26 April 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 35 of the trial, April 26, 2001.
See other transcripts: usa-v-ubl-dt.htm
4913
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 April 26, 2001
9:50 a.m.
10
11
12 Before:
13 HON. LEONARD B. SAND,
14 District Judge
15
16
17
18
19
20
21
22
23
24
25
4914
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
SAM A. SCHMIDT
7 JOSHUA DRATEL
MARSHALL A. MINTZ
8 Attorneys for defendant Wadih El Hage
9 ANTHONY L. RICCO
EDWARD D. WILFORD
10 CARL J. HERMAN
Attorneys for defendant Mohamed Sadeek Odeh
11
FREDRICK H. COHN
12 DAVID P. BAUGH
LAURA GASIOROWSKI
13 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
14 DAVID STERN
DAVID RUHNKE
15 Attorneys for defendant Khalfan Khamis Mohamed
16
17 (In open court; jury not present)
18 THE COURT: We said we wouldn't start until 10
19 o'clock. All counsel aren't here, but as soon as everybody is
20 here we'll begin.
21 (Recess)
22 (In open court; jury not present)
23 THE COURT: Everyone be seated, please. I
24 understand -- Mr. Cohn.
25 MR. COHN: Sorry, your Honor.
4915
1 THE COURT: I understand that --
2 MR. HERMAN: I can't hear you, Judge.
3 THE COURT: -- the government is considering
4 consenting to the revision of some of the overt acts, is that
5 correct?
6 MR. FITZGERALD: Yes, Judge. If I can give you a
7 status on three items. We do not seek to have the jury
8 sequestered. On the overt acts in the indictment we are
9 preparing a letter where the issues came up that may seek us
10 to revise the letter, but we're preparing the proposed
11 redacted indictment which would change language in some
12 counts, also, not proceed on certain theories which we hope to
13 have available later this morning.
14 On the Somalia issue, however, two things. First, I
15 was just was handed additional 3500 material for the witness
16 at two minutes before 10 o'clock. He's about to testify at 10
17 o'clock. But there is an issue I think we need to put on the
18 table. It appears that the defense theory now is that al
19 Qaeda may have been training people in Somalia but it was
20 after the Abdi House attack that they began to help the
21 Somalis attack Americans.
22 THE COURT: No, I think the reverse. That any aid al
23 Qaeda furnished to the Somalis was prior to the Somali
24 anti-American activity. Isn't that the theory?
25 MR. SCHMIDT: Yes, it was unrelated to the events in
4916
1 Mogadishu.
2 MR. FITZGERALD: Your Honor, if the relevance is that
3 the aim of al Qaeda was not to kill Americans prior to the
4 Abdi House attack, is that the reason it's offered to show
5 what the Abdi House relevance is?
6 MR. SCHMIDT: That's part of it, that the training,
7 that the government alleges took place, and the evidence shows
8 in Ogaden and the Gedo region occurred before the Abdi House
9 attack and was unrelated to the attack on the Americans.
10 THE COURT: It is not surprising that the government
11 isn't entirely clear on what that claim is, because it has
12 been stated at various times in various fashions, but my
13 understanding of it is that just as there was aid given to the
14 to Afghanistan opponents of the Russians -- the analogy would
15 be -- so here al Qaeda's aid to Somalia took place prior to
16 any anti-American activity. Is that it? Is that what the
17 point is?
18 MR. SCHMIDT: That's the major point. I mean some of
19 the training apparently continued on, but it was still
20 unrelated to Mogadishu.
21 MR. FITZGERALD: My point, your Honor, is the state
22 of mind of anti-American animus, a relevant state of mind is
23 al Qaeda, not the populace, what their activity was designed
24 to do. My point being --
25 THE COURT: I don't understand that. If al Qaeda
4917
1 furnished aid to a group which did not have any anti-American
2 animus or program would that not be irrelevant to Count One?
3 MR. FITZGERALD: Hypothetically, yes, but that's not
4 the case.
5 THE COURT: Whether that's the case or not is a fact
6 issue.
7 MR. FITZGERALD: But, your Honor, when Al Fadl
8 testified the evidence that was precluded at that time or not
9 gone into was the theory that appeared to be different was the
10 fact that the Americans were attacked on their way to Somalia
11 in December 1992 when President Bush dispatched the armed
12 forces to Operation Restore Hope. On the way over there on
13 December 29, 1992, Bin Laden operatives bombed the Americans
14 in a hotel in Yemen transiting through Yemen to get to
15 Somalia.
16 THE COURT: Has any evidence of that been introduced
17 here?
18 MR. FITZGERALD: No, your Honor, because it was
19 precluded by the defense. We would seek to put the Court on
20 notice, I think if we go down the road then in the rebuttal
21 case we ought to be able to call in examining this witness the
22 fact that Bin Laden bombed the hotel where the Marines stayed
23 on their way to Somalia, and the thought that the
24 anti-American animus or activities started in July of 1993 is
25 wrong.
4918
1 THE COURT: That's true. I can't preclude the
2 defendants from introducing evidence in support of its claim.
3 Whether the facts reached justified that is something else.
4 MR. FITZGERALD: I just want to put the Court on
5 notice so no one thought they were being taken by surprise.
6 MR. SCHMIDT: Your Honor, I am taken by surprise. I
7 don't recall any preclusion of testimony concerning any other
8 anti-American violent act.
9 THE COURT: But, in any event, it clearly would be
10 appropriate for rebuttal evidence, whether the government
11 could have produced it earlier not, I think it's perfectly
12 clear that the nature of this defense claim has not been
13 apparent. Let me just ask one other question.
14 MR. SCHMIDT: Your Honor --
15 THE COURT: Using the old lettering of overt act, the
16 overt act with respect to the 18 deaths in Somalia, I think
17 it's Y.
18 MR. FITZGERALD: I can save you time on that. In the
19 proposed redacted indictment in terms of which overt act are
20 which for the jury to vote on that is one where we're disposed
21 to being redacted at. There is an error.
22 THE COURT: All right. That will save a lot of time
23 and had I known that hours ago I would have saved some hours,
24 but that's perfectly all right. Are we ready now to bring in
25 the jury?
4919
1 MR. SCHMIDT: No, there is one issue I want to raise.
2 THE COURT: Yes.
3 MR. SCHMIDT: Mr. Scofield has brought with him --
4 THE COURT: That's your next witness.
5 MR. SCHMIDT: Yes -- videotape that was produced by
6 the Australian television that includes footage taken by Mr.
7 Hassan, a photographer in Mogadishu. He has also brought with
8 him hours of taped conversations with Mohamed Shafi, the
9 surviving journalist of the group, that was after the Abdi
10 House, who died recently. I have not had the opportunity to
11 listen to any of this.
12 THE COURT: Certainly you're not going to seek to
13 play it to the jury before you have seen it and reviewed it,
14 right?
15 MR. SCHMIDT: That is correct. But this is part of
16 the source material that allows him to testify concerning the
17 events of the Abdi House and the Somali reaction. I'm aware
18 that it exists. I am not in a position, because Mr. Scofield
19 flew in yesterday, to present this with direct examination.
20 Unless should the government open the door for that, I don't
21 wish to do so. I'm making your Honor aware that it is
22 available and should that happen I would need the weekend to
23 go through that and listen to it.
24 THE COURT: I think we spent sometime yesterday, even
25 to the point of my outlining the line of questioning and the
4920
1 manner of questioning with respect to the Abdi House event. I
2 don't think of any of that is changed because of the witness'
3 having other things available. Obviously, if the government
4 seek to undermine or impeach his knowledge for the sources,
5 the basis on which he reaches certain conclusions, the fact
6 that he has all that material is something that he can say,
7 but my understanding of what you told me, and that is you do
8 not intend in the present posture of the case to seek to
9 introduce any of the videos or any of those interviews.
10 MR. SCHMIDT: At this moment, that is correct.
11 THE COURT: All right.
12 MR. SCHMIDT: Also, because of what we discussed
13 yesterday, I am limiting his testimony concerning the events
14 shortly before the Abdi House, the few months before and then
15 the Abdi House events, and just simply the reaction to it. I
16 am not going to be questioning him concerning the continued
17 warfare between the Aideed clan, Aideed supporters and the
18 Americans and the UN after the Abdi House up to the October
19 3rd.
20 There are tremendous amounts of material that he is
21 aware of both as a fact witness and as an expert witness of
22 conduct by both sides that will take an extraordinary amount
23 of time. Because I'm limiting it, I'm asking your Honor also
24 then to limit the government not to go into those areas where
25 I am not going into, because, otherwise, it's going to open
4921
1 the door to a tremendous amount of material which, based on
2 our discussion, we were not going to go into.
3 THE COURT: Let me say it again, and I think I'm
4 repeating. My understanding of the defense contention here
5 and the role of this witness is, I said yesterday, temporal,
6 to show that there was a time when Somali was not opposed to
7 American presence or activity; that there was an identifiable
8 point of time triggered by the Abdi raid which caused a
9 radical revision in the attitude of the Somali populace with
10 respect to the United States; and the function of this witness
11 and the nature of this defense issue is to show that al
12 Qaeda's support or training or aid to Somalia prior to that
13 time was not pursuant to the anti-American animus which is
14 part of the conspiracy count. Is that it?
15 MR. SCHMIDT: Loosely, your Honor, --
16 THE COURT: You know, let's tighten it up. I don't
17 want -- you know, you equivocate. Every time I try to state
18 the position you say, well, that's most of it. Let's have all
19 of it so that we don't do all of this in front of jury.
20 MR. SCHMIDT: This witness is basically limited to
21 Mogadishu.
22 THE COURT: Yes.
23 MR. SCHMIDT: He is not familiar with the other areas
24 of Somalia, so he can't talk about that. He can talk about
25 the Aideed subclan and the other subclans that were supportive
4922
1 of Aideed.
2 THE COURT: Can he respond to the question whether
3 asked on direct or cross, prior to the Abdi House raid were
4 Somalians engaged in anti-American activities?
5 MR. SCHMIDT: The simple answer is yes, they were,
6 but not of the nature that occurred after the raid.
7 THE COURT: The nature?
8 MR. SCHMIDT: There was, for example, Radio Mogadishu
9 Aideed's radio station, broadcast anti-UN things a lot.
10 THE COURT: But al Qaeda is not alleged to have been
11 supporting Aideed.
12 MR. SCHMIDT: That's correct. What it will show is
13 that the nature of the feelings towards the Americans changed
14 from perhaps wariness and not wanting to deal with them that
15 much, to, you know, physically having a war and battle.
16 That's a substantial change.
17 THE COURT: Mr. Fitzgerald alerts us to the fact that
18 he reserves the right in a rebuttal case to show that there
19 was a bombing attributable to the Bin Laden group of Americans
20 en route to Somalia in 1992.
21 MR. FITZGERALD: December 29, 1992.
22 THE COURT: The point is that the volume increased.
23 Is that the point?
24 MR. SCHMIDT: Your Honor, the first American casualty
25 in Mogadishu related to any hostile action was in August of
4923
1 1993 a month after the Abdi House. The Americans became a
2 target of Aideed after the Abdi House event.
3 THE COURT: American targets of Aideed.
4 MR. SCHMIDT: Of Aideed after the Abdi House events.
5 THE COURT: Yes.
6 MR. SCHMIDT: We believe that the American deaths
7 that the government attributes to conduct of al Qaeda is
8 attributed to Aideed and his supporters. We also have
9 indicated that the training that occurred prior to the
10 Americans and the UN even showing up, and after that in other
11 areas of Somalia, are unrelated to the attacks on the
12 Americans.
13 THE COURT: I think it's appropriate that the
14 government abandon Y in the overt acts because I don't think
15 in the present state of the record there is evidence which
16 shows that the 18 deaths named in that overt act were
17 attributable to forces allied with al Qaeda as opposed to
18 forces allied with any other faction in Somalia, but that
19 overt act is out.
20 You say there was a bombing of Americans en route to
21 Somalia?
22 MR. FITZGERALD: In Aden, Yemen at a hotel being
23 billeted as a way station, they were on their way over, they
24 stopped in Yemen. They were at a hotel. I believe there were
25 three bombs that went off that night that killed, I think, the
4924
1 janitor in the hotel and two Austrian tourists. They did a
2 poor job in the bombing. And one of the individuals who
3 worked for Bin Laden lost his arm. There were some Marines
4 injured. There were no fatalities is my understanding from
5 the bombing. And then the force continued on to Somalia. But
6 the first attack against Americans was literally just across
7 the Gulf when they flew into Yemen in December 29, 1992.
8 THE COURT: Was it known they were en route to
9 Somalia?
10 MR. FITZGERALD: Yes. It was announced by President
11 Bush on December 9, 1992. So en route they bombed them.
12 Your Honor, getting the 3500 material, learning that
13 this witness said he's basing his material and having
14 refreshed his recollection on a number of audiotapes that he
15 listened to before giving evidence today, knowing that he has
16 videotapes, we are not in a position to cross-examine this
17 witness, nor do I really -- honestly, I feel like I'm cutting
18 water with a fork.
19 I don't know what Mr. Schmidt is going to offer
20 through this witness, and if the government is truly a party
21 like anyone else, and we represent the victims here, I
22 wouldn't dare put the witness on with this sort of notice to
23 the defense, and I don't think we ought to be in a position
24 where we have to hear a witness testify whose 3500 material
25 indicates he talked about people eating flesh of the dead.
4925
1 THE COURT: You're not going to introduce that, are
2 you?
3 MR. SCHMIDT: No, I turned it over, and specifically
4 why I raise the issue, we don't want to get into that.
5 MR. FITZGERALD: Now he's telling me he wants to get
6 into what he wants in July 1993, he doesn't want anything
7 beforehand. I don't know what the relevance is. There is no
8 murder count charged having to do with the 18 dead in Somalia.
9 The point is, what was al Qaeda's mind set? Were they trying
10 to help attack Americans? Did they believe they were? Abu
11 Hafs, the military commander, told al Fadl that he believed
12 they were responsible for the deaths. Mr. El Hage's
13 housemate, Harun, wrote a report saying, we're the cell in
14 Nairobi that's responsible.
15 The point is the state of mind of al Qaeda, are they
16 attacking Americans? We're going down detour as to what the
17 Somali civilians thought about, just to get in the Abdi House
18 attack. This person interviewed people, people who were there
19 who lost relatives. I know it's something we're going to get
20 into blood and gore about the Abdi House attack. We are in
21 the unfair position. We're not given fair notice. He's going
22 to say he's testifying based upon refresh recollection based
23 upon audiotapes we don't even have.
24 THE COURT: I know you're saying fair notice, so if
25 we adjourn this until Monday, what difference does it make?
4926
1 What would you know on Monday that you don't know now?
2 MR. FITZGERALD: First of all, I don't know if we
3 have tapes to review, but, more importantly, Mr. Schmidt, we
4 asked him what are you seeking to elicit. I think we're
5 getting into --
6 THE COURT: Suppose, Mr. Schmidt, without
7 interruption from the Court, and you know that takes
8 considerable restraint, but without interruption from the
9 Court, would you make a proffer of what it is that you hope to
10 elicit from this witness?
11 MR. SCHMIDT: Yes, I will. Your Honor, I will elicit
12 his background and his sources of information and his
13 experience. I would elicit that the first significant
14 conflict between Aideed's forces and the UN's forces occurred
15 in June 5, 1993 as a result of an inspection and
16 reconnaissance of a location where weapons were being held.
17 After that, the UN reaction both prior to and after the
18 issuance of the UN resolution that ordered the securing of the
19 investigation, the action of the June 5th event were of the
20 nature of pinpoint attacks on specific locations like places
21 where weapons were held, the location where they believe
22 Aideed was living. There were warnings given to people. It
23 was done in a manner to minimize casualties.
24 On July 12th, although he was out of the country at
25 that time, after the media broadcast of that event, he
4927
1 questioned Mohamed Shafi who was the sole survivor and a
2 person who saw the attack on the Abdi House. He spoke with
3 Somali witnesses. He spoke with Admiral Howe who was the head
4 of the UN forces. He read the documents from the UN
5 concerning those attacks, and that attack was very different
6 in nature in that in that attack there was no warning given,
7 the means of exit were destroyed and numerous missiles were
8 fired into the building, and the casualty report as reported
9 by the International Red Cross included approximately -- I
10 don't have the number -- I think 67 people killed, many, many
11 wounded. Killed were mostly men, but there were a number of
12 women who were also killed as well.
13 Also, part of the source of his information is
14 viewing the original footage which is approximately 41 minutes
15 of the film taken by the Somali journalist which was -- and I
16 won't bring this out, but it was also incorporated in his
17 televised report. I'm going to ask him was the reaction of
18 the Somalis as a result of that, and his answer will be saying
19 that they viewed the Americans much differently after that.
20 That's it.
21 MR. FITZGERALD: Your Honor, that's trying the Abdi
22 House assault with a question at the end, which is, oh, by the
23 way, what did the Somalis think of Americans? That was
24 supposed to be the point of what the testimony is. It's
25 getting in before the jury a United Nations raid on Abdi House
4928
1 that is not relevant to the issue in this case, what was al
2 Qaeda's mind set. And there is a 403 issue here. It's very
3 serious. And we are getting before the jury the issue what
4 was al Qaeda thinking in 1992? Were they going to attack
5 Americans? What was their interest? The fact that the Somali
6 populace turned against Americans after the attack on Abdi
7 House --
8 THE COURT: The problem with that is that part of the
9 government's theory is that al Qaeda and Mr. Odeh in
10 particular were training Somalis. Now, if at the time you
11 were training Somalis it was comparable to training Afghans
12 resisting the communists, then it is not within the scope of
13 Count One, so the attitude of the Somalis is relevant, and
14 whether or not one can say that training Somalis was in
15 furtherance of the objectives of the conspiracy is relevant
16 here. I think that the government's concern is correct.
17 I'm going to repeat what I said yesterday. With
18 respect to the raid on Abdi House I'll permit a few leading
19 questions. And I suggest before he takes the stand you
20 caution the witness that you may ask him whether he was aware
21 of an event, the time or whatever it is; whether based on what
22 he has seen and heard that had a significant impact on the
23 attitude of Somalians with respect to the United States forces
24 working in connection with the UN; and whether or not there
25 was -- if he knows -- and whether or not there was an
4929
1 escalation or initiation of anti-American feeling subsequent
2 to that event, and that's it. I mean, that's it with respect
3 to Abdi House.
4 MR. SCHMIDT: Your Honor, I wasn't planning on doing
5 more than that.
6 THE COURT: Very well.
7 MR. FITZGERALD: Judge, that's what concerns me. We
8 agree. We've elicited from witnesses that people went to
9 Somalia to train before the Americans were there. We agree
10 that there was a time when the training did not involve
11 Americans. But Mr. Schmidt agreeing with your Honor's
12 description doesn't give me great comfort. Every time --
13 THE COURT: I'll give you greater comfort. The
14 moment there is a significant deviation, the moment that the
15 witness attempts to parade the blood and gore or the details
16 of Abdi House, that witness' testimony will be concluded.
17 Mr. Cohn.
18 MR. COHN: Your Honor, your Honor may recall that we
19 sought to strike the 18 deaths --
20 THE COURT: That's not now.
21 MR. COHN: I understand, but it needs a little
22 preface. I'm sorry, I generally don't do a long windup, but I
23 need to put this in some sort of context.
24 The Court has now in a sense agreed with our argument
25 then by telling the government that they didn't think the
4930
1 causal connection has been made, and you may remember that I
2 tried to bar the testimony of Special Agent Yacone on the 403
3 analysis which we lost because it was an overt act. And now
4 he's testified, the overt act is gone, and I believe that his
5 testimony ought to be stricken on the present state of the
6 record. And, if the Court agrees with me, I know the
7 government doesn't, because I asked them, and if the Court
8 agrees with me that it ought to be stricken, but believes that
9 after the testimony on Abdi House that will change, then I'm
10 asking for a severance now, because this is the second time at
11 least in which what the Court has moved the relevant defense
12 to a non-death defendant is impacted on, if my analysis on
13 Yacone is right, has impacted on the death phase.
14 THE COURT: The motion for the severance is denied.
15 Mr. Schmidt, excuse me. When did you learn that the
16 government was willing to drop the, let's call it the old
17 lettering, overt act Y? Did you learn that prior to this
18 morning?
19 MR. SCHMIDT: I didn't even know that.
20 THE COURT: You don't know it now? Have you been
21 listening?
22 MR. SCHMIDT: Your Honor, I have missed it.
23 THE COURT: Tell me if I'm wrong, that the government
24 has advised us that in the submission it is going to make it
25 will consent to the deletion, among other things, of overt act
4931
1 Y, using the old lettering, which is 18.
2 In light of what you heard now, and in light of the
3 government's reservation of the right on rebuttal to show that
4 there was an attack made on Americans en route to Somalia in
5 1992 and 1993, do you want to rethink the wisdom of calling
6 this witness for the limited purposes for his testimony?
7 MR. SCHMIDT: Your Honor, we just, I found this out
8 now. I don't know if I missed something yesterday, but I just
9 found this out now.
10 If the government is not going to argue that any
11 member of al Qaeda was involved in killing Americans in
12 Mogadishu, I do not need this witness. If they are going to
13 argue that, they are just going to limit themselves to the
14 training of, I do not need this witness.
15 My concern was the fact that if you're charged with a
16 conspiracy to kill, right, and then they bring, I have to
17 bring in proof that was accomplished, my concern was that it
18 was accomplished not by al Qaeda, it was accomplished by other
19 people. If they're not going to argue that it was
20 accomplished by al Qaeda, I don't need this witness.
21 THE COURT: That's precisely my question. Let's look
22 at the indictment. I'm looking at objects of the conspiracy
23 page 10 of the indictment. I don't know if we're all using
24 the same version.
25 MR. WILFORD: Paragraph 11, your Honor.
4932
1 THE COURT: Paragraph 11. And that has to kill
2 United States nationals who were serving in their official
3 capacity in Somalia. The government wishes to retain that?
4 MR. FITZGERALD: No. But I didn't want to mislead
5 your Honor. Let me tell you what our position is. The
6 proposed revised indictment that language was reworked which
7 is being typed now.
8 The second and third objectives were being subsumed
9 within the first, as we discussed was a possibility yesterday
10 afternoon. So what it's going to say is objective to kill
11 Americans. Let tell you what the government's theory has
12 been, and we've had conversations about dropping that going
13 back over months I realize. There wasn't a stipulation.
14 The testimony of al Fadl was that he understood that
15 Abu Hafs, the military commander, went to Somalia to assess
16 the situation to see how they might be able to fight the
17 Americans. The testimony was that al Qaeda people went to
18 Somalia for various reasons. There was issues going on
19 separate from America. There were attacks in Mogadishu where
20 Harun and Sali were both later told the witness Kherchtou they
21 were present in Mogadishu trying to help fight the Americans.
22 There is a report in the computer that was found in
23 Wadih El Hage's house where Harun describes the Nairobi cell
24 as basically the support base for the cell because he said
25 that the Sheik's people, Bin Laden's people are responsible
4933
1 for the attack in Somalia.
2 THE COURT: Give me a moment.
3 Marshal, would you ask them to tell the jury we're
4 going to be some time.
5 MR. FITZGERALD: The government's theory has never
6 been a forensic case of proving a murder in Somalia saying
7 this bullet came from al Qaeda members. What we have sought
8 to prove is that al Qaeda was involved in Somalia. There were
9 other issues going on there, but there was an issue in seeking
10 to go to try to attack Americans, they provided training that
11 they understood that some of the people they trained may be
12 responsible or were responsible for the killings.
13 We're not going to say that when Agent Yacone was
14 shot down that an al Qaeda member pull the trigger. Our point
15 is to show the state of mind of the al Qaeda conspiracy.
16 Bin Laden has issued fatwas saying that the United
17 States is coming to Somalia to take over the country, to
18 colonize it, to invade the Sudan. A fatwa to attack the
19 Americans in Somalia. The point isn't how people got shot or
20 how they got killed, but what the mind set is. That's why
21 we're willing to drop the overt act. That's the argument
22 we're going to make, but we're not going to say this soldier
23 was killed by al Qaeda people.
24 THE COURT: So that in paragraph 11 the reference to
25 killing American military in Somalia is not going to remain.
4934
1 MR. FITZGERALD: That's the proposal. I will read
2 what it will state. It was a part and object of such
3 conspiracy that the defendants, and others, known and unknown,
4 would and did murder United States nationals. I think that's
5 where it stops, period.
6 THE COURT: Does anybody object to that amendment of
7 the indictment?
8 MR. RUHNKE: Your Honor, this is a death case for my
9 client as well.
10 THE COURT: Excuse me?
11 MR. RUHNKE: This is a death case for my client as
12 well.
13 THE COURT: You know, can I just say one thing,
14 please? I'm aware this is a death case, and I'm aware of
15 which defendants are eligible for the death penalty, and I
16 really do not have to be reminded of that repeatedly.
17 MR. RUHNKE: Your Honor, when I lectured seminars I
18 tell lawyers to do exactly not that unless they really think
19 the jury has forgotten, and I apologize.
20 THE COURT: Sometimes Judges resent it when it
21 appears as if the Judge has to be reminded of that.
22 MR. RUHNKE: I apologize --
23 THE COURT: Very well.
24 MR. RUHNKE: -- for making the obvious point. We
25 have testimony in this case, very dramatic testimony from
4935
1 Capt. Yacone about what occurred in Mogadishu when the 18
2 soldiers were dead, and, indeed, testimony about mortar fire
3 that killed another member of the armed services. If that
4 testimony, if that overt act is no longer in the case, why,
5 and I ask this rhetorically, why is that relevant at all?
6 THE COURT: Why is what relevant at all?
7 MR. RUHNKE: The death of the 18 American soldiers.
8 THE COURT: The government is taking that out.
9 MR. RUHNKE: But they're leaving the testimony.
10 THE COURT: Are you joining in Mr. Cohn's motion to
11 strike that testimony?
12 MR. RUHNKE: What's the relevance, what's the
13 remaining relevance of that testimony to this case? Is it not
14 a false gift to the defense to quote unquote take the overt
15 act out of the indictment, leave the evidence there, and just
16 recast it into another object of the conspiracy, allowing the
17 government to say, see what kind of things al Qaeda can
18 produce? We had the testimony from Capt. Yacone about the
19 dead 18 soldiers.
20 THE COURT: What is the government's response to the
21 motion to strike, assuming, and I give you moment to tell us
22 what other Somali-related changes you make to the indictment,
23 and assuming that Mr. Schmidt on behalf of El Hage reaches the
24 conclusion that those changes obviate this testimony, to the
25 striking of the testimony of Agent Yacone, who, as I recall,
4936
1 the government called when it learned that the stipulation
2 which had everyone assumed would be acceptable was not going
3 to be entered.
4 MR. FITZGERALD: There are no other changes in the
5 indictment.
6 THE COURT: All right. I think we all have to be on
7 the same page. The change with respect to Somalia are what
8 you've just said with respect to paragraph 11, the over act Y
9 comes out in its entirety. Y is simply deleted an Q remains.
10 Odeh provided military training and assistance to Usama also.
11 Is Q in or out?
12 MR. FITZGERALD: Q is in. Just so we're clear, there
13 are other changes made to the indictment not affecting
14 Somalia.
15 THE COURT: We're just dealing now with Somalia. I
16 hope before our conference at the end of the day, and the end
17 of the day may be sooner than 4:30, that we'll know what those
18 other changes are.
19 MR. FITZGERALD: Yes, Judge. The reason of timing I
20 had to go through all the exhibits Mr. Schmidt put in
21 yesterday and we finished the early part --
22 THE COURT: I'm aware of the burdens. If you like to
23 think about it, discuss it with your colleagues, we can take a
24 recess.
25 The suggestion is that the change be made with
4937
1 respect to the language in paragraph 11 and no defendant
2 objects that that is an inappropriate amendment of the
3 indictment; that Mr. Schmidt not call the Somali expert and
4 the testimony of Agent Yacone be stricken.
5 You want to think about that?
6 MR. FITZGERALD: Yes, but I can make two comments so
7 other people can think about other things.
8 First, your Honor, I think we ought to know what the
9 defense position is, because people come to us, they say we,
10 are not, redact the overt act, remove the overt act. When I
11 remove the overt act they accuse you of a false gift. We keep
12 reacting to things from the defense and then they change their
13 position.
14 Our view, however, and I'll talk with my colleagues,
15 that Yacone's testimony should stay for the reason that there
16 is discussion by Bin Laden, there is discussion by al Fadl of
17 what Abu Hafs said of attacks on Americans in Somalia. Those
18 attacks were by RPGs, by techniques used by al Qaeda training.
19 We're not saying al Qaeda's people pulled the trigger, but we
20 had to put something in the record to establish those attacks
21 to show that when Harun, who Mr. Schmidt tried to characterize
22 as a braggart, is talking about the fact that al Qaeda
23 considers itself responsible for those attacks, that would
24 show what he meant.
25 But the bottom line is we need to know the defense's
4938
1 position. Every time we think over a position, they come back
2 and then they switch back.
3 THE COURT: If we do it, it will all be on the
4 record.
5 MR. WILFORD: Your Honor, I have a question of the
6 government with respect to this December 29th incident that
7 they intend to somehow connect to al Qaeda. Can he be a
8 little bit more specific about the proof, because the way it's
9 been presented that there is a direct connection between that
10 bombing and al Quaeda, and that's where we started off with
11 the 18 servicemen. I don't want to wind up in the same
12 position.
13 THE COURT: Did Bin Laden take credit for that? Yes,
14 I understood to have been said. You know what?
15 MR. SCHMIDT: Your Honor, may I have one point?
16 MR. COHN: I want to alert the government to some
17 other --
18 MR. SCHMIDT: One issue remaining, that we may not
19 call the witness, that the government sort of argued that
20 while they're not going to put forensic proof in al Qaeda was
21 involved in the killing, my concern is very simple. I was
22 prepared to live by the indictment. The indictment said
23 training and training trainers.
24 If the government was going to argue that the words
25 that Harun wrote in the security report and what Bin Laden has
4939
1 said indicate that they actually participated in the killing,
2 I need my witness. If the government is going to argue that
3 what they said indicates that they felt they were responsible,
4 they trained the people who did it, then I do not need my
5 witness. The government cannot argue either by the statement
6 by the other witness' testimony that al Qaeda killed
7 Americans.
8 THE COURT: Am I correct that the evidence includes
9 Bin Laden's statements with respect to al Qaeda's objectives
10 in activities in Somalia?
11 MR. FITZGERALD: Yes, Judge. He indicated that he
12 did help Aideed in one of his statements. But our theory is
13 training responsibility, not physical killing.
14 MR. SCHMIDT: If that is --
15 THE COURT: Training?
16 MR. SCHMIDT: Excuse me?
17 THE COURT: Are you saying that for you not to call
18 the witness, the government has to abandon training?
19 MR. SCHMIDT: No.
20 THE COURT: Okay.
21 MR. SCHMIDT: The opposite. They have to limit
22 themselves to training and they have to abandon any claim that
23 any member of al Qaeda actually participated in the physical
24 act of attempting to kill or kill Americans in Somalia.
25 MR. COHN: You know, put this in perspective, and not
4940
1 changing my position, but just alerting the Court to a
2 concern, and the government to it as well, and that is we're
3 now talking about striking the testimony of a major witness in
4 its entirety.
5 You can't do that. I'm not sure that works, but I'm
6 not prepared to say it doesn't. But you can't do that with
7 just a simple charge saying, it's stricken. I think you
8 really have to advise the jury, if we do that, in somewhat
9 stronger terms.
10 THE COURT: I would think that a more effective way,
11 because regardless of the legal fiction that when you say
12 something is stricken it goes out of the mind, I think a more
13 pragmatic and useful device would be a stipulation that no
14 claim is made with respect to the events testified to by
15 Special Agent Yacone that any members of al Qaeda or persons
16 directly trained by al Qaeda were responsible for the deaths
17 of the Americans. That language can use a little polishing.
18 MR. FITZGERALD: I can tell you where we would have a
19 problem with the language. I think we can say there is no
20 contention. We're not going to stipulate that al Qaeda --
21 THE COURT: There is no contention. The government
22 makes no contention that --
23 MR. FITZGERALD: But that no one from al Qaeda
24 physically shot -- we don't want to exclude people trained by
25 al Qaeda. We're just saying responsibility, not that they
4941
1 physically killed the people in Mogadishu.
2 THE COURT: Why don't one of you start to work on
3 some language?
4 MR. COHN: I would like that to include, and no
5 defendant on trial is legally responsible therefore.
6 THE COURT: Now, you know, you're not, you're asking
7 for --
8 MR. COHN: The problem it was 1992. Yes, I can tell
9 the jury my client was 12 or whatever age he was at the time
10 or 14, but --
11 THE COURT: I think if we do this, the bombing in
12 Yemen in 1992 is not relevant. I think this is a very
13 significant point. I think this has been a very useful
14 discussion I hope some of these matters are consummated. Why
15 don't we take a ten-minute recess, or, if at the end of ten
16 minutes you think it is a productive to take a longer recess,
17 we'll take a longer recess.
18 MR. RUHNKE: Practically speaking, your Honor, I
19 think what probably needs to be done is the defense lawyers
20 need to talk among themselves for a bit, and then meet with
21 the government so that we have --
22 THE COURT: You want me to declare a longer recess?
23 MR. COHN: Yes. You can tell the jury whatever you
24 need to tell them.
25 THE COURT: Why don't we adjourn until a quarter
4942
1 after 11, and if either the government or defense lawyers
2 believe at an earlier point that this is all an academic
3 exercise, then let the Court know, and if any of you believe
4 another five or ten minutes would be useful, let the Court
5 know, and I'll repeat my instruction to the jury that they
6 relax.
7 MR. COHN: Give us a half hour, because this is not a
8 hallway discussion. I think we have to talk in the defense
9 room --
10 THE COURT: No, I don't think it's a hallway
11 discussion.
12 MR. COHN: -- where we can ventilate at whatever
13 volume we wish.
14 THE COURT: I'm just wondering whether it is too
15 early perhaps for them to go out to lunch. Half an hour. So
16 that would be 20 after 11.
17 (Recess)
18 (Continued on next page)
19
20
21
22
23
24
25
4943
1 (In open court; jury not present)
2 THE COURT: Gentlemen, you have returned.
3 MR. WILFORD: Not everyone, your Honor.
4 Mr. Schmidt and Mr. Dratel will be up shortly. They
5 had an additional issue to discuss and they will be right up
6 and we think we'll be able to present something to the Court.
7 We'll need about two minutes to discuss it with the
8 government.
9 THE COURT: I just like to keep the jury apprised
10 because they're just sitting in that room.
11 Are we going to have any proceedings this morning?
12 MR. WILFORD: We should, your Honor. It's just as
13 soon as they come up we'll be able to move rather rapidly, I
14 believe.
15 THE COURT: Let me know when you are ready.
16 (Recess)
17 THE COURT: Somebody want to tell me? Mr. Ruhnke?
18 MR. RUHNKE: Your Honor, here's where we are. We are
19 going to ask the Court to strike the testimony of Agent Yacone
20 and to deliver a strong curative instruction to the jury -- a
21 strong instruction, not curative -- a strong instruction to
22 the jury which we have drafted.
23 If your Honor grants that motion, Mr. Schmidt and
24 Mr. Dratel have agreed they will not call, and have no need to
25 call, the witness. So our initial action, our initial motion
4944
1 is to strike the testimony of Agent Yacone, and if your Honor
2 does strike that testimony, the witness will not be called.
3 And I have a limiting instruction, a curative instruction,
4 that we have drafted for your Honor's consideration, which I
5 can read if you would like.
6 MR. FITZGERALD: We oppose that, your Honor. I
7 haven't seen the instruction.
8 Here is the point. If what they are seeking to do is
9 to take an issue out of the case and instruct the jury what
10 the issues are, first of all, I don't think --
11 THE COURT: Why don't we listen to it first. Why
12 don't we listen to it.
13 MR. RUHNKE: Your Honor, we're not asking the Court
14 to instruct the jury what the issues are, we're asking it to
15 strike certain testimony.
16 THE COURT: Let me at least hear what it is.
17 MR. RUHNKE: Here is the instruction we've proposed:
18 Ladies and gentlemen: In the past I have instructed
19 you from time to time to strike certain testimony. In those
20 such cases, the evidence in question was of a, relatively
21 speaking, minor nature in terms of length or dramatic
22 emotional nature.
23 I am now about to instruct you will to strike from
24 the evidence the testimony of Agent Yacone regarding the
25 October 1993 events in Mogadishu, Somalia. Frankly and
4945
1 candidly, I do not expect you to forget that evidence. That
2 would be humanly impossible. However, what I call upon you to
3 do as jurors is to pledge not to consider, use, or refer to
4 that testimony in any way or for any manner in deciding the
5 important issues before you.
6 It would be a violation of your oath as jurors to
7 disregard this instruction. I will direct my clerk to collect
8 the notes that you have on Agent Yacone's testimony and they
9 will be disposed of in such normal manner.
10 THE COURT: Tell me the whole -- that's it?
11 MR. RUHNKE: That's it.
12 THE COURT: That's it?
13 MR. WILFORD: That's it.
14 MR. RUHNKE: That's it.
15 THE COURT: What is the government's position?
16 MR. FITZGERALD: Strongly opposed.
17 THE COURT: I am surprised at that because, first of
18 all, it's a totally ineffective instruction. It's saying go
19 in the corner and don't think about the polar bear, and I warn
20 you it would violate your oath for you in the corner, if you
21 thought about the polar bear. And I'm going to take away your
22 notes, the notes of the jurors, personal belongings. So that,
23 apart from any other issue in the case, on the merits it is a,
24 I think, an absurdly -- forgive me -- absurdly ineffective,
25 inappropriate instruction.
4946
1 I think that because it is unrealistic to expect the
2 jury to totally disregard it. It makes considerably more
3 sense, both as a matter of human experience and in accordance
4 with the government's views on the merits, to have a statement
5 to the jury with respect to that testimony: You should
6 understand that no contention is being made by the government
7 that any defendant in this case, or whatever, was responsible
8 for the deaths of the various people.
9 I think that it would be contrary to everyone's best
10 interests to run the considerable risk of the escalation of
11 the Somalia matter, which, for three-quarters of this trial,
12 everybody assumed was going to be resolved by a stipulation
13 because of the government's objections and the Court's
14 unwillingness to strike with an instruction of that sort
15 rather than a stipulation such as I proposed.
16 But that's for you. The government called that
17 witness only when a stipulation, which I have never seen and
18 do not want to see, but which apparently all the lawyers
19 agreed but a client blocked, as is his right.
20 If that's the proposal, I would suggest that
21 Mr. Schmidt call his witness.
22 MR. RUHNKE: Your Honor, can I just, speaking now for
23 the discussion that we had.
24 THE COURT: Yes.
25 MR. RUHNKE: Your Honor may be correct to some degree
4947
1 or incorrect to some degree about the efficacy of limiting
2 instructions. For better or worse, we trust jurors to listen
3 to courts' instructions, and if we can't trust them to listen
4 to instructions, as many appellate courts have told us they
5 are presumed to do, I don't know where we are at all in terms
6 of the basic premises of trial law and judges instructions,
7 Dostoyevsky and the white bear problem. It's hard when
8 someone says, "don't think about a white bear."
9 However, what the government is doing is trying to
10 have its cake and eat it too in a very real sense. They want
11 to say to us, here, defense, we are taking from the indictment
12 the allegations about the dead 18 American soldiers and the
13 19th soldier who was killed during the mortar attack, that's
14 actually still in the record; however, we want to take that
15 evidence and argue it exactly as if the overt act remained in
16 the indictment. Because it has never been the government's
17 contention that any of the men on trial here participated in
18 the attack in October of 1993. It's never been the
19 government's contention that anybody who was a member of al
20 Qaeda ever participated in the attack.
21 THE COURT: I have another thought which I would like
22 to put down on paper. If I may have a moment.
23 MR. RUHNKE: Of course, your Honor.
24 (Pause)
25 THE COURT: This is rough, but the proposal would be
4948
1 that: The parties have agreed to a stipulation as follows:
2 1. The government does not contend for the purposes
3 of this case that any defendant on trial or al Qaeda members
4 directly participated or caused the death of any Americans in
5 Somalia.
6 2. In the light of this stipulation, the testimony
7 of Special Agent --
8 MR. RUHNKE: Yacone.
9 THE COURT: -- Yacone as to the death of U.S.
10 servicemen is no longer relevant, and his testimony is
11 therefore stricken in its entirety.
12 MR. FITZGERALD: I would object, your Honor, and if I
13 could just explain four brief points.
14 First, in this case we would offer to prove Yacone's
15 testimony is relevant. I understand the concerns that people
16 have that they think we need to place it in context. The
17 government has always been willing to try to establish the
18 facts we wanted to prove by other methods, by stipulation. No
19 one agreed.
20 But no one in the government sought to guild the
21 lilly in the proof of the bombing. We didn't put in a lot of
22 gore. In Agent Yacone's testimony, his direct testimony was
23 entirely consistent with the proffer. We have never contended
24 that any defendant in this courtroom participated in that
25 attack.
4949
1 The 403 prejudice, if you step back for a moment to
2 an attack which the government has never contended that any
3 defendant participated in, which was an attack on military
4 personnel in 1993, in a case where the defendants are charged
5 with being part of a conspiracy to kill civilians, where the
6 main charge is the killing of over 200 civilians in a
7 building, has to be looked at.
8 What I would suggest would be an instruction for the
9 Court -- I'll just give you the language.
10 The Court instructs the jury that the government
11 contends that al Qaeda viewed the United States as an enemy at
12 some point prior to the incident. Al Qaeda members trained
13 persons in Somalia and al Qaeda members viewed al Qaeda as
14 being responsible for attacks on Americans because of training
15 provided.
16 The government does not contend that the attacks
17 carried out on October 3 were physically carried out by al
18 Qaeda members. There is no contention that any defendant on
19 trial participated in the attack on October 3.
20 The defense disputes the government's contentions,
21 and you will hear further argument during summations from both
22 sides about what the evidence means.
23 The point here, it is irrelevant if the defense
24 witnesses stipulate to the elements. What is relevant is
25 there were attacks on American soldiers that al Qaeda could
4950
1 believe they were responsible for because of their training.
2 They train people in how to use RPGs. That's a technique they
3 developed in Afghanistan. RPGs were used on October 3. The
4 point being, we have testimony that the number two man in al
5 Qaeda, the military commander, said that he believed al Qaeda
6 was responsible for the attacks on Americans.
7 We have Harun, Fadhl, who carried out the bombing in
8 Nairobi saying that. If we had not put that proof in, they
9 would come back and say, where is it in the proof that anyone
10 in al Qaeda really believed that they were going against
11 Americans? That's been the purpose of the proof all along.
12 We offered to do it a different way. The defense
13 didn't want to go that route, so we put the witness on after
14 telling people, if you don't stipulate, here's what's coming.
15 THE COURT: I'll tell you what I suggest we do. I
16 don't think there is going to be unanimity here, although I
17 suppose in the first instance it's up to El Hage's counsel to
18 determine whether to call this witness. What I suggest is
19 that we leave the record as it is, that we leave the
20 testimony, except that we do tell the jury that the government
21 does not contend that any defendant now on trial or al Qaeda
22 member was directly involved in the killing of Americans in
23 the events of whatever that day is.
24 MR. FITZGERALD: October 3.
25 THE COURT: Does the government have any objection to
4951
1 that?
2 MR. FITZGERALD: I want to know what -- I want to
3 hear what the defense says. Every time we agree to
4 something --
5 THE COURT: All right.
6 MR. RUHNKE: Your Honor, we have on the table and
7 before your Honor a motion to strike the testimony. The
8 reason for the motion to strike is that the government has
9 withdrawn an overt act in the indictment, and yet it appears
10 that what the government wants to do is withdraw the overt act
11 and yet argue it.
12 Even the terms of the overt act itself I think bears
13 thinking about in its worst case scenario, and that is that
14 persons trained by al Qaeda, which does not include any
15 members of al Qaeda, and persons trained by people who were
16 trained by al Qaeda, which does not include any member of al
17 Qaeda, and ipso facto, nobody in this room --
18 THE COURT: That's why I'm suggesting that even
19 though Mr. El Hage's attorneys, if they wish, can call the
20 witness and the government can offer proof in its rebuttal
21 case of the bombing of American troops in Yemen and American
22 troops in Mogadishu, Somalia, that with respect to the battle
23 which was the subject of Agent Yacone's testimony, that the
24 jury be advised that the government is not contending --
25 MR. RUHNKE: That is the government's theory of the
4952
1 indictment in the first place.
2 THE COURT: Excuse me?
3 MR. RUHNKE: It's the government's theory of the
4 indictment in the first place that al Qaeda was not involved
5 in the battle in Mogadishu. That's where we started from,
6 that al Qaeda was not involved.
7 THE COURT: Let me have the language again of what
8 the government does not contend.
9 MR. FITZGERALD: Your Honor, yes. The government
10 does not contend that the attacks carried out on October 3
11 were physically carried out by al Qaeda members. There is no
12 contention that --
13 THE COURT: A little slower, please.
14 MR. FITZGERALD: The government does not contend --
15 THE COURT: That the attacks on October 3 were
16 physically carried out.
17 MR. FITZGERALD: By al Qaeda members.
18 THE COURT: Yes.
19 MR. FITZGERALD: There is no contention that any
20 defendant on trial participated in the attacks on October 3.
21 THE COURT: Mr. Schmidt, it's your witness that you
22 wish --
23 MR. SCHMIDT: May I be heard? First of all, your
24 Honor, it has to include not just the October 3 attack, it has
25 to include all attacks mentioned by the witness, and that
4953
1 included an October 6th, I believe, attack.
2 MR. RICCO: Your Honor, I would like to be heard at
3 some point on behalf of Mr. Odeh. I don't want to give the
4 impression that Mr. Schmidt, we're going to work this out, and
5 all of a sudden we're hearing from other counsel there's no
6 unanimity on this.
7 MR. FITZGERALD: If I could make one point how we
8 proceed.
9 THE COURT: Mr. Schmidt has a right or not to call a
10 witness.
11 MR. RICCO: He does, your Honor, but we have a right
12 to have our motion to strike the testimony.
13 THE COURT: I understand that. I haven't cut
14 everybody off, but I'm just saying that the decision whether
15 or not to call a witness is a decision made in the first
16 instance by the proponent of the witness.
17 MR. FITZGERALD: Let me just say one thing. It is
18 important for the government to know where the defense stands.
19 We get proposals, for example, where we are removing overt
20 acts and there was a motion to strike an overt act. We don't
21 think there was anything wrong with offering that proof. We
22 think the proof was properly received and, frankly, the overt
23 act can stay. We thought we were resolving the issue. Then
24 we take the overt act out, say remove it from the indictment.
25 Then we say, what's the evidence doing here?
4954
1 THE COURT: I understand why you have that belief,
2 but I have to tell you that I came on the bench this morning
3 before word one was spoken with having spent some time, as I
4 indicated, on the viability of Overt Act y. and had concluded
5 that it was not viable. So it isn't as if a good deed on the
6 part of the government was being abused.
7 MR. FITZGERALD: But striking the overt act doesn't
8 mean that the testimony -- okay, and all I'm saying is now
9 we're treating this as if somehow the government improperly
10 put testimony before the jury, and I think we ought to --
11 THE COURT: What I am leaning towards is not striking
12 the testimony but limiting its possible usage by an
13 instruction that says as I indicated before.
14 There is an objection to limiting it to October 3
15 because there was testimony with respect to the mortar attack
16 that was on the later date.
17 MR. FITZGERALD: We can talk about October 3 and
18 October 6.
19 THE COURT: October 3 or October 6.
20 MR. SCHMIDT: Your Honor, if I may.
21 THE COURT: I'm going to give you a full opportunity
22 to be heard. I just want to get this down on paper.
23 The government does not contend that attacks in
24 Mogadishu on October 3 or October 6 were physically carried
25 out by al Qaeda members and no contention that any defendant
4955
1 on trial participated in attacks on those dates.
2 Yes.
3 MR. SCHMIDT: I'm trying to save your Honor writing
4 time.
5 One, that there is no evidence that anybody was
6 involved in any of the attacks. I think the proper way would
7 be "any attacks" in Mogadishu so that it doesn't leave the
8 jury with any speculation that there might be other attacks
9 not covered in the stipulation. And since there is no
10 evidence of any other one, I think it should be "all attacks."
11 MR. FITZGERALD: Your Honor?
12 THE COURT: That's your point?
13 MR. SCHMIDT: On that issue.
14 THE COURT: Yes.
15 MR. FITZGERALD: Your Honor, we do have -- if we're
16 going down that road, there is proof. The military commander
17 says that al Qaeda is responsible. We have documents saying
18 they are responsible. They're not specific as to which
19 deaths. We're trying to put Yacone's testimony in
20 perspective. But I think just --
21 THE COURT: I have to deal with the evidence that is
22 before me.
23 MR. FITZGERALD: We have a document written by Harun,
24 Fadhl, in a computer, which he had no motive to lie, saying
25 everyone knows well that the member of the Sheik's cell in
4956
1 Nairobi were responsible for hitting the Americans. He
2 doesn't specify that they physically carried out the attacks
3 or trained people, but now Mr. Schmidt is seeking to have the
4 court basically charge the jury that that statement is false.
5 MR. SCHMIDT: Your Honor, what the government is
6 saying, if I may, is that they want to argue that they are
7 physically responsible. Their theory --
8 THE COURT: This is a statement to the jury as to the
9 government's contention and it can't be broader or less than
10 the government's contention.
11 MR. SCHMIDT: Your Honor, I am perfectly satisfied,
12 if you are not going to give that charge, because if you are
13 not going to give what's called a stipulation is to say that
14 because the government has gotten up here and said --
15 Withdrawn.
16 We do not argue that the government does not have the
17 right to argue that Harun and al Qaeda is responsible for the
18 deaths of Americans because they, as indicated in the
19 indictment, train people or train the trainers.
20 THE COURT: And claim credit for it. And claim
21 credit for it.
22 MR. SCHMIDT: Claim credit. But the manner are they
23 criminally responsible as set forth in the indictment is by
24 training or training the trainers, not by actually
25 participating in the killing. The government stands up and
4957
1 says that, well, this is relevant because he says he killed
2 them and it sounds like they want to argue that they
3 participated in the killing, and that's not what -- they are
4 not allowed to do it based on the proof and the indictment.
5 Otherwise, their theory of the indictment has changed.
6 I think it is very simple. I'm not asking to be
7 precluded from arguing that they are responsible, I'm just
8 saying they should be limited to say how they are responsible
9 is by the indictment, period.
10 THE COURT: What the Court will do, because I'm
11 dealing only with this testimony, I'm not dealing with
12 anything beyond the testimony, is tell the jury: Ladies and
13 gentlemen, with respect to the testimony which you have heard
14 of Special Agent Yacoon --
15 MR. WILFORD: Yacone.
16 THE COURT: Y-A-C-O-N-E, right?
17 -- the government does not contend that the attacks
18 in Mogadishu on October 3 or October 6 were physically carried
19 out by al Qaeda members. There is no contention that any
20 defendant on trial participated in these attacks.
21 MR. SCHMIDT: Your Honor, because it's a conspiracy,
22 I would ask that "it was not carried out by any members of the
23 conspiracy," not just al Qaeda.
24 MR. RICCO: Your Honor, again I rise to say that the
25 Court --
4958
1 THE COURT: Do you have an objection to that?
2 MR. RICCO: Judge, I want to be heard on this.
3 THE COURT: Let me just ask this one point. Do you
4 have any objection? The government.
5 I'm trying to state what your contention is.
6 MR. FITZGERALD: Right.
7 THE COURT: And Mr. Schmidt is saying it shouldn't be
8 "carried out by al Qaeda members" but should say "carried out
9 by any member of the conspiracy" because it seems to me you
10 could be a member of the conspiracy and not be a member of al
11 Qaeda.
12 MR. FITZGERALD: That's fine, except I wonder, now
13 we're going to tell the jury, bring them in and tell them what
14 were not contending, so on balance, the jury may look and
15 think, what they are saying is they want to hear what we are
16 contending.
17 THE COURT: You will have two and a half days
18 hopefully next week to do that.
19 MR. FITZGERALD: Can we just tell them that, you will
20 hear what the government is contending. You bring them in to
21 say, the government is not contending X, Y and X, without
22 telling them what our contentions are. The government will
23 explain --
24 THE COURT: With reference to the testimony of
25 Special Agent Yacone. I'm not making any broader statement.
4959
1 Are you ready to go ahead with your witness?
2 MR. SCHMIDT: If I may have a moment. I think it
3 should include any of the attacks.
4 Whether you instruct them now or at the charge, I
5 guess it doesn't make that much of a difference, but I guess,
6 consistent with what the government's position is, the
7 responsibility, they are not charged with directly
8 participating in any attacks in Mogadishu. So that's one
9 point.
10 THE COURT: I'm dealing with what this witness
11 testified to, the parameters of my instruction on the
12 parameters of his testimony.
13 Are you ready with your witness?
14 MR. RICCO: Your Honor, we would like to be heard on
15 this subject.
16 THE COURT: Right.
17 MR. SCHMIDT: The other point, and --
18 THE COURT: How about the answer to my question?
19 MR. SCHMIDT: Your Honor has indicated that it would
20 allow testimony concerning the bombing in Yemen as rebuttal.
21 One of our determinations is going to be what offer of proof
22 the government is going to have in allegedly proving this
23 conspiracy's involvement in the Yemen bombing.
24 If there is a document of some nature that proves
25 that, then I believe that we should receive that and have an
4960
1 offer of proof now so we can make a decision as to our witness
2 based on that.
3 MR. FITZGERALD: Your Honor, he hands me 3500 in
4 discovery --
5 THE COURT: No. No. No. No. I know. Just
6 respond. We really shouldn't be -- it's the syndrome in
7 discovery when you say, I don't have something and, therefore,
8 that explains why I didn't give him what he's entitled to.
9 The question is, can you make some proffer as to what
10 the evidence will be with respect to the bombing of troops en
11 route to Somalia and whether there is a document which is the
12 basis for it?
13 MR. FITZGERALD: Your Honor, we're trying to
14 determine the best way to prove it. I believe there are
15 statements that have been turned over to the defense where Bin
16 Laden has taken credit for it. I think we're going to have
17 testimony from a witness explaining Abdi House. We want to
18 put a witness on explaining about Yemen, and just as it
19 took --
20 THE COURT: Will you, as soon as the government
21 determines, furnish that information?
22 MR. FITZGERALD: Yes.
23 MR. RICCO: I would like to be heard.
24 THE COURT: Mr. --
25 MR. RICCO: Ricco.
4961
1 THE COURT: Mr. Ricco, just give me a moment, please.
2 (Pause)
3 THE COURT: Yes.
4 MR. RICCO: Yes, sir. Your Honor, we had previously
5 moved on behalf of Mr. Odeh to have this overt act stricken.
6 THE COURT: Yes.
7 MR. RICCO: Special Agent Yacone's testimony was
8 allowed in this trial because of this overt act. He came in
9 to testify to the acts that took place in Mogadishu on October
10 3rd and 4th, 1993. The Court had previously denied our motion
11 to strike. The government now wishes to drop that overt act,
12 and the Court had said that it was inclined to strike it
13 anyway.
14 Given that posture, we would ask to have Special
15 Agent Yacone's testimony stricken in its entirety because its
16 only purpose for being before this jury was to prove up Overt
17 Act, now, y. The government may take the position that some
18 of what Agent Yacone testified to might have been permitted,
19 but I don't --
20 THE COURT: May I interrupt you a moment? I take it
21 that whether I strike Special Agent Yacone's testimony or
22 not --
23 No. Is it the defense position that if that
24 testimony is stricken, that they will not call a Somali
25 witness?
4962
1 MR. RUHNKE: Yes.
2 MR. RICCO: Yes.
3 THE COURT: I'm sorry. Go ahead.
4 MR. RICCO: The only thing I was going to add, your
5 Honor, was that because that testimony would not have been
6 allowed in the first instance, the 18 deaths, that testimony
7 should properly be stricken at this point if that issue is no
8 longer in front of the jury, that issue being the events that
9 took place in Somalia on October 3rd and 4th, 1993, because
10 I'm confident that with this overt act not in the indictment,
11 the Court would have entertained a 403 argument to keep that
12 evidence out in this case, and it's because of that that we
13 would ask that that testimony be stricken in its entirety.
14 And how the Court instructs the instructs the jury,
15 that's to the Court and we'll have to live by whatever
16 decision your Honor makes, but the first thing that should be
17 decided is that we should have a ruling on our motion to
18 strike that testimony in its entirety.
19 And when the government rose after Mr. Ruhnke
20 finished and said "we object," I'm not sure if they were
21 objecting to the proposed instruction or the fact that it
22 should be stricken, because it seems to me that the fact that
23 it should be stricken is automatic because it was only allowed
24 because it related to Overt Act y., which says October 3rd and
25 4th, 1993.
4963
1 THE COURT: You know, you all have to contemplate the
2 possibility that, in any event, the government in its rebuttal
3 case will present evidence of the bombing in Yemen of the
4 troops on the way to Somalia.
5 MR. COHN: Responding to what if they don't produce
6 their witness? It will now be an issue we will have to face.
7 If they don't produce the witness, what will the government be
8 rebutting? I haven't a clue, and we'll face that at the
9 appropriate time, I suppose.
10 I just want to make clear that Mr. Ricco speaks for
11 me not only in his motion but in terms of his reasoning, with
12 the additional factor which need not be mentioned to the
13 Court.
14 MR. RUHNKE: Your Honor, what has changed in this
15 colloquy this morning is your Honor's --
16 THE COURT: I'm going to grant the motion to strike
17 the testimony. I had attempted to encourage the parties to a
18 position which would have, I think, been a little more
19 realistic in terms of what the jury will practically do. We
20 can address later in the charge and the counts the other
21 implications of the dropping of the overt act which was
22 originally y.
23 I want to make it clear that because all of this is a
24 result of an 11th-hour determination not to enter into a
25 stipulation with respect to Somalia, I am not now precluding
4964
1 the government from introducing in its rebuttal case evidence
2 of anti-American action attributable to the coconspirators
3 with reference to Somalia and which goes back as early as the
4 entry of or proposed entry of American troops into Somalia.
5 All right, now what does that leave us with?
6 MR. SCHMIDT: Your Honor, the state of the record
7 right now, we do not intend to call that witness. Obviously
8 we --
9 THE COURT: And what?
10 MR. SCHMIDT: We reserve our right to make that
11 decision depending on the government's rebuttal.
12 THE COURT: But you are prepared to go ahead with
13 your --
14 MR. SCHMIDT: With our documents.
15 THE COURT: With your documents.
16 MR. SCHMIDT: I think the only thing that is
17 necessary that the government -- I think there's a list that
18 we have of documents that the government has an objection to.
19 I think I can go forward with -- it may take to break early --
20 go over the list and resolve them first.
21 THE COURT: And also I want to work on what I tell
22 the jury as to the striking. Maybe it would be better if we
23 break now and --
24 Let me make a logistical inquiry.
25 (Pause)
4965
1 Mr. Fitzgerald.
2 MR. FITZGERALD: Yes, your Honor. With Yacone's
3 testimony stricken, there is no evidence in the record that
4 there were American casualties in Somalia.
5 THE COURT: Yes.
6 MR. FITZGERALD: Now we have Bin Laden, evidence that
7 Bin Laden's taken credit for those casualties and Harun,
8 Fadhl, taking credit for those casualties. I'm not sure which
9 casualties they are responsible for. So the government would
10 like to advise the Court and counsel we now need to look at
11 how we establish the casualties that occurred in Somalia.
12 We're back to where we were because we rested with
13 that proof in there. So we may be coming back, in addition to
14 anything that may have happened in Yemen, we need to talk
15 about how we prove up casualties in Somalia. So I think that,
16 given that, we ought to think about waiting for the
17 instruction until we put whatever other proof is in.
18 THE COURT: Maybe I should just say it's stricken,
19 just say the testimony is stricken without more.
20 MR. FITZGERALD: Your Honor, why does that need to be
21 done now?
22 THE COURT: That's a good question. That's a good
23 question. I'm not sure it does have to be done now.
24 MR. COHN: It does have a certain attractiveness of
25 finality rather than pro-explication for reconsideration by a
4966
1 government that has been known to do that before. The
2 government asked for reconsideration of your ruling. I just
3 like to see finality of the issue.
4 MR. WILFORD: Your Honor, if I may. The only reason
5 why --
6 THE COURT: I can say it's stricken and -- you know,
7 it will be stricken.
8 I don't want to say anything to the jury which will
9 compel the government to introduce more. I was thinking of
10 saying it will be stricken because in the nature of other
11 evidence which the government will elicit, the government may
12 determine that Somalia is not the heart of this case nor
13 essential to this case.
14 MR. COHN: I don't speak for the others necessarily,
15 but I'm content with just telling them it's stricken. If it
16 needs more, that's what your charge is for at the end. I
17 mean, it's still not written in stone.
18 MR. FITZGERALD: Your Honor, we're prejudiced by
19 that. The jury is going to be called out, said the government
20 offered testimony, it's been stricken, as if we've done
21 something wrong, with no explanation of where we're going. I
22 think that it is inappropriate.
23 THE COURT: I don't think this jury is going to spend
24 the weekend brooding on the pilot's or the agent's testimony,
25 and so I will withhold an instruction with respect to that
4967
1 testimony. And I take it that by Monday the government will
2 have determined whether it is going to call another witness or
3 other documents with respect to causalities in Somalia. Maybe
4 that's something that can be the subject of a stipulation.
5 We're going to break for lunch and resume at a
6 quarter of 2, 1:45, and then I take it we'll complete El
7 Hage's testimony except that El Hage will rest or will not
8 rest, but whatever it will do will be subject to calling of a
9 fingerprint expert on Monday.
10 MR. SCHMIDT: Your Honor, we also have, in addition,
11 finishing the stipulations between the government and defense
12 counsel relating to documents, etc., that we may or may not be
13 finished with today, and we would ask that we be able to
14 finish those up and offer them on Monday as well.
15 THE COURT: But you will rest subject to that?
16 MR. SCHMIDT: Subject to that and after discussion
17 with my client.
18 THE COURT: You will rest subject to whatever it is
19 that you wish to reserve?
20 MR. SCHMIDT: That's correct.
21 THE COURT: But I would like to have a statement as
22 to what it is that you wish to reserve on.
23 MR. SCHMIDT: Yes.
24 THE COURT: We're adjourned until 1:45.
25 (Luncheon recess)
4968
1 A F T E R N O O N S E S S I O N
2 1:45 p.m.
3 (In open court; jury not present)
4 THE COURT: I think what I will tell the jury is
5 these things are not matters determined, but it is possible
6 that in approximately two weeks or so they will be called upon
7 to begin their deliberations at which time we will be sitting
8 on Fridays, and so they should not make any Friday plans for
9 that period of time.
10 MR. FITZGERALD: Your Honor, with regard to the
11 documents that Mr. Schmidt intends to offer this afternoon, I
12 have some objections. Briefly, by way of background, a number
13 of the documents received, in the government's view, were
14 turned over in violation of discovery obligations. There was
15 a search at the airport in 1997 of Mr. El Hage. The
16 government copied documents. Evidently, Mr. El Hage had
17 additional documents that were not copied. Some of those
18 documents were just recently the last couple of weeks, not in
19 the last two years turned over to be offered as exhibits.
20 THE COURT: Turned over by whom to whom?
21 MR. FITZGERALD: From the defense to us.
22 THE COURT: Yes.
23 MR. FITZGERALD: And no witness is being called to
24 authenticate them. I have a belief that there may have been
25 other documents that were received that are in the same
4969
1 position. We have not been able to find out what those other
2 documents are.
3 THE COURT: I haven't been following, the documents
4 were not seized?
5 MR. FITZGERALD: Some documents were seized at the
6 airport and copied. Evidently, there are additional documents
7 in the possession of El Hage that were not copied.
8 THE COURT: They were seized from him at the airport
9 but not copied?
10 MR. FITZGERALD: Either seized and not copied or not
11 seized. There are additional documents which the government
12 did not have copies of.
13 THE COURT: Okay.
14 MR. FITZGERALD: El Hage has been offering those
15 documents after just turning them over, but I do not have a
16 representation that I have a complete. We're being offered
17 what it is they wish to offer. I do not know what else is in
18 the pile of documents that were not seized or not copied and
19 they are being offered to show that they are legitimate
20 papers. Notwithstanding this, we haven't objected to most of
21 it. I realized at 1 o'clock in the morning yesterday ostrich
22 photographs were in evidence yesterday when those piles went
23 in. We've been very liberal, even though we think that there
24 are discovery violations.
25 THE COURT: I think they have been received subject
4970
1 to your right to remove to strike.
2 MR. FITZGERALD: Yes, Judge.
3 MR. SCHMIDT: Maybe I'm missing the point.
4 THE COURT: Why don't we let the government finish
5 making the point.
6 MR. FITZGERALD: Your Honor, what I'm saying is we've
7 been very liberal on what has been going in. There are
8 documents this afternoon that Mr. Schmidt wishes to offer, for
9 example, WEHX-14, which are hearsay. They are self-serving
10 statements about how good the NGO organization is.
11 THE COURT: On top of everything else, if these are
12 documents the only basis for which or the inspection of which
13 is Mr. El Hage's claim that he had them with him at the
14 airport, it seems to me that's not a sufficient foundation for
15 the introduction of the documents. It's one thing when it's a
16 document which the government turned over to the defendant,
17 and which can be identified by reason of that circumstance,
18 but if it's just a statement by counsel that this is a
19 document that Mr. Hajj had at some earlier point --
20 MR. SCHMIDT: Judge, the WEHX-DSK are the documents
21 in one of the floppy discs seized from Mr. El Hage's home in
22 Nairobi, kept in the government, and that we received in
23 discovery.
24 THE COURT: Mr. Fitzgerald is saying there are some
25 documents which the government did not have.
4971
1 MR. SCHMIDT: Those are other documents.
2 THE COURT: And that the government is seeing for the
3 first time a representation that those were documents were
4 never seized by the government. There is no basis for
5 introducing those documents.
6 MR. SCHMIDT: Your Honor, I'm not introducing. If
7 you recall when Mohamed Ali Odeh testified I had him identify
8 this handwriting of Mr. El Hage on a number of documents. The
9 ones that I am putting in that the government is complaining
10 about, that they may not have been copied by them when they
11 first seized them, those few, and there is not many, there are
12 a few of them, and they were identified by his handwriting.
13 So they will be identified as Mr. El Hage's document and it
14 relates to other documents or other testimony or other
15 exhibits already in evidence.
16 THE COURT: Even if there is no dispute as to whose
17 handwriting it is, you can't simply introduce a document and
18 say, here's a document written by the defendant at some
19 earlier date.
20 MR. SCHMIDT: Are we talking about authentication
21 issues?
22 THE COURT: Both. Start with that.
23 MR. SCHMIDT: Authentication issues, your Honor,
24 simply authentication, a person testifying that that appears
25 to be the handwriting of a particular person authenticates the
4972
1 document.
2 THE COURT: No, it doesn't. No, it doesn't.
3 MR. SCHMIDT: Also authenticating the document.
4 THE COURT: It may establish the fact that the
5 document is written by the defendant when it was written, who
6 it was shown to, or what are the circumstances.
7 MR. SCHMIDT: If the document itself --
8 THE COURT: No, no, it's not self-authenticating.
9 MR. SCHMIDT: The date of it.
10 THE COURT: Oh, please, Mr. Schmidt. If the
11 defendant sits down today and writes a document and the fact
12 that somebody else says, oh, that's his handwriting, that's
13 not enough.
14 MR. SCHMIDT: You're right. You're absolutely right.
15 This is a document that is dated July 15, 1995.
16 THE COURT: What is the proof that that is in fact
17 the date on which the document was written?
18 MR. SCHMIDT: That the date relates to the business
19 transaction that he had in Slovakia and we have another
20 document that comes from his computer that's seized by the
21 government that is dated, that is about the same topic that
22 authenticates that document.
23 THE COURT: It does not. The Court will not receive
24 if there has been inadvertently received documents which were
25 not seized by the government and returned to El Hage, or given
4973
1 to El Hage during discovery.
2 MR. SCHMIDT: Some of the documents are indeed --
3 THE COURT: Then those documents will not be received
4 or if already received, will be stricken. Anything else? Do
5 we know which documents they were?
6 MR. SCHMIDT: I would need to go through the
7 documents to make that determination. Some of them, your
8 Honor, if I may, are originals of documents that were seized
9 by the government and turned over to the defense.
10 THE COURT: As long as it can be established that
11 there was a time in which the government obtained that
12 document, and this is the original or a copy of that document,
13 then there is a basis, but when there is simply the statement
14 by counsel that this was a document which my client had and
15 the contents of it would seem to indicate a date when it was
16 written, and what it was written about, I think there is no
17 way that it is admissible absent the witness on the stand.
18 MR. FITZGERALD: We won't object to documents for
19 which he wants to put the original in if they are a better
20 copy of what we already have. The documents that we did seize
21 which is WHEX-14 we have a hearsay objection, which is it's a
22 document from the computer, but I can hand up a copy to your
23 Honor.
24 THE COURT: Yes, please.
25 MR. SCHMIDT: Give him the second page also. Thank
4974
1 you.
2 (Pause)
3 THE COURT: Yes. This is an August 26, 1996 letter
4 from the director of the Ministry of Planning.
5 MR. FITZGERALD: The context, your Honor, talks about
6 police conduct in Kenya, it's a complaining letter, and I
7 think as we had the other day with the phone calls to the
8 jury, there is the 403 prejudice problem. If he wants to
9 establish that, as I was told, that other people used the
10 computer, we can agree that there was a letter dated August
11 26, 1996 to the addressee, signed by the person at the bottom
12 but his polemic on how Kenya, he perceives, treats him I think
13 is not relevant and runs the risk of confusing the jury. It's
14 hearsay. It's not offered for the truth and we don't need the
15 content.
16 THE COURT: For what purpose is this being offered?
17 MR. SCHMIDT: Obviously Ahmed Sheikh used Mr. El
18 Hage's computer and fax machine.
19 THE COURT: If that's the reason, if that's the sole
20 purpose for which it is offered, then it seems to me that the
21 letter itself should be stricken. Just the address and the
22 facts at the top and the signature. The contents of the
23 letter itself are not relevant.
24 MR. SCHMIDT: The contents of the letter not relevant
25 for the purpose I wanted to put it in, but I wanted the jury
4975
1 to be aware of the existence of the letter drafted in fact by
2 this document.
3 THE COURT: But no reference in front of the jury to
4 the contents.
5 MR. SCHMIDT: Very good, your Honor.
6 MR. FITZGERALD: I ask it be simply redacted. That
7 goes for WEHDSK-19 and W1290.
8 THE COURT: Can we bring in the jury?
9 MR. SCHMIDT: Your Honor, I want, because I have an
10 example of one of the issues of authentication. The defendant
11 exhibits WEHX-DAC56 through 62 is an intercepted, poorly
12 drafted, poorly transmitted contract for sugar. The other
13 exhibit one of the WW is the original one that identifies the
14 from the date, et cetera, as the original.
15 THE COURT: The government said it has no objection
16 to the submission of the original of a document which was
17 seized.
18 MR. SCHMIDT: I understand. The third document is
19 another contract from the same company a week earlier that
20 relates to the same subject that is dated, clearly on the
21 evidence before the Court --
22 THE COURT: No, please, let's not reargue it. There
23 is no concept in the law that a document other than one of the
24 type listed in the rules of evidence is self-authenticating.
25 MR. SCHMIDT: Your Honor, I think the law is take all
4976
1 the circumstances and make a determination if those documents
2 appear to be genuine, and based on the fact that it's printed
3 from another company and it relates exactly to the same thing
4 that was faxed to him a week later, I think that that is
5 sufficient to be authenticated, and it is possible for
6 somebody to recreate that, and that the government can
7 argue --
8 THE COURT: Denied. Can we bring in the jury?
9 MR. SCHMIDT: Yes.
10 THE COURT: Let's bring in the jury, please. I have
11 received a letter from Mr. El Hage with respect to so-called
12 jeopardizing my health with respect to the MCC, and I will
13 forward it to the warden and ask him to advise.
14 MR. DRATEL: Thank you, your Honor.
15 THE COURT: Mr. Fitzgerald, does the government still
16 plan on having a redacted indictment?
17 MR. FITZGERALD: Yes, it's being typed at this time.
18 (Continued on next page)
19
20
21
22
23
24
25
4977
1 (Jury present)
2 THE COURT: Good afternoon. First, let me apologize
3 for the fact that you came in punctually this morning and that
4 we kept you in the jury room for all morning. These things
5 happen. Matters come up which require immediate attention,
6 and all we say in our defense is that this is the first time
7 in this case we've had that and we certainly will try to avoid
8 it.
9 Second, let me tell you where we are in the case.
10 Understand that one can't judge the timing of these things
11 with any precision. You've already been in court long enough
12 to observe that sometimes things go very quickly and sometimes
13 things go very slowly, and sometimes witnesses are unavailable
14 and so on. But it is our present belief that sometime next
15 week all of the evidence will have been presented, and that
16 closing arguments by counsel will begin and will take a week
17 or so.
18 After that, you'll begin your deliberations. Let me
19 say two things about them. One, we sit on Friday, so please
20 understand that starting two and a half weeks hence we'll be
21 sitting five days a week, that is, we'll be sitting here
22 awaiting word from you in the jury room because you'll be
23 deliberating, so please don't make any appointments or plans
24 for Fridays.
25 You will not be sequestered. You'll go home when the
4978
1 day is over. I say that because in some courts, in state
2 courts once a jury begins deliberating they're sequestered.
3 In other words, they go to a hotel at night. We're not going
4 to do that to you. You're going to go home.
5 The other thing is in terms of the hours of
6 deliberation, we will start at 10, we'll end at 4:30, the same
7 routine we've been following now, unless you say that you
8 would like to start earlier, or, you say you'd like to
9 continue. You know sometimes a jury will say, you know, if we
10 can spend another hour on this it will really be very
11 productive and sometimes the jury will think the most
12 productive thing we could do would be go home and get a good
13 night's sleep.
14 So I want to let you know that you have some
15 flexibility with respect to that.
16 All right. Mr. Schmidt on behalf of El Hage.
17 MR. RUHNKE: Excuse me. Unless somebody is
18 uncomfortably warm, the air conditioners are on. It's very
19 difficult to hear your Honor and hear what's being said.
20 THE COURT: Can we turn off the air conditioning. I
21 could speak a little louder. Of course, let's see if we can
22 lower the air conditioning. Mr. Schmidt.
23 MR. SCHMIDT: At this time, your Honor, I'd like to
24 have WEHX- -- I'll eliminate the WEHX-from now on because
25 that's for Mr. El Hage's exhibits -- M7X-8-T offered into
4979
1 evidence and displayed to the jury.
2 These documents that are marked M-7X are documents
3 that are received at Mercy International and found in room J.
4 The original is 7X -- excuse me -- 8. Please display 7X-8T.
5 It is about the fifth or sixth document. Please put on the
6 translation.
7 To save time, your Honor, since these are available
8 to the jury, I will briefly describe each letter and read only
9 the important areas. This is a letter to Abu Abdallah Yemeni
10 from Wadih El Hage concerning following information that he
11 wants to be passed upon to the president of the administrative
12 council concerning contacting the company for tractors, and it
13 gives information concerning the tractors. This is dated --
14 unfortunately, this document is undated, and we'll probably
15 have to obtain the date and amend the document at a later
16 time.
17 I ask that you put on we HX-K360. The documents that
18 begins with K are documents that were seized, that were found
19 in the computer seized by the government in Mr. El Hage's home
20 in Nairobi. The ones that say Cylim Company indicates a
21 printout from the hard drive. This is a letter to Zero Credit
22 concerning money being transferred on the account of ZTS
23 Trading in Slovakia.
24 We're going to skip a few pages to K358. This
25 concerns also, it's August 23, 1996 letter to ZTS Trading
4980
1 concerning the shipment of tractors that were to be reach
2 their destination in July, 1998. And if we can put on the
3 next page indicates it's from Wadih El Hage stressing the
4 concern of not receiving the tractors for the season.
5 Now we skip a page to K362, again, October 29, 1996
6 letter to ZTS concerning the tractor and a request for
7 specifications. It's not necessary -- the next page shows the
8 name Wadih El Hage as the person.
9 Skip a page to 364. Again, this is dated November
10 27, 1996 to ZTS Trading concerning a balance of the account
11 that's being paid through a bank in Oregon. And the next page
12 indicates that it was prepared by Mr. Wadih El Hage.
13 This completes this section now for this time.
14 I ask that we turn to the Help Africa People section
15 WEHX-W19. I think the exhibit says W19. Bring down so you
16 can see a portion of the heading of Help Africa People that is
17 cut off. The W series also indicates that this was seized
18 from, this is from the computer seized from Mr. El Hage's home
19 that signifies WEH.com.
20 This one is a letter concerning a multiple visa
21 application on behalf of Mr. El Hage signed by H. Rodolf. The
22 next one K17 which also signifies that it came -- excuse me --
23 the last one I apologize should not be W19. It should be K19.
24 This one is K17. This concerns the minutes of the board of
25 directors of Help Africa held in 1995 with the names Wadih El
4981
1 Hage, Ahmad Younes and April Ray.
2 I ask that we show the next one, which is K24 which
3 is a letter dated November 27, the last year is not clear on
4 this copy, to brother Mohammad Salman concerning request for
5 donation signed by Wadih El Hage. K37 is dated December 30,
6 1995. It is a document indicating the introduction and
7 objective of Help Africa People and 38 which is not necessary
8 to show is the second page of that.
9 K40 through K -- excuse me K -- let us replace that.
10 Let's skip to K15 which is a list of documents that was found
11 in the computer. It indicates number 2 is introduction to the
12 agency. Three is a letter to the CID about the Jax case, the
13 minutes, other things including the malaria project, budget
14 project, and other matters. And if we turn to K20, K20
15 through K23 is the description of the malaria project by Help
16 Africa People in the Gedo region, and it includes statement of
17 objectives, estimated number of beneficiaries, description of
18 the target population group activity and justification.
19 The second page talks about the costs of various
20 items, as does the third page. The third page also includes
21 the account and the fourth page K23 gives a further
22 explanation of the malaria control project.
23 Your Honor, at this time actually I do need to
24 approach your Honor to clarify some matters concerning the
25 next exhibit.
4982
1 THE COURT: Can you defer that and take some others?
2 MR. SCHMIDT: I can do some others and then come back
3 to that.
4 THE COURT: I'll see you.
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
4983
1 (In the robing room)
2 MR. SCHMIDT: I have a series of photographs that
3 reflect the malaria project in Somalia from Help Africa People
4 which are directly attributed to the documents that were
5 showed.
6 THE COURT: Were they part of these?
7 MR. SCHMIDT: They were, these were seized. I'm not
8 offering them through the seizure of them and the return. I'm
9 offering the original photograph that was there because they
10 directly relate to the document that I just showed. Now,
11 there are other --
12 THE COURT: Is there any issue in this case as to
13 whether or not there was a malaria project by Help Africa?
14 MR. SCHMIDT: There may be and I'm trying to show the
15 legitimacy of this by the photographs combining with them.
16 THE COURT: There is no challenge to their
17 legitimacy.
18 MR. SCHMIDT: I don't know there is.
19 MR. FITZGERALD: There is no challenge to the fact
20 that Help Africa was involved in malaria projects and other
21 causes.
22 MR. SCHMIDT: With these projects as well as there is
23 for example, so I'd like to put in some of the photographs of
24 the malaria project.
25 THE COURT: That show what?
4984
1 MR. SCHMIDT: That show the malaria project in
2 Somalia. I'll show them to you your Honor. I don't have to
3 show all of the photographs.
4 MR. FITZGERALD: Just a comment, your Honor.
5 THE COURT: Yes.
6 MR. FITZGERALD: Most of these were seized at the
7 airport and given back and counsel moved to suppress. Are we
8 now able to move in whatever documents we seized?
9 MR. SCHMIDT: I am not offering it through the
10 seizure. I'm offering the original documents that I have in
11 my possession.
12 THE COURT: If you are not offering them through the
13 seizure then what I said earlier with respect to other
14 documents is true, and there is no authentication. There is
15 no basis for it.
16 MR. SCHMIDT: If I may, your Honor, not just on this,
17 I think there is sufficient authentication of the project
18 existing in Help Africa.
19 THE COURT: The government is willing to stipulate.
20 MR. SCHMIDT: I understand that. I understand that.
21 The government wants to offer other, perhaps other documents
22 from the original seizure and return, and we don't wish them
23 to offer that. We are seeking to authenticate that document
24 because of the evidence now came in that Help Africa People
25 has the malaria project.
4985
1 THE COURT: We had this argument ten minutes ago.
2 It's not a self-authenticating document. You don't have a
3 witness who is going to testify. Your only basis on which
4 I've permitted the others in they were documents that the
5 government seized and gave to Mr. El Hage, so the government
6 could hardly put in issue the question of whether those were
7 documents that existed at that time and were taken from that
8 source. They may not be received in evidence.
9 MR. SCHMIDT: Your Honor, I think the law of
10 authentication has changed. For one example is one document I
11 didn't put in before that is a document of a fax. It's a
12 letter with pictures of ostriches on it. One of the tapes
13 played here and offered in evidence was a conversation with
14 Abu Abdullah al Yemeni where he requested Mr. El Hage to send
15 him by fax photographs of the ostriches. That letter is
16 directly in response to that conversation. It authenticates
17 that conversation, whether it be an actual person or not.
18 MR. DRATEL: Your Honor, if I may just speak --
19 THE COURT: You may not, because one lawyer, one
20 issue.
21 MR. DRATEL: I understand. I just want to save time.
22 THE COURT: There is a limit really to how much time
23 you can spend on totally undisputed issues, and if the
24 government were saying that they were there were not in fact
25 five projects conducted by Help Africa, or that there were not
4986
1 in fact bona fide commercial transactions in which Mr. El Hage
2 was engaged, then you could do this forever, but you can't. I
3 gave you two hours, and I did that simply because I think you
4 have a difficult client who maybe is pushing you to do this.
5 In any event, I adhere to my ruling that the only
6 documents which may be admitted are documents which the
7 government seized from El Hage or from the premises of Mercy
8 International or originals of such documents. That's my
9 ruling.
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4987
1 (In open court)
2 MR. SCHMIDT: At this time I ask to exhibit K43T --
3 we're skipping a number of pages -- a letter dated October 11,
4 1996 -- may we have the original first there? First, we'll
5 show the letter it's dated October 11, 1996 to dear brother
6 Farid. It's a request for donations because of the drought
7 and its requesting donations to come to Help Africa People.
8 The Arabic. That is the Arabic.
9 I ask that we exhibit K44, the next document which is
10 a letter to President Daniel Arap Moi from Mr. El Hage
11 requesting assistance in obtaining the exemption for the value
12 added tax and duty. I ask you show to exhibit K46. That's a
13 letter to the income tax department also from Wadih El Hage.
14 I do not ask you to exhibit but I offer --
15 Your Honor, by the way, I don't know if it's clear
16 that all the documents that I am exhibiting obviously I have
17 offered into evidence I believe without objection.
18 THE COURT: All those documents that have been
19 exhibited thus far this afternoon are received in evidence
20 without objection.
21 MR. SCHMIDT: Thank you.
22 (Defendant El Hage Exhibits MTX, M7X-8-T, K360, W19
23 received in evidence)
24 MR. SCHMIDT: Again, the documents that are being
25 asked, I assume I don't need to repeat, request that they --
4988
1 THE COURT: When you complete doing that, then you
2 make a motion for --
3 MR. SCHMIDT: Thank you, your Honor. The next
4 exhibit which is not to be, WDSK1, which indicates it's from a
5 floppy disk that was received from Mr. El Hage's home in
6 August of 1997. It's a letter to the external marketing
7 officer Al-Ramz Group in Saudi Arabia. The letter was
8 prepared by Ahmed S. Aden.
9 Then the next document that is not to be displayed is
10 WEHX--W1286, which reflects that it was intercepted on the
11 Nairobi wiretap of Mr. El Hage's home and it is the same
12 letter that indicates that it was faxed through Mr. El Hage's
13 fax machine. It's to the external marketing officer at
14 Al-Ramz Group in Saudi Arabia, and it indicates it's from
15 Ahmed S. Aden.
16 The next documents that I offer into evidence is also
17 DSK18 and W1287, is a letter that, and the copy of the letter
18 intercepted on the fax machine. One is a letter that is
19 written by Nassir Al Fawz the financial controller concerning
20 the letter of Ahmed Aden previously donated.
21 The next one is a facsimile copy indicating that that
22 letter was faxed by Nassir Al Fawz to Wadih El Hage, the
23 director of Help Africa People, concerning food for refugees
24 in Kenya dated August 24, 1996.
25 The next letter also not to be displayed at this time
4989
1 is DSK14 dated August 26, 1996 to the Honorable Norris
2 assistant minister office of the vice-president administration
3 for planning and national development in Nairobi relating to
4 relief services in Mandera that has the ending of sincerely A.
5 S. Aden, director.
6 The following W1290 is the same letter that was
7 intercepted on the Nairobi wiretap and was a facsimile.
8 The following document also not to be shown is a
9 letter to the financial controller of the Al-Ramz Group in
10 Saudi Arabia. That is also taken from the disc WSK19 dated
11 August 26, 1996, and W1289 which is the faxed intercept of the
12 same letter.
13 The following is WEH-WW51 which is the original of
14 those documents. I ask that that one be displayed, WW51. I
15 ask to show the bottom which is a signature. The signature is
16 Wadih El Hage.
17 WEHX, skipping a number of pages, K346. Skipping
18 about three or four pages. That's a letter to Mohammad Salman
19 dated September 1, 1996 that was on the hard drive of the
20 computer seized from Mr. El Hage's house. As the middle
21 paragraph indicates it says as for the agency things are all
22 right so far, we have implemented our project in one of the
23 areas we have indicated an area about fifty thousand
24 inhabitable. It was successful and promise the people in the
25 locality were very happy and thankful. We had to rent a pick
4990
1 up for a few days because one was still not yet released as to
2 the registration of the agency over there. Kindly inform me
3 to be able to communicate with our brothers in the other
4 states for donations.
5 It also discusses business opportunities including
6 mining opportunities.
7 I ask to show the K352 which is another letter to
8 Mohamed Salman indicating that he visited Pakistan,
9 Mr. Salman, and visited the El Hage's and requesting and give
10 their requests for to do good deeds for the holy month. On
11 the next page he talks about the registration of the
12 organization and collecting donations from Muslims in
13 Lafayette, signed by Mr. El Hage.
14 The next letter, next document is K47 also a letter
15 to Mohamed Salman concerning the opportunity to give for Ifta
16 and Zakat for the brothers and sisters in the refugee camps,
17 and it discusses other matters and makes additional requests
18 for additional funds for the nongovernmental agency.
19 The next letter is K49 which is in Arabic, the
20 translation you can put on, the T also discusses the drought
21 and the request for donations.
22 WDAT27 which is a facsimile intercepted indicating
23 date February 2, 1997, and the translation of the Arabic which
24 need not be shown. K48 which is a similar letter that was
25 seized off of the computer. I ask you to go to M-7X-32. And
4991
1 we only need to show the translation at this time. It's a
2 letter to Abu Kadija indicating that they would like to do a
3 fast breaking meal in the refugee areas again asking for
4 donations to enable them to do that. It's dated January 7,
5 1997. Next is K343. That is a letter to Mohammed Salman
6 concerning obtaining a decision from the Internal Revenue
7 Service and also relating to the stone business.
8 K354 is another letter to Mohamed Salman indicating
9 the correct name of the organization Help Africa People and
10 asking questions concerning the registration, concerning the
11 Internal Revenue Service in the United States.
12 The next page signed by Mr. El Hage.
13 May I have one moment, your Honor?
14 (Pause)
15 WW58 which is a letter from the Internal Revenue
16 Service with a fax notation on the top of August 10, 1997 from
17 M Salman Faruk and a telephone number area code 318 I will
18 read it. Dear taxpayer, thank you for your correspondence
19 dated June 24, 1997. To change your name on our records you
20 need to submit a copy of one of the following. And it lists
21 what you need to do. It's signed by a tax service
22 representative and it relates to Africa Help Inc., with the
23 post office with the number care of Bill Gains in Baton Rouge,
24 Louisiana. It relates back to the other exhibit concerning
25 the IRS.
4992
1 I'm done with these exhibits. Now at this time we'll
2 go to the next group. You have available M-44?
3 (Continued on next page)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4993
1 MR. SCHMIDT: I'll go back.
2 Do you have that one? Okay. Can you put the
3 translation M-44T and the M indicates that it was seized from
4 Mercy International Relief Agency. This is a letter referred
5 to by the witness, the same Kherchtou, that was sent
6 requesting money that was faxed from Mr. El Hage's home.
7 Thank you.
8 Next I ask you to exhibit the translation of
9 M-7X-21-T, offering the original as well, M-7X-21, but only
10 show the translation. It's a letter dated June 21, 1996 to
11 Mr. El Hage concerning trying to reach a number of people and
12 indicating the item of something that is $850 or $100 a ton
13 from Port Sudan.
14 I next ask you to show 7X-11, which is a letter dated
15 June 25th from Wadih to Abu Abdallah concerning the same name
16 of Mohamed Kassem concerning the prices of sugar.
17 Next 7X-10 and 7X-10T. You only have to show the
18 translation. It's also a letter to Abu Abdallah el Yemeni
19 concerning prices and discussions with Fared, and then the
20 next paragraph also concerns sugar.
21 Again if you would show 19T and move into 19 --
22 excuse me, M-7X-19, as well as 19-T is another letter from Abu
23 Abdallah to brother Wadih concerning a number of items,
24 including gasoline, sugar, mentioning the Kenana company and
25 Brazilian sugar.
4994
1 Next, 369, dated August 23, 1996, is a letter
2 relating to sugar, written by Mr. El Hage.
3 367, 384, need not to be shown, are related to the
4 same items.
5 385 I ask to be shown. This letter is to Mr. Alleh
6 at Mottassem that relates to one of the conversations that was
7 played -- excuse me, that was read to the jury where Abu
8 Abdallah el Yemeni asks for a letter to go to Saleh at
9 Mottassem. This letter is dated December 3, 1999 --
10 MR. FITZGERALD: 1996.
11 MR. SCHMIDT: I'm sorry, 1996. Thank you.
12 Then WDAT56. Did we put on the contract for sugar
13 that was intercepted, correspondence on the Nairobi wiretap
14 that is mostly illegible, but WW-2 is the legible original and
15 the date is November 14, 1996 and it's a contract for sugar.
16 Then the next is 7X-16T, the letter dated November
17 27, 1996 concerning opening up an ac