day. The government is not
4 doing anything, but the wealthy people Mwanza met and took
5 charge of offering all the aid, food, boats, diesel, supplies,
6 and anything the people were needed. On the fourth day
7 following the accident, a team of divers of South Africa came
8 and sat for a full day without anyone talking to them. Even
9 the government did not pay attention to them. Anyhow, the
10 team began doing their work on the fifth day, wherein they
11 began making openings in the third class compartment. They
12 extracted some of the bodies and the government prohibited
13 filming in the area. They continued working until the 11th
14 day, when a team of trainers came from South Africa because
15 the first team was still under training. And the new team
16 gave and brought with them new supplies. The work was
17 generally done using small boats, which carried the corpses to
18 the port. Then they were transported in ships to a soccer
19 field, where there were tents divided according to gender.
20 Then family members would come in to look for their relatives
21 and a death certificate was issued by the Red Cross to those
22 identified. And then they were taken to graveyards and to
23 some collective cemeteries. But the Muslims there began to
24 dig graves from the second day and left them ready. And every
25 Friday, they would pray a absentee prayer for whoever was in
3020
1 the ship. On the same day in which the new team began its
2 work, they met and then decided to stop work for health
3 reasons. The final outcome of bodies, approximately 410. On
4 the first day the corpses were placed in the Mwanza hospital.
5 The true number of passengers was 1,000, and it was said that
6 it could be 1,400. On June 3, 1996, the Tanzanian president
7 came to Mwanza and announced an end to the search operations.
8 Hours before the accident.
9 Asaf, A-S-A-F, who was with him, told us that they
10 had awakened at 5:30 a.m. so they could pray the dawn prayer,
11 and they left the first class compartment. And after the
12 prayer Galal said to Asaf, who was his companion of the trip,
13 let's go back to the room, the air is cold. Asaf saw the
14 ship's crew wearing life preservers so he asked them what's
15 wrong with you, as if the ship was going to sink. They said
16 was Allah knows. At this time the ship was very slow so they
17 returned to the room, and after about 10 minutes Asaf felt the
18 listing of the ship, so he wakened Galal and said in a
19 frightened voice the ship is listing. Galal said don't be
20 afraid, Allah is with us, and they went back to sleep. After
21 about two minutes, they were surprised by the ship listing
22 backed. Asaf hurried from the room and called to Galal, and
23 the ship listed more. Galal got up and grabbed the door that
24 was now over him, and began to forcefully pull himself out.
25 But during this time the door broke and fell to the bottom and
3021
1 Asaf was still calling him. There were roughly 2 1/2 meters
2 between him and the door and Galal made a second attempt but
3 it was God's destiny for the opposite door to open. People
4 and stuff fell on top of him while Asaf and he were looking
5 for each other and the water had risen up to the calf. Within
6 seconds, Asaf was surprised by water entering upon him and
7 Galal, who was on the bottom, was looking up to him. They
8 were looking at him. (Asaf) took deep breath and pushed
9 himself into the corridor, and there were 10 doors in front of
10 him, as they were in the 20th room. By Allah's will, each one
11 of the doors was closed. He began to leave and until he
12 arrived to the front the ship was still turning over, and he
13 saw pipes in front of him that he had to climb. He climbed
14 while the ship continued to capsize. He hurried until he
15 arrived at the top of the ship, who was originally a hallway.
16 He found some of the people who had survived, and saw bodies.
17 He then jumped into the water and began to swim, and found
18 people holding to a ring (life-saving ring). They refused,
19 fearing that they would all drown. But after two and a half
20 hours they had held on as much as they could until a ship
21 coming from Uganda arrived and threw down lifelines. In t