22 February 2001
Source: Digital file from the Court Reporters Office, Southern District of New York; (212) 805-0300.

This is the transcript of Day 9 of the trial.

See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm

                                                                    1239

       1   UNITED STATES DISTRICT COURT
           SOUTHERN DISTRICT OF NEW YORK
       2   ------------------------------x

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

       7   ------------------------------x

       8
                                                   New York, N.Y.
       9                                           February 22, 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

                                                                    1240

       1                            APPEARANCES

       2   MARY JO WHITE
                United States Attorney for the
       3        Southern District of New York
           BY:  PATRICK FITZGERALD
       4        KENNETH KARAS
                PAUL BUTLER
       5        Assistant United States Attorneys

       6
           ANTHONY L. RICCO
       7   EDWARD D. WILFORD
           CARL J. HERMAN
       8        Attorneys for defendant Mohamed Sadeek Odeh

       9   FREDRICK H. COHN
           DAVID P. BAUGH
      10   LAURA GASIOROWSKI
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      11
           DAVID STERN
      12   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      13

      14   SAM A. SCHMIDT
           JOSHUA DRATEL
      15   KRISTIAN K. LARSEN
                Attorneys for defendant Wadih El Hage
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1241

       1            (Trial resumed)

       2            (Jury not present)

       3            THE COURT:  Is there anything that need be addressed

       4   before the jury comes in?

       5            MR. WILFORD:  Yes, your Honor.

       6            MR. RUHNKE:  Yes, your Honor.

       7            MR. WILFORD:  Your Honor, yesterday we had a

       8   discussion about a possible stipulation concerning an area

       9   that we sought to cross-examine this particular witness on on

      10   behalf of Mr. Odeh.  Given the parameters that were discussed,

      11   notwithstanding the fact that we were speaking with the

      12   government until 11:00 last night, we were unable to arrive at

      13   a satisfactory stipulation on both sides.  Given the fact that

      14   the court appears to have been in a position to grant the

      15   application on, I believe, behalf of Mr. Al-'Owhali and

      16   Mr. Khalfan Khamis Mohamed that was interposed on 403 grounds

      17   with respect to that particular piece of evidence, we just

      18   wanted to put on the record that in fact, because of the fact

      19   that we are put on trial as a noncapital defendant with a

      20   capital defendant, this is one of those instances where

      21   despite the fact that Buchanan versus Kentucky said that it

      22   was admissible to do so, we are in the position where we have

      23   a very real conflict related to the guilt phase proof with

      24   respect to the noncapital defendants.  The capital defendants

      25   have objected based on 403 grounds based on the death penalty

                                                                    1242

       1   phase of the case, which is a legitimate concern that the

       2   court has to take into consideration.  However, it is

       3   compromising our ability to present guilt phase evidence with

       4   respect to our client.

       5            THE COURT:  That is very interesting, but I don't buy

       6   any of that.  When we had the conference, I thought we had

       7   reached a resolution which satisfied everybody.  I proposed

       8   that it be put on the record then and there.  I received very

       9   strong assurances that that was not necessary, that the

      10   parties would be able to work out a stipulation.  I am sure

      11   people used their best efforts but were unable to do so, but I

      12   don't think that is a basis for claiming that there is a

      13   deprivation of rights by virtue of capital and noncapital

      14   defendants being tried together.

      15            If you want, we can go into the robing room and I

      16   will work out the text of a stipulation.  But I don't see this

      17   as an inherent conflict between capital and noncapital

      18   defendants.  So you make your statement for the record, but

      19   the record should also reflect that the court doesn't accept

      20   it.

      21            MR. COHN:  Just so the record will be complete, your

      22   Honor, we waffled yesterday on whether or not we were going to

      23   oppose that testimony.  So it is clear, we do oppose that

      24   testimony, so that the record isn't full of speculation

      25   because yesterday we were trying to work it out.  So our

                                                                    1243

       1   position is if they intend to cross and introduce the issue of

       2   the death of these two young men, we would move to exclude it.

       3            THE COURT:  My understanding when we left and when we

       4   were talking about a stipulation, the matter of the death of

       5   the children was not going to be included in the stipulation.

       6            MR. COHN:  But we didn't make a formal objection.

       7   All I am doing is completing the record.  Your statement of

       8   what the record was with respect to the statement of

       9   agreements and discussion last night is absolutely correct,

      10   but I wanted to make sure that it was clear for later record

      11   purposes that it was essentially a motion in limine by us to

      12   exclude that testimony.

      13            THE COURT:  But I thought, Mr. Wilford, that it was

      14   agreed that the point that you are trying to make -- I know,

      15   you have already put it on the public record -- could be fully

      16   made without any references to the death of the two young men.

      17   Is it your point that your defense of your client requires

      18   that the jury learn of the deaths of the two young men?  If

      19   so, that is a position different than yesterday's, and you are

      20   entitled to change your mind, but the record should be clear

      21   that that is what you are doing.

      22            MR. WILFORD:  Your Honor, that is not my position and

      23   it is not the position of the Odeh defense position.  However,

      24   before we proceed further in a public forum, I have tried to

      25   be circumspect with my statements about our trying to reach a

                                                                    1244

       1   stipulation in nature of the discussions yesterday.  I would

       2   prefer not to do so in open court with the press present, with

       3   respect to my client's defense.  There is another statement I

       4   would like to make on the record.  We can do it later in the

       5   day.

       6            THE COURT:  Let's do it right now.

       7

       8            (Continued on next page)

       9            (Pages 1245-1248 sealed)

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1249

       1            (In open court)

       2            THE COURT:  The jury are going out for lunch.  Should

       3   we have them go out for an early lunch or should we close for

       4   the day?

       5            MR. FITZGERALD:  My guess is it will be a close for

       6   the day situation.  We will fill in the morning.  Even the

       7   transcripts -- there are 30 of them -- some of them are two

       8   pages each.  I don't imagine us going beyond the morning with

       9   this witness.

      10            THE COURT:  Then you will be reading stipulations?

      11            MR. FITZGERALD:  Reading stipulations which gets us

      12   to transcripts.

      13            THE COURT:  If another half hour is going to permit

      14   the afternoon to be used for things, let's use it.

      15            MR. FITZGERALD:  Very well.

      16            THE COURT:  They are on their way.

      17            (Jury present)

      18    L'HOUSSAINE KHERCHTOU, resumed.

      19            THE COURT:  Good morning, ladies and gentlemen.

      20            JURORS:  Good morning.

      21            THE COURT:  I know that some of you are unhappy about

      22   some of the conditions of crowding and with respect to

      23   conditions in the jury room and otherwise, and I will look

      24   into it.  I am very much aware of the fact that jury duty

      25   involves some conditions that are less desirable than one

                                                                    1250

       1   would like.  I want you to know that we are really making

       2   efforts to make your jury service as pleasant and as

       3   comfortable as possible.  I won't tell you how much time and

       4   effort it took to make additional restrooms available.

       5            So I will look into the matters and do what I can,

       6   and I do appreciate your patience and your cooperation, and we

       7   will do the best we can.  We have to have a little flexibility

       8   and a little tolerance.

       9            Mr. Fitzgerald.

      10            MR. FITZGERALD:  Thank you, Judge.

      11            (Continued on next page)

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1251

       1   DIRECT EXAMINATION continued

       2   BY MR. FITZGERALD:

       3   Q   Mr. Kherchtou, if I could ask you to speak slowly and

       4   clearly and sit as close to the microphone as possible.

       5            I would like to ask you some questions to clarify the

       6   time sequence in which things happened.  Yesterday you

       7   testified about a time when Abu Mohamed al Amriki, Hamza Al

       8   Liby, and Anas al Liby came to Nairobi.  Do you recall that?

       9   A   Yes.

      10   Q   You also testified about a time that Khalid al Fawwaz was

      11   arrested.  Do you recall that?

      12   A   Yes.

      13   Q   Which happened first?

      14   A   The arrival to Nairobi of Abu Mohamed al Amriki, Hamza,

      15   and Anas, it was before the arrest of Khalid Fawwaz.

      16   Q   The apartment in which Abu Mohamed al Amriki, Hamza Al

      17   Liby, and Anas al Liby came to visit you and used it to

      18   develop pictures, was that the same apartment that was

      19   searched at or about the time of the arrest of Khalid al

      20   Fawwaz?

      21   A   Yes, at the same time.

      22   Q   You also mentioned that there came a time when Khalid al

      23   Fawwaz left Nairobi and also a time when Wadih El Hage came to

      24   Nairobi.

      25   A   Yes.

                                                                    1252

       1   Q   When was that in relation to the arrest of Khalid al

       2   Fawwaz?

       3   A   After Khalid al Fawwaz came out of the jail, just a little

       4   bit when El Hage came to Nairobi.

       5   Q   Do you know what time of year it was that Khalid al Fawwaz

       6   was arrested, either by the religious calendar or religious

       7   events or by the season?

       8   A   I know that it was in Ramadan, but not the other -- I

       9   can't remember the day.

      10   Q   You talked yesterday about a man named Abu Fadhl al

      11   Makkee.  Was he a member of al Qaeda?

      12   A   Yes, he is.

      13   Q   Did he do any particular kind of work for al Qaeda?

      14   A   He is very close to Usama Bin Laden and he was responsible

      15   of economic committee.

      16   Q   Are you familiar with anyone who used the nickname Jeff?

      17   A   Yes.  That was Mohamed al Amriki.

      18   Q   Are you familiar with anyone who used the nickname Abu

      19   Jihad?

      20   A   Yes.  That was Abu Khalid or Mustafa.

      21   Q   Abu Khalid or Mustafa.  Is that the same person known as

      22   Abu Khalid al Nubi?

      23   A   Yes.

      24   Q   If we could display Government's Exhibit 106 in evidence.

      25   I ask you to look at your TV screen to your left and tell us

                                                                    1253

       1   whether or not you recognize the person in Government's

       2   Exhibit 106?

       3   A   Yes, I do.

       4   Q   Who is that?

       5   A   That is Sheik Abu Hajer.

       6   Q   How much contact did you have with Sheik Abu Hajer when

       7   you were in al Qaeda?

       8   A   There was not much contact, but I know him.

       9   Q   Do you know if he was a member of al Qaeda?

      10   A   Well, I can't say that he was a member.

      11   Q   Did you ever see him in Bin Laden's guesthouse?

      12   A   Yes, many times.

      13   Q   Was there any discussion within al Qaeda about whether or

      14   not Sheik Abu Hajer was a member of al Qaeda?

      15   A   People, they are saying that he is from al Qaeda, but

      16   nobody can assure that he gave bayat to Usama Bin Laden.

      17   Q   Let me show you what's been marked as Government's Exhibit

      18   111 for identification purposes only, so if we could just

      19   display that to the witness and to counsel for the moment.

      20            Do you recognize the person depicted in Government's

      21   Exhibit 111 for identification?

      22   A   Yes.  That's Abu Islam al Khabir or Saif al Islam.

      23   Q   Let me show you what's been marked as Government's

      24   Exhibit -- OK.  Is that a fair and accurate picture of the

      25   person you knew as Abu Islam al Khabir, also known as Saif al

                                                                    1254

       1   Islam?

       2   A   Yes.

       3            MR. FITZGERALD:  I would offer that, your Honor,

       4   Government's Exhibit 111.

       5            THE COURT:  Yes, received.

       6            (Government's Exhibit 111 received in evidence)

       7   Q   Let me show you what has been marked Government's Exhibit

       8   120 for identification.  Do you recognize the person depicted

       9   in Government's Exhibit 120?

      10   A   Yes.

      11   Q   Who is that?

      12   A   Saad.

      13   Q   And what nationality is Saad?

      14   A   He is Egyptian.

      15   Q   Was he a member of al Qaeda?

      16   A   Yes.

      17   Q   Is that a fair and accurate depiction of the member of al

      18   Qaeda you knew as Saad in Government's Exhibit 120?

      19   A   Yes.

      20            MR. FITZGERALD:  Your Honor, I would offer

      21   Government's Exhibit 120 for identification in evidence.

      22            THE COURT:  Received.

      23            (Government's Exhibit 120 for identification received

      24   in evidence)

      25   Q   Were there any people in al Qaeda that Saad was

                                                                    1255

       1   particularly close with, that you would see him spend time

       2   with?

       3   A   Abu Mohamed el Masry or Saleh, Saif el Adel, and others.

       4   Q   Why don't we make this clear.  You mentioned you spent

       5   time with Abu Mohamed el Masry or with Saleh.  Is that one

       6   person or two?

       7   A   No, it's the same person.

       8   Q   You also mentioned Saif el Adel?

       9   A   Yes.

      10   Q   If we can show the witness what has been marked

      11   Government's Exhibit 115 for identification, please, and just

      12   show it to the witness and counsel for the moment.  Do you

      13   recognize who is depicted in Government's Exhibit 115?

      14   A   Yes.

      15   Q   Who is that, sir?

      16   A   That's Abu Islam al Surir.

      17   Q   Is he known by any other name?

      18   A   Shuaib.

      19   Q   Is he a member of al Qaeda?

      20   A   Yes.

      21   Q   Is Government's Exhibit 115 for identification a fair and

      22   accurate depiction of the person you knew as Abu Islam al

      23   Surir Shuaib?

      24   A   Yes.

      25            MR. FITZGERALD:  Your Honor, I would offer

                                                                    1256

       1   Government's Exhibit 115 in evidence.

       2            THE COURT:  Received.

       3            (Government's Exhibit 115 received in evidence)

       4            MR. FITZGERALD:  If we may display that to the jury.

       5            If I could approach the witness with what is marked

       6   Government's Exhibit 4 for identification, a series of

       7   photographs handed out to counsel previously.

       8            THE COURT:  Yes.

       9   Q   Sir, I would ask you to look at Government's Exhibit 4,

      10   which is a series of photographs and names, and I believe the

      11   photographs are already received in evidence.  If you could

      12   look and verify whether or not the pictures depicted and the

      13   names set forth below correspond, in other words, if the

      14   picture is on the page, whether or not the names you knew the

      15   persons by are listed accurately below.

      16   A   Excuse me.  You mean these names here?

      17   Q   Yes.  So the first page, do the names listed below the

      18   picture correspond to the person depicted in the picture?

      19   A   Yes.  So the first person is Usama Bin Laden?

      20   Q   Yes.  I don't want you to read it, just look at the

      21   exhibit and verify if the names accurately depict the person

      22   depicted in the photograph.

      23            (Pause)

      24   A   Yes.

      25   Q   Do those pages accurately reflect the names of the persons

                                                                    1257

       1   depicted in the government exhibits?

       2   A   Yes.

       3            MR. FITZGERALD:  Your Honor, I would offer in

       4   evidence Government's Exhibit 4.

       5            THE COURT:  Yes, received.

       6            (Government's Exhibit 4 received in evidence)

       7            MR. FITZGERALD:  We will distribute them after the

       8   next break, if that is all right, Judge.

       9            THE COURT:  Yes.

      10   Q   Sir, are you familiar with a grope known as al Ittihad al

      11   Islami?

      12   A   Yes.

      13   Q   Can you tell us what al Ittihad al Islami is.

      14   A   Al Ittihad al Islami is a Muslim group in Somalia.  I

      15   think they constructed themselves after the departure of Siad

      16   Barre, the last president of Somalia.

      17   Q   Are you familiar with the person by the name of Sheik

      18   Hassan?

      19   A   Yes, I heard about him a lot of times.

      20   Q   Who is he?

      21   A   He is a member of al Ittihad al Islami of Ogaden.

      22   Q   Is that a group focused on the Ogan area of Ethiopia?

      23   A   No.

      24   Q   Where are they focused?

      25   A   In the southeast of Somalia.

                                                                    1258

       1   Q   Yesterday when we broke, we were talking about the time

       2   Wadih El Hage moved to Nairobi.

       3   A   Yes.

       4   Q   And the fact that he rented a house where you stayed.

       5   A   Yes.

       6   Q   During the time when you were in Nairobi, did you ever see

       7   Wadih El Hage with Abu Hafs el Masry, the military committee

       8   person?

       9   A   Yes.

      10   Q   Can you tell us approximately how many times you saw Wadih

      11   El Hage and Abu Hafs el Masry together?

      12   A   Probably twice or three times.

      13   Q   Do you recall any of the occasions on which you saw them

      14   together, what they were doing?

      15   A   Sitting at his home.

      16   Q   When you say at his home, whose home?

      17   A   Wadia's home.

      18   Q   Did you ever learn of Wadih El Hage and Abu Hafs el Masry

      19   taking a trip together?

      20   A   Yes.

      21   Q   Do you recall approximately when that was?

      22   A   Probably early '95.

      23   Q   Where did they go?

      24            MR. SCHMIDT:  Objection, foundation.

      25   Q   Let me ask you this question, yes or no.  Do you know the

                                                                    1259

       1   place where they went?  Yes or no.

       2   A   Yes.

       3   Q   Do you know that from a conversation with either Wadih El

       4   Hage or Abu Hafs el Masry?  Yes or no.

       5            MR. SCHMIDT:  Object to the form of the question.  It

       6   is a leading question.

       7   Q   How do you know?

       8            THE COURT:  How do you know.

       9   A   I was there with them.

      10   Q   You were there with them when they did what?

      11   A   When they left for that trip.

      12   Q   Did they discuss where they were going in your presence?

      13   A   I know the city where they were going.

      14   Q   How do you know the city where they were going?

      15   A   I was -- we were all of us there, and then they left me

      16   behind.

      17   Q   Where did they go?

      18            MR. SCHMIDT:  Objection.

      19            THE COURT:  Overruled.

      20   A   To Mombasa.

      21   Q   Did they tell you why they were going to Mombasa?

      22   A   No.

      23   Q   Did you see them when they came back from Mombasa?

      24   A   Yes.

      25   Q   Did they tell you what they did in Mombasa?

                                                                    1260

       1   A   No.

       2   Q   For the jury's benefit, Mombasa, where is that located?

       3   A   It is in the east of Kenya, in the coast of Kenya.

       4   Q   Do you know how they went from Nairobi to Mombasa?

       5   A   They took one of the cars.

       6   Q   When you say one of the cars, whose cars?

       7   A   Al Qaeda cars.

       8   Q   What kind of car was the al Qaeda car?

       9   A   The cars that Hamad al Fawwaz bought from Dubai.

      10   Q   Are those the cars that you talked about yesterday that

      11   Khalid al Fawwaz imported into Nairobi?

      12   A   Yes.

      13   Q   What happened to those cars when Khalid al Fawwaz left

      14   Nairobi for the Sudan?

      15   A   They stayed in Nairobi.

      16   Q   Where were they kept?

      17   A   I think two were in Wadia's house, and I don't remember

      18   the others.

      19   Q   Did you ever see Abu Hafs el Masry, the military committee

      20   person, in Nairobi at a time when Abu Mohamed al Amriki, the

      21   person who came with the photography equipment, was there?

      22   A   Yes.

      23   Q   Did you ever discuss with Wadih El Hage whether or not Abu

      24   Hafs el Masry, the military committee person, trusted Abu

      25   Mohamed al Amriki, the surveillance person?

                                                                    1261

       1   A   Yes.

       2   Q   Can you tell us what you recall about that conversation.

       3   A   It was about Abu Hafs el Masry, the commander, wanted to

       4   travel to Sudan and wanted somebody, whether me or Wadia or

       5   Haroun, to book a flight to go to Sudan, but he doesn't want

       6   that Abu Mohamed al Amriki to see his passport or the name he

       7   is using, and I was very angry.  I told him why you don't

       8   trust him, and Wadia told me that al Hafs doesn't want him,

       9   doesn't want Abu Mohamed al Amriki to see his name, because he

      10   was afraid that maybe he is working with United States or

      11   other governments.

      12   Q   Do you know who actually went and booked the travel

      13   arrangements for Abu Hafs el Masry on that occasion?

      14   A   I don't remember whether me or Wadia.

      15   Q   Did you ever see Wadih el Hage with Abu Ubaidah Al

      16   Banshiri in Kenya?

      17   A   Yes.

      18   Q   Was that on one occasion or more than one occasion?

      19   A   More than one occasion.

      20   Q   Did Wadih El Hage ever discuss whether or not he was

      21   involved in any business with Abu Ubaidah Al Banshiri?

      22   A   Abu Ubaidah al Banshiri was bringing in some diamonds, but

      23   it was only once, I think, from Tanzania, so as Wadia, he can

      24   sell them for him.

      25   Q   Do you recall where this occurred?

                                                                    1262

       1   A   I have never seen Abu Ubaidah giving diamonds to Wadia

       2   directly, but Wadia told me that he used to give him some

       3   diamonds so as to sell them for him.

       4   Q   Do you know if Abu Ubaidah Al Banshiri owned any property

       5   in Tanzania?

       6   A   Yes.

       7   Q   Do you know what kind of property he owned there?

       8   A   It was a land.

       9   Q   Did you ever learn what the purpose of the land was in

      10   Tanzania?

      11   A   He said that they wanted to bring some excavators and some

      12   other machinery so as to dig and look for diamonds.

      13   Q   Do you know if Abu Ubaidah Al Banshiri ever obtained the

      14   excavators or other machinery to look for and dig up the

      15   diamonds?

      16   A   No.

      17   Q   Did you ever hear of Abu Ubaidah Al Banshiri doing work

      18   for a German relief organization in Kenya?

      19   A   No.

      20   Q   You mentioned yesterday that at first you did not know

      21   that Abu Ubaidah Al Banshiri had two wives.  Tell the jury how

      22   it is that you came to learn that Abu Ubaidah Al Banshiri had

      23   a wife in Kenya.

      24   A   Nobody from al Qaeda knew that Abu Ubaidah has a second

      25   wife, but when I came the first time from Sudan to Kenya, it

                                                                    1263

       1   was in September '93.  I was coming from Sudan to Kenya and

       2   they gave me a bag, a handbag in which there are many women

       3   dresses, so as to give it to Abu Ubaidah.

       4   Q   You said they gave you.  Who gave you?

       5   A   From the guesthouse.  I don't remember who.  The second

       6   time I was in Sudan and Abu Ubaidah was in Kenya, and when I

       7   was coming they gave me another watch, lady's watch, in which

       8   written the name of Wadia on the top of that watch.  So I gave

       9   it -- when I arrived Kenya, I gave it to Abu Ubaidah, and he

      10   (through interpreter) he erased the name Wadih from the top of

      11   that watch.

      12            (In English)  The third thing is --

      13   Q   Did you ever ask Wadia if he got the lady's watch?

      14   A   No.  He didn't get the watch.

      15            The third is, yesterday I mentioned we had an office

      16   in downtown, but we didn't work in that office yet.  But we

      17   had a phone there.  A lady called and I answer myself to the

      18   phone, and I said who is speaking, she said Mrs. Jalal.  I was

      19   surprised, it mean the wife of Jalal.  Mohamed Tawfiq was

      20   there, and I told him this guy maybe he is married, but no --

      21   and he doesn't know it himself.  And we just let things

      22   normally, until the end we knew that he is married.

      23   Q   At the time of that conversation with Tawfiq and Wadia,

      24   there were three of you in the room?

      25   A   No.  I was sure that I was with Tawfiq in the room but

                                                                    1264

       1   Wadia, he was there in Nairobi.

       2   Q   Did anybody besides you and Tawfiq know that Abu Ubaidah

       3   had a wife?

       4   A   At that time, nobody else, the three of us only.

       5   Q   Did there come a time that you knew that Abu Ubaidah Al

       6   Banshiri had died?

       7   A   Yes.

       8   Q   Can you tell us where you were when you learned that.

       9   A   I was in Sudan.

      10   Q   Can you tell us how you learned that Abu Ubaidah Al

      11   Banshiri had died?

      12   A   Well, the story is given to everybody by Saif el Adel.  He

      13   said that Abu Ubaidah was drowned in Victoria Lake in Kenya,

      14   Tanzania, and they send Haroun to Tanzania so as to see those

      15   bodies, if he can recognize Abu Ubaidah's body.  The story

      16   itself, it comes from another, the brother-in-law of Abu

      17   Ubaidah from the second wife, called Asef.

      18   Q   Did Saif el Adel tell you what they learned happened with

      19   Asef?

      20            MR. SCHMIDT:  Objection.

      21            THE COURT:  Yes or no.

      22   Q   Do you know, did Saif el Adel describe anything about how

      23   Abu Ubaidah Al Banshiri drowned?  Yes or no.

      24   A   Yes.

      25   Q   What did he tell you?

                                                                    1265

       1            MR. SCHMIDT:  Objection.

       2            THE COURT:  Overruled.  That is not being offered for

       3   the truth, is it?

       4            MR. FITZGERALD:  No, offered for the fact that Saif

       5   el Adel said.

       6            THE COURT:  Let me explain that.  When evidence is

       7   received, we say it is received for all purposes.  If somebody

       8   says I was told something or somebody said something, it is

       9   received as evidence of two things, one, that the words were

      10   said and, two, of the truth of what was asserted.  When we

      11   don't impose any limitations, then the evidence can be

      12   considered by you for all purposes.

      13            Sometimes what is significant is not the truth of

      14   what was said but that the words were spoken.  To give you a

      15   classic example that has nothing to do with this case, the

      16   issue is why somebody is running back and forth from a well to

      17   a barn, and somebody says John said the barn was on fire.

      18   That becomes relevant to what the listener understood and why

      19   he acted and why he was running back and forth.  We say that

      20   that evidence is received not for the truth of the statement

      21   but for the fact that the words were spoken becomes relevant

      22   to the state of mind, the understanding of the listener.  In

      23   this instance the testimony is being offered not for the truth

      24   but for the state of mind or understanding of the listener.

      25            Do you want to restate the question.

                                                                    1266

       1            MR. FITZGERALD:  Yes, thank you.

       2   Q   Can you tell us what Saif al Adel told you they had

       3   learned about how Abu Ubaidah Al Banshiri died?

       4   A   Yes.  He was saying that Abu Ubaidah Al Banshiri and his

       5   brother-in-law Asef wanted to take a ferry or a ship -- I

       6   don't know exactly from where to where but it was on the Lake

       7   Victoria.  They came late, the ship was very full, and they

       8   pay extra money, then they got the first class.  First class

       9   was in the bottom of the ship, the first floor.  I think the

      10   ride was during the night.  I don't remember exactly.  But

      11   during the night everybody was sleeping, the ship turned over

      12   and upside down, and Asef was very light.  He jumped and Abu

      13   Ubaidah helped him.  He went out and he told him just leave,

      14   because the water is coming and people are screaming.  But Abu

      15   Ubaidah, you know, the door of the cabin became -- excuse me.

      16   (through interpreter) The door overturned and it was above his

      17   head, and it was too high for him.  (Resuming in English)

      18   Sheik Abu Ubaidah is tall man, big man, and he tried to jump

      19   but he couldn't.  That is why he told Asef just to leave and

      20   go, and that's why he drowned.

      21   Q   When you learned of Abu Ubaidah Al Banshiri's death, was

      22   there any discussion within and among al Qaeda members as to

      23   whether or not Abu Ubaidah Al Banshiri may have died a

      24   different way?

      25   A   No.  There is some people there suspecting Asef maybe he

                                                                    1267

       1   is behind the death of Abu Ubaidah, but personally, I don't

       2   think so, because they were all the time together, and I

       3   believe Asef, what he said.

       4   Q   At or about the time that you learned Abu Ubaidah Al

       5   Banshiri died, you were living in Khartoum?

       6   A   I didn't.

       7   Q   Do you know where Wadih El Hage was at that time?

       8   A   At that time he came to Khartoum too.

       9   Q   Do you recall, did you observe anything about Wadih El

      10   Hage's behavior or appearance at or about the time that Abu

      11   Ubaidah Al Banshiri, you learned he had died?

      12   A   Abu Ubaidah Al Banshiri was loved by everybody.  He was a

      13   very good person, and everybody was upset.  Wadia, I saw him

      14   cry.

      15   Q   Did you ever learn of a boat, a small boat turning over

      16   off the coast of Kenya?

      17   A   Yes.

      18   Q   Do you know who was on the boat?

      19   A   Al Qaeda.

      20   Q   Do you know how many al Qaeda people were on the boat when

      21   it turned over?

      22   A   There were some trainers in Somalia.

      23   Q   Do you know approximately how many were on the boat when

      24   the boat turned over off the coast?

      25   A   I am not quite sure, but maybe four.

                                                                    1268

       1   Q   Did you ever actually see these people after the boat

       2   turned over?

       3   A   When the boat turned over, they came from Mombasa to

       4   Nairobi, and they called at Wadia's house, and they took the

       5   car, and I brought them from the bus station to the house.

       6   Q   Did they stay at Wadia's house?

       7   A   Didn't stay a long time.

       8   Q   At the time that they visited Wadia's house, were you

       9   there?

      10   A   Yes, I was there.

      11   Q   And was Wadia there?

      12   A   Yes.

      13            (Continued on next page)

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1269

       1   Q   Now, let me show you what's been marked for identification

       2   as Government Exhibit 118 and would you just display that to

       3   the witness and counsel for the moment.

       4            Do you recognize the person depicted in Government

       5   Exhibit 118 for identification?

       6   A   Yes.

       7   Q   Who is that?

       8   A   Tawfiq.

       9   Q   Do you know Tawfiq by any other name?

      10   A   He's name is Mohammed Karama.

      11   Q   First of all, is he a member of al Qaeda?

      12   A   Yes, he is.

      13   Q   And is that a fair and accurate depiction of Tawfiq

      14   Mohammed Karama in Government Exhibit 118?

      15   A   Yes.

      16            MR. FITZGERALD:  I would offer Government Exhibit

      17   118, your Honor.

      18            THE COURT:  Received.

      19            (Government's Exhibit 118 received in evidence)

      20   Q   It can be displayed for the jury.

      21            Now did there come a time when you purchased dogs

      22   when you were in Nairobi?

      23   A   Yes.

      24   Q   Can you tell the jury who you purchased the dog with?

      25   A   I was with Wadih.  We both done it.

                                                                    1270

       1   Q   What type of dog did you buy?

       2   A   They German Shepherd dogs.

       3   Q   How many German Shepherds did you buy?

       4   A   Well, I think, I think we bought first two.  Then another

       5   one in the next time.

       6   Q   And what was the reason that you and Wadih bought these

       7   three German Shepherds?

       8   A   Because Abu al Makkee called from Sudan and they needed

       9   these dogs.

      10   Q   And did Abu Fadal al Makkee tell you why they needed these

      11   German Shepherds in the Sudan?

      12   A   No, he didn't tell me, but I learned after that.

      13   Q   And without telling us what you learned, how did you learn

      14   why they needed the dogs in the Sudan?

      15   A   Well, he called Wadih El Hage and he told him that they

      16   need dogs for the security sometime.

      17   Q   And what did you do when you bought the German Shepherds?

      18   What happened to the three dogs?

      19   A   One of the dogs stayed in Wadih's house, and the other two

      20   we send them to Sudan.

      21   Q   And did you have to do anything special to get the dogs

      22   from Nairobi to Sudan?

      23   A   Yes.  We first registered them in kennel club and we got

      24   all the certifications and vaccination certificates that they

      25   require in the airline.

                                                                    1271

       1   Q   And do you know who picked up the dogs at the other end

       2   when they got off the airplane?

       3   A   I don't remember it.

       4   Q   And the dog that stayed at Wadih's house, do you remember

       5   the name of the dog?

       6   A   Yes.

       7   Q   What was that?

       8   A   Fa.

       9   Q   F-A, Fa?

      10   A   Yes.

      11   Q   Now, during the time that you were in al Qaeda you were

      12   trained to be a pilot, correct?

      13   A   Yes.

      14   Q   And you mentioned a person named Nawawi training to be a

      15   pilot?

      16   A   Yes.

      17   Q   Did you ever learn of any other person whether in al Qaeda

      18   or outside al Qaeda who is dealing with Usama Bin Laden having

      19   to do with a plane?

      20   A   Yeah, there is a guy called Abu Tarak el Masry.

      21   Q   And was he a member of al Qaeda?

      22   A   I don't think so.

      23   Q   And can you tell us did you ever meet Abu Tarak el Masry?

      24   A   Once.

      25   Q   Can you tell us the circumstance under which you met Abu

                                                                    1272

       1   Tarak el Masry?

       2   A   He was coming from Sudan, and they met him in Wadih house.

       3   Q   And were you present for any conversation he had with

       4   Wadih?

       5   A   Yes, we were all there.

       6   Q   Can you tell us what Abu Tarak and Wadia and himself

       7   discussed?

       8            MR. SCHMIDT:  Objection.

       9            THE COURT:  Overruled.

      10            MR. SCHMIDT:  Your Honor, foundation.

      11            THE COURT:  He was present at the conversation.

      12   A   Well, Abu Tarak was explaining how he crashed in Usama Bin

      13   Laden's aircraft.

      14   Q   What did he tell you about that?

      15   A   Well, he was explaining that he was in contact with people

      16   of the al Qaeda incident, and he wanted to take that aircraft

      17   from Sudan so as to make some business with it and businessman

      18   in Egypt or somewhere else, and when they agreed he came to

      19   Sudan first to take it, but before that he called Nawawi, he

      20   told him to pick up the batteries and to clean the aircraft,

      21   when he came there and to make fuel and everything.

      22            When he came there he took the aircraft and then he

      23   wants to make sure the aircraft engine are okay and he make

      24   some three or four circuits.  Circuits it means take off and

      25   just go around the airport and land three times I think or

                                                                    1273

       1   four, I don't remember.

       2            And at the fourth one, the last one he used the brake

       3   to stop, but there is no brake and emergency brakes, and there

       4   is nothing, and so he was switch everything off and at the end

       5   of the runway he hit a small hill there of sand, and the whole

       6   nose of the aircraft was destroyed, and he run away from the

       7   aircraft and he don't want to see those Sudanese investigators

       8   about the crash of the aircraft, and he flew from Sudan to

       9   Kenya, just to go back to his country.

      10   Q   And did he indicate whether or not he made any contact

      11   with anyone after he crashed the plane in the Sudan?

      12   A   He said that he was very sorry and he called Usama Bin

      13   Laden saying that he said he told him that, I am sorry about

      14   what happened to your airplane, but I was, I am sorry that you

      15   lost your airplane, but I was about to losing my life in that

      16   crash.

      17   Q   And where did this conversation take place between you

      18   Wadih El Hage and Abu Tarak, the Egyptian?

      19   A   In the office in Wadih's house.

      20   Q   And were you ever present for any conversation as to how

      21   the plane had been used before that?

      22   A   Well, I heard that the airplane, it was when --

      23            THE COURT:  First, from whom and when?

      24            THE WITNESS:  Yes.  It was the first time when I came

      25   to Kenya in '93, October '93 in the guest house they told me

                                                                    1274

       1   that I learned that Usama Bin Laden aircraft and he brought

       2   some people from Sudan to Kenya with the same aircraft.  Then

       3   he went back.

       4   Q   And did they tell you in the guest house where the people

       5   who were brought to Kenya went next?

       6   A   Some people did, it was only four or five people that came

       7   in the same aircraft.  It was Abu Hafs among them, but the

       8   others I don't know who was they, and they went to Somalia.

       9   Q   Now, you mentioned yesterday that after Abu Mohamed al

      10   Amriki went back to the United States, you never saw him

      11   again?

      12   A   No.

      13   Q   Did you ever discuss with anyone in al Qaeda after that

      14   point in time whether they were still in contact with Abu

      15   Mohamed al Amriki?

      16   A   Excuse me?

      17   Q   Did you ever talk to anyone who was a member of al Qaeda

      18   as to whether or not they were still maintaining contact or

      19   communications with Abu Mohamed al Amriki?

      20   A   During, when I was in Sudan, Anas al Liby he called me

      21   from London, and he told me that still in contact with Abu

      22   Mohammed and he is doing well, and he's okay.

      23   Q   And just to we're clear when Anas al Liby in London told

      24   you in the Sudan that somebody was doing well, who was he

      25   referring to?

                                                                    1275

       1   A   It means Mohamed Amriki.

       2   Q   Did he tell you what Abu Mohammed Alriki was doing at the

       3   time?

       4   A   He said that he studying computers I think and he's

       5   working in a company at the same time.

       6   Q   And did he indicate to you, did Anas al Liby indicate to

       7   you?

       8            MR. SCHMIDT:  Objection.

       9            THE COURT:  Yes, sustained.

      10   Q   Did you learn how it was that he was maintaining

      11   communication with Anas al Liby, yes or no?

      12   A   Yes.

      13   Q   How did you learn that?

      14   A   Anas al Liby he said that he was in contact with him

      15   whether by phone and sometimes by E Mail.

      16   Q   Now, yesterday you talked about a person by the name

      17   Mustafa or Abu Khalid al Nubi, N-U-B-I?

      18   A   Yes.

      19   Q   Did there ever come a time when you saw Abu Khalid al Nubi

      20   in the possession of a passport with any part of it being

      21   fake?

      22   A   Yes.

      23   Q   Can you tell the jury as best you can recall when and

      24   where that happened.

      25   A   Well, I don't remember exactly when, where it happened,

                                                                    1276

       1   but, and he had a Yemeni passport, and it has fake Kenyan

       2   visa, and he's supposed to travel to Sudan, but we were

       3   approaching me and I was talking with Harun.  I don't, I'm not

       4   sure whether he was with us or not was talking that if we give

       5   the passport to Mustafa we let him know that the visa is fake

       6   he won't travel, because he was very scared, he can't go to

       7   Afghanistan.

       8            So but at the end somebody told him that that visa is

       9   not correct, and at the end I went to Sudan.  I learned after

      10   from Harun that the guy went to the immigration to renew that

      11   visa to get new one and they caught his passport in the

      12   immigration.  After that, Ahmad Tawhil he went there and then

      13   he brought his passport.

      14   Q   And do you know how Ahmad Tawhil got his passport back?

      15   A   Well, they told me that he paid some money to somebody

      16   there and they brought his passport.

      17   Q   Now, during the time do you know whether Wadih el Hage

      18   ever made bayat to Usama Bin Laden?

      19   A   No.

      20   Q   During the time that you were in Nairobi did you ever,

      21   were you ever told that there was anything that you could not

      22   discuss with Wadih El Hage?

      23   A   No.

      24   Q   Now, during the time that you were in Kenya, did you ever

      25   travel to Mombasa?

                                                                    1277

       1   A   Yes.

       2   Q   And who did you travel with?

       3   A   With a friend called Zakaria.

       4   Q   Can you tell us where Zakaria was from?

       5   A   Tunisia.

       6   Q   Was he a member of al Qaeda?

       7   A   Yes.

       8   Q   And do you recall approximately medical when it was that

       9   you and Zakaria went to Mombasa?

      10   A   Early '95, I'm not sure.

      11   Q   Who did you see when you went to Mombasa?

      12   A   I met Mustafa Abu Islam.

      13   Q   When you say Mustafa, is that Mustafa al Khalid?  You

      14   mentioned Abu Islam.  Which Abu Islam?

      15   A   The youngest.

      16   Q   Is that the person also known as Shuaib, S-H-U-A-I-B?

      17   A   Yes.

      18   Q   And did you discuss with them what it was they were doing

      19   in Mombasa?

      20   A   No, we didn't discuss.

      21   Q   Was Shuaib a member of al Qaeda?

      22   A   Yes.

      23   Q   And was the other person a member of al Qaeda?

      24   A   Yes.

      25   Q   And do you know what they were doing for work at the time?

                                                                    1278

       1   A   They were living in Mombasa.  They were married and they

       2   were living in Mombasa, and they were working in the fish.

       3   Q   When you came back from that trip to Mombasa did you

       4   discuss this with anyone in Nairobi?

       5   A   Excuse me again, discuss what?

       6   Q   Did you ever discuss the fishing business in Mombasa with

       7   anyone in Nairobi?

       8   A   Well, we all the time talking about fishing with El Hage

       9   and with Harun, with everybody.

      10   Q   And from your discussions with Wadih El Hage did you have

      11   discuss who it was that was involved in the fishing business

      12   in Mombasa?

      13   A   Well, mainly the guy who was working on boat was Marwan,

      14   and the others they were in Mustafa was in Mombasa so as to

      15   have a small shop there in which he can sell those fish.

      16   Q   And did Wadih know Marwan?

      17   A   Yes.

      18   Q   Now, during the time that you were in Nairobi did you know

      19   of an organization called Help Africa People?

      20   A   Yes.

      21   Q   And what was that organization?

      22   A   It's an NGO government organization.

      23   Q   NGO?

      24   A   Nongovernment agency.

      25   Q   What did you know about who was involved with Help Africa

                                                                    1279

       1   People?

       2   A   Wadih was registered in this agency.

       3   Q   And during the time that you were in Nairobi did Wadih El

       4   Hage ever get the organization registered?

       5   A   No, he didn't get it.  He get it after I left.

       6   Q   And during the time that you were in Nairobi did you ever

       7   see any identification cards for the Help Africa People

       8   organization?

       9   A   Well, I saw only Wadih's and Harun's IDs.

      10   Q   Where did you see the identification card for Wadih and

      11   Harun?

      12   A   They were putting them in the computer.

      13   Q   Are you familiar with the person by name of Ahmed Hassan?

      14   A   Yes.

      15   Q   And who is Ahmed Hassan?

      16   A   Ahmed Hassan el Masry from Jama.

      17   Q   When you say J-A-M-A jihad, what is that?

      18   A   It's a Egyptian Islamic group.

      19   Q   And do you know where he was from, Ahmed Hassan?

      20   A   He was from Egypt.

      21   Q   And did you ever see him in Nairobi?

      22   A   No.

      23   Q   Did you ever see him in the Sudan?

      24   A   Yes.

      25   Q   Did there come a time when you left Kenya and moved back

                                                                    1280

       1   to the Sudan?

       2   A   Yes.

       3   Q   Can you tell the jury approximately when that was?

       4   A   Well, I left when I got my license I think in 1995.

       5   Q   Do you know when in 1995 that was, if you recall?

       6   A   Probably the end of '95.

       7   Q   And when you got back to the Sudan what did you do for

       8   work?

       9   A   Well, I worked a little bit with Wadi Aquiq's company.

      10   Q   And when you say you worked for a little bit can you tell

      11   the jury approximately how long you worked for Wadi Aquiq's

      12   company?

      13   A   It was a month or two months.

      14   Q   And did you ever work for any of the other Bin Laden

      15   companies in the Sudan?

      16   A   After Aquiq, they told me to go to the tannery.

      17   Q   And which tannery is that?

      18   A   It was Happ tannery.

      19   Q   Did you actually go to the tannery to work?

      20   A   Well, I went there for short period, and they refused me.

      21   Q   And did you work for any of the other Bin Laden companies

      22   after that?

      23   A   No.

      24   Q   Now, did there come a time -- when you were in the Sudan

      25   how many approximately how many people who were members of al

                                                                    1281

       1   Qaeda in the Sudan were Libyan?

       2   A   Less than 20.

       3   Q   And did there come a time when you learned of a discussion

       4   as to whether or not the Libyan members should leave the

       5   Sudan?

       6   A   Yes, it was, there was a pressure from the Libyan

       7   government on the Sudanese government that all the Libyans

       8   must leave the country, and they informed Usama Bin Laden that

       9   if you have some Libyans you have to let them get out from the

      10   country.  And Usama Bin Laden informed these guys and he told

      11   them that you have to leave, because if you don't leave, you

      12   will be responsible for yourselves, and if somebody caught

      13   you, I am not responsible.

      14            What I can do for you is I can give you twenty-four

      15   hundred bucks, plus a ticket with you and your wife if you

      16   want to live somewhere, but the Libyans, most of them, they

      17   refused the offer of Usama Bin Laden.  They were very upset

      18   and angry because they couldn't protect them, and they had a

      19   meeting, they had.  At the tend of the meeting they gave a

      20   letter to Usama Bin Laden that they are leaving al Qaeda, and

      21   they took that money and tickets and some of them they left.

      22   Some of them they joined the Libyan Islamic group.

      23   Q   And do you recall any of the names of the members, the

      24   Libyan members of al Qaeda who left the group at this time?

      25   A   Libyans, Anas al Liby, all of them.

                                                                    1282

       1   Q   Do you recall approximately what year this was?

       2   A   During '95.  It was before the Usama Bin Laden left.

       3   Q   And what happened to Ans al Liby?  Where did he go?

       4   A   Well, he stayed a little bit in Sudan.  Then he went to

       5   Qatar for sometime.  Then after that he went to London.

       6   Q   And do you know what kind of a passport Anas al Liby had?

       7   A   No.

       8   Q   And did he have any expertise, Anas al Liby, besides

       9   surveillance?

      10   A   He is good in computers, very good.

      11   Q   Was there any Libyan member of al Qaeda who did not leave

      12   the group?

      13   A   It was only I think, Abu Derdaa.

      14   Q   Now, did there come a time when there was, when you

      15   learned that there was a financial crisis in al Qaeda?

      16   A   Yes, I think in since the end of '94, '95 we have a crisis

      17   in al Qaeda.

      18   Q   How did you learn about it?

      19   A   Well, Usama Bin Laden himself he was talking to us and

      20   saying that there is no money and he lost all his money, and

      21   he shouldn't extend a lot of things and he reduced the salary

      22   of people, and myself when I wanted to go to renew my license

      23   flying license in Kenya, and ask him for the ticket and some

      24   money --

      25            THE COURT:  Asked who?

                                                                    1283

       1            THE WITNESS:  Asked Usama Bin Laden himself, and he

       2   told me that he just forget about it.  And I told him, I was

       3   three years studying.  He said, you know, just forget about

       4   the license.  But I went to Kenya, and even Wadih himself he

       5   helped me, I think I, don't know, five hundred bucks to renew

       6   the license.

       7   Q   And did there come a time when you asked someone in al

       8   Qaeda for another sum of money where you were turned down?

       9   A   Well, it was it was, it wasn't exactly in December '95.

      10   Q   What happened?

      11   A   Well, my wife was pregnant and she has C section, so I

      12   booked in the hospital in Khartoum, and I needed money so to

      13   pay for the hospital it was five hundred bucks I think, and I

      14   asked Sheik Sayyid el Masry.

      15            I asked him if he can give me some money.  At that

      16   time Usama Bin Laden was in one of his projects in Kassala

      17   another city in the Sudan, and I asked him about money.

      18            He told me, oh, there is no money.  We can't give you

      19   anything, and, why you don't take your wife to the Muslim

      20   hospital.

      21   Q   Just so we're clear, is the person that told you they

      22   don't have any money or won't give it to you was Usama Bin

      23   Laden or was that Sheik Sayyid?

      24   A   No, Sheik Sayyid.

      25   Q   Continue?

                                                                    1284

       1   A   He told me, why don't you take your wife to Hassam

       2   Hospital.  I knew that if I take my wife there she will die

       3   the first day.  And I told him, if it was your wife or your

       4   daughter, you would take her there?  And he said, well -- I

       5   tell him, listen, why don't you borrow money for me and I will

       6   give money back to you.  He said, I can't do anything until

       7   Bin Laden come back.

       8            He is coming when after four days and my wife has the

       9   appointment with the doctor.  At the end in the meantime I

      10   told him that when, because they were sending they were saying

      11   before that they were sending the Egyptian to renew their

      12   passports or to get a new passport Egyptian of me, but they

      13   were paying there the transport; they were paying their

      14   sitting there in Yemen to stay for a whole month so as to get

      15   that passport, and everything was paid by al Qaeda.

      16            But when I was needed that five hundred bucks he gave

      17   me another story.  And that's why I learned that we are

      18   treated second class, even though we are not the same scale.

      19   At the end one of the friends called Riddia was the one who

      20   collected some money from the other people.  Then he paid for

      21   my wife.

      22   Q   And what was your attitude towards Sheik Sayyid an al

      23   Qaeda after they turned down your request for the money?

      24   A   Well, I was about -- if I had a gun I would shoot him at

      25   that time.

                                                                    1285

       1   Q   Did there come a time when Usama Bin Laden left the Sudan

       2   to go someplace else?

       3   A   Yeah, he left.

       4   Q   And do you recall approximately when that was?

       5   A   At the end of '95 or early '96.

       6   Q   And what happened after Usama Bin Laden went to

       7   Afghanistan, what happened to the rest of the people in al

       8   Qaeda who were in the Sudan?

       9   A   Well, they were told, not all of them, they were told to

      10   go to after Usama Bin Laden with their families, but some of

      11   them were among al Qaeda, but they told them, we are not, you

      12   are not coming with us, because we don't have anything to do

      13   there.  We don't have anything to do there, and they are not

      14   able to pay for them in Afghanistan.

      15   Q   And did anyone discuss with you whether or not you would

      16   be among the people who would leave the Sudan to go to

      17   Afghanistan to rejoin Usama Bin Laden?

      18   A   Yeah, they told me to go myself to go there.

      19   Q   And who was it in al Qaeda to told you that prepare

      20   yourself to move to Afghanistan?

      21   A   That time was Sheik Tunisi he was in charge.

      22   Q   And what did you say when they told you to prepare

      23   yourself to move to Afghanistan?

      24   A   Well, it wasn't mandate that you have to go there, but

      25   they told me to keep by myself.  I said, I'm not going there,

                                                                    1286

       1   because I don't have anything to do there and they have the

       2   kids, there is no schools, nothing there.

       3   Q   What happened when you told them you would not go to

       4   Afghanistan to rejoin Usama Bin Laden?

       5   A   Well, like everybody they gave you twenty-four hundred

       6   bucks plus a ticket.  They didn't give me ticket but they told

       7   me whenever you decide to travel, we'll give you ticket.

       8   Q   And after that point in time when you said you would not

       9   go to Afghanistan to rejoin Usama Bin Laden, did you ever

      10   receive any salary from al Qaeda?

      11   A   No.

      12   Q   Did you consider yourself still to be following your bayat

      13   to al Qaeda?

      14   A   No.

      15   Q   When you -- how did you justify telling them you were not

      16   going Afghanistan after you made a bayat many years before to

      17   follow whatever orders you were given?

      18   A   I didn't understand.

      19   Q   You made a bayat when you joined al Qaeda, correct?

      20   A   Yes.

      21   Q   And you agreed to follow the orders of the emir if they

      22   were Islamically correct?

      23   A   Yes.

      24   Q   And now you were asked to go to Pakistan or Afghanistan?

      25   A   Yes.

                                                                    1287

       1   Q   Did you consider it a violation of your bayat to tell them

       2   that no, I'll stay here in the Sudan?

       3   A   It was a violation because they didn't ask me to do

       4   something against Islam, it was normal.  People can move, they

       5   have to move, but I refused to.

       6   Q   Did you consider yourself part of al Qaeda after you

       7   refused to go back to Afghanistan?

       8   A   No.

       9   Q   Now, you mentioned a person named Abu Fadl Makkee.  Let me

      10   ask the next question and, Judge, I will make clear that I'm

      11   only asking this testimony for the purpose of this witness'

      12   understanding, not offering it for the truth.

      13            Did you ever learn whether or not Abu Fadl Makkee was

      14   cooperating or providing information to a government about

      15   Usama Bin Laden?

      16   A   Yes.

      17   Q   And did people in al Qaeda -- do you recall when this was?

      18            MR. SCHMIDT:  Objection, your Honor.  I think we're

      19   talking about a time when the witness says he was not part of

      20   al Qaeda.

      21            THE COURT:  Establish when it is and from whom he

      22   learned and how it came about.

      23   Q   First of all, do you recall when it was, when it was, just

      24   telling us the time that you learned that Abu Fadl Makkee

      25   might be providing information to a government about Usama Bin

                                                                    1288

       1   Laden?

       2   A   I don't remember exactly the date but I was in Sudan at

       3   that time.

       4   Q   And do you know if at that time you had been asked to

       5   travel to Afghanistan at that time?

       6   A   I don't remember.  Maybe it was after that.

       7   Q   It was after you refused to go to Afghanistan?

       8   A   Yes.

       9   Q   And do you know -- just tell us yes or no -- do you know

      10   who told you or how you learned that people believed that Abu

      11   Fadl Makkee was providing information?

      12   A   Well, everyone was talking about Abu Fadl because he was

      13   very known that he was very close to Usama Bin Laden, and

      14   everybody was talking about him.

      15            MR. FITZGERALD:  Judge, I don't wish to take up at a

      16   sidebar.  My view is that --

      17   Q   Was it your understanding that Abu Fadl Makkee had

      18   provided information about what had happen in the past?  Yes

      19   or no?

      20   A   Yes.

      21            MR. FITZGERALD:  Your Honor, I would renew the

      22   question:  What was it that you were told?  What discussions

      23   were there among these people as to why it was that Abu Fadl

      24   Makkee was providing information, just his understanding.

      25            MR. SCHMIDT:  Objection.

                                                                    1289

       1            THE COURT:  Let me see counsel and the reporter.

       2            (Continued on next page)

       3

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1293

       1            (Pages 1290 through 1292 sealed)

       2            (In open court)

       3            THE COURT:  We'll take our morning recess.

       4            (Recess)

       5            (In open court; jury present; witness resumed)

       6            MR. FITZGERALD:  May I proceed, your Honor?

       7            THE COURT:  Yes, please.

       8   Q   Mr. Kherchtou if you can answer this yes or no, please do

       9   so.

      10            Was there discussion among al Qaeda members as to

      11   whether or not Abu Fadl Makkee was providing information to a

      12   foreign government?

      13   A   Yes.

      14   Q   Now, before the break you had indicated to us that you

      15   considered yourself outside of al Qaeda after you did not go

      16   back, after did you not relocate to Afghanistan.

      17            Did anyone in al Qaeda tell you whether or not al

      18   Qaeda considered you a member any more?

      19   A   No.

      20   Q   And did people in al Qaeda still talk to you about

      21   matters?

      22   A   No.

      23   Q   And did you talk to -- just yes or no -- did you talk to

      24   Harun about matters after you decided not to go back to

      25   Afghanistan?

                                                                    1294

       1   A   Yes, I call him about something.

       2   Q   And did Harun still talk to you openly after you didn't go

       3   back or did he stop talking to you openly?

       4   A   Well Harun was in Kenya while I was in Sudan.  I call him

       5   about another matter but it's not al Qaeda matter.

       6   Q   Did he indicate any reluctance to discuss matters with you

       7   when you did not go back to Afghanistan?

       8   A   No.  You know, the phone was expensive to, we were talking

       9   briefly about what I need from him and that's it.

      10   Q   And can you tell us what it was that you needed from Harun

      11   when you were in Khartoum and he was in Nairobi?

      12            MR. COHN:  Objection.  He's already said it wasn't an

      13   al Qaeda matter.

      14            THE COURT:  Overruled.

      15   Q   What did you need from Harun?

      16   A   Well, while I was in Kenya I was trying to get the Kenya

      17   citizenship.  So Harun told me that there is a way, an easy

      18   way for us to get a real Kenyan citizenship.  And the way he

      19   was explaining that I should go, if I need, I have to go to

      20   Kenya to a city called Isiolo.

      21            Then I should stay there for awhile for two months or

      22   three months or more, after you learn the language, the

      23   Swahili language, then you apply for the ID card from the

      24   police station and if you get that ID card you can get the

      25   passport and you become citizen normally.

                                                                    1295

       1            MR. COHN:  Your Honor, I renew my objection and move

       2   to strike.

       3            MR. FITZGERALD:  Your Honor, I offer in part pursuant

       4   to Giglio, in part pursuant to something else, which we can

       5   set forth at the sidebar.

       6            THE COURT:  Very well.  I'll receive it subject to

       7   connection, and you can amplify that when we have the next

       8   break.

       9   Q   Mr. Kherchtou, just answer this question yes or no first.

      10   Did Harun indicate to you whether or not any members of al

      11   Qaeda had done the same process of obtaining a Kenyan identity

      12   card that way?

      13   A   Yes.

      14   Q   And wait and see if there is an objection.

      15            Did he indicate to you who was it that had said this

      16   done that same process?

      17            MR. COHN:  Objection.

      18            THE COURT:  Subject to the same ruling, overruled.

      19   Q   Who was it that had done that?

      20   A   Mustafa, Mustafa Masry or Nubi, and Shuaib.

      21   Q   So just so we're clear on how many persons that is,

      22   Mustafa is the same person as al Nubi and Shuaib is a

      23   different person, correct?

      24   A   Yes.

      25            (Continued on next page)

                                                                    1296

       1   Q   Did there come a time when Haroun left Kenya and moved

       2   someplace else?

       3   A   Yes.  In 1997, he came to Sudan.

       4   Q   When Haroun moved to the Sudan in 1997, where did he first

       5   stay?

       6   A   He stayed with me in my apartment with his wife and kids.

       7            MR. FITZGERALD:  Your Honor, I would offer the

       8   following just for the fact that it was said.

       9   Q   Did Haroun tell you why he left Kenya at that time to go

      10   to the Sudan?

      11   A   He told me that something happened in Kenya, that's why he

      12   left, and he came to Sudan to sit down for sometime.

      13   Q   Did he tell you what it was that happened in Kenya that

      14   led him to move to the Sudan?

      15            MR. SCHMIDT:  Objection, your Honor.

      16            THE COURT:  I think you should defer this until we

      17   have our sidebar conference.  If need be, we will come back to

      18   it.

      19   Q   During the time that you were involved with al Qaeda, did

      20   the expression being in the hospital have any special meeting?

      21   A   Jail.

      22   Q   So if the expression was used that someone was in the

      23   hospital, that meant they were in jail?

      24   A   Yes.

      25   Q   What about the word books?  What did that refer to?

                                                                    1297

       1   A   Passport.

       2   Q   What did the word interior refer to?

       3   A   It means inside, whether inside Afghanistan or Somalia.

       4   Q   If a person was in Pakistan and used the word interior,

       5   what would that refer to?

       6   A   Afghanistan.

       7   Q   If a person was in Kenya, referring to the interior, what

       8   would that refer to?

       9   A   Somalia.

      10   Q   Let me direct your attention ahead to 1998.  Did there

      11   come a time in 1998 when you were invited to go to Nairobi?

      12   A   Yes.

      13   Q   For what reason did you go to Nairobi?

      14   A   I got a job offer.  That's why I went to Kenya.

      15   Q   Did this job offer have anything to do with al Qaeda?

      16   A   No.

      17   Q   Briefly describe the type of job you were offered.

      18   A   It's a foreign company that offered me a job.  This job,

      19   they needed who pilot who speaks Arabic and English, because

      20   their main clients are from the Gulf, very rich people that

      21   need tourism, so they need somebody to take care of them.

      22   That's why I went to Kenya.

      23   Q   Do you recall approximately when the first time you went

      24   to Kenya in relation to this job proposal?

      25   A   Exactly June 1998.

                                                                    1298

       1   Q   Did you go and have a meeting concerning this job proposal

       2   in Nairobi in June of 1998?

       3   A   Yes.

       4   Q   Can you just describe generally what the person you met

       5   with discussed as to what they wanted you to do as part of

       6   your job.

       7   A   On the first day I reached Nairobi, I stayed in Panafrique

       8   Hotel.  Then I went to his place, I met him.

       9   Q   Stop there.  You said Panafrique.  P-A-N-A-F-R-I-Q-U-E.

      10   A   I met the guy who offered me the job.  He explained me

      11   that their company are interested in a pilot who speaks

      12   English and Arabic, and he gave me a lot of questions, and he

      13   told me, before that he told me that the main job is tourism

      14   in Kenya or probably in the future in Sudan, and for the

      15   meantime he told me that I can give you some questions to

      16   answer, it's a lot of questions about the tourism in Sudan.

      17   Because I am going back to Sudan, so he needs these questions

      18   to be answered.  So at the next meeting after three months, I

      19   will give him back these answers.  The questions was about the

      20   tourism in Sudan, different touristic sites, hotels, prices of

      21   hotels, taxis, main airports, and the safety in Sudan, and

      22   they even mentioned if there any existence of terrorist groups

      23   in Sudan.  And different travel agencies, main cities, things

      24   to see.  If there is some brochures from those agencies it

      25   would be good.

                                                                    1299

       1   Q   If you would just answer this question yes or no.  At the

       2   time you had this meeting with this person, did you think at

       3   the time that this was a legitimate business offer?

       4   A   Yes.

       5   Q   After the meeting was over, did there come a time when you

       6   met anyone else in Nairobi unrelated to that business

       7   transaction?

       8   A   Yes.  I met -- in the next day I met Haroun Ahmed Sheikh

       9   Adan.

      10   Q   Is that the same person you described as Adan?

      11   A   Yes.

      12   Q   Tell us how you met them.

      13   A   I think Saturday I was leaving, the same day that I had my

      14   flight to Sudan, and it was noon.  I prayed in the mosque,

      15   Jamia mosque.  There was a small pharmacy there.  I was buying

      16   some medicine from it, and I heard the voice of Haroun and

      17   Ahmed Tawhil talking behind me, just on the main road, and I

      18   ran.  I left my medicine there and went behind them.  I

      19   stopped them, and I took my medicine from the pharmacy.

      20   Haroun told me that he is right now busy with some people and

      21   he told me that those are Abu Ubaidah's wife's family, and he

      22   is just going to let them go and he would come back.  In the

      23   meantime he told me to stay with Abu Tawhil and he would come

      24   back.

      25   Q   The mosque you mentioned was Jamia, J-A-M-I-A?

                                                                    1300

       1   A   Yes.

       2   Q   And you ran into Haroun and Ahmed Tawhil in the area of

       3   the mosque, correct?

       4   A   Yes, it's right in front of Jamia supermarket.

       5   Q   What did you then do that day with Haroun and Ahmed

       6   Tawhil?

       7   A   For short period Haroun told me to stay with Ahmed Tawhil

       8   until he let these guys go, then he would come back to me, I

       9   think after an hour or two hours he came to me, and we went

      10   together, we made some shopping.

      11   Q   What happened then?

      12   A   Then I don't remember whether Ahmed or Haroun took me to

      13   the airport.

      14   Q   Did you go back to Khartoum?

      15   A   Yes.

      16   Q   Did there come a time in 1998 when you returned to Nairobi

      17   an additional time?

      18   A   Yes.

      19   Q   For what reason did you go back to Nairobi the second time

      20   in 1998?

      21   A   That guy that offered me a job, he gave me some questions

      22   to answer, so I said I went to Sudan for three months, I did

      23   that job, collected all the information they need, and I came

      24   back to Kenya to meet him the second time.

      25   Q   Do you recall the date that you had the meeting with this

                                                                    1301

       1   businessman the second time?

       2   A   It was on August 6, 1998.

       3   Q   Who picked the date on which you would meet?

       4   A   That businessman.

       5   Q   Did you go back to Nairobi?

       6   A   Yes.

       7   Q   What hotel did you stay at this time?

       8   A   Meridian Hotel.

       9   Q   Did you have the meeting with this businessman again?

      10   A   Yes.

      11   Q   What did you do after the meeting with the businessman?

      12   A   I went to Mercy International so as to meet Ahmed Tawhil.

      13   Q   When you went to Mercy International, did you see Ahmed

      14   Tawhil there?

      15   A   No, he wasn't there.  Then I left a message for him,

      16   saying that now I am living in Meridian Hotel, I will move

      17   tomorrow to Ramada Hotel, if he want to see me I will be

      18   there, before I leave.

      19            MR. FITZGERALD:  If I could display the exhibit on

      20   the screen to the witness and to counsel only at this moment.

      21   Q   I ask you to look at Government's Exhibit 616 for

      22   identification and ask you if you recognize what it is?

      23   A   That's the letter I left in Mercy International to Ahmed.

      24            MR. FITZGERALD:  Your Honor, I would offer

      25   Government's Exhibit 616 in evidence.

                                                                    1302

       1            THE COURT:  It is in Arabic?

       2            THE WITNESS:  Yes, sir.

       3            MR. FITZGERALD:  I will offer a translation later,

       4   Judge.

       5            THE COURT:  Very well, received.

       6            (Government's Exhibit 616 received in evidence)

       7            MR. FITZGERALD:  If we could just display it for a

       8   moment.

       9            If we could now display to the witness Government's

      10   Exhibit 616T for identification only.

      11   Q   I ask you to look at that and tell us whether or not that

      12   is an accurate translation into English of the letter you left

      13   for Ahmed Sheikh Adan on August 6, 1988.

      14   A   Yes, Ramada, there is no Inn, it is only Ramada Hotel.

      15   Q   Other than that, is that an accurate translation of the

      16   letter?

      17   A   Yes.

      18            MR. FITZGERALD:  Your Honor, I would offer

      19   Government's Exhibit 616T.

      20            THE COURT:  Yes, received.

      21            (Government's Exhibit 616T received in evidence)

      22            MR. FITZGERALD:  I will read the exhibit to the jury.

      23            "In the name of God the merciful and the

      24   compassionate, may peace and God's blessings be upon you.

      25   Dear brother, Ahmed Sheikh Adan, greetings.  Thanks Allah, I

                                                                    1303

       1   arrived in the country and attempted to call you.  I learned

       2   that you are in Mombasa.  I ask you to please call me upon

       3   your arrival at Meridian Court Hotel, room 315.  I will stay

       4   at this hotel Until 10:00 tomorrow morning, Friday.  If you

       5   don't come, then I'll move to Ramada Hotel, or the one I

       6   stayed in last time in Eastleigh.  I hope I can see you soon.

       7   We are waiting for you.  Your brother Yousef Mzunko, Thursday,

       8   8/6/1998."

       9   Q   Can you tell the jury how you signed that letter, what

      10   name you were writing.

      11   A   Yousef Mzunko means Yousef the white, because Ahmed Adan

      12   used to call me the white, because in Kenya most of them are

      13   black, and he was joking.

      14   Q   Yousef, in Arabic what does that mean?

      15   A   Joseph.

      16   Q   Was that a name you were known by, Yousef or Joseph?

      17   A   Yes.  It was my nickname in Kenya.

      18   Q   After you went and tried to see Ahmed Tawhil at the Mercy

      19   International Relief Agency, did you go visit anyone else in

      20   Nairobi that you knew?

      21   A   Yes.  In the first visit to Nairobi in 1998, Haroun showed

      22   me where Abu Ubaidah wife's sister working.  He told me next

      23   time if you come here you can visit them.  In the second time,

      24   in this visit, I went there, I found her brother Asef, and the

      25   wife of Abu Ubaidah herself.

                                                                    1304

       1   Q   What general area was it that Abu Ubaidah's wife and

       2   brother worked in?

       3   A   It was Park Road area, or Gunga Road.  It's in the same

       4   road.

       5   Q   Do you know, were they in a house or business when you

       6   visited them?

       7   A   No, it was a store selling the alarm things for the cars.

       8   Q   The last visit in June of 1998, you saw Haroun.  Did you

       9   make any attempt to see Haroun on this visit?

      10   A   No -- yes, I had -- he gave me his phone number in the

      11   first visit.  Then in the second one, I called that phone

      12   number from the hotel, Meridian Hotel, but nobody was

      13   answering the call.

      14   Q   Did you ever get through and speak to anyone or learn

      15   whether anyone spoke to anyone at that phone number you

      16   called?

      17   A   Yes.  I called from the hotel.  Nobody was answering.

      18   Then I went down to Jamia mosque from the local phone.  I

      19   called his wife, Haroun's wife answered me.

      20   Q   Did you have a conversation with her about where Haroun

      21   was?

      22   A   Yes.  She told me that he is not here, he is in the

      23   airport, he is taking the luggage to the airport, because we

      24   are all moving tomorrow -- I mean traveling tomorrow.

      25   Q   During the time that you stayed in visited Nairobi in June

                                                                    1305

       1   of 1998 and August 1998, what name did you travel under?

       2   A   My real name.

       3   Q   Why did you switch from the Meridian Hotel on Thursday,

       4   August 6, 1998, to the Ramada Hotel on August 7, 1998?

       5   A   Because that businessman, I agreed with him in a wage, and

       6   he has agreed to pay all my expenses and he will supply and I

       7   will supply all the receipts to him.  But he paid me three

       8   days for that trip.  For example, he paid me Wednesday,

       9   Thursday, Friday and Saturday I supposed to leave.  Then

      10   instead of staying in Meridian Hotel paying 30 bucks per

      11   night, I went to another hotel in which it is only 10 or less.

      12   That's only.

      13   Q   Let me direct your attention to August 7, 1998.  Can you

      14   tell the jury what you did that day.

      15   A   In the early morning I moved from the hotel because it was

      16   already paid.  I went to Ramada Hotel in Eastleigh.

      17   Q   What did you do after you checked into the Ramada Hotel in

      18   Eastleigh?

      19   A   It was Friday morning and we have normal prayer of Friday.

      20   I was preparing myself to the prayer, but I noticed that many

      21   buses are stopped there in Eastleigh, they don't move, nobody

      22   was -- nobody understood what is going on in the city.  Then I

      23   went back to the hotel, I took my shower and I prepare myself

      24   for the prayer of Friday.  So I went around 11:30, 12 to the

      25   mosque, and then in the mosque I learned, because everybody

                                                                    1306

       1   was talking there, that the American Embassy was bombed, I

       2   mean blast.

       3   Q   Where did you go after you learned in the mosque that the

       4   American Embassy had been bombed?

       5   A   I prayed, then I returned back to the hotel.

       6   Q   Did you see anyone you knew that day?

       7   A   Yes.  Ahmed Tawhil came to my place.

       8   Q   When you say your place, what do you refer to?

       9   A   I mean came to Ramada Hotel.

      10   Q   Tell us about the conversation you had with Ahmed Tawhil

      11   on August 7, 1998.

      12            MR. SCHMIDT:  Objection.

      13            THE COURT:  I will see counsel at the bench -- were

      14   you about to rephrase your question?

      15   Q   Did you discuss -- yes or no.  Did you discuss the fact

      16   that the American Embassy had been bombed with Ahmed Tawhil?

      17   A   Yes.

      18   Q   Did Ahmed Tawhil and you agree to do anything as a result

      19   of that discussion?  Yes or no.

      20   A   No.  There is a misunderstanding.  I didn't discuss the

      21   bombing of the embassy but the fact what happened in Kenya

      22   that day.

      23   Q   Right.  You discussed the fact that the embassy had been

      24   bombed?

      25   A   Yes, we talked about what happened.

                                                                    1307

       1   Q   Did you agree, the two of you, to do something or did you

       2   agree not to do something as a result of the fact that the

       3   embassy had been bombed?

       4   A   Yes.  Can I say what did I tell him?

       5   Q   Yes or no.

       6   A   Yes.

       7            MR. RICCO:  Your Honor, I am going to object and I

       8   would like to be heard.

       9            MR. FITZGERALD:  Your Honor, since we are going to

      10   have another issue to discuss, I will move on to a different

      11   topic.

      12            THE COURT:  Why don't you move on and we will come

      13   back to that.

      14   Q   Did there come a time when you made plans to actually

      15   physically leave Kenya and go to the airport?

      16   A   Yes.

      17   Q   Can you tell us, do you recall what day it was that you

      18   went to the airport to leave Kenya?

      19   A   It was in, I think it was Tuesday, 11th.

      20   Q   Did you actually go to the airport that day?

      21   A   Yes.

      22   Q   Tell us what happened when you got to the airport.

      23   A   Yes.  Before that, I went to -- I booked, I went to the

      24   Kenya Airways, I started to book for the flight.  It was fully

      25   booked but I was on waiting list.  So I went to the airport

                                                                    1308

       1   and the guy, he told me that you are on waiting list and it's

       2   fully booked.  I gave him 500 shillings, then he gave me a

       3   place in the airplane.  And I make my checking normally

       4   through the immigration.  Nothing happened.  Then I went to

       5   the lobby waiting for the aircraft.

       6   Q   Did there come a time when people came to see you and took

       7   you away from the airplane?

       8   A   Yes.  It was in the lobby.  The same lady who stamped my

       9   passport and another man, they came to me and told me, excuse

      10   me, are you Houssaine, I said yes, told me to go with them.

      11   They took me to security office there in the airport.

      12   Q   Did there come a time when someone took you away from the

      13   security office in the airport to someplace else?

      14   A   Yes.

      15   Q   Where were you taken?

      16   A   They told me we are not arresting you but if you don't

      17   mind to come with us.  So I went in a van to the police

      18   station.

      19   Q   When you got to the police station, did you stay there or

      20   go someplace?

      21   A   The first station, I understand because they are talking

      22   about that is full.  Then we go to another police station.

      23   Q   When you got to that police station, did you stay for a

      24   while?

      25   A   They make me check into the jail.  It took one hour.

                                                                    1309

       1   Q   How long did you stay at that jail once they took your

       2   personal items and put you in the jail?

       3   A   Three days.

       4   Q   Did there come a time when you were interviewed by someone

       5   in the jail who was not with a Kenyan official?

       6   A   Yes.

       7   Q   Without identifying who the person said that he was or

       8   what country that he said that he was, did this person

       9   identify to you what it was that he did for a living?

      10   A   Yes, he gave me his name and his service in which he is

      11   working with.

      12   Q   By service, what do you mean?

      13   A   Intelligence service.

      14   Q   Did you understand this person to be an intelligence

      15   officer from a country other than Kenya or the United States?

      16   A   Yes.

      17   Q   What happened after you met this person?

      18   A   Well, he started interrogating me, and he told me that he

      19   is here so as to help me, but before that he brought a

      20   recorder and a microphone, and he was recording everything we

      21   are going to talk about.  And he started talking about

      22   everything that he knew.  He know me very well, my wife, my

      23   kids and my life.  So I started talking to him.

      24   Q   For how many days, approximately, did you talk to this

      25   person from a foreign intelligence service?

                                                                    1310

       1   A   Probably four or five days.

       2   Q   Did you tell him everything that you knew during that

       3   interview?

       4   A   I told him a lot of things but not everything.

       5   Q   Did you tell him during that interview about the fact that

       6   Abu Mohamed al Amriki, Anas al Liby, and Hamza Al Liby had

       7   come to your apartment to develop photographs?

       8            MR. SCHMIDT:  Objection, your Honor.

       9            THE COURT:  Overruled.

      10   Q   Yes or no.

      11   A   No.

      12   Q   Did there come a time when you got out of the jail in

      13   Kenya?

      14   A   Yes.

      15   Q   To get out of the jail in Kenya, did you agree to do

      16   anything for the foreign intelligence officer who had been

      17   interviewing you?

      18   A   Yes.

      19   Q   What did you agree to do?

      20   A   He told me I will help you so as to get out from this

      21   jail, and against that, I will work with him.

      22   Q   What did you understand he wanted you to do as work for

      23   him?

      24   A   I mean I will work against al Qaeda for him.

      25   Q   What did he exactly want you to do?  How would you go

                                                                    1311

       1   about working against al Qaeda?

       2   A   I mean to supply information for him, to give him all

       3   information I know.

       4   Q   Did you get out of the jail?

       5   A   Yes.

       6   Q   Did you leave Kenya?

       7   A   Yes.

       8   Q   Where did you go?

       9   A   To Sudan.

      10   Q   Did you have any agreed story that you would give to

      11   people who asked you what happened in Sudan?

      12   A   Yes, we had a cover story, that I went there in Kenya and

      13   I met the businessman there.  After that I was leaving from

      14   the airport, they caught me because of the bombing of the

      15   United States Embassy, and that businessman came to the police

      16   station asking about me, and when they found out that I met

      17   him and everything was OK, they released me.

      18   Q   What was your understanding of whether or not you were

      19   supposed to contact this intelligence officer again once you

      20   got back to the Sudan?

      21   A   I agreed that I will contact him after three months.

      22   Q   Did you go back to the Sudan?

      23   A   Yes.

      24   Q   After three months, what did you do?

      25   A   I didn't contact him.

                                                                    1312

       1   Q   When you went back to the Sudan, how long had you spent in

       2   a jail in Nairobi following the bombing, approximately?

       3   A   Eleven days.

       4   Q   When you got back to Sudan, how were you feeling -- strike

       5   that.

       6            When you got back to the Sudan, did you see any

       7   members of al Qaeda who were still in the Sudan?

       8   A   Yes.

       9   Q   Do you recall who it was that you saw?

      10   A   Talha al Sudani.

      11   Q   Was he a member of al Qaeda?

      12   A   Yes.

      13   Q   Tell us the conversation you had with Talha when you saw

      14   him.

      15   A   When I saw him I was very angry first.  I told him why --

      16   because I told him why have you done this, why you didn't tell

      17   me anything.  He told me he was afraid to tell me something,

      18   then I won't listen to him, if he tell me, for example, don't

      19   go to Kenya I won't go, I won't even listen to him.  And he

      20   said thanks God that you are coming back.  He didn't say

      21   anything else.

      22   Q   Let me back up.  Did Talha the Sudani know that you were

      23   going to Nairobi before you went there?

      24   A   Yes, he know, because in the first meeting he know.  I

      25   told him that I met Haroun in Kenya and he sending his

                                                                    1313

       1   greetings to you and he is OK, and he knew that after three

       2   months I will go back to Kenya.

       3   Q   So what is it, as best you can recall, you said to Talha

       4   in the conversation after you got back to the Sudan, and what

       5   he said to you?

       6   A   I told him why he didn't tell me anything if he knew

       7   something that's going on in Kenya, and he was hesitating, he

       8   told me I was afraid if I tell you something you won't listen

       9   to me.

      10   Q   Did he ever indicate in any way that he did not know that

      11   something was about to happen in Kenya when you traveled

      12   there?

      13   A   I understood that he knew something.

      14   Q   Did there come a time following this that your family

      15   moved, your wife and children moved to Morocco?

      16   A   Yes.

      17   Q   Did there come a time after that when you moved and

      18   rejoined your family in Morocco?

      19   A   Yes.

      20   Q   Did there come a time after that, without telling us where

      21   you went, that you agreed to leave your family to travel

      22   someplace else to meet with another intelligence service,

      23   different than the one you had seen in the Kenyan jail?

      24   A   Yes.

      25   Q   When you agreed to go meet this other intelligence

                                                                    1314

       1   service, did you understand at that time that you would be

       2   meeting with any American officials?

       3   A   Yes.

       4   Q   When you left to go meet the other intelligence service,

       5   we will call it the fourth country, did they tell you in

       6   advance that the American officials would be there?

       7   A   No.

       8   Q   When you traveled, without telling us where you went, and

       9   met with this fourth country intelligence service, who did you

      10   meet -- strike that.  Did you meet any Americans?

      11   A   Yes.

      12   Q   Did you agree to speak to the Americans during that

      13   meeting?

      14   A   Yes.

      15   Q   For how long were you speaking to the American

      16   authorities?

      17   A   Two weeks.

      18   Q   At the very beginning, did you tell the American

      19   authorities everything you knew about al Qaeda and about

      20   Nairobi?

      21   A   No.

      22   Q   Did you tell the American authorities, for example, about

      23   Abu Mohamed al Amriki, Anas al Liby and Hamza Al Liby coming

      24   to Nairobi to develop photographs?

      25   A   No.

                                                                    1315

       1   Q   At the end of the two weeks of meetings, did you agree to

       2   come to America?

       3   A   Yes.

       4   Q   Did you eventually come to America?

       5   A   Yes.

       6   Q   Approximately what month did you come to America?

       7   A   It was in September 21.

       8   Q   Of what year?

       9   A   2000.

      10   Q   After you came to America, did you enter into an agreement

      11   with the United States government?

      12   A   Yes.

      13   Q   What do you understand you are obligated to do as part of

      14   that agreement?

      15   A   That I should come here to testify today and I will pled

      16   guilty, then after that I will go to the program.

      17   Q   Let's go through that a little more slowly.  Did you in

      18   fact plead guilty?

      19   A   Yes, I did.

      20   Q   Do you know what the maximum penalty and the minimum

      21   penalty you may face as a result of your plea of guilty?

      22   A   Yes.  It was between zero and life.

      23   Q   That means you could get as little as no time in jail or

      24   as much as life in prison?

      25   A   Yes.

                                                                    1316

       1   Q   At the time that your sentence is imposed, do you have an

       2   understanding of anything that the government, the prosecution

       3   will do for you at the time that the judge decides what

       4   sentence to impose?

       5   A   Well, you will just write a letter saying what I have done

       6   for the government, but they can't do anything about the

       7   sentence.

       8   Q   Is it your understanding that the letter may benefit you

       9   at the time the judge imposes sentence?

      10   A   It can benefit me, yes.

      11   Q   Is it your understanding that that is a guarantee that it

      12   will benefit you?

      13   A   No.

      14   Q   And you mentioned that they will put you in the program.

      15   What are you referring to?

      16   A   It was Witness Protection Program.

      17   Q   Do you expect to be admitted in the Witness Protection

      18   Program?

      19   A   Yes.

      20   Q   Has the government relocated your family to the United

      21   States?

      22   A   Yes.

      23   Q   Do they expect to join you in the Witness Protection

      24   Program?

      25   A   Yes.

                                                                    1317

       1   Q   Since the time in September of 2000 when you came to the

       2   United States, have you been in the custody of the FBI around

       3   the clock?

       4   A   Yes.

       5   Q   During that time, have the expenses of you and your family

       6   to live here in the United States been paid by the United

       7   States government?

       8   A   Yes.

       9   Q   Let me approach you with a number of exhibits which have

      10   been marked for identification as 202A-T, 203A-T, 204A-T,

      11   204B-T, 205A-T, 207A-T, 207B-T, 207C-T, 208A-T, 209A-T,

      12   209C-T, 210A-T, 211A-T, 211B-T, 211C-T, 211D-T, 212A-T,

      13   213A-T, 214A-T, 215A-T, 216A-T, 217A-T, 218A-T, 219A-T,

      14   220A-T, 220B-T, 221A-T, 222A-T, and 223A-T.

      15            Those items are not now in evidence, so please do not

      16   describe what is in there other than in response to my

      17   questions.  Have you reviewed those items prior to testifying

      18   in court?

      19   A   Yes.

      20   Q   Did you listen to a tape or CD Rom of conversations on a

      21   tape and compare the conversations on the tape with the items,

      22   the transcripts that are before you?  Yes or no.

      23   A   Yes.

      24   Q   If you look at the various conversations before you, at

      25   the top of the page on the first page, it identifies the names

                                                                    1318

       1   of the persons speaking.  Did you review each transcript to

       2   identify the names of the persons speaking?

       3   A   Yes.

       4   Q   Let me make a few exceptions.  Is there a reference at one

       5   point to a person from DHL, a company?

       6   A   Yes, it is.

       7   Q   Is that a person that you know personally from DHL?

       8   A   No.

       9   Q   And there is a reference to a person at one point from Abu

      10   Khadija, and is that a person who said his name on the phone

      11   was Abu Khadija?

      12   A   No, that is not Abu Khadija that I know.

      13   Q   Did the person speaking on the phone give his name as Abu

      14   Khadija?

      15   A   He said Abu Khadija, but that's not the one I know.

      16   Q   So the person who identified himself on the phone as Abu

      17   Khadija is not the Abu Khadija that you know?

      18   A   Yes.

      19   Q   What is the full name of the person that you know?

      20   A   Abu Khadija is the commander Abu Hafs el Masry.  He can go

      21   by Abu Khadija, or there is another Abu Khadija al Iraqi.

      22   There are two.

      23   Q   To make that clear, there are two Abu Khadijas.  One is

      24   Abu Khadija the Iraqi and the other one a Abu Hafs el Masry,

      25   the commander, right?

                                                                    1319

       1   A   Yes.

       2   Q   On the transcript concerning Abu Khadija, is the voice

       3   that you hear as Abu Khadija the same voice that you know as

       4   Abu Khadija al Iraqi?

       5   A   No.

       6   Q   The voice that you hear as Abu Khadija, is that the same

       7   voice as the voice you know as Abu Hafs el Masry, the

       8   commander?

       9   A   No.

      10   Q   With those qualifications, are the names of the speakers

      11   identified correctly on each of the transcripts?

      12   A   Yes.

      13   Q   Did you then go through the transcript and verify that the

      14   words reflected on the transcript are accurately translated

      15   from Arabic into English?

      16   A   Yes.

      17            (Continued on next page)

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1320

       1            MR. FITZGERALD:  Your Honor, at this time I will not

       2   offer those exhibits, subject to further discussion.  If I may

       3   have one moment.

       4            Your Honor, with the exception of the two matters

       5   reserved for a sidebar, I have no further questions.

       6            THE COURT:  Very well.  We will take a recess now.  I

       7   understand you have ordered lunch, right?  We will take a

       8   recess.  Whether we will come back before lunch or not, I

       9   can't tell you.  I can't tell you because I don't know.

      10            (Jury excused)

      11            (Witness excused)

      12            THE COURT:  Can we take up these matters in open

      13   court?

      14            MR. FITZGERALD:  I believe so, your Honor.

      15            THE COURT:  Bear in mind we are in open court.

      16            There was one matter that you wanted to return to,

      17   which was with respect to the bombing, and he had discussions,

      18   and then you said as a result of the discussion they agreed to

      19   something -- yes.

      20            MR. FITZGERALD:  Yes, Judge.  As a result of the

      21   discussion they agreed not to meet any further in Nairobi, in

      22   light of the fact that there was a bombing, and they had a

      23   private relationship with al Qaeda, they thought they should

      24   not be seen together.  I don't care whether we elicit it or

      25   not.  I just don't want the defense to cross-examine the

                                                                    1321

       1   witness and engage in conduct to try to avoid scrutiny.  If

       2   that is not going to be the subject of cross-examination, then

       3   I don't care.

       4            MR. RICCO:  Your Honor, the basis of my objection was

       5   that --

       6            THE COURT:  But that's irrelevant.  The government

       7   says it is not interested in pursuing it unless the defendants

       8   intend to pursue it.

       9            MR. RICCO:  We intend to pursue it and the reason I

      10   objected was because the way in which the testimony was coming

      11   in based on Mr. Schmidt's objection would mislead the jury

      12   with respect to the facts of that conversation.  So I object

      13   to the witness having to testify in such a circumscribed

      14   manner.  I would not have objected to the witness testifying

      15   about the conversation that he had with Tawhil at the time he

      16   had the conversation.

      17            MR. SCHMIDT:  I agree, your Honor.

      18            THE COURT:  So how do we leave it?

      19            MR. RICCO:  I think that the witness should be asked

      20   to explain that conversation and then testify about it.

      21            MR. SCHMIDT:  I am perfectly willing to do it on

      22   cross-examination.

      23            MR. FITZGERALD:  And I am not perfectly willing to

      24   let Mr. Schmidt object and then get into an area that we can't

      25   talk about.

                                                                    1322

       1            MR. SCHMIDT:  I object that the full conversation

       2   should not have gone in.

       3            THE COURT:  If that is your objection, then it should

       4   not be the subject of cross-examination.  Mr. Fitzgerald is

       5   absolutely right, you can't keep something out and then make

       6   hay before the jury on the fact that it was not previously

       7   elicited.

       8            MR. SCHMIDT:  Your Honor, if it was kept out I would

       9   not have had to cross-examine on it.  It is brought out in a

      10   manner that is misleading and therefore I have to make sure

      11   that the jury is not left with a misleading idea of what

      12   happened.

      13            THE COURT:  What we have now in the record is that he

      14   had a discussion with Tawhil, and as a result of the

      15   discussion they reached an agreement, and then he made plans

      16   to leave Kenya.  Right?  So what we are missing is that the

      17   agreement was that they should not meet and that they should

      18   leave Kenya?  Is that the agreement?

      19            MR. SCHMIDT:  There is so much more than that, your

      20   Honor.

      21            MR. FITZGERALD:  Your Honor, let me tell you the

      22   whole conversation.  The government wasn't trying to mislead.

      23   Because of the objection I was going much more narrowly.  I

      24   would like the full conversation before the jury which

      25   included the remark by Ahmed Tawhil that he had seen some Arab

                                                                    1323

       1   people, he used some Swahili word saying red-skinned, with

       2   Haroun, and he wondered what that was about, and they agreed

       3   we should not be seen together.  When there was an objection,

       4   I went only for the part where they agreed not to be seen with

       5   each other.  I am perfectly happy to have the entire

       6   conversation come out because I think it goes to Ahmed

       7   Tawhil's state of mind res gestae where he saw all these

       8   people not from Kenya.

       9            THE COURT:  All this becomes relevant with respect to

      10   later testimony that you intend to produce with respect to

      11   Haroun and actions --

      12            MR. FITZGERALD:  The principal organizer of the

      13   bombing.

      14            MR. SCHMIDT:  I would object to that portion about

      15   what Ahmed Sheikh told this witness about not being part of

      16   this conspiracy.  I object to the government eliciting from

      17   this witness that they discussed the bombing.  In the 3500

      18   material, the discussion was the subject asked Ahmed Tawhil

      19   what had happened, and he said he didn't know.

      20            THE COURT:  He has made that clear.  When first asked

      21   was there some discussion about the bombing, he had some

      22   objection to the way the question was worded because he said

      23   something about we didn't discuss the bombing other than that

      24   it had happened.

      25            MR. SCHMIDT:  That it was bombed, and in his 3500

                                                                    1324

       1   material, neither he nor Ahmed Tawhil at that time believed

       2   that the embassy was bombed.  He said that he later learned

       3   that the embassy had blown up because everybody was talking

       4   about it, but until then he thought that an airplane had

       5   crashed or dropped something in the area.

       6            THE COURT:  I think we can cut this short.  Are you

       7   now telling the court that it is your intention on

       8   cross-examination to elicit the entire substance of that

       9   discussion, the discussion between Tawhil and the witness

      10   which was the day of the bombing?

      11            MR. SCHMIDT:  No, I am not.  I am wishing to elicit

      12   the portion that will make the testimony of the witness

      13   clearer and more accurate, but not the whole thing.  That is

      14   inappropriate.

      15            THE COURT:  What is it that you believe will do that?

      16            MR. SCHMIDT:  That when he talked to Haroun, neither

      17   one knew what happened to the American Embassy -- excuse me.

      18   When he talked to Ahmed Sheikh, that neither of them knew that

      19   the embassy was bombed.  He didn't learn about the embassy

      20   being bombed until later, after he talked to Ahmed Sheikh.

      21   That's what I want to bring out.

      22            THE COURT:  What is it that precipitates the decision

      23   not to be seen and to leave?

      24            MR. SCHMIDT:  Because he is afraid -- as he says,

      25   your Honor, he was afraid of having problems like being

                                                                    1325

       1   arrested because he expected to be arrested in a country like

       2   Kenya.  That's why they didn't -- that's why he said he didn't

       3   want to be seen together.

       4            MR. FITZGERALD:  Your Honor, the witness understood

       5   the first time that day that the embassy -- an event happened,

       6   he thought either a plane crashed or the plane dropped

       7   something.  If a plane drops something on an embassy, they are

       8   thinking a bombing of terrorist attack.  To interrupt me and

       9   say you can't ask about the conversation and then get up and

      10   say that he is going to bring out the accurate version before

      11   the jury I think is improper.

      12            THE COURT:  I agree and I think it is called

      13   sandbagging.

      14            MR. SCHMIDT:  No, it is not.  What the government was

      15   trying to bring out was a pure hearsay statement about what

      16   Ahmed Sheikh told this witness about seeing Haroun.  That is

      17   improper.

      18            THE COURT:  Excuse me.  Why is it objectionable on

      19   direct as hearsay but permissible on cross?

      20            MR. SCHMIDT:  When I objected you overruled my

      21   objection and you allowed Mr. Fitzgerald to go into it in a

      22   limited way, and it is misleading.

      23            THE COURT:  I didn't.  I sustained your objection.

      24   And Mr. Fitzgerald said we will return to it later, and then

      25   he didn't elicit the discussion but he used the classic way of

                                                                    1326

       1   avoiding a hearsay problem by saying as a result of the

       2   discussion what did you do?

       3            MR. SCHMIDT:  And it came out that he said something

       4   that he previously now says that is a prior innocent

       5   statement.  He can't allow a statement that is misleading when

       6   he has a statement that clears it up.

       7            THE COURT:  On your representation that you plan to

       8   elicit this on cross and to obviate any suggestion which might

       9   be presented to the jury that the government was not bringing

      10   out something which it should have which you are now eliciting

      11   on cross, I will permit the government to ask this witness, I

      12   hope briefly and in general form, what that discussion was.

      13            MR. SCHMIDT:  Your Honor, I have no objection to that

      14   except for the portion about what Ahmed Sheikh said about

      15   seeing Haroun.  That's the only thing that I have an objection

      16   to.  That is double hearsay, it should not come in.  The other

      17   portion, so it doesn't appear that this witness is withholding

      18   something, I have no objection.

      19            MR. FITZGERALD:  But that goes exactly to the state

      20   of mind because Mr. Schmidt is going to stand up and argue

      21   that there was nothing they thought they had done wrong or

      22   anyone they knew had done wrong, leaving out the fact that

      23   Ahmed Sheikh had seen the people, and then leave out the

      24   Kenyans.

      25            THE COURT:  You want to say what is it that caused

                                                                    1327

       1   you to say apprehensive?

       2            MR. FITZGERALD:  Then I will get a leading objection.

       3            THE COURT:  No, you won't, because I think we are

       4   obviating -- you can't circumscribe the testimony of the

       5   witness without permitting some degree of leading.

       6            MR. FITZGERALD:  My only question is, is it fair game

       7   to ask the witness his understanding of what Ahmed Tawhil

       8   said.  Tawhil indicated on the one hand his surprise at the

       9   bombing but on the other hand the fact that Haroun was with

      10   people from out of the country at the same time.

      11            THE COURT:  And this is not being offered for the

      12   truth but being offered for the reason why he reached this

      13   decision?  Or is it is this being offered for the truth?

      14            MR. FITZGERALD:  That part is not being offered for

      15   the truth unless Mr. Schmidt is now going to get up and argue

      16   that there was no reason for them to be concerned about their

      17   links to al Qaeda and all this was was a fear of the Kenyan

      18   authorities.

      19            THE COURT:  That's an argument that he may make at

      20   some later date which I don't think we can preclude.  All

      21   right.

      22            MR. SCHMIDT:  Your Honor, will you instruct the jury

      23   then that if that statement comes out about what Ahmed Sheikh

      24   said, it goes to state of mind and to the truth?

      25            THE COURT:  It goes to his state of mind and

                                                                    1328

       1   explanation for what he did thereafter.

       2            Now there were some other matters.

       3            MR. FITZGERALD:  The second topic had to do with

       4   Haroun moving to the Sudan in 1997.  Haroun at first lived

       5   with this witness in the witness's house with his family.

       6   Haroun said that he had left Kenya because there was a

       7   problem.  The problem was that Wadih El Hage had come back

       8   from Afghanistan, his home had been searched, items had been

       9   taken, including a computer, and Haroun decided to leave

      10   Kenya.  So it explains the state of mind of Haroun in 1997 to

      11   leave Nairobi to go to the Sudan because he is seeking this

      12   witness's assistance to stay with him because he wants to get

      13   away from whatever evidence was recovered in the search.

      14            THE COURT:  Now you are trying to prove Haroun's

      15   state of mind?  How do you do that?

      16            MR. FITZGERALD:  Coconspirator statement by Haroun

      17   informing another coconspirator what is going on with regard

      18   to the discovery of items related to their past involvement in

      19   Kenya.

      20            THE COURT:  The other coconspirator being?

      21            MR. FITZGERALD:  This witness and Haroun.

      22            THE COURT:  Is he still a coconspirator at the time

      23   of the statement?

      24            MR. FITZGERALD:  I believe so.  He may not be a

      25   member of al Qaeda but, as we can see from the way the

                                                                    1329

       1   defendants are charged, it doesn't matter whether you consider

       2   yourself in the uniform of al Qaeda as opposed to being part

       3   of the conspiracy.

       4            THE COURT:  We are clearly in the context of persons

       5   who are seeking to avoid detection of the conspiracy, so that

       6   even if they are no longer coconspirators, if they are

       7   agreeing as to steps designed to avoid detection, then the

       8   statement would be admissible.  Is there any quarrel?

       9            MR. COHN:  Maybe I am missing the facts.  I gather

      10   that all he is going to say is I am leaving because I had a

      11   problem.  How does that tell us anything about his state of

      12   mind?  He could have a problem because he had warts.  Or am I

      13   missing some fact here?

      14            MR. FITZGERALD:  Yes.  There will be nothing about

      15   warts.  He will say that Wadih El Hage's house was searched --

      16            MR. COHN:  He is going to say that in terms.

      17            MR. FITZGERALD:  If it is ruled admissible.

      18            THE COURT:  And I will allow it.  I think it is

      19   admissible for the reasons I have just stated.

      20            What else happens today?  So he comes back and you

      21   elicit this, which takes five minutes, and then what happens?

      22   Then we take a recess?

      23            MR. FITZGERALD:  Yes, Judge.  I think the next two

      24   items of business had to do with the computer and I know

      25   Mr. Karas and Mr. Schmidt and Dratel have been talking about

                                                                    1330

       1   whether or not there is a stipulation as to the authenticity

       2   of the documents on the computer and the translations, and I

       3   don't know where that stands.

       4            MR. KARAS:  I think we need some more time to try to

       5   work it out, is where it stands.

       6            THE COURT:  You know, I am at a very pragmatic low

       7   level.  I am just trying not to have a jury which is having

       8   problems in their personal relationships just sit together in

       9   the jury room with nothing to do.

      10            MR. FITZGERALD:  On a practical level, given the odds

      11   that that will not be worked out over lunchtime, the most we

      12   could possibly get, and I don't know if we will get there, is

      13   on the wiretap conversations, which we have to go through

      14   conversation by conversation.  I don't know that we will get

      15   through very much for a half hour.  I don't know whether it is

      16   worth the bang for the buck.

      17            THE COURT:  I thought it would take the afternoon.

      18            MR. FITZGERALD:  Most of them are three pages.  There

      19   are 30 conversations.  We will spend more time trying to

      20   determine what gets in and what gets out than the reading.  We

      21   thought we were going to do the computer stuff before that.

      22   Once we learned that we are going to be finished today and not

      23   cross, we tried to move the computer stuff in and get this

      24   stuff behind it.  With the computer stuff being on hold --

      25            THE COURT:  Yes.  You are saying that after the

                                                                    1331

       1   agreement is reached you have about a half hour?

       2            MR. FITZGERALD:  Yes, if there is no agreement on the

       3   computer items, which it sounds like there won't be today.

       4            THE COURT:  If there is agreement on the computer

       5   items?

       6            MR. SCHMIDT:  Your Honor, on the basis of the

       7   discussions with Mr. Karas and I, we are not going to reach a

       8   permanent agreement today.  We would like to reach an interim

       9   agreement that will allow the documents to come in and either

      10   a stipulation or a witness who will testify next week to

      11   complete the authenticity process.  It could be done if your

      12   Honor wants to use that time.

      13            THE COURT:  I think I should send the jury home.  I

      14   get votes.  Rarely have I said anything which has received

      15   such agreement.  Is it acceptable that I just go in the jury

      16   room and tell them to go home --

      17            MR. COHN:  We have to go over those two things.

      18            MR. FITZGERALD:  Judge, I believe there is one more

      19   transcript that wasn't finalized this morning that I may just

      20   offer Monday.  That should take very little time.

      21            (Pause)

      22            THE COURT:  I don't want Mr. Schmidt or Mr.

      23   Fitzgerald or anybody else, I don't want Monday morning at

      24   10:00 to be confronted with the inability of counsel to reach

      25   an agreement, because if counsel can't reach an agreement and

                                                                    1332

       1   it is something which requires the court's intervention, I am

       2   available all this afternoon and tomorrow at least in the

       3   early part of the day.

       4            MR. SCHMIDT:  Thank you, your Honor.  It is just

       5   whether a witness is necessary or not.  Thank you for making

       6   yourself available.

       7            (Jury present)

       8            (Witness resumed)

       9            MR. FITZGERALD:  Judge, before we proceed, did you

      10   wish to give the instruction regarding the first topic area

      11   prior to the questions, that it was being offered not for the

      12   truth of the matter asserted?

      13            THE COURT:  The question that you are about to ask

      14   now?

      15            MR. FITZGERALD:  Yes.

      16            THE COURT:  Yes.  The testimony which is about to be

      17   elicited, again, is testimony which is being offered not for

      18   the truth of what the speaker said but for the state of mind

      19   of this witness, for your consideration in terms of the

      20   actions that he took thereafter.  The shorthand of that from

      21   here on in is not for the truth.

      22            (Continued on next page)

      23

      24

      25

                                                                    1333

       1   BY MR. FITZGERALD:

       2   Q   Mr. Kherchtou, can you tell us, going back to August 7,

       3   1998, the conversation you had with Ahmed Tawhil, can you just

       4   tell us what was said during the conversation, what he said,

       5   what you said.

       6   A   Well, I met him.  I think we had lunch together and we

       7   were talking -- I told him first what happened.  He told me I

       8   don't know -- I told him what happened.  He told me that he

       9   doesn't know, he is like me, he doesn't know what happened,

      10   and I told him please don't come back to see me because in

      11   this situation I was afraid and I don't need any problem here.

      12   He said it's OK.  And I told him -- and he told me that he saw

      13   some Arabs -- sorry -- he saw some redskins here in -- prior

      14   that time in Kenya.

      15   Q   What does redskins mean to you?

      16   A   Well, he called me a whiteskin, or mzungu, and redskins, I

      17   understand they are not black but they are white -- I mean

      18   Arabs.

      19   Q   Tell us what Tawhil said, Ahmed Tawhil said he saw, who he

      20   saw them with.

      21   A   He saw them with Haroun.

      22   Q   At the time of this conversation, what did you think had

      23   happened at the embassy?  Did you know whether or not it had

      24   been bombed or what else had happened to it, if you recall?

      25   A   At that time I learned that it was bombed, that the

                                                                    1334

       1   embassy was bombed, in the mosque.

       2   Q   What did they tell you at the mosque about the bombing?

       3   A   When I went to the mosque, people that are talking about,

       4   I asked Kenyan guy, he looks like Indian, and he told me what

       5   happened, he told me that he heard American Embassy was,

       6   somebody dropped a bomb from the aircraft on the embassy.

       7   Q   So at that time you thought an airplane was involved in

       8   the incident?

       9   A   Yes.

      10   Q   Let me direct your attention ahead to a conversation that

      11   you said that you had with Haroun in the Sudan in 1997.  Can

      12   you tell the jury what Haroun told you about what his reasons

      13   were for leaving Kenya to go to the Sudan?

      14   A   He came because Wadih El Hage left to United States.

      15   Q   Did he tell you, did Haroun tell you why it was that he

      16   decided to leave Kenya, what had happened?

      17   A   He told me that Wadih El Hage was in Pakistan, and on his

      18   way back he called his home, saying that he is coming, but in

      19   the airport he met some Kenyan officials, Kenyan intelligence,

      20   and some other Americans, and the Americans told him that

      21   these guys, they don't want you to stay in their country, and

      22   since you are American it's better if you go back to your

      23   country.  And after that, they took everything in his house,

      24   including the computer, all the documents, and he traveled

      25   with his family to United States.

                                                                    1335

       1            MR. FITZGERALD:  Thank you, Judge.  I have nothing

       2   further.

       3            THE COURT:  Ladies and gentlemen, we are going to

       4   call it a day, and we are going to defer the cross-examination

       5   of this witness until Monday.  There are some other matters

       6   which require our attention.  I understand your lunch has been

       7   ordered and should be here within the next 10 or 15 minutes.

       8   It is your option whether you want to stay and have lunch or

       9   want to call it a day, in which case your lunches will be

      10   consumed by other people.

      11            (Laughter)

      12            THE COURT:  Some of the marshals are a little heavier

      13   than others.

      14            Have a good weekend.  Please remember what I said

      15   about not reading or listening to anything about the case, and

      16   we will resume on Monday at 10 a.m.

      17            JURORS:  Thank you.

      18            (Jury excused)

      19            THE COURT:  I will see counsel and the reporter in

      20   the robing room.

      21            (Pages 1336-1344 sealed)

      22            (Proceedings adjourned until 10:00 a.m., Monday,

      23   February 26, 2001)

      24

      25

                                                                    1345

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   L'HOUSSAINE KHERCHTOU...1249

       5                        GOVERNMENT EXHIBITS

       6   Exhibit No.                                     Received

       7    111 ........................................1254

       8    120 for identification .....................1254

       9    115 ........................................1256

      10    4 ..........................................1257

      11    118 ........................................1269

      12    616 ........................................1302

      13    616T .......................................1302

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

HTML by Cryptome.