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

This is the transcript of Day 11 of the trial, February 27, 2001.

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

                                                                    1505

       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 27, 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

                                                                    1506

       1                            APPEARANCES

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

       6
           SAM A. SCHMIDT
       7   JOSHUA DRATEL
           KRISTIAN K. LARSEN
       8        Attorneys for defendant Wadih El Hage

       9   ANTHONY L. RICCO
           EDWARD D. WILFORD
      10   CARL J. HERMAN
           SANDRA A. BABCOCK
      11        Attorneys for defendant Mohamed Sadeek Odeh

      12   FREDRICK H. COHN
           DAVID P. BAUGH
      13        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      14   JEREMY SCHNEIDER
           DAVID STERN
      15   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1507

       1            (Trial resumes; jury not present)

       2            THE COURT:  Are there any matters that need be

       3   addressed before the jury is brought in?

       4            MR. FITZGERALD:  No, Judge.  I think Mr. Dratel is

       5   going to lend me something that I needed, and we're good to

       6   go.

       7            THE COURT:  All right.

       8            MR. FITZGERALD:  Thank you, Judge.

       9            THE COURT:  The witness can resume the stand.

      10            The government's requests to charge is due on March

      11   the 9th.  Defendants' requests to charge are due on March

      12   23rd, March 23rd.  That is, the defendants on that day are to

      13   reply to the government's requests and to furnish any

      14   additional requests to charge.  Obviously I will entertain

      15   requests to charge subsequent to that date based on any

      16   subsequent developments in the case.

      17            It is my practice to give the jury a written copy of

      18   the charge while it is being delivered.  For that reason and

      19   for other reasons, I am very strict about not entertaining

      20   perfectly valid and proper requests to charge which are not

      21   made at the charging conference or prior thereto.  I do that

      22   not simply because of the logistics of modifying a charge

      23   which is given to the jury in writing, but because any

      24   supplemental instructions to the jury get blown out of

      25   proportion.

                                                                    1508

       1            So please understand that the requirement that the

       2   requests to charge which can be made at an earlier date will

       3   not be entertained at the 11th hour, the 11th hour being the

       4   charging conference, unless the circumstances indicate that

       5   the request could not have been made earlier.

       6            All right, let's bring in the jury, please.

       7            Counsel for Al-'Owhali will next cross-examine the

       8   witness, to be followed by Mr. Ruhnke on behalf of K.K.

       9   Mohamed.

      10            MR. COHN:  That's right, Judge.

      11            (Jury present)

      12            THE COURT:  Good morning.  Just one other matter of

      13   logistics, and that is on Tuesday, March 6th, we will start at

      14   1:30.  That's going to be post lunch and that is just for that

      15   day.

      16            I think our next order of business is

      17   cross-examination on behalf of defendant Al-'Owhali by Mr.

      18   Cohn.

      19    L'HOUSSAINE KHERCHTOU, Resumes

      20   CROSS-EXAMINATION

      21   BY MR. COHN:

      22   Q.  Yesterday, Mr. Kherchtou, Mr. Wilford asked you some

      23   questions about scholars disagreeing about the killing of the

      24   women, children and innocents.  Remember those questions?

      25   A.  Yes.

                                                                    1509

       1   Q.  It is a fact, is it not, Mr. Kherchtou, that no fatwah

       2   issued by Usama Bin Laden or anybody else has called for the

       3   killing of innocents, isn't that true?

       4   A.  Well, I don't remember the statement of Usama Bin Laden.

       5   Q.  You don't know?

       6   A.  Yes.

       7   Q.  So what you were talking about with Mr. Wilford was

       8   speculation about if it had happened, then that's what would

       9   have been the result; is that right?

      10            (Witness consults with interpreter)

      11   A.  What I know, sir, is --

      12   Q.  Is that right, yes or no?

      13            (Witness consults with interpreter)

      14   A.  (Through the interpreter) The answer is no.

      15   Q.  It's not speculation?  Have you ever seen an affidavit --

      16   a fatwah issued by Mr. Bin Laden that called for the killing

      17   of innocents and women and children?

      18            (Witness consults with interpreter)

      19   A.  (Through the interpreter) I heard of the statement --

      20   Q.  Have you ever seen a fatwah?

      21            MR. FITZGERALD:  May he complete the answer, your

      22   Honor?

      23            MR. COHN:  Your Honor, may the answer be

      24   responsive -- not what he heard, but has he seen is the

      25   question.

                                                                    1510

       1            THE COURT:  All right.  I'll permit that question to

       2   be asked and permit counsel to inquire further on redirect if

       3   it sees fit.

       4            MR. COHN:  Good.

       5   Q.  Have you ever seen such a fatwah?

       6   A.  (Through the interpreter) No.

       7   Q.  Let me show you what has been marked as Government Exhibit

       8   1600-T in evidence.

       9            MR. COHN:  Your Honor, may I approach as needed

      10   without asking each time?

      11            THE COURT:  Yes.

      12            MR. COHN:  Thank you.

      13   Q.  Have you ever seen that document before.

      14            (Witness consults with interpreter)

      15            THE COURT:  Are you showing him the English version?

      16            MR. COHN:  Yes.

      17   A.  (Through the interpreter) No, but I heard about it.

      18   Q.  Fine.  So you don't know from seeing it whether there is

      19   any such reference to killing women, children and innocents in

      20   it, do you?

      21            (Witness consults with interpreter)

      22   A.  (Through the interpreter) What evidence?

      23   Q.  Excuse me?

      24            THE INTERPRETER:  The question which was posed by the

      25   witness is, what evidence?

                                                                    1511

       1   Q.  Sir, you do not know from seeing that document whether it

       2   has anything in it about killing women, children and

       3   innocents, do you, from seeing it?

       4            (Witness consults with interpreter)

       5            THE INTERPRETER:  You want him to read it?

       6            MR. COHN:  No, I think he's never read it.

       7            Never mind.  The point's made, I'll withdraw it.

       8            THE COURT:  That comment is stricken and please avoid

       9   similar comments.

      10            MR. COHN:  Thank you, your Honor.

      11   Q.  Let's turn to August 7th, 1998.  That was the day you were

      12   arrested at the airport, is it not?

      13            (Witness consults with interpreter)

      14   A.  (Through the interpreter) No.

      15   Q.  August 7th, 1998, the day of the bombing?

      16            (Witness consults with interpreter)

      17   A.  (Through the interpreter) I was arrested on the 11th of

      18   August.

      19   Q.  On the 11 of August, okay.

      20            Would you prefer to do this in Arabic, through

      21   translation?  Does that make you more comfortable, sir?

      22            (Witness consults with interpreter)

      23   A.  (Through the interpreter) It's the same.

      24   Q.  Fine, but we are -- you are turning to the interpreter on

      25   every question.  I just want to get a system done that we can

                                                                    1512

       1   do this.  Which do you prefer?

       2            (Witness consults with interpreter)

       3   A.  (Through the interpreter) Sometimes some of the words I do

       4   not understand and I want to make sure that I'm giving the

       5   correct answer.

       6   Q.  Well, you were interviewed in Nairobi for four days by

       7   someone where there was a recording.  Do you remember you

       8   talked to Mr. Wilford about that?

       9   A.  Yes.

      10   Q.  And those interviews were done in English, were they not?

      11   A.  Yes.

      12   Q.  Four days' worth?

      13   A.  Yes.

      14   Q.  Was there an interpreter there?

      15   A.  No.

      16   Q.  You managed?

      17   A.  Yes.

      18   Q.  So you were arrested on the 11th; is that right?

      19   A.  Yes, sir.

      20   Q.  And you in fact had been concerned that you might be

      21   arrested after the bombing; is that right?

      22   A.  Yes.

      23   Q.  But when you were arrested at the airport, you were

      24   initially told that you were not under arrest, isn't that

      25   true?

                                                                    1513

       1   A.  Yes.

       2   Q.  And you were taken to some precinct or other; is that

       3   right?

       4            (Witness consults with interpreter)

       5   A.  Yes.

       6   Q.  What time of day was that?

       7   A.  Around 9 or 10:00 in the p.m.

       8   Q.  P.M.?

       9   A.  Yes.

      10   Q.  Were you questioned at all that night?

      11   A.  No.

      12   Q.  Were you advised of any rights at all that you might have?

      13   A.  No.

      14   Q.  Were you told whether or not you were under arrest?

      15   A.  No.

      16   Q.  And where did they put you?  Did they put you in some sort

      17   of cell?

      18   A.  Yes.

      19   Q.  Describe the cell.

      20   A.  Well, it's a small room with many other criminals and no

      21   bathroom in it and nothing on the floor in which you can

      22   sleep.  It has only one small window on the top of the cell,

      23   and I think -- during the night, they closed the door and they

      24   came back at 2:00 to make a check for everybody.

      25   Q.  Just describe the cell for us.  I'll ask you about other

                                                                    1514

       1   things.  I'm just asking for a physical description of the

       2   cell at the moment.  Have you finished with that?

       3   A.  It's a small room, maybe four meters by four.

       4   Q.  Now, did you have a mattress?

       5   A.  No.

       6   Q.  Did you have a blanket?

       7   A.  No.

       8   Q.  Were there any washing or shower facilities available to

       9   you?

      10   A.  There is a restroom in the other part, but if it's closed,

      11   they gave us --

      12            (Witness consults with interpreter)

      13   A.  (Through the interpreter) -- a water jar or something.

      14   Q.  And that was for drinking water?

      15   A.  No.

      16   Q.  For bathing?

      17   A.  For if you had to --

      18            (Witness consults with interpreter)

      19   A.  (Through the interpreter) Just to piss in it.

      20   Q.  I'm sorry, I didn't catch it.

      21   A.  Just to piss in it.

      22   Q.  For elimination of your body waste?

      23   A.  (Through the interpreter) Urinate in.

      24   Q.  But they gave you nothing to wash your hands with or to

      25   shower or to prepare yourself to pray or anything like that;

                                                                    1515

       1   is that right?

       2   A.  Well, there is a toilet and bathroom where you can wash

       3   your hands, but if the door is open you can go there.

       4   Q.  But the door wasn't open, right?

       5   A.  During the night it's not open.

       6   Q.  I see.  Well, in fact -- well, we'll get to that.

       7            Now, even before you were arrested you were concerned

       8   about the Kenyan police, were you not?

       9   A.  Yes.

      10   Q.  I mean, you already knew that they were corrupt because

      11   they had purchased -- they made you bribe them on your

      12   brother's behalf, right?

      13   A.  Yes.

      14   Q.  And when I say they were corrupt, I'm not inferring that

      15   all Kenyan police were corrupt, but that there was a

      16   corruption problem, right?

      17   A.  Yes.

      18   Q.  Which you in fact thought was fairly systemic, did you

      19   not?  Do you understand that?  That it was widespread

      20   throughout the department?

      21            MR. FITZGERALD:  Objection, your Honor.

      22            MR. COHN:  It's his state of mind that I'm concerned

      23   about, your Honor, not what he knows.

      24            THE COURT:  I'll allow it as not for the truth but

      25   for this witness's understanding.

                                                                    1516

       1            (Witness consults with interpreter)

       2   A.  Yes.

       3   Q.  And in fact, by the 11th when you were arrested you knew

       4   that there had been widespread deaths, destruction and

       5   injuries to Kenyan citizens, didn't you?

       6   A.  Yes.

       7   Q.  And so at the time you were arrested, is it fair to say

       8   that you were concerned about the Kenyan police's reaction to

       9   that.

      10            (Witness consults with interpreter)

      11   A.  Yes, sir.

      12   Q.  Did anybody interview you on the 12th, the next day after

      13   you were arrested?

      14   A.  No.

      15   Q.  Did anybody come to see you, tell you whether or not you

      16   were going to be arraigned or could see a lawyer or what was

      17   going on with you?

      18   A.  No.

      19   Q.  What about the 13th?

      20   A.  No.

      21   Q.  14th?

      22   A.  I think on the 14th.

      23   Q.  What happened on the 14th?

      24   A.  It was two days or three days after that, some people came

      25   to me and they were interrogating me.

                                                                    1517

       1   Q.  You say the 13th or the 14th.  Are the people that began

       2   interrogating you at that time the Kenyan police, or was it

       3   somebody else, some person from another country?

       4   A.  Somebody took me to meet that person.

       5   Q.  And you say that was three or four days after you were

       6   arrested?

       7   A.  Yes, sir.

       8   Q.  Is that right?

       9   A.  Yes.

      10   Q.  Let me direct -- have you had an opportunity to look at

      11   the 800-page transcript of your interviews from that period?

      12            MR. COHN:  I'm referring, your Honor, to, for the

      13   record, I believe it's 3505-29.

      14   Q.  Have you had a chance to read that in preparation for your

      15   testimony?

      16   A.  I don't remember the --

      17   Q.  It was a big stack of paper about this high which had what

      18   purports to be a transcript of the recording that was made of

      19   your debriefings.  Have you looked at it?

      20            (Witness consults with interpreter)

      21   A.  (Through the interpreter) Which interrogation?

      22   Q.  The interrogation that took place over four days by this

      23   person who wasn't a Kenyan that you say was three or four days

      24   after you were arrested.

      25            (Witness consults with interpreter)

                                                                    1518

       1   A.  (Through the interpreter) No, nobody showed me that.

       2   Q.  Okay.  Well let me show you now pages 352 through 355.

       3            MR. COHN:  Bear with me one second, your Honor.

       4   Q.  I'm sorry, that's the wrong reference.

       5            While I'm looking for this, how many days did this

       6   interrogation take?  Was it four, is that a fair statement,

       7   four days in a row?

       8   A.  I don't remember exactly, but probably four or five times.

       9   Q.  How long were these interrogations, each of them, if you

      10   can say?

      11   A.  It depends.  The first one was very short and the others,

      12   they are quite longer.

      13   Q.  Let me show you what is page 97 of that transcript.

      14            THE COURT:  You want to ask a question before you do

      15   that?

      16            MR. COHN:  It's a refreshment question, your Honor.

      17            THE COURT:  As to what are you refreshing his

      18   recollection?

      19            MR. COHN:  I will --

      20            THE COURT:  Go ahead.

      21            MR. COHN:  Fine.

      22   Q.  Let me show you page 97 and ask you to look at the top and

      23   ask you if that refreshes your recollection as to what the

      24   dates of your interrogation were.

      25            Have you looked at it?

                                                                    1519

       1            Isn't it a fact that your interrogation was --

       2            THE COURT:  Wait a minute.  You had a question asked

       3   and there is no answer.  The question isn't what it says

       4   there, but having looked at that, does that refresh your

       5   recollection so that you now remember the dates of your

       6   questioning?

       7   BY MR. COHN:

       8   Q.  Does it refresh your recollection?

       9   A.  Yes.

      10   Q.  What is your refreshed recollection?  What were the dates

      11   of your interrogation?

      12   A.  No, this date, it was -- he was talking about the letter

      13   that issued right to my wife.

      14   Q.  Sir, does it refresh your recollection about what dates?

      15   I'm not asking what it refers to, I'm asking does it refresh

      16   your recollection, and if so, what are the dates?

      17   A.  It's 19th.

      18   Q.  The 19th was one of the days of your interrogation?

      19   A.  Yes.

      20   Q.  Was that the last day of your interrogation or was it the

      21   second day of your interrogation?

      22   A.  No, it was one of the last days.

      23   Q.  And that's page 97 of an 800-page transcript; is that

      24   right?

      25   A.  It's 97, yes.

                                                                    1520

       1   Q.  During the time that you were being held, including the

       2   time that you were interrogated, did the Kenyan police ever

       3   prefer charges against you?

       4            (Witness consults with interpreter)

       5   A.  No.

       6   Q.  And in fact, during that time you got no reading material;

       7   is that right?

       8            (Witness consults with interpreter)

       9   A.  On the last days in the cell they brought me some

      10   newspapers.

      11   Q.  The last days?

      12   A.  Yes.

      13   Q.  That was after, in fact, you asked your interrogator to

      14   please get you some, at least a newspaper to read, isn't that

      15   right?

      16   A.  Yes, at the last time, yes.

      17   Q.  So before that you had nothing to read to pass the time,

      18   including the four days you say you weren't even questioned at

      19   all?

      20   A.  Yes.

      21   Q.  And in fact, you asked your interrogator please to be able

      22   to get you to bathe or get -- because you were filthy, you

      23   smelled bad; is that right?

      24   A.  Yes.

      25   Q.  And you were ashamed of that, weren't you?

                                                                    1521

       1   A.  Yes.

       2   Q.  I mean, you are a religious person; is that right?

       3   A.  Yes.

       4   Q.  And you pray five times a day?

       5   A.  Yes.

       6   Q.  And you are required before you pray to wash?

       7   A.  Yes.

       8   Q.  And you had no water to wash with, right?

       9   A.  Well, sometimes it's difficult to find a clean place to

      10   wash.

      11   Q.  Okay.  Fine.

      12            In fact, if there is no water available, you were

      13   allowed to use clean earth instead; is that right?

      14   A.  Yes.

      15   Q.  And there wasn't any of that either because the floor was

      16   filthy because it was used as a toilet, isn't that right?

      17   A.  Yes.

      18   Q.  And when you wanted to sleep, if you could sleep, you had

      19   to lay down in the filth until this man who was interrogating

      20   you got you a blanket and a mattress or pallet, isn't that

      21   right?

      22   A.  Yes.

      23   Q.  And you complained to your interrogator that the Kenyan

      24   police were treating you like an animal, isn't true?

      25   A.  It was once.

                                                                    1522

       1   Q.  Yes, it was once.  Is that right, but you did complain

       2   about it?  You said that, didn't you?

       3   A.  Yeah, because I didn't sleep, I told him I was --

       4            THE COURT:  Can you repeat your answer?

       5   A.  I said I was trying to sleep, I was tired.  He wanted to

       6   interrogate me.  I said I couldn't because I'm tired.

       7   Q.  Did you say at page 297 of the transcript that --

       8            MR. FITZGERALD:  Objection, your Honor.

       9            THE COURT:  Sustained.

      10   Q.  Did you use the words "this guy treats me like an animal"?

      11            MR. FITZGERALD:  Asked and answered, your Honor.

      12            MR. COHN:  I don't think so, your Honor.

      13            THE COURT:  No, he did.

      14   BY MR. COHN:

      15   Q.  In fact, you told him at one point you couldn't sleep

      16   because you were cold, because the cell was kept so cold,

      17   isn't that true?

      18   A.  Yes.

      19   Q.  And isn't it a fact, sir, that from the time you were

      20   arrested until the time you -- I think you took a plane out of

      21   there on the 21st; is that right?

      22   A.  Yes.

      23   Q.  Ten days passed; is that right?

      24   A.  Yes.

      25   Q.  And is it fair to say, sir, that until the very last day

                                                                    1523

       1   you didn't know whether they were going to put you on a plane;

       2   they kept you, they kept you wondering about that, yes?

       3   A.  Yes.

       4   Q.  Now, it's also true, is it not, sir, that this person told

       5   you how to lie, isn't that right?

       6            (Witness consults with interpreter)

       7   A.  (Through the interpreter) Lie to whom?

       8   Q.  Fine, did he tell you how to create a cover?

       9   A.  Yes.

      10   Q.  And to create a cover, you had to tell untruths, right?

      11   You couldn't tell the people that you were trying to keep from

      12   finding out that you had been interrogated in this way the

      13   truth or they would find out, right?

      14   A.  Yes.

      15   Q.  And did he tell you in fact that the best way to have a

      16   cover and to tell these untruths was to keep it as close to

      17   the truth as you possibly could so that there would be a large

      18   measure of truth in your lie?

      19   A.  Yes.

      20            MR. COHN:  I have nothing further.

      21            THE COURT:  Mr. Ruhnke, on behalf of defendant K.K.

      22   Mohamed.

      23   CROSS-EXAMINATION

      24   BY MR. RUHNKE:

      25   Q.  Mr. Kherchtou, to keep your testimony entirely accurate,

                                                                    1524

       1   I'm going to ask that you answer questions using the

       2   interpreter throughout your testimony.

       3   A.  Okay, sir.

       4   Q.  Sir, you were approximately 26 or 27 years old when you

       5   decided to go to Afghanistan; is that correct?

       6   A.  Yes.

       7   Q.  You had grown up in Morocco, correct?

       8   A.  Yes.

       9   Q.  You had graduated from high school and also taken some

      10   training in the field of catering, correct?

      11   A.  Yes.

      12   Q.  And after your training in catering, you lived in Europe

      13   for a number of years, living in both France and Italy; is

      14   that correct?

      15   A.  Yes.

      16   Q.  And by your own admission, until you went to Italy and had

      17   contact with the people in Italy, you did not consider

      18   yourself a very good Muslim; is that correct?

      19   A.  Yes.

      20   Q.  For example, you used to drink alcohol, which is forbidden

      21   by Islam; is that correct?

      22   A.  No, I did not drink alcohol.

      23   Q.  In any event, you came to the time when you went to Italy

      24   and you began talking about what was going on in Afghanistan

      25   with other Muslims; is that correct?

                                                                    1525

       1   A.  Correct.

       2   Q.  At the time, as you say, you were 26, 27 years old, you

       3   were not married, you had no family, you were young, and it

       4   was something of an adventure, was it not, to go to

       5   Afghanistan?

       6   A.  It was a duty as a Muslim.

       7   Q.  Did you describe it as an adventure to the foreign

       8   intelligence officer that you met in Kenya after the bombing?

       9   A.  If I have said that, so that would be correct.

      10   Q.  Do you recall being asked this question and giving these

      11   answers by the case officer who interviewed you, talking about

      12   your decision to go to Afghanistan -- these are your words:

      13   "So he was talking a lot about Afghanistan.  You have to help

      14   your people to do this, to do this, to do this."

      15            MR. RUHNKE:  You want to translate my sentence.

      16   A.  If I had said that, so that would be correct.

      17   Q.  And then you said to this case officer:  "And some

      18   Egyptian friend, like the one who was killed in Chechnya is a

      19   very good guy.  He told me, what do you think?"

      20   A.  I do not recall this conversation.

      21   Q.  I'm going to show you a document that I believe has a

      22   Jencks number, and I'll ask you to look at the bottom of page

      23   324 of that document on to page 325.

      24   A.  The bottom of here?

      25   Q.  The bottom of 324 onto the top of 325.  Would you look at

                                                                    1526

       1   that, please.

       2            (Pause)

       3   Q.  Have you now read that?

       4   A.  (In English) Yes.

       5   Q.  Does that help you remember what you told the case officer

       6   back in August of 1998?

       7   A.  At that time I was in jail I do not quite recall each word

       8   that I have said, but --

       9   Q.  Does this appear to be an accurate transcript of what you

      10   told the officer back in August of 1998?

      11   A.  Possibly it is correct.

      12   Q.  Did you tell the officer, "We are young.  We don't know

      13   anything.  Let's go.  It's an adventure of young.  Yeah, let's

      14   go.  And we went."

      15            Did you use those words to the case officer back in

      16   August of 1998 or did you not use those words?

      17   A.  I do not quite recall each word that I have articulated,

      18   but when I saw this, it's very possible that I have said that.

      19   Q.  Now, your purpose, in any event, was to go help Muslims

      20   who were in trouble; is that correct?

      21   A.  Correct.

      22   Q.  And you traveled to, first to Karachi, which is in

      23   Pakistan, correct?

      24   A.  Yes.

      25   Q.  And from Karachi, Pakistan you traveled to Peshawar,

                                                                    1527

       1   Pakistan, correct?

       2   A.  I went to Islamabad then Peshawar.

       3   Q.  And Peshawar is a town, it's been established, that is

       4   near the border to Afghanistan, correct?

       5   A.  Correct.

       6   Q.  At the time you went to Afghanistan, were the Russian

       7   troops still in Afghanistan?

       8   A.  They Communist's regime was there and there were Russians

       9   assisting them.

      10   Q.  But the Russian army had withdrawn from Afghanistan by

      11   that point; isn't that correct?

      12   A.  Correct.

      13   Q.  And what was going on in Pakistan at that point was that

      14   the Russians had been driven out by the mujahadeen and now

      15   they had returned to kicking out or overthrowing the

      16   Russian-backed government, correct?

      17   A.  Correct.

      18   Q.  You underwent training for approximately two months,

      19   correct?

      20   A.  Correct.

      21   Q.  And you trained in a camp in Afghanistan, correct?

      22   A.  Yes.

      23   Q.  Did this camp look like what we imagine a military base to

      24   be like, made up of permanent buildings, thousands of people

      25   there, or what did it look like?

                                                                    1528

       1   A.  No, it was a small camp.

       2   Q.  How many people were in the camp when you were there,

       3   including your trainers and people being trained?

       4   A.  It varied from time to time, but it never exceeded a

       5   hundred.

       6   Q.  After your training you were spoken to privately and asked

       7   to become a member of al Qaeda, is that true?

       8   A.  Yes, and there were other people with me.

       9   Q.  To your knowledge, how many people in your training group

      10   other than you and your friend, the veterinarian, the animal

      11   doctor, were asked to become members of al Qaeda?

      12   A.  Between three and five.

      13   Q.  And how many people were in your training group?

      14   A.  It varied between ten and twelve.

      15   Q.  Ten to twelve in your group?

      16   A.  Yes.

      17   Q.  And after being asked to become a member of al Qaeda, they

      18   asked you to take training -- "they" meaning al Qaeda as

      19   leaders -- asked you to take training as a pilot, correct?

      20   A.  When?  When was that?  After I graduated?  After I joined

      21   al Qaeda?

      22   Q.  After you joined al Qaeda, you were asked to take training

      23   as a pilot, correct?

      24   A.  I joined the al Qaeda in 1991 and I was offered the

      25   training to be a pilot in 1993.

                                                                    1529

       1   Q.  You also swore what we refer to as a bayat or a pledge to

       2   al Qaeda, correct?

       3   A.  Yes.

       4   Q.  And you understood your purpose in al Qaeda was to fight

       5   for Islam and to do good things for Muslims all over the

       6   world, correct?

       7   A.  Correct.

       8   Q.  As your beliefs progressed as a member of al Qaeda, you

       9   came to understand that one purpose of al Qaeda was to kill

      10   American nationals abroad, isn't that true?

      11   A.  Yes.  Correct.

      12   Q.  And you became aware of the structure of al Qaeda.  You

      13   knew, for example, that Usama Bin Laden was the emir or the

      14   leader of al Qaeda, correct?

      15   A.  Yes.

      16   Q.  The number two person in al Qaeda until he was killed in

      17   the ferry accident on Lake Victoria in 1996 was Abu Ubaidah al

      18   Banshiri, correct?

      19            THE INTERPRETER:  Can you kindly say the name again?

      20   I could hardly understand.

      21            MR. RUHNKE:  That's probably not your fault.

      22            Abu Ubaidah al Banshiri.

      23   A.  Yes.

      24   Q.  And that the military commander of al Qaeda was a man who

      25   was known as Abu Hafs, correct?

                                                                    1530

       1            THE INTERPRETER:  Abu who?

       2            MR. RUHNKE:  Hafs, H-A-F-S.

       3   A.  Abu Hafs, correct.

       4   Q.  And until Abu Ubaidah al Banshiri was killed in the ferry

       5   accident, Abu Hafs was number three in the al Qaeda

       6   leadership, correct?

       7   A.  Yes.

       8   Q.  And then he became number two after the death of the

       9   gentleman in the ferry accident, correct?

      10   A.  Yes.

      11   Q.  And al Qaeda had a ruling council called the shura

      12   council, shura committee; is that correct?

      13   A.  The shura council.

      14   Q.  And there were other committees that made up the structure

      15   of al Qaeda, correct?

      16   A.  Yes.

      17   Q.  For example, there was a religious committee that ruled on

      18   religious-type issues, correct?

      19   A.  Yes.

      20   Q.  And did you become aware as a member of al Qaeda that

      21   there was a man known as Abu Hajer al Iraqi?

      22   A.  Yes, he was present.

      23   Q.  Do you know that his correct name is Mamdouh Mahmud Salim?

      24   A.  I heard of his name.

      25   Q.  When I refer to Mr. Salim, I will be referring to Abu

                                                                    1531

       1   Hajer al Iraqi, okay?

       2   A.  Okay.

       3   Q.  Did you later come to learn that Mr. Salim had issued a

       4   statement that it was Islamically correct that in attacking

       5   enemies of Islam, if civilians were killed in that process,

       6   that that would be permissible since if they were good people,

       7   they would go to paradise, and if they were bad people, they

       8   would go to hell?  Did you become aware of that statement?

       9   A.  I never heard of anything as such.

      10   Q.  You are aware that there was disagreement, and you

      11   testified about disagreement within al Qaeda, as to whether it

      12   was Islamically correct to kill civilians or not kill

      13   civilians, is that true?

      14   A.  It's not a matter of disagreement, but killing innocent

      15   people is not permissible in Islam.

      16   Q.  Was there disagreement over that issue within al Qaeda?

      17   A.  This fatwah came about in 1996 after Bin Laden went to

      18   Afghanistan and people in Sudan, where I was, did not agree

      19   about this.

      20   Q.  Did you tell the FBI agents who interviewed you in August

      21   of the year 2000, August of last year, that many people were

      22   against this fatwah?

      23   A.  This was the place where I was in Sudan.

      24   Q.  Are you telling me that many people were against this

      25   fatwah?

                                                                    1532

       1   A.  Correct.

       2   Q.  But there were also people who accepted the fatwah, isn't

       3   that correct, within al Qaeda?

       4   A.  If they are convinced and their faith would allow them.

       5   Q.  I'm sorry, would you repeat that answer?

       6   A.  If they are convinced and their faith would allow them to

       7   be convinced.

       8   Q.  So the answer is there were people whose faith allowed

       9   them to become convinced of that; isn't that correct?

      10   A.  Possibly.

      11   Q.  In testifying here on your first day of testimony, you

      12   discussed the structure of an al Qaeda operation and described

      13   it as having four phases, is that true?

      14   A.  Correct.

      15   Q.  The first phase would be surveillance or

      16   intelligence-gathering, correct?

      17   A.  Yes.

      18   Q.  The second phase would be for those who did the

      19   surveillance and intelligence operation to report to the

      20   leadership of al Qaeda, correct?

      21   A.  The second phase is that the leadership would study the

      22   information that was presented to them or submitted to them.

      23   Q.  And then the leadership would decide whether to go ahead

      24   with an operation or not, correct?

      25   A.  Correct.

                                                                    1533

       1   Q.  If the leadership decided to go ahead, then a supply and

       2   logistical group would bring whatever necessary material was

       3   needed to carry out the operation, correct?

       4   A.  This is a military operation.  This is a military thought.

       5   Q.  And after the supplies were brought to wherever the

       6   operation was to take place, then the people who actually were

       7   going to carry out the operation would go to the place; is

       8   that correct?

       9   A.  Yes.

      10   Q.  When you were interviewed by the FBI beginning in the

      11   summer of 2000, the year 2000, you initially did not tell them

      12   about the people who came to your apartment in Nairobi to take

      13   photographs and developed the negatives in your apartment,

      14   correct?

      15   A.  Correct.

      16   Q.  That was not an mistake, you were nervous or afraid to

      17   tell them about that because you were afraid you might be

      18   connected to the bombing in Nairobi, correct?

      19   A.  Correct.

      20

      21            (Continued on next page)

      22

      23

      24

      25

                                                                    1534

       1            (The following testimony is conducted through the

       2   interpreter)

       3   Q.  Did it occur to you, or was one of the reasons you lied to

       4   the FBI that the surveillance and the pictures that were

       5   developed in your apartment might have been the first phase of

       6   the operation that led to the bombing of the embassy in

       7   Nairobi?

       8            MR. SCHMIDT:  Objection, your Honor.

       9            THE COURT:  Objection sustained to the form of the

      10   question.

      11   Q.  You testified a moment ago that you did not tell the truth

      12   about the bombing -- I am sorry -- about the surveillance that

      13   took place and the development of photographs in your

      14   apartment, correct?

      15   A.  Correct.

      16   Q.  You testified that one of the reasons you didn't tell the

      17   truth is you were afraid of being connected to the bombing of

      18   the embassy in Nairobi, correct?

      19   A.  Correct.

      20   Q.  After the fighting in Afghanistan was concluded, there

      21   were other areas in the world where Muslims were facing

      22   difficulty, is that true?

      23   A.  Yes.

      24   Q.  One of those areas was the area of Bosnia Herzegovina,

      25   correct?

                                                                    1535

       1   A.  Yes.

       2   Q.  In fact, Muslims were facing in that area what has since

       3   been called genocide under the name of ethnic cleansing, is

       4   that correct?

       5   A.  Yes.

       6   Q.  And even after Afghanistan, hundreds of young Muslim men

       7   continued to come to the training camps in Afghanistan,

       8   correct?

       9   A.  Yes.

      10   Q.  And you participated in the training of some of those men,

      11   is that correct?

      12   A.  Yes.

      13   Q.  According to your information and according to your

      14   testimony, Mr. Salim, Mamdouh Mahmud Salim, also known as Abu

      15   Hajer al Iraqi, was a well-respected member or well-respected

      16   associate of Mr. Bin Laden's, is that correct?

      17   A.  Yes.

      18   Q.  He was somebody who had memorized the entire Koran.  Did

      19   you know that?

      20   A.  Correct.

      21   Q.  You have sometimes referred to Mr. Salim Abu Hajer al

      22   Iraqi as Sheik Abu Hajer al Iraqi, is that correct?

      23   A.  Correct.

      24   Q.  The word Sheik in Arabic is a term used for someone worthy

      25   of great respect, am I correct?

                                                                    1536

       1   A.  Yes.

       2   Q.  Mr. Salim sometimes served, according to your testimony,

       3   as the imam at the mosque during Ramadan, is that correct?

       4   A.  Correct.

       5   Q.  Even within Al Qaeda there were people paid salaries for

       6   carrying out activities within Al Qaeda, correct?

       7   A.  Correct.

       8   Q.  You yourself in fact were paid a salary for many, many

       9   years by Al Qaeda, is that true?

      10   A.  Correct.

      11   Q.  But there was a certain amount of unhappiness within Al

      12   Qaeda among its members because people seemed to get

      13   preferable treatment, is that correct?

      14   A.  Correct.

      15   Q.  The Egyptians, for example, many people in Al Qaeda

      16   thought that they received preferable treatment over all other

      17   members of Al Qaeda; is that true?

      18   A.  Not all the Egyptians.

      19   Q.  But some of the Egyptians.

      20   A.  Yes.

      21   Q.  With regard to Mr. Salim, Abu Hajer al Iraqi, there was a

      22   time when he lived in a villa, he had a car, an office, he had

      23   a very good salary from Al Qaeda; is that true?

      24   A.  Because he was the director of a company called Wadi al

      25   Aqiq.

                                                                    1537

       1   Q.  And Mr. Salim had also been one of the very early people

       2   to go fight in Afghanistan; is that true?

       3   A.  Correct.

       4   Q.  You have pleaded guilty yourself to a conspiracy that

       5   included the killing of Americans; is that correct?

       6   A.  Correct.

       7   Q.  For your role in your plea, do you face the death penalty?

       8   A.  No.

       9   Q.  You have been now admitted into the United States to live

      10   here, correct?

      11   A.  Yes.

      12   Q.  The United States government paid for that, correct?

      13   A.  Yes.

      14   Q.  You have been living here since approximately September of

      15   2000, correct?

      16   A.  Correct.

      17   Q.  And the government has agreed to assist you in becoming

      18   part of what is known as the Witness Protection Program,

      19   correct?

      20   A.  Yes.

      21   Q.  And the United States has paid to move members of your

      22   family here to the United States also to live in this country,

      23   correct?

      24   A.  Correct.

      25   Q.  How many members of your family has the government moved

                                                                    1538

       1   to this country?

       2   A.  My wife and three daughters.

       3   Q.  Since being in the United States, have you spent any time

       4   in jail?

       5   A.  I am under surveillance 24 hours a day.  I have an FBI

       6   agent around the clock.

       7   Q.  Have you spent any time in jail?

       8   A.  No.

       9   Q.  When you go from place to place, are you placed in

      10   handcuffs?

      11   A.  No.

      12   Q.  Although your guilty plea exposes you to a theoretical

      13   life sentence, it is your hope that you will not go to jail at

      14   all, for one single day; is that correct?

      15   A.  Nothing is guaranteed.  I cannot guarantee that I am not

      16   going to be incarcerated.

      17   Q.  Even though nothing is guaranteed, it is your hope that

      18   you will not spend a single day in jail; isn't that true?

      19   A.  Yes.

      20            MR. RUHNKE:  Thank you.  No further questions.

      21            THE COURT:  Redirect?

      22            MR. FITZGERALD:  Yes, Judge.

      23            (The following testimony in English except where

      24   noted.)

      25   REDIRECT EXAMINATION

                                                                    1539

       1   BY MR. FITZGERALD:

       2   Q.  Good morning.

       3   A.  Good morning.

       4   Q.  Please feel free to answer questions in English or through

       5   the interpreter, however you feel more comfortable.

       6            You have been asked questions about what your

       7   understandings are with the United States government, what you

       8   expect to receive, and let me approach you with what has been

       9   marked for identification as 3505-27 and ask you to take a

      10   look at it.  I will ask you if you recognize what that is?

      11   A.  (Through the interpreter)  It is the agreement that I have

      12   signed with the FBI after the interrogation.

      13   Q.  Are you testifying here today pursuant to that agreement?

      14   (Interpreted)

      15   A.  Yes.

      16            MR. FITZGERALD:  Your Honor, I would offer that as

      17   Government's Exhibit 4.

      18            MR. COHN:  In its entirety, your Honor?

      19            MR. FITZGERALD:  Yes.

      20            MR. COHN:  I object.  I don't object to portions of

      21   it but I don't think the proper foundation has been laid for

      22   the entire document.

      23            THE COURT:  I will defer on that.  We will take that

      24   up during the mid-morning recess.

      25            MR. FITZGERALD:  Thank you, Judge.

                                                                    1540

       1   Q.  Yesterday you were asked questions by Mr. Schmidt as to

       2   whether or not members of the Egyptian groups Al Jihad and the

       3   Islamic Group were afraid of being arrested and how they would

       4   be treated if they went to Egypt.  Do you recall those

       5   questions?

       6   A.  Yes.

       7   Q.  The members of those groups, were they doing any violence

       8   in or against Egypt?

       9   A.  Yes.

      10            MR. SCHMIDT:  Objection.

      11            THE COURT:  Does he know?

      12   Q.  Do you know if the members of those Egyptian groups were

      13   doing violence in or against Egypt?

      14   A.  Yes.

      15   Q.  Were they?

      16            MR. SCHMIDT:  Objection.

      17            THE COURT:  How does he know?

      18   Q.  First of all, how did you know they were afraid of being

      19   arrested in Egypt?

      20   A.  Everybody is talking about many people who are facing

      21   death and many people were executed in Egypt.

      22   Q.  How do you know that they were doing violence in Egypt?

      23   A.  Many operations that we are talking in the guesthouse or

      24   with the Egyptian guys, in the Sudan.

      25   Q.  So you were having conversations in the Sudan about

                                                                    1541

       1   operations in Egypt?

       2   A.  Sometimes they are saying what happened in Egypt.

       3   Q.  Did you understand that the Egyptian groups were carrying

       4   out those operations?

       5            MR. SCHMIDT:  Objection, your Honor, for leading, and

       6   the foundation has not been properly raised.

       7            THE COURT:  Overruled.

       8   Q.  Did you understand that those Egyptian groups were

       9   carrying out those operations?

      10   A.  Yes.

      11   Q.  Did you know, yes or no, whether or not the Egyptian

      12   groups blamed the United States government for any assistance

      13   provided to the Egyptian government?

      14   A.  Yes.

      15   Q.  Did they?  Did the Egyptian groups blame the American

      16   government for support they perceived was given to the

      17   Egyptian government?

      18            THE INTERPRETER:  Can you kindly repeat the question.

      19   Q.  Yes.  Did the Egyptian groups blame the United States

      20   government for any support they believed the American

      21   government provided to the Egyptian government?  (Interpreted)

      22            MR. SCHMIDT:  Objection, your Honor.  Foundation as

      23   to what these groups -- who in the group, what in the group.

      24            THE COURT:  Overruled.  The court's rulings with

      25   respect to the admissible scope on redirect is consistent with

                                                                    1542

       1   my rulings with respect to the scope on cross.

       2   A.  (Through the interpreter) the American government handed

       3   over these people to the Egyptian government.

       4   Q.  And my question was, did the Egyptian groups blame or hold

       5   responsible the American government for what they thought was

       6   American government assistance to the Egyptians?

       7   (Interpreted)

       8   A.  (Through the interpreter)  Yes.

       9   Q.  You were asked questions yesterday about your working in

      10   Wadi Al Aqiq and the tannery in the Sudan.  Do you recall

      11   those questions?

      12   A.  Yes.

      13   Q.  How long in total did you work for the company Wadi Al

      14   Aqiq?

      15   A.  Probably a month and a half.

      16   Q.  How long did you work for the tannery?

      17   A.  Fifteen days, probably.

      18   Q.  Was that after you moved from Kenya to the Sudan?

      19   A.  Yes.

      20   Q.  Do you recall what year that was?

      21   A.  Sometimes in '95.

      22   Q.  You were asked about whether you had seen training in the

      23   Sudan.  Did you ever visit the Damazine facility in the Sudan?

      24   A.  No.

      25   Q.  You were asked questions yesterday and today about the

                                                                    1543

       1   content of statements or lectures given by the person known as

       2   Abu Hajer al Iraqi.  Can you tell us, in your entire life how

       3   many of Abu Hajer's lectures you have personally attended?

       4   A.  I attended many lectures in the mosque.

       5   Q.  How many lectures by Abu Hajer in particular?

       6   A.  It was in Friday prayers, probably 10 times or more.

       7   Q.  You were asked questions about the Thursday meeting that

       8   happened in Al Qaeda.  Do you recall those questions?

       9   A.  Yes.

      10   Q.  Did you ever see Wadih El Hage at the Thursday meeting?

      11   A.  No.

      12   Q.  Approximately how many people would attend these meetings?

      13   A.  It depends.  Sometimes 20, sometimes less, sometimes more.

      14   Q.  You were asked questions about Ahmed Hassan yesterday and

      15   whether or not Ahmed Hassan was a member of Al Qaeda, and I

      16   believe you testified that there were two Ahmed Hassans,

      17   correct?

      18   A.  Yes.

      19   Q.  One was in Al Qaeda?

      20   A.  Yes.

      21   Q.  And one was not?

      22   A.  Yes.

      23   Q.  He was in the Al Jihad organization?

      24   A.  Yes.

      25   Q.  Let me approach you with what has been marked for

                                                                    1544

       1   identification as Government's Exhibit 202A-T.  Is that a

       2   transcript of a conversation for which you have listened to

       3   the tape recording?

       4   A.  Yes.

       5   Q.  Is there a voice identified on that transcript as Ahmed

       6   Hassan?

       7   A.  Yes.

       8   Q.  Do you know which Ahmed Hassan it is, whether it is the

       9   person of Al Qaeda, the person in Al Jihad, or a different

      10   person, if you know?

      11   A.  The person in Al Jihad.

      12   Q.  The Ahmed Hassan who is a member of the Egyptian Islamic

      13   Jihad organization is the Ahmed Hassan on that transcript?

      14   A.  Yes.

      15   Q.  You were asked questions yesterday by Mr. Schmidt as to

      16   when it was that Abu Mohamed el Masry went to Mogadishu.  Do

      17   you recall those questions?

      18   A.  Yes.

      19   Q.  So we are clear, Abu Mohamed el Masry is a person also

      20   known as Saleh, is that correct?

      21   A.  Yes.

      22   Q.  You indicated that you thought it was before 1994 and then

      23   Mr. Schmidt refreshed your recollection with a document.  Do

      24   you recall that?

      25   A.  Excuse me again.

                                                                    1545

       1   Q.  You indicated that you thought Abu Mohamed el Masry went

       2   to Somalia before 1994 yesterday.  Do you recall that

       3   testimony?

       4   A.  Yes.

       5   Q.  Do you recall Mr. Schmidt showing you a document to

       6   refresh your recollection as to whether Mohamed el Masry went

       7   to Somalia in 1994?

       8   A.  Yes.

       9   Q.  Let me show you that same document, 3505-7, page 4.

      10   Mr. Kherchtou, I am going to show you that same document, that

      11   same page, that same paragraph, 3505-7, page 4, and ask you

      12   whether it refreshes your recollection that Abu Mohamed el

      13   Masry went to Somalia for the purpose of fighting Americans

      14   and also came to Kenya to bring the word from the Sudan that

      15   the purpose was to fight against the Americans.

      16            MR. SCHMIDT:  Objection, objection, your Honor.

      17            THE COURT:  It is a convoluted question.  Break it

      18   down.

      19            MR. SCHMIDT:  Objection that it is also not proper

      20   redirect examination, and also form.

      21            THE COURT:  Overruled.

      22   Q.  Let me show you 350-7, page 4, ask you to read a certain

      23   paragraph, and then I will ask you a question.

      24            MR. SCHMIDT:  Your Honor, there is no reason to

      25   refresh his recollection.

                                                                    1546

       1            THE COURT:  I have ruled.

       2   Q.  Would you read the paragraph with blue ink on it.  Don't

       3   read it out loud.  Read that paragraph to yourself.

       4   A.  Yes.

       5   Q.  Does that refresh your recollection as to whether Abu

       6   Mohamed el Masry went to Somalia for the purpose of fighting

       7   Americans?

       8            MR. SCHMIDT:  Objection.

       9            THE COURT:  I have ruled.

      10   A.  Yes.

      11   Q.  So whatever time it was that Abu Mohamed el Masry went to

      12   Somalia, the American forces were there, correct?

      13   A.  Yes.

      14            MR. SCHMIDT:  Objection, your Honor.  Objection.

      15            THE COURT:  Overruled.

      16   Q.  Is that the same Abu Mohamed el Masry you told us about

      17   earlier that was in a building next door to a building that

      18   was shot at by American helicopters?

      19   A.  Yes.

      20   Q.  Sir, you were asked yesterday whether or not you knew

      21   whether certain people were members of Al Qaeda.  Do you

      22   recall those questions?

      23   A.  Yes.

      24   Q.  How many people saw you take or make your pledge of bayat?

      25   A.  I made bayat myself and the doctor of animals and the guy

                                                                    1547

       1   who was, who I was given the bayat, and I think one or two

       2   others, I think.

       3   Q.  So a total of about five people were in the room?

       4   A.  Probably less.

       5   Q.  So some people you know were in Al Qaeda because you

       6   actually saw them make the bayat, correct?

       7   A.  Yes.

       8   Q.  Some people you simply know are not in Al Qaeda, correct?

       9   A.  Excuse me again.

      10   Q.  There are some people you know do not belong to Al Qaeda,

      11   right?

      12   A.  Yes.

      13   Q.  There are some people you are not sure of?

      14   A.  Yes.

      15   Q.  And there are some people you believe are in Al Qaeda but

      16   not because you saw them make the bayat.

      17   A.  Yes.

      18   Q.  You were asked a dozen questions or more about who you

      19   believed was in Al Qaeda.  Do you recall those questions?

      20   A.  Yes.

      21   Q.  You were asked questions about whether or not Abu Ubaidah

      22   and Abu Hafs even if they did not make the bayat were with the

      23   Al Qaeda group.  Do you recall that question?

      24   A.  Yes.

      25   Q.  You were asked whether you had personal knowledge that

                                                                    1548

       1   Wadih El Hage made the bayat.  Let me ask you this:  Did you

       2   have an understanding of whether or not Wadih El Hage was a

       3   member of Al Qaeda?

       4   A.  Yes.

       5   Q.  What was that understanding?

       6   A.  That he is from Al Qaeda.

       7            (Continued on next page)

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1549

       1            MR. FITZGERALD:  I have nothing further, Judge.

       2            THE COURT:  Anything further of this witness?

       3            MR. SCHMIDT:  Yes, your Honor.  May we have a moment,

       4   your Honor?

       5            THE COURT:  Yes.

       6            JUROR:  Excuse me, your Honor.

       7            THE COURT:  You want to take a recess?  We will take

       8   a recess.  It is recess time anyway.

       9            (Jury excused)

      10            THE COURT:  We will take a recess.

      11            (Witness excused)

      12            (Recess)

      13            (Jury not present)

      14            MR. SCHMIDT:  Your Honor, before we bring the jury

      15   out I have a request.

      16            THE COURT:  Mr. Schmidt.

      17            MR. SCHMIDT:  Your Honor, during questioning by other

      18   counsel I have at times made objections.  When a question is

      19   either rephrased or asked again in a different manner, I have

      20   repeated my objections.  My understanding is that objection to

      21   one question does not satisfy for appeal if I do not object to

      22   the subsequent question even though it is similar.

      23            Your Honor has chastised me, perhaps unintentionally,

      24   in front of the jury in a manner I do not believe the jury

      25   should be seeing.  I am simply attempting to make a proper

                                                                    1550

       1   record, and I ask your Honor, if your Honor indeed disagrees

       2   with me, that you simply overrule my objection, and if your

       3   Honor has difficulty with the manner that I make my objection,

       4   that you do that outside the presence of the jury.

       5            THE COURT:  I don't know really what to say about

       6   that.  I don't believe that I chastise you.  I know I did say

       7   I have already ruled when it appeared to me that the objection

       8   that you were making, that there was no apparent basis for the

       9   reassertion of the objection.

      10            Your concern is an appellate rule that says that

      11   unless the objection is repeated after the question is

      12   rephrased that it is not preserved.  I am not aware of such a

      13   rule.  Where the objection was to lack of foundation or the

      14   form of the question or something of that sort, then

      15   reiteration of the objection to a rephrased question may be

      16   appropriate.

      17            It will be for others to judge the record, but I

      18   certainly don't believe that I have been chastising counsel,

      19   and indeed one of the, I think, relatively few bright spots

      20   about the trial is that there has been relatively little

      21   bickering among counsel or occasion for me to make comments.

      22   I may comment about the impropriety of saying before the jury

      23   that a point had been made, but other than that -- I note your

      24   comments, Mr. Schmidt.

      25            MR. COHN:  In my own defense, remember this is a

                                                                    1551

       1   capital trial and not a Victorian tape.

       2            THE COURT:  I don't think that changes the rules as

       3   to what is or is not appropriate comment before a jury.

       4            MR. RUHNKE:  Your Honor, not to jump into this too

       5   far, there has been some annoyance expressed in the tone of

       6   voice that your Honor used in ruling on objections,

       7   particularly Mr. Schmidt.  I rise not to protect Mr. Schmidt

       8   but because it spills over on other clients.  I just make that

       9   point for the record, your Honor.

      10            THE COURT:  I understand that.  I do understand and

      11   appreciate the role of defense counsel in a case in which

      12   cross-examination, and phrasing of objections may constitute a

      13   major portion of the defense case.  I bear that in mind.  If

      14   my tone of voice is not my usual amiable, genial tone of

      15   voice, why then I apologize.

      16            MR. COHN:  Your Honor, do you want to take up the

      17   document that I objected to part of?

      18            THE COURT:  Yes.

      19            MR. COHN:  I don't have it in front of me, but I

      20   believe that the document has the usual paragraph or two about

      21   truthful testimony as part of the deal.

      22            THE COURT:  Yes.

      23            MR. COHN:  As I recall the circuit law, you can only

      24   get that part in where there has been a challenge to the

      25   credibility of the witness, and I suggest to your Honor that

                                                                    1552

       1   there has not been, and a suggestion that he would lie --

       2            THE COURT:  That extensive examination as to the

       3   conditions of his confinement -- I understand that Mr. Ruhnke

       4   was making a record for another phase of this case, but

       5   nevertheless, wasn't that all designed to challenge his

       6   credibility?

       7            MR. COHN:  Not his credibility, actually, the

       8   credibility of another witness coming up.  I have never said

       9   and I will not say on summation that he lied, and I don't

      10   believe anybody else is making that argument.

      11            THE COURT:  If it wasn't relevant to his credibility,

      12   what was the relevance of the conditions of confinement to

      13   which he was subjected prior to --

      14            MR. COHN:  That he was making the statements that he

      15   made at all, not to whether or not they are truthful.  In

      16   fact, he didn't testify that anything that touched my client

      17   except in a general conspiracy way.

      18            MR. FITZGERALD:  Your Honor, Mr. Cohn himself

      19   elicited that the person who debriefed him in the jail taught

      20   him how to lie.  That was how he ended his cross-examination.

      21   I think that was directly put in, is this witness trained in

      22   how to lie, and the cooperation agreement shows what his

      23   incentives are with regard to telling the truth or lying.

      24            MR. COHN:  And I tell the court and I tell counsel

      25   that I will make no argument that he is using that technique.

                                                                    1553

       1            THE COURT:  So it was introduced for what purpose?

       2   Why did you plant that seed in the jurors' minds, other than

       3   to cast aspersions on his credibility?

       4            MR. COHN:  Your Honor, there will be another witness

       5   who I will maintain is a liar and is using a technique that a

       6   government witness was taught.

       7            THE COURT:  Do you want me to strike that testimony

       8   and advise the jury that there is no challenge to the

       9   witness's credibility?  Of course you don't.

      10            MR. COHN:  I don't want you to strike the testimony,

      11   but if you want to say that he is not lying, as far as I am

      12   concerned, that is fine with me.

      13            THE COURT:  I am sure other counsel would object to

      14   that.  If the sole basis to the introduction of Government's

      15   Exhibit 4 is that there has been no suggestion made that the

      16   witness's testimony is not entirely credible, the objection is

      17   overruled.

      18            MR. SCHMIDT:  I would just note, your Honor, that

      19   again, the issues of a joined trial and the problems related

      20   to it has again arisen based on the cross-examination of the

      21   death-eligible defendants and the nondeath-eligible

      22   defendants.  We object to the admission of this document in

      23   evidence, and we again move for a severance.

      24            THE COURT:  Overruled.

      25            MR. FITZGERALD:  Your Honor, I apologize.

                                                                    1554

       1   Government's Exhibit 4 should be called Government's Exhibit

       2   5.

       3            THE COURT:  The witness described it as an agreement

       4   with the FBI.  Is it?

       5            MR. FITZGERALD:  It is the standard cooperation

       6   agreement.

       7            THE COURT:  But it is addressed to the FBI?

       8            MR. FITZGERALD:  No, it's from the U.S. Attorney's

       9   Office to the counsel for Mr. Kherchtou.  I think he was

      10   treating --

      11            THE COURT:  He said it is the agreement with the FBI.

      12            MR. FITZGERALD:  Right, and then said it is the one

      13   he is testifying pursuant to.  The document is a standard

      14   cooperation agreement.

      15            THE COURT:  So I will tell the jury what we have

      16   previously referred to as Exhibit 4 is Exhibit 5.

      17            MR. FITZGERALD:  Thank you, your Honor.

      18            (Witness resumed)

      19            THE COURT:  While we are waiting, I have received a

      20   copy of a letter relating to the testimony of the ambassador.

      21   If there are any objections to the government's in limine

      22   motion, then I would like to be apprised of that by 9:45

      23   tomorrow morning.

      24            MR. BAUGH:  None from the defendant Al-'Owhali, no

      25   objection.

                                                                    1555

       1            MR. RUHNKE:  We have no objection, your Honor.

       2            (Jury present)

       3            THE COURT:  Ladies and gentlemen, you recall that on

       4   the government's redirect the government offered in evidence a

       5   document which the witness says was his agreement with the FBI

       6   after his interrogation and which was then referred to as

       7   Exhibit 4.  I deferred on whether or not it would be received

       8   in evidence.  First let me tell you that the correct

       9   designation of that exhibit is Exhibit 5, and it is received

      10   in evidence.

      11            We are now at recross on behalf of the defendant El

      12   Hage.  Mr. Schmidt.

      13            (Government's Exhibit 5 received in evidence)

      14            (Examination in English except where noted)

      15            (Continued on next page)

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1556

       1   RECROSS-EXAMINATION

       2   BY MR. SCHMIDT:

       3   Q.  Mr. Kherchtou, I think you answered questions on redirect

       4   examination when by Mr. Fitzgerald that Abu Hafs and Al

       5   Banshiri was part of Al Qaeda.  Do you remember saying

       6   something of that nature?

       7            MR. FITZGERALD:  Objection.

       8            THE COURT:  My notes don't have all the names, but I

       9   will allow the question.

      10            Did you testify to that effect?

      11            THE WITNESS:  He said Abu Hafs Banshir.  There is no

      12   Abu Hafs Banshir.

      13            THE COURT:  Would you state that into the microphone,

      14   please.

      15   Q.  Abu Hafs and Al Banshiri.

      16   A.  Yes, the question, please, again.

      17   Q.  Did you testify on redirect that Abu Hafs and Al Banshiri

      18   were part of Al Qaeda?

      19   A.  Yes.

      20   Q.  Because of their early arrival in Afghanistan, they had a

      21   special role, is that right?

      22   A.  Yes.

      23   Q.  You have indicated that you don't know if they ever took

      24   bayat, is that correct?

      25   A.  Yes.

                                                                    1557

       1   Q.  So if they were associated with Al Qaeda, it depended on

       2   their individual friendship with Mr. Bin Laden and not a

       3   pledge; is that right?

       4   A.  Well, these two people, they were our leaders.  We

       5   received orders from these two people.

       6   Q.  But if they were associated with Al Qaeda and had not

       7   taken a bayat to Al Qaeda, then their association was based on

       8   their friendship to Usama Bin Laden, and not on any religious

       9   obligation; isn't that right?

      10            MR. FITZGERALD:  Objection to form.

      11            THE COURT:  No, I will allow it.

      12   A.  Well, in the military things, for example, Abu Hafs was

      13   the head of military committee.  Religiously, if he wants to

      14   be that, he has to be like one of the emirs.  It's not like

      15   associate and we will receive orders from him.  That's why he

      16   has some special stature.  That is why everyone in Al Qaeda

      17   agrees that Abu Hafs is member of Al Qaeda, head of Al Qaeda.

      18   Q.  From Al Qaeda doesn't mean having given bayat, is that

      19   right?

      20   A.  I don't know if they gave bayat.

      21   Q.  You just testified on redirect examination for the first

      22   time saying Wadih El Hage was of Al Qaeda.  Do you remember

      23   that?

      24            MR. FITZGERALD:  Objection to the form.

      25            THE COURT:  Strike for the first time, and you may

                                                                    1558

       1   answer the question.

       2   Q.  Did you testify on redirect examination that Wadih El Hage

       3   was of Al Qaeda?

       4   A.  Yes.

       5   Q.  Is that the first time that you testified here that Wadih

       6   El Hage was of Al Qaeda?

       7   A.  Yes.

       8   Q.  Back in 1998, as you testified on both direct examination

       9   and cross-examination and redirect examination, you were

      10   interviewed by a person while you were in jail in Kenya; is

      11   that correct?

      12   A.  Yes.

      13   Q.  That was in August of 1998, is that right?

      14   A.  Yes.

      15   Q.  That was more than two and a half years ago, is that

      16   right?

      17   A.  Yes.

      18   Q.  During your conversations with that person, you were asked

      19   all about your affiliation with Al Qaeda and Al Qaeda members;

      20   is that right?

      21   A.  Yes.

      22   Q.  Did you tell that individual that you did not know whether

      23   Wadih El Hage was Al Qaeda?

      24   A.  I don't remember.

      25   Q.  I am going to ask you to take a look at what has been

                                                                    1559

       1   previously marked 3505-29, page 270, and read to yourself --

       2   actually, starting at 269 where I made a blue line, and

       3   reading to the next page where I made another blue line.  Read

       4   that to yourself, please.

       5   A.  Excuse me.  From here?

       6   Q.  Yes, from here to here.

       7            (Pause)

       8   Q.  Do you need it translated for you?

       9   A.  No.

      10            (Pause)

      11   A.  Yes, sir.

      12   Q.  Having read that, does it refresh your recollection that

      13   you told that individual back in August of 1998 that you did

      14   not know if Wadih El Hage was Al Qaeda?

      15   A.  Yes, I told him that I didn't know exactly if he is from

      16   Al Qaeda.

      17   Q.  But you knew that he was one of the first in Afghanistan

      18   and was trusted because of that; isn't that correct?

      19   A.  Yes, he was trusted.

      20   Q.  You also said that you knew Wadih El Hage well.

      21   A.  Yes.

      22   Q.  That he was your friend.

      23   A.  Yes.

      24   Q.  That he was a nice person.

      25   A.  Yes.

                                                                    1560

       1   Q.  And you simply did not know, based on all of what you knew

       2   about Wadih El Hage, whether he was an Al Qaeda member or

       3   someone who simply worked with people from Al Qaeda; isn't

       4   that correct?

       5            MR. FITZGERALD:  Objection only to form.

       6            THE COURT:  Overruled.

       7            MR. SCHMIDT:  Would you repeat the question, please.

       8   Can we have the court reporter repeat the question, please.

       9            (Record read)

      10            (Question interpreted)

      11   A.  (Through interpreter) this person, when he interrogated me

      12   I was in jail.  I did not tell him the entire truth.  All my

      13   aim was to have him get me out of my jail cell.

      14   Q.  Mr. Kherchtou.

      15   A.  Yes.

      16   Q.  Are you telling us now that in 1998, that you said to this

      17   person that Wadih El Hage -- that you did not know Wadih El

      18   Hage, whether -- withdrawn.

      19            Are you saying to us that in 1998 when you said to

      20   this person that you did not know if Wadih El Hage was Al

      21   Qaeda, that you were lying to him?  Is that your testimony

      22   now?

      23   A.  (Through interpreter)  Yes.

      24   Q.  Didn't you tell the FBI agents when you were interviewed

      25   that you did not know whether Wadih El Hage was Al Qaeda?

                                                                    1561

       1   (Interpreted)

       2   A.  (Through interpreter) Probably.

       3   Q.  Are you telling us now that when you told the FBI agents

       4   six months ago, five months ago, four months ago, whenever

       5   that was, that you did not know that Wadih El Hage was Al

       6   Qaeda, that you were lying to them?  (Interpreted)

       7   A.  (Through interpreter) I told them that I am not aware

       8   whether he is in the Al Qaeda or not.

       9   Q.  Was that the truth?  (Interpreted)

      10   A.  (Through interpreter)  Yes.

      11   Q.  Not only did you not know, all the Al Qaeda members that

      12   you knew did not know if Wadih El Hage was a member of Al

      13   Qaeda; isn't that correct?  (Interpreted)

      14   A.  (Through interpreter) Not all the members of the Al Qaeda.

      15   The majority of the members there.

      16   Q.  Did you explain to the FBI agents that none of the regular

      17   Al Qaeda members know if Wadih El Hage is an Al Qaeda member

      18   or not?  (Interpreted)

      19   A.  (Through interpreter) Those who are like me do not know

      20   the entire truth of what's going on.

      21   Q.  Would it be fair to say, right now as you sit here, you do

      22   not know whether Wadih El Hage was ever a member of Al Qaeda?

      23   (Interpreted)

      24   A.  (Through interpreter) That is true, but when I have

      25   indicated or mentioned that he is a member of the Al Qaeda, it

                                                                    1562

       1   was in relation or in reference to the way that we were

       2   relating to him, and it was open in how he handled matters.

       3            MR. SCHMIDT:  Your Honor, I would --

       4            THE COURT:  He is still answering the question.

       5            THE INTERPRETER:  Not yet.

       6            MR. SCHMIDT:  He answered the question with the first

       7   word.

       8            THE COURT:  You may translate the rest of his answer.

       9            THE INTERPRETER:  He did not finish the sentence yet,

      10   your Honor.

      11            THE COURT:  Finish.

      12   A.  (Through interpreter) Persons who are not members in the

      13   Al Qaeda, we cannot talk to them openly as the way we address

      14   members of the Al Qaeda and as the way we addressed him.

      15   Q.  Except for Mr. El Hage was considered an extraordinary

      16   trustworthy person because he was one of the first in

      17   Afghanistan; isn't that right?  (Interpreted)

      18   A.  (Through interpreter) Correct.

      19   Q.  There have been people that you have told, both the United

      20   States government last year and that man in Nairobi in 1998,

      21   that you said were Al Qaeda, even though you never saw them or

      22   heard them take bayat; isn't that right?

      23            MR. FITZGERALD:  Objection to form, your Honor.

      24            THE COURT:  Overruled.

      25            THE INTERPRETER:  Kindly repeat the question again.

                                                                    1563

       1            THE COURT:  Restate your question.

       2   Q.  There are times in this courtroom, in answering my

       3   question or answering the government's question, that was this

       4   person Al Qaeda, you said yes.  Do you remember doing that?

       5   A.  Yes.

       6   Q.  And these people that you said here in court were Al

       7   Qaeda, you told the United States government back in August of

       8   last year that they were Al Qaeda, right?

       9            MR. FITZGERALD:  Objection to form.

      10            THE COURT:  Yes.  You threw in lots of things in your

      11   restating the question.  Restate your question, and try to not

      12   put everything in a single question.

      13   Q.  You testified here of people that you knew were Al Qaeda,

      14   is that correct?

      15   A.  Yes.

      16   Q.  People that you knew were Al Qaeda without hesitating, is

      17   that correct?

      18   A.  Yes.

      19   Q.  You also told the government, the United States government

      20   back in August of 2000, of people that you said were Al Qaeda.

      21   A.  Yes.

      22   Q.  And you did that without hesitation, is that correct?

      23   A.  Yes.

      24   Q.  And then back in 1998 to this man in Nairobi, you told him

      25   people that you said were Al Qaeda; is that right?

                                                                    1564

       1   A.  Yes.

       2   Q.  And you didn't hesitate to say those particular people

       3   were Al Qaeda; is that correct?

       4   A.  Yes.

       5   Q.  And for almost all of those people, you did not see or

       6   hear them take bayat; is that correct?

       7   A.  Yes, some of them, yes.

       8   Q.  With Mr. El Hage back in 1998, you told that person that

       9   you did not know that he was Al Qaeda; is that correct?

      10   A.  Yes.

      11            (Continued on next page)

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1565

       1   Q.  In August 2000 you told the United States Government that

       2   not only did you not know whether Mr. El Hage was al Qaeda,

       3   that none of the regular members of al Qaeda knew whether he

       4   was al Qaeda; isn't that correct?

       5   A.  Yes.

       6   Q.  Now, you have testified on redirect examination about

       7   members of al Jihad and the Islamic group being afraid of

       8   being arrested in Egypt?

       9   A.  Yes.

      10   Q.  And you also testified on redirect examination that

      11   Egyptian groups had carried out attacks against Egypt; is that

      12   right?

      13   A.  Yes.

      14   Q.  Now, were you aware that the Egyptian government made it a

      15   capital offense to have military training in Afghanistan?

      16   A.  I heard about that.

      17   Q.  So even non-Egyptian Jihad -- withdrawn.  So all Egyptians

      18   who trained in Afghanistan, be they Egyptian Jihad, Islamic

      19   group, al Qaeda, member of no group, all feared going back to

      20   Egypt, facing imprisonment or execution, isn't that right?

      21            MR. FITZGERALD:  Objection, your Honor.

      22            THE COURT:  Establish the basis for his knowledge.

      23   Lay a foundation for the question.

      24   BY MR. SCHMIDT:

      25   Q.  You had conversations with members of Egyptian Jihad about

                                                                    1566

       1   their fear about going back to Egypt, right?

       2   A.  Yes.

       3   Q.  You had conversations with members of the Islamic group

       4   about going back to Egypt; is that correct?

       5   A.  Yes.

       6   Q.  You had conversations with al Qaeda members who were

       7   Egyptian and their fear about going back to Egypt; is that

       8   right?

       9   A.  Yes.

      10   Q.  And you had conversations with unaffiliated Egyptians who

      11   were in Afghanistan who were afraid to go back to Egypt; is

      12   that right?

      13   A.  Yes.

      14   Q.  And they were all afraid that the Egyptian government

      15   would at least put them in jail and very possibly torture and

      16   execute them, isn't that right?

      17   A.  Yes.

      18   Q.  As you testified on redirect examination some of these

      19   Egyptian groups did attack against Egypt and in Egypt; is that

      20   right?

      21   A.  Yes.

      22   Q.  And the manner that was -- withdrawn.  And the membership

      23   of al Qaeda disagreed with the manner of some of these attacks

      24   by these Egyptian Jihad groups, isn't that right?

      25            (Witness consults with interpreter)

                                                                    1567

       1   A.  Can you repeat, please?

       2            MR. SCHMIDT:  Could you please read that question for

       3   the interpreter?

       4            (Record read)

       5            (Witness consults with interpreter)

       6   A.  (Through the interpreter) This was the public opinion of

       7   the al Qaeda.

       8   Q.  That was also your opinion, isn't that right?

       9            (Witness consults with interpreter)

      10   A.  (Through the interpreter) My opinion is not that of the

      11   members of the al Qaeda.

      12            MR. SCHMIDT:  Members of?

      13            THE INTERPRETER:  Of the al Qaeda.

      14   Q.  Now, you testified on redirect that you heard Abu Hajer or

      15   Mr. Salim at least more than ten times speaking; is that

      16   correct?

      17   A.  Yes.

      18   Q.  And you previously testified that you never heard Abu, I

      19   think on cross-examination by one of the other attorneys, that

      20   you never heard Abu Hajer talk about --

      21            MR. FITZGERALD:  Objection to scope, your Honor.

      22            THE COURT:  I can't tell until I hear the rest of the

      23   question.

      24   Q.  You testified on cross-examination by Mr. Ruhnke, the

      25   other gray-haired gentleman over there, that you never heard

                                                                    1568

       1   Abu Hajer or Salim issue a statement about it being okay to

       2   kill civilians because if they're good, they will go to

       3   heaven, if they're bad, they will go to hell.  Remember

       4   testifying to that?

       5   A.  Yes.

       6            MR. FITZGERALD:  Objection to scope, Judge.  Recross.

       7            THE COURT:  Overruled.

       8   BY MR. SCHMIDT:

       9   Q.  In fact, not only did you never hear Abu Hajer say that,

      10   you never heard any discussion with al Qaeda about something

      11   like that; isn't that correct?

      12   A.  I don't remember.

      13   Q.  You don't remember ever having a discussion like that or

      14   hearing a discussion; isn't that correct?

      15   A.  About what is going on in Egypt?

      16   Q.  No.  Mr. Ruhnke asked you if you have heard Mr. Salim, Abu

      17   Hajer, make a statement in effect that it's okay if civilians

      18   get killed because if they're good, they go to heaven, if

      19   they're bad, they go to hell; you remember that conversation?

      20   A.  Yes.

      21   Q.  And you remember you told him, you said, I never heard Abu

      22   Hajer say anything like that; isn't that correct?

      23   A.  Yes.

      24   Q.  In fact, you never heard any member of al Qaeda having

      25   discussion like that; isn't that correct?

                                                                    1569

       1   A.  A discussion about killing innocent people?

       2   Q.  They will go to heaven and to hell, am I correct?

       3   A.  Yes.

       4   Q.  You also testified on cross-examination -- excuse me, on

       5   redirect examination by the government that Mohamed el Masry

       6   deftly went to Somalia to fight against the Americans; do you

       7   remember saying that?

       8   A.  Yes.

       9   Q.  Now, what you heard was that the Somalis asked for help to

      10   get the United Nations and the United States out of Somalia,

      11   isn't that right?

      12   A.  I don't know if they asked for help and to who they asked

      13   for help from who, but they were training there and they were

      14   fighting United Nations.

      15   Q.  Are you aware of the date that the Americans left Somalia?

      16   A.  No.

      17   Q.  You were in Kenya already by the time that you heard this

      18   information; is that correct?

      19   A.  Yes.

      20   Q.  And you had been in Kenya for many months when you heard

      21   that information; isn't that correct?

      22   A.  Yes.

      23   Q.  And you also heard that the U.N. and the United Nations

      24   and the United States killed many Somalis by the time that --

      25            MR. FITZGERALD:  Objection to scope, 401 and 403.

                                                                    1570

       1   Q.  -- Mohamed el Masry --

       2            THE COURT:  Objection sustained.

       3            MR. SCHMIDT:  I have no further questions.

       4            THE COURT:  Anything further?

       5            MR. WILFORD:  No questions on behalf of Mr. Odeh,

       6   your Honor.

       7            MR. COHN:  Mr. al-'Owhali has none.

       8            MR. RUHNKE:  No questions, your Honor.

       9            THE COURT:  Very well.

      10            MR. FITZGERALD:  None from the government.

      11            THE COURT:  Very well.  Thank you.  You may step

      12   down.

      13            (Witness excused)

      14            THE COURT:  And the government may proceed to the

      15   next order of business.

      16            MR. KARAS:  Your Honor, at this time we would ask

      17   that the stipulation marked as Government Exhibit 35 be read.

      18            THE COURT:  Very well.

      19            "It is hereby stipulated and agreed by and between

      20   the United States of America and counsel for all the

      21   defendants, and the defendants with the consent of their

      22   counsel, as follows:

      23            "1.  Government Exhibit 93 is an authentic copy of an

      24   article that appeared in a newspaper known as Al Quds

      25   al-Arabi, which is published daily in London, England, on

                                                                    1571

       1   February 23, 1998, and that Government Exhibit 93-T is a fair

       2   and accurate translation of the article that is marked as

       3   Government Exhibit 93."

       4            It is so stipulated.

       5            MR. KARAS:  Your Honor, at this time we would offer

       6   Government Exhibits 35, 93 and 93-T.

       7            THE COURT:  Received.

       8            (Government Exhibits 35, 93 and 93-T received in

       9   evidence)

      10            MR. KARAS:  What we would propose to do, your Honor,

      11   is to display 93 and then read 93-T.

      12            THE COURT:  Yes, you may.

      13            A JUROR:  We're having a problem.

      14            THE COURT:  You're having a problem with that viewer?

      15            A JUROR:  We just got to pick it up.

      16            THE COURT:  Oh.

      17            A JUROR:  Fixed.

      18            THE COURT:  There we go.

      19            (Exhibit 93-T read)

      20            MR. KARAS:  Your Honor, the next order of business

      21   will involve the playing of a tape which will last

      22   approximately 50 minutes.

      23            THE COURT:  50 minutes?

      24            MR. KARAS:  Five, zero, yes.

      25            THE COURT:  You want to break it up?  I don't know,

                                                                    1572

       1   it doesn't have to be all at once, does it?

       2            MR. KARAS:  No, we can break it up.

       3            THE COURT:  Why don't you start and we'll break.

       4            MR. KARAS:  Your Honor, we have a stipulation that's

       5   marked as Government Exhibit 34.

       6            THE COURT:  Very well.

       7            MR. KARAS:  "It is hereby stipulated and agreed by

       8   and between the United States of America and the defendants

       9   with the consent of their attorneys as follows:

      10            "1.  Government Exhibit 81 is an authentic copy of a

      11   videotape of an interview conducted by representatives from

      12   ABC news with Usama Bin Laden in Afghanistan on May 28, 1998.

      13            "Portions of the interview aired on ABC on June 10,

      14   1998, and a transcript of the entire interview later appeared

      15   on the ABC news website.  Government Exhibit 81-T is a fair

      16   and accurate translation of the interview that is depicted in

      17   Government Exhibit 81."

      18            Signed by counsel.

      19            Your Honor, at this time we would offer Government

      20   Exhibits 34, 81 and 81-T.

      21            THE COURT:  Received.

      22            (Government Exhibits 34, 81 and 81-T received in

      23   evidence)

      24            MR. KARAS:  And we would propose to hand out 81-T

      25   while we play the videotape.

                                                                    1573

       1            THE COURT:  Yes, you may.

       2            (Government Exhibit 81 played)

       3            THE COURT:  Perhaps this is a good place to break and

       4   we'll pick that up after lunch, and we're adjourned until

       5   2:00.

       6            (Luncheon recess)

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1574

       1                         AFTERNOON SESSION

       2                             2:10 p.m.

       3            (Jury not present)

       4            MR. SCHMIDT:  Your Honor, we have some issues with

       5   the redactions that the government has made to the statement

       6   of Mr. Odeh.  My understanding today is that they plan to

       7   offer the statement this afternoon, and we received a copy

       8   during lunch of the redacted statement.

       9            THE COURT:  We will take it up.  We have about what,

      10   another half hour of this video?

      11            MR. KARAS:  About 20 minutes of the video.

      12            THE COURT:  And then there are some other matters?

      13            MR. FITZGERALD:  Yes.  If the stipulation is signed

      14   by all counsel on the wiretap, we will have a chunk of

      15   transcripts to read and a brief witness before we get to Agent

      16   Anticev.

      17            THE COURT:  We will take it up then before that.

      18            (Jury present)

      19            THE COURT:  I believe we were on page 6, is that

      20   correct?

      21            MR. KARAS:  Yes, Judge.

      22            (Videotape resumed)

      23            THE COURT:  Mr. Fitzgerald.

      24            MR. FITZGERALD:  Yes, your Honor.  At this time I

      25   would offer in a stipulation previously marked as Government's

                                                                    1575

       1   Exhibit 36 for identification.

       2            THE COURT:  Yes.

       3            MR. FITZGERALD:  I would ask the court to read the

       4   first three paragraphs, and -- or if you prefer I could read

       5   it -- to omit dates and times specified, to save time.

       6            THE COURT:  Go ahead.

       7            MR. FITZGERALD:  It is hereby stipulated and agreed

       8   by and between the United States of America and the defendants

       9   by and with the consent of their undersigned attorneys as

      10   follows:

      11            1.  That for the time period including on or about

      12   July 1996 through September 1997, the Kenyan telephone number

      13   254820067 was assigned to a telephone which was located at

      14   1523 Fedha Estates, a building in Nairobi, Kenya, which was

      15   used as a residence by Wadih El Hage and his family.  During

      16   that time period the telephone was wiretapped.  Calls to and

      17   from the telephone number were being recorded on a tape

      18   recording machine in a secure location in the Nairobi, Kenya,

      19   area.  The parties agree that the tapes generated by the

      20   wiretap are fair and accurate recordings of the conversations

      21   taking place over those telephone lines.  Tapes generated by

      22   the wiretap included the following government's exhibits,

      23   which were recorded on or about the date and time indicated

      24   and outgoing telephone calls were placed to the telephone

      25   number indicated.

                                                                    1576

       1            It then recites approximately 25 different exhibits

       2   with times and dates, which I will not read into the record at

       3   this time.

       4            THE COURT:  Very well.

       5            MR. FITZGERALD:  Paragraph 2 states that for the time

       6   period including in or about July 1996 through September of

       7   1997, the Kenyan telephone number 25471202219 was assigned to

       8   a telephone in Nairobi which was subscribed to by Ahmed Sheik

       9   Aden.  During that time period, the telephone was wiretapped.

      10   Calls to and from the telephone number were being recorded on

      11   a tape recording machine in a secure location in the Nairobi

      12   area.  The tapes generated by the wiretap included the

      13   following government's exhibits, which were record on or about

      14   the dates indicated and outgoing calls placed to the telephone

      15   number indicated.  I omit reading now the exhibit dates and

      16   times.

      17            THE COURT:  Very well.

      18            MR. FITZGERALD:  Paragraph 3 states that for the time

      19   period including in or about July 1996 through September 1997,

      20   Kenyan telephone number 254820067 was assigned to a telephone

      21   in Nairobi which was subscribed to by Wadih El Hage.  During

      22   part of that time period, the telephone was wiretapped to

      23   intercept facsimile transmissions to and from the telephone

      24   number, which were recorded on a machine in a secure location

      25   in the Nairobi area.  The fax transmissions recorded include

                                                                    1577

       1   the following government's exhibits, which were received on or

       2   about the date and time indicated and outgoing faxes were sent

       3   to the telephone number indicated.  I will omit reading

       4   particular numbers, and there are other paragraphs that need

       5   to be read at another time.

       6            THE COURT:  Very well.

       7            MR. FITZGERALD:  At this time, your Honor, I would

       8   offer in evidence the following tapes and tape transcripts:

       9   201A and 201A-T; 202A and 202A-T; 203A and 203A-T; 204A and

      10   204A-T; 204B and 204B-T; 205A and 2505A-T; 207A and 207A-T;

      11   207B and 207B-T; 207C and 207C-T; 208A and 208A-T; 209A and

      12   209A-T; 209B, 209B-T and 209C-T; 210A and 210A-T; 211B and

      13   211B-T; 211C and 211C-T; 211D and 211D-T; 212A and 212A-T;

      14   213A and 213A-T; 214A and 214A-T; 215A, 215A-T; 216A and

      15   216A-T; 217A and 217A-T; 217B and 217B-T; 218A and 218A-T;

      16   219A and 219A-T; 220A and 220A-T; 220B and 220B-T; 221A and

      17   221A-T -- just two more -- 222A and 222A-T; and 223A and

      18   223A-T.  And the stip, Government's Exhibit 36.

      19            THE COURT:  All this is offered in evidence?

      20            MR. FITZGERALD:  Yes, your Honor.

      21            THE COURT:  Exhibit 36 and 201A to 223A-T as just

      22   read are received in evidence.

      23            (Government's Exhibits 36; 201A and 201A-T; 202A and

      24   202A-T; 203A and 203A-T; 204A and 204A-T; 204B and 204B-T;

      25   205A and 2505A-T; 207A and 207A-T; 207B and 207B-T; 207C and

                                                                    1578

       1   207C-T; 208A and 208A-T; 209A and 209A-T; 209B, 209B-T and

       2   209C-T; 210A and 210A-T; 211B and 211B-T; 211C and 211C-T;

       3   211D and 211D-T; 212A and 212A-T; 213A and 213A-T; 214A and

       4   214A-T; 215A, 215A-T; 216A and 216A-T; 217A and 217A-T; 217B

       5   and 217B-T; 218A and 218A-T; 219A and 219A-T; 220A and 220A-T;

       6   220B and 220B-T; 221A and 221A-T; 222A and 222A-T; and 223A

       7   and 223A-T received in evidence)

       8            MR. FITZGERALD:  At this time, your Honor, we will be

       9   reading a subset of those exhibits and we have a book to hand

      10   to the jury.  Where the calls are in English they will be on a

      11   loudspeaker but the translations will be read aloud.

      12            THE COURT:  Ladies and gentlemen, where the

      13   transcripts are in English, it is what you hear that is in

      14   evidence and the transcripts are only an aid for you.  If in

      15   your opinion there is a difference between what you hear in

      16   English and what appears on the transcript, it is what you

      17   hear that controls.

      18            MR. FITZGERALD:  I just need to distribute the

      19   binders.

      20            THE COURT:  Yes.

      21            MR. FITZGERALD:  Your Honor, Mr. Francisco and Mr.

      22   Butler will read the parts until Miss Sader arrives.  On the

      23   transcript I will indicate from the stipulation when we read

      24   the date and time of the call.

      25            The first one we shall read is transcript 201A-T,

                                                                    1579

       1   which is a call from October 3, 1996.

       2            (Government's Exhibit 201A-T read to the jury)

       3            MR. FITZGERALD:  The next conversation we will read

       4   is 202A, recorded on October 28, 1996.

       5            (Government's Exhibit 202A read to the jury)

       6            MR. FITZGERALD:  Your Honor, at this time we would

       7   play Government's Exhibit 204A and 204B, which are telephone

       8   calls recorded on November 6, 1996, at 1636 and 1902, and they

       9   are in English but there is a transcript to aid in reviewing

      10   the tape.

      11            (Tapes 204A and 204B played)

      12            THE COURT:  DHL is what?

      13            MR. FITZGERALD:  DHL, the company.

      14            THE COURT:  After, explain it.

      15            (Playing continued)

      16            MR. FITZGERALD:  DHL is a company.

      17            The next one is a short call, 204B, also November 6,

      18   1996, in 1992, in English, and DHL will refer to the business,

      19   not a person.

      20            THE COURT:  DHL, the delivery company?

      21            MR. FITZGERALD:  Exactly, Judge.

      22            (Government's Exhibit 204B played)

      23            (Continued on next page)

      24

      25            MR. FITZGERALD:  The next call we will read is

                                                                    1580

       1   205A-T, which occurred six days later, on November 12th, 1996

       2   at 15:14.  It's in Arabic so we will read the translation.

       3            (Government Exhibit 205A-T read to the jury)

       4            MR. FITZGERALD:  And the next one and last one in

       5   this series we'll read is Government Exhibit 207-C, which was

       6   recorded on December 17th, 1996, at 8:35.  It is in Arabic, so

       7   we will read the transcript.

       8            (Government Exhibit 207-C read to the jury)

       9            MR. FITZGERALD:  Your Honor, at this time the

      10   government would call Kibarua Mjitta.

      11            THE COURT:  We'll take a recess before that time.

      12   We'll take our mid afternoon recess.

      13            (Jury not present)

      14            THE COURT:  Do the defendants want to take this as a

      15   prayer recess?

      16            MR. HERMAN:  I think it's a little early for a prayer

      17   recess.

      18            THE COURT:  A little too early.

      19            MR. SCHMIDT:  You want to deal with that other issue?

      20            THE COURT:  All right.  What is the other issue?

      21            MR. DRATEL:  We have two issues with respect to

      22   Mr. Odeh's statement of the government's redactions.  One is a

      23   Bruton issue, which I'll address first, which is, I'll read

      24   the -- if I have the redacted version here.  I'll find the

      25   unredacted.  It has to do with the identification of Mr. El

                                                                    1581

       1   Hage.

       2            THE COURT:  Yes.

       3            MR. DRATEL:  They take out the names, but in fact

       4   everything around it clearly indicates who it is based on not

       5   only other evidence, but also the fact that Mr. El Hage is

       6   asked specifically about this in the Grand Jury.

       7            THE COURT:  I have to see something in front of me.

       8   This is getting a little too abstract.

       9            What page are we on?

      10            MR. DRATEL:  Page 23, your Honor, of 3507-1, I think

      11   it is.  The redacted one is not marked.  3507-1.

      12            MR. FITZGERALD:  We'll call it Government Exhibit 6.

      13   In 3505 the numbers are different.  We gave you the unredacted

      14   one for 3500 purposes, so we'll call this Government Exhibit

      15   6.

      16            MR. DRATEL:  Right.

      17            THE COURT:  What pages am I looking at?

      18            MR. DRATEL:  Page 23, your Honor.

      19            THE COURT:  Page 23, which begins with "the other"

      20   blank?

      21            MR. DRATEL:  Yes, it's the -- yes.  Go down to the

      22   third full paragraph, the one that begins "Odeh stated that

      23   Wadih El Hage."

      24            THE COURT:  I have the redacted copy, which says

      25   "Odeh stated" blank.

                                                                    1582

       1            MR. DRATEL:  Right.  "Odeh stated Wadih El Hage gave

       2   him an identification card for NGO Africa Help," and it's our

       3   position that that could be redacted easily so as not to make

       4   it obvious that it's Mr. El Hage, not to identify Mr. El Hage.

       5            You could just simply say "Odeh stated that he was

       6   given an identification card for an NGO" and that would

       7   resolve the issue.

       8            MR. FITZGERALD:  Your Honor, that would be redacting

       9   out which NGO it is.  We intend to elicit --

      10            THE COURT:  How about, "Odeh stated he was given an

      11   identification card for NGO Africa Help"?

      12            MR. DRATEL:  Africa Help is Mr. El Hage's NGO.

      13            THE COURT:  Yes.

      14            MR. DRATEL:  In fact, he's asked that in the Grand

      15   Jury based upon this very statement.  Mr. El Hage is asked

      16   that question in the Grand Jury, a month later, based on this

      17   very statement by Mr. Odeh about the I.D. card.

      18            MR. FITZGERALD:  His perjury shouldn't take out

      19   relevant evidence.  Are we going to redact al Qaeda?  It's the

      20   NGO Help Africa People that did something wrong.  The witness

      21   will say he received an identity card the minute he received

      22   an identity card to Help Africa People.  The fact that he

      23   received an NGO shouldn't give him license to take out that

      24   proof.

      25            THE COURT:  There isn't anything inherent in Africa

                                                                    1583

       1   Help or an NGO that indicates this has to be El Hage.

       2            MR. DRATEL:  But, your Honor, if you couple this

       3   statement -- when the government took his statement August of

       4   '89, a month later, Mr. El Hage in the Grand Jury, they asked

       5   him specifically about this identity card.  And when you put

       6   the two together, it is going to be inescapable for the jury

       7   to know it's Mrs. El Hage.  And we can't cross examine that

       8   information and that's what Bruton is all about.

       9            THE COURT:  So you want it to read, "Odeh stated that

      10   he was given identification card for an NGO and Odeh used this

      11   card," right?

      12            MR. DRATEL:  Yes.

      13            THE COURT:  That's what you want?

      14            MR. DRATEL:  Yes.

      15            MR. FITZGERALD:  First of all, it is not disputed

      16   that Harun has been involved in false documents.  The witness,

      17   Kherchtou, indicated that he saw El Hage and Harun had

      18   identification documents in the computer.

      19            If we take out "the Help Africa People gave out an

      20   identity card," Mr. Schmidt or Mr. Dratel will be arguing to

      21   the jury that that was nothing but the pure, clean NGO relief

      22   work.

      23            Odeh admitted he got an identification card from that

      24   document.  It does not indicate that it has to be Wadih El

      25   Hage versus Haroun, and I don't think that's what Bruton calls

                                                                    1584

       1   for.

       2            THE COURT:  I agree.  And the fact that the

       3   identification card is for Africa Help doesn't mean that in

       4   fact it was an authentic identification card or that somebody

       5   else didn't make up an identification card for Africa Help.

       6            I'm familiar with the Supreme Court and other cases

       7   that say there is a Bruton problem even though the name is

       8   deleted when the context makes it clear that it could only be

       9   one person, but this context doesn't make it clear that it

      10   could only be El Hage who furnishes the identification card.

      11            MR. DRATEL:  Your Honor, the government, from what

      12   Mr. Fitzgerald just said, they're planning to use this as

      13   affirmative evidence against Mr. El Hage, which we cannot meet

      14   by cross-examination.

      15            The other thing is that with respect to evidence, the

      16   government has other evidence about I.D. cards.  Coming from

      17   the computer they have what's already in evidence are I.D.

      18   cards that were printed from the computer.  They also have the

      19   testimony, I believe, of Mr. Kherchtou that he saw I.D. cards

      20   being used.

      21            MR. FITZGERALD:  Unless I hear Mr. Dratel saying he

      22   will stipulate Mr. El Hage was involved in false

      23   identification documents, I don't think the fact that there

      24   may be other evidence in the record takes this out.  In fact,

      25   in the Grand Jury Mr. El Hage denied he gave a card.  He's not

                                                                    1585

       1   charged with perjury for that answer, so he will --

       2            THE COURT:  He is or is not?

       3            MR. FITZGERALD:  He is not charged with perjury for

       4   that answer.

       5            MR. DRATEL:  But, your Honor, what they want to do is

       6   argue against Mr. El Hage for Mr. Odeh's statement, which is

       7   exactly what Bruton's all about.

       8            MR. FITZGERALD:  We're not going to take that

       9   statement and argue Mr. El Hage gave that card.  We do intend

      10   to argue that Help Africa People was involved in providing

      11   identity cards, just like we intend to argue that the al Qaeda

      12   identity was corrupt.

      13            MR. DRATEL:  Your Honor, the point is it's not

      14   produced --

      15            THE COURT:  I don't see this as a Bruton problem.

      16   Bruton applies where the context makes clear that the only

      17   person who could have been the reference is the defendant.

      18   But anybody could have given an identification card for Africa

      19   Help, it need not have been only El Hage.

      20            I don't know whether any other people were involved

      21   in Africa Help or if it was a one-man operation, and the jury

      22   won't know that either, so that it isn't a compelled

      23   inference.

      24            MR. DRATEL:  Your Honor, they could use it against

      25   Mr. El Hage, not against Mr. Odeh.  So what we have is a

                                                                    1586

       1   codefendant statement coming in against another defendant and

       2   not against the defendant who made it.

       3            THE COURT:  Well, what use is the government going to

       4   make of it?

       5            MR. FITZGERALD:  It goes to the enterprise which says

       6   that, as charged in the indictment, al Qaeda used

       7   non-government organizations to carry out its work.  It's

       8   going to the overall existence of the conspiracy, not to El

       9   Hage's participation in it.

      10            MR. DRATEL:  If that's the case, your Honor, then the

      11   name of the NGO is not important enough to overcome the

      12   Bruton, the problem of introducing Mr. Odeh's statement

      13   against Mr. El Hage.

      14            MR. FITZGERALD:  No, the --

      15            THE COURT:  No, no, I've heard enough.  I've heard

      16   enough argument.  Well, if we leave "Africa Help," it doesn't

      17   make any difference if we put it in the passive or the active.

      18            MR. DRATEL:  I think it is better in the passive as

      19   well, your Honor, if we're going to leave out --

      20            THE COURT:  "Odeh stated that he was given an

      21   identification" --

      22            MR. DRATEL:  -- card for the NGO Africa Help," if

      23   "Africa Help" is going to stay in.

      24            THE COURT:  All right.

      25            MR. FITZGERALD:  That's fine, Judge.

                                                                    1587

       1            THE COURT:  Very well.  Is that it?

       2            MR. DRATEL:  That's it for the Bruton issue.  There

       3   is another issue, which was a 403 issue, and it also has to do

       4   with the certain things that were redacted -- not redacted,

       5   but were not addressed in the cross-examination of other

       6   witnesses, which is the -- I'll find the page for your Honor.

       7            Page 25.

       8            THE COURT:  Page 25.

       9            MR. DRATEL:  And at the end of the second full

      10   paragraph, the last statement, which is, "Odeh stated that the

      11   operation conducted against Khobar was 100 times better than

      12   Nairobi."

      13            THE COURT:  Yes.

      14            MR. DRATEL:  And we've taken Khobar out of the case

      15   and we think that this is just simply too prejudicial, too

      16   confusing, misleading for the jury.  It doesn't affect the

      17   nature of the statement at all.

      18            THE COURT:  Has Khobar been taken out?

      19            MR. FITZGERALD:  Yes, Judge.  We're not contending

      20   that Odeh had participated in Khobar.  What is distinguishing

      21   here is the fact that in Khobar they successfully got the bomb

      22   near the building.  They killed their targets, which were

      23   Americans.  In Nairobi, what he says during this time is that

      24   the bomb killed the civilians surrounding it.  His analogy

      25   that Khobar was much better shows that he thinks that a good

                                                                    1588

       1   operation was one which would blow up the embassy and leaving

       2   the buildings nearby intact, and that goes to precisely what

       3   is charged in the indictment -- killing Americans.

       4            MR. COHN:  Your Honor, the record should be clear, we

       5   join in this application.

       6            THE COURT:  It's denied.

       7            MR. DRATEL:  Your Honor, may I just -- can we

       8   stipulate that, just what Mr. Fitzgerald said:  None of the

       9   defendants are accused of participating in the Khobar bombing

      10   and that al Qaeda is not responsible for the Khobar bombing.

      11            MR. FITZGERALD:  I'll stipulate that none of the

      12   defendants are charged with participating in the bombing.  I'm

      13   not giving al Qaeda --

      14            MR. DRATEL:  Charged with -- no, your Honor, that

      15   raises the issue there is another case, they're charged

      16   somewhere else.  They didn't participate.  They have no

      17   evidence that any of the defendants participated in that

      18   bombing.  Or even al Qaeda.  They know it's not al Qaeda.

      19            MR. FITZGERALD:  I'm not standing up here and telling

      20   your Honor al Qaeda had nothing to do with a terrorist act in

      21   Saudi Arabia.  I would say no one is charged with it.

      22            THE COURT:  I don't think the government should be

      23   compelled to stipulate to something that it doesn't believe is

      24   truthful.  It has offered to stipulate to what is relevant to

      25   this case, and that is that the defendants in this case are

                                                                    1589

       1   not charged with any involvement with respect to Khobar.

       2            MR. DRATEL:  I think to say -- they didn't

       3   participate in it.  Your Honor, just not charged with it is

       4   vague.  It's always like being told that you're not supposed

       5   to think about something outside the box and then they think

       6   what's outside the box.

       7            It also raises the question for us as, what can we do

       8   to meet this?  Do we now want discovery on Khobar?  Do we have

       9   to put evidence on about Khobar that al Qaeda didn't know?

      10            THE COURT:  What is the language you want in the

      11   stipulation?

      12            MR. DRATEL:  That the defendants, that there is no

      13   evidence --

      14            THE COURT:  The government does not claim in this

      15   case that there is any participation by the defendants with

      16   respect to Khobar?

      17            MR. DRATEL:  No, "in this case" raises an issue of

      18   another case.  That's what I think when I hear "in this case."

      19            The government stipulates that the defendants did not

      20   participate -- these defendants did not participate in Khobar

      21   and they do not have evidence that al Qaeda did.

      22            MR. COHN:  Your Honor, I don't know about Mr. Dratel,

      23   but I'm willing to say that we'll do that without prejudice to

      24   any other case they want to bring, this case now.  If they are

      25   concerned we're going to bind them in some later case, I'm

                                                                    1590

       1   willing to get rid of that on the spot, but I don't know

       2   whether Mr. Dratel is or not.  But the fact is that I think

       3   he's eminently correct that by saying, not now, maybe later,

       4   the jury speculates what to think.

       5            MR. FITZGERALD:  I think if we tell the jury that no

       6   defendants are charged with participating, that that is

       7   sufficient and not giving people clean bills of health as to

       8   things I don't know what they did.  I think every time we do

       9   this --

      10            THE COURT:  No defendants are charged, not in this

      11   case.  It is stipulated that.

      12            MR. DRATEL:  "In this case" I think is --

      13            THE COURT:  Yes.

      14            MR. DRATEL:  I don't want "in this case."

      15            THE COURT:  No, I'm saying, "It is stipulated no

      16   defendants are charged with participating" --

      17            MR. FITZGERALD:  "In the Khobar bombing."

      18            THE COURT:  -- "in the Khobar bombing."

      19            MR. DRATEL:  Your Honor, also I think we should say

      20   the government does not allege that al Qaeda was responsible

      21   for the Khobar bombing, which I think is a correct statement.

      22            THE COURT:  If al Qaeda was responsible -- do you

      23   want me to tell now the jury what the law of conspiracy is?

      24            MR. DRATEL:  It's not charged in the indictment, your

      25   Honor.  It's not been charged at all.

                                                                    1591

       1            THE COURT:  I think, "It is stipulated that no

       2   defendants are charged with participating in the Khobar

       3   bombing" really, I think --

       4            MR. COHN:  Or in conspiring to do same, how about

       5   that, your Honor?  That leaves al Qaeda out of it and gets us

       6   out of the conspiracy.

       7            THE COURT:  "Or in conspiring with respect thereto."

       8            MR. COHN:  That is great.

       9            MR. DRATEL:  Your Honor, I think you can say "the

      10   defendants are not alleged to have been involved."

      11            THE COURT:  You prefer that?

      12            MR. DRATEL:  That the defendants are not alleged to

      13   be involved.

      14            THE COURT:  Instead of "are charged with"?  Now, this

      15   is getting to be like a committee drafting a horse.

      16            "It is stipulated that no defendants are charged with

      17   participating in the Khobar bombing or in conspiring with

      18   respect thereto."  Okay?

      19            Now is it time for the -- can we now have a prayer

      20   recess.

      21            MR. COHN:  Yes.

      22            (Recess)

      23            MR. DRATEL:  Just to complete what we did before

      24   recess, it was pointed out to me that perhaps my silence might

      25   be construed as assent.  Obviously our position would be that

                                                                    1592

       1   the Court's intended instruction is insufficient; that we

       2   would prefer the language that we had proposed -- simply that

       3   the government does not allege that al Qaeda or any of the

       4   defendants here were involved in or participated in the Khobar

       5   bombings in Saudi Arabia.

       6            THE COURT:  Okay.  And your objection is noted, but

       7   the language that we are going to use is:  "It is stipulated

       8   that no defendants are charged with participating in the

       9   Khobar bombing or in conspiring with respect thereto."

      10            And I'll read that -- you're going to read that

      11   statement?

      12            MR. FITZGERALD:  The agent will testify and I think

      13   at some point we may offer the statement, but when it comes up

      14   in his testimony, if your Honor doesn't do it sua sponte, I

      15   will remind you.

      16            THE COURT:  Okay.

      17            MR. DRATEL:  Is the government going to offer the

      18   document?

      19            MR. FITZGERALD:  We're going to mark the document.

      20   We're going to discuss it with Mr. Ricco.  Mr. Ricco may want

      21   the document evidence.  We're not going to do that in the

      22   presence of the jury.  We can discuss that out of the presence

      23   of the jury at the end of the day.

      24            MR. DRATEL:  The only question I have, your Honor, is

      25   just the issue of redaction, the jury being aware of

                                                                    1593

       1   redactions and some instruction as to the -- about redactions.

       2   I'm not sure exactly how to address that.  Something to the

       3   effect that, you are not to draw any conclusions, it has

       4   nothing to do with anything that is relevant to them.

       5            THE COURT:  There gets to be a point, you know, you

       6   keep making an analogy about being instructed not to think of

       7   something, there gets to be a point where it becomes

       8   counterproductive.

       9            MR. DRATEL:  I understand, your Honor, but if --

      10            THE COURT:  You give me in writing tomorrow morning

      11   the language that you would like the jury to have if and when

      12   the document itself is received in evidence.

      13            MR. DRATEL:  Thank you, your Honor.

      14            (Jury present)

      15    KIBARUA MJITTA,

      16        called as a witness by the government,

      17        having been duly sworn, testified as follows:

      18            DEPUTY CLERK:  Please stand for a moment, sir.

      19   Please rise for a moment and please face the jury.

      20            THE WITNESS:  Stand up?

      21            (Witness sworn)

      22            DEPUTY CLERK:  Stand up.

      23            THE WITNESS:  I should say that?

      24            What I'm saying is the truth and nothing but the

      25   truth.

                                                                    1594

       1            DEPUTY CLERK:  Please be seated.

       2            Please state your full name, sir.

       3   DIRECT EXAMINATION

       4   BY MR. FITZGERALD:

       5   Q.  If you lean forward into the microphone and state your

       6   name, full name for the record.

       7   A.  My name is Kibarua Mikiir Mjitta.

       8   Q.  You have to sit forward with the microphone.  It's

       9   directional.  If you get it six inches away from your mouth

      10   and speak clearly, then everyone will hear.

      11            If you could just state your name again.

      12   A.  My name is Kibarua Mikiir Mjitta.

      13   Q.  Why don't we go over that a little more slowly.  Kibarua,

      14   can you spell Kibarua for the record?

      15   A.  K-I-B-A-R-U-A.

      16   Q.  Okay.  And Mikiir, could you spell that?

      17   A.  M-I-K-I-I-R.

      18   Q.  And Mjitta, could you spell that?

      19   A.  M-J-I-T-T-A.

      20   Q.  Can you tell the jury where you were born, what country?

      21   A.  Kenya.

      22   Q.  And could you tell the jury how old you are?

      23   A.  Born in 1957.

      24   Q.  And what do you do for a living?

      25   A.  I'm a civil servant.

                                                                    1595

       1   Q.  And as a civil servant who do you work for in Kenya?

       2   A.  Fisheries Department.

       3   Q.  And for the Fisheries Department, do you work in a

       4   particular location or job?

       5   A.  Kilifi.

       6   Q.  Is that K-I-L-I-F-I?

       7   A.  K-I-L-I-F-I.

       8   Q.  And can you tell the jury roughly where Kilifi is in

       9   Kenya?

      10   A.  I beg your pardon?

      11   Q.  Is it near Khost, Kilifi?

      12   A.  It's Khost province.

      13   Q.  How long have you worked for the Fisheries Office?

      14   A.  This is the 21st year.

      15   Q.  21st year?

      16   A.  Yes.

      17   Q.  How long have you worked for the Fisheries Office in

      18   Kilifi?

      19   A.  From 1988.

      20   Q.  Can you tell the jury what you do for the Fisheries

      21   Department in Kilifi?

      22   A.  I write both monthly and annual reports and collect

      23   statistics and do fish processing, meaning inspection, and the

      24   quality control.

      25   Q.  Inspection and what type of control?

                                                                    1596

       1   A.  Fish quality control.

       2   Q.  So you make sure that the fish are of good quality?

       3   A.  For human consumption.

       4   Q.  Now, did there come a time when you met a person by the

       5   name of Mohamed Odeh?

       6   A.  Yes.

       7   Q.  Can you tell the jury how you met Mohamed Odeh?

       8   A.  I met him in early 1996.  I was introduced to him by my

       9   fellow officer.

      10   Q.  And where was it that you met Mohamed Odeh?

      11   A.  Pardon?

      12   Q.  Where did you meet him?

      13   A.  Where?

      14   Q.  Yes.

      15   A.  At the Fishery port.

      16   Q.  Is Mohamed Odeh involved in the fish business?

      17   A.  Fishery?  I beg your pardon?

      18   Q.  Is Mohamed Odeh, was he working in the fish business?

      19   A.  Yes, he was working fish business, yes.

      20   Q.  And how often did you see Mohamed Odeh after you first met

      21   him in 1996?

      22   A.  Twice or once every month.

      23   Q.  And do you know, was there a particular boat that he

      24   worked with in the fish business?

      25   A.  Yes, al Munarwar.

                                                                    1597

       1   Q.  And do you know if al Munarwar is an Arabic word or

       2   Swahili word?

       3   A.  Looks like Arabic word.

       4   Q.  And do you know what kind of car Mohamed Odeh drove?

       5   A.  Pardon?

       6   Q.  Did he drive a particular car?

       7   A.  Yes.  Toyota Corolla model 1990, KAD550V.

       8   Q.  So it's a 1990 Toyota Corolla.  And is KAD550V the license

       9   plate?

      10   A.  What?

      11   Q.  Is KAD550V the license plate, the registration?

      12   A.  Sure.

      13   Q.  And how do you remember the registration of his car?

      14   A.  He used to drive me in his car.

      15   Q.  What do you do when you meet people who work in the fish

      16   business?  What contact do they have with you at your job for

      17   the Fisheries Office in Kilifi?

      18   A.  Well, as a fish dealer, as Mohamed was a fish dealer, was

      19   supposed to produce for me a fish movement permit, a fish

      20   trader's license and a -- because he was telling me that he

      21   was bringing fish from Kiunga, was to give me what you call

      22   the daily fisherman's permit, which is issued by either

      23   another office in Lamu or Kiunga.

      24   Q.  And you mentioned Lamu, L-A-M-U, and Kiunga, K-I-U-N-G-A,

      25   and those are other towns in the Khost of Kenya, those

                                                                    1598

       1   other --

       2   A.  He told me he came from Kiunga or Lama, so those are the

       3   places I always knew about.

       4   Q.  And where is your office located?

       5   A.  Just at the beach.

       6   Q.  On the beach itself?

       7   A.  Yes.

       8   Q.  Now, did you notice anything unusual about the fish

       9   business that Mohamed Odeh was involved in?

      10   A.  Yeah, there was something unusual.

      11   Q.  What was that?

      12   A.  The problem was that he was loading off the fish at night.

      13   Q.  And are you allowed to offload fish -- strike that.  What

      14   happens during the day when people offload fish?

      15   A.  There's always the Customs officer, there's always the

      16   Fisheries officer.

      17   Q.  What do they do?

      18   A.  They inspect the fish.  The Customs officer makes sure

      19   that they issue the dockman, they inspecting always, and we,

      20   as the Fisheries Department, make sure that the fish is fit

      21   for human consumption and we get the correct documents.

      22   Q.  And does there come a time during the day when your office

      23   is closed?

      24   A.  Beg your pardon?

      25   Q.  Does there come a time every day when you close the office

                                                                    1599

       1   and go home?

       2   A.  Sure.  Yes.

       3   Q.  What time is that?

       4   A.  4:30.

       5   Q.  And the people who unload the boats, do they go home a

       6   certain time?

       7            The unloaders, are there people who work at Kilifi

       8   Port unloading boats?

       9   A.  Yeah, they go home.

      10   Q.  And how did you learn that Mohamed Odeh was offloading at

      11   night?

      12   A.  Yeah, the loaders complained to me that they are not

      13   receiving money from him because he was offloading his fish at

      14   night.  So they came, they complained to me.

      15   Q.  And did you ever have a conversation with Mohamed Odeh

      16   after you heard these complaints about the offloading at

      17   night?

      18   A.  Yes.

      19   Q.  And can you tell us what you said to him and what he said

      20   to you?

      21   A.  I called him in my office and I told him that the loaders

      22   were complaining that he was offloading fish at night and that

      23   they are not getting anything out of him, so he said he would

      24   stop.

      25   Q.  And did he stop offloading at night, as far as you know?

                                                                    1600

       1   A.  Well, first of all, I had to, before I told him I had to

       2   further investigate what the people were complaining was

       3   right.  In fact, we discovered that he was doing that, I

       4   called him in the office and I told him that he should don't

       5   quarrel with it, the office, because of the offloading fish at

       6   night.

       7   Q.  During that conversation, did he ever indicate to you why

       8   he was offloading at night?

       9   A.  No, he didn't tell me why.

      10   Q.  After he told you he would stop offloading at night, as

      11   far as you know, did he ever offload at night again?

      12   A.  He stopped offloading at night.

      13   Q.  And do you recall when it was that you had this

      14   conversation with Mohamed Odeh to stop offloading the fish

      15   boat at night?

      16   A.  The time?

      17   Q.  Yes.  I mean the year, the year and month.

      18   A.  The year, 1997.

      19   Q.  When did you start working in Kilifi?

      20   A.  Who?

      21   Q.  When did you start working in your current job at Kilifi?

      22   A.  Me?

      23   Q.  Yes.

      24   A.  Stop working?

      25   Q.  Start working.

                                                                    1601

       1   A.  I'm still there.

       2   Q.  When did you begin?

       3   A.  I began in 1988 to date.  I was in Kilifi station from

       4   1988 to date.

       5            MR. FITZGERALD:  Excuse me one moment, your Honor.

       6            (Pause)

       7            MR. FITZGERALD:  Nothing further, Judge.

       8            THE COURT:  Mr. Wilford.

       9            MR. WILFORD:  Thank you, sir.

      10            May I inquire, your Honor?

      11            THE COURT:  Yes.

      12            MR. WILFORD:  Thank you.

      13   CROSS-EXAMINATION

      14   BY MR. WILFORD:

      15   Q.  Good afternoon, Mr. Mjitta.

      16   A.  Good afternoon, sir.

      17   Q.  Did I pronounce your name correctly, sir?

      18   A.  Well, I can't get some of your words.

      19   Q.  Is your last name Mjitta; is that correct?

      20   A.  Yeah, my last name.

      21   Q.  Could you say it for me, please?

      22   A.  Spell?

      23   Q.  No, say it, pronounce it.

      24   A.  Mjitta.

      25   Q.  Mjitta.  Thank you, Mr. Mjitta.

                                                                    1602

       1            Mr. Mjitta, when you were working at Kilifi --

       2   A.  I'm still working there.

       3   Q.  I understand.  Back in 1997, there was a lot of fishing

       4   boats that came into that particular port; isn't that correct?

       5   A.  Sure.

       6   Q.  And is it your testimony that you have been working for

       7   the Department of Fisheries for about 21 years; is that

       8   correct?

       9   A.  Sure.

      10   Q.  Now, I would like to have displayed, only to the witness

      11   and to counsel, what has previously been marked as Odeh A for

      12   identification.

      13            I ask you to take a look at that screen, sir.  Do you

      14   see something on there?

      15   A.  Yeah, that is my office.

      16   Q.  Okay.  So you recognize that to be a fair and accurate

      17   depiction of the Port of Kilifi and the Fisheries Department

      18   office there; is that correct?

      19   A.  Yeah, that is my fish port and the other one in red is the

      20   office I sit.

      21            MR. WILFORD:  Your Honor, if there is no objection, I

      22   offer Odeh A into evidence.

      23            MR. FITZGERALD:  No objection.

      24            THE COURT:  Received.

      25            (Defendant Odeh Exhibit A received in evidence)

                                                                    1603

       1            MR. WILFORD:  I ask that the picture now be displayed

       2   to the jury as well.

       3            I would now ask that Odeh Exhibit B be displayed to

       4   the witness and counsel.

       5   Q.  Do you recognize that, sir?

       6   A.  Beg your pardon?

       7   Q.  Do you recognize that photograph?

       8   A.  Yes, this is the marine club.

       9   Q.  I'm sorry?  Is that part of the Kilifi fishing port?

      10   A.  The other side.

      11   Q.  The other side?

      12   A.  Yes.

      13   Q.  Is that a fair and accurate depiction of how it looks,

      14   Mr. Mjitta?

      15   A.  That is, that's the other side of.

      16   Q.  But that's the way the other side of it looks, right?

      17   A.  Yes.

      18            MR. WILFORD:  Your Honor, without objection, I offer

      19   Odeh B in evidence.

      20            THE COURT:  Received.

      21            (Defendant Odeh Exhibit B received in evidence)

      22   BY MR. WILFORD:

      23   Q.  In your capacity, in your job as the -- working for the

      24   Kenya Department of Fisheries, you are familiar with the

      25   process by which boats are registered, licensed and fishing

                                                                    1604

       1   permits are issued; isn't that correct?

       2   A.  Yes.

       3   Q.  What paperwork must be presented in order for a boat to be

       4   registered?

       5   A.  Well, when a boat is new, we first of all go to measure

       6   it, see the length, and then you give what you call the local

       7   vessel registration.

       8   Q.  Local vessel registration?

       9   A.  Yes.

      10   Q.  And then?

      11   A.  And the names, the owner, such like information.

      12   Q.  Okay.  Does any paperwork need to be presented to the

      13   Department of Fisheries to identify who the owner is or the

      14   person registering a particular boat?

      15   A.  Only for, only for fishing vessels.  Only for fishing

      16   vessels.  The owner is supposed to present that paper to show

      17   to us that that boat has been registered as a fishing vessel.

      18   Q.  And does the boat also have to get a particular license

      19   for that boat?  In addition to it being registered, is there a

      20   license for the boat as well?

      21   A.  If it is not a fishing vessel, it is a vessel that is

      22   carrying fish, it's supposed to have a fish movement permit, a

      23   fish movement permit, which is issued for vessels and is

      24   costing 1,000 Kenyan shillings.

      25   Q.  1,000 Kenyan shillings?

                                                                    1605

       1   A.  Shillings.

       2   Q.  Do you know how much that is in U.S. dollars, sir?

       3   A.  Well, maybe you can compute by dividing it by 78 Kenyan

       4   shillings.  By 78 shillings, because one dollar is 78 Kenyan

       5   shillings.

       6   Q.  A fishing license, there are two kinds of permits that you

       7   talked about, right?

       8   A.  Yes.

       9   Q.  One to move fish?

      10   A.  Yes.

      11   Q.  And one to actually fish, to actually catch fish from the

      12   ocean; is that correct?

      13   A.  Yes.

      14   Q.  Do you remember, sir, whether or not the boat that you

      15   described Mr. Odeh as owning, did that boat have a permit to

      16   move fish?

      17   A.  Yeah, I can remember it had a permit to move fish, but I

      18   can't remember where it was issued, but it had a fish movement

      19   permit.

      20   Q.  So it had a permit to move fish and also to catch fish

      21   from the ocean?

      22   A.  No, no, no, no, not to catch fish.

      23   Q.  No?  Only to catch fish?

      24   A.  Not to cash fish.

      25   Q.  Not to catch fish.

                                                                    1606

       1            Now, how many tons of fish, if you know, sir, were

       2   being transported on this boat?

       3   A.  Well, sometimes they used to tell me he had come with two

       4   tons, sometimes one ton.

       5   Q.  And the cost for the fishing permit you said was a

       6   thousand shillings.  What was the cost to simply register the

       7   boat?

       8   A.  I beg your pardon?

       9   Q.  The cost to register the boat, how much did it cost to

      10   register the boat?

      11   A.  The register?

      12   Q.  Yes.

      13   A.  For fishing or what?

      14   Q.  For fishing.  I'm only going to be speaking about fishing,

      15   not pleasure or cruises, only for fishing vessels.

      16   A.  For fishing vessels --

      17            THE COURT:  To catch or to move?

      18            MR. WILFORD:  Fishing vessels that move fish.

      19   A.  Fishing vessels, we have different classes.  We have

      20   called the canoes.  That's only registered with only 100

      21   Kenyan shillings.  Then you have the sports fisherman

      22   licenses, which are registered at 500 Kenyan shillings.

      23   Q.  The boat that you have described, the Munarwar, what would

      24   be the cost to register that particular boat as a fish moving

      25   vessel?

                                                                    1607

       1   A.  As for Mr. Odeh's boat, if it were for fishing, it would

       2   cost 500 shillings.

       3   Q.  And what about for moving fish?

       4   A.  1,000.

       5   Q.  So it's more expensive to move fish than it is to catch

       6   it?

       7   A.  Sure.

       8   Q.  Now, you met with agents from America and Kenyan Criminal

       9   Investigation Division personnel in October 1998; isn't that

      10   correct?

      11   A.  Well, it's not my country, but I know I met them.  I met

      12   them.

      13   Q.  You met with them in October 1998?

      14   A.  Yes.

      15   Q.  You met with them in February -- you met with only

      16   American agents on February 1, 1999; isn't that correct?

      17   A.  Yes.

      18   Q.  They came to your office and you talked with them?

      19   A.  Yes.

      20   Q.  And in May of last year, May 27 of last year, you met with

      21   American agents and CID personnel; isn't that correct?

      22   A.  Yes.

      23   Q.  And CID is the Criminal Investigation Division of the

      24   Kenyan police; is that correct?

      25   A.  Yes.

                                                                    1608

       1   Q.  That's a different branch of government than the one that

       2   you're in; is that correct?

       3   A.  Yes.

       4   Q.  You have to answer, sir, so she can take down what you are

       5   saying.

       6   A.  Oh, yes.

       7            THE COURT:  You had two questions.  You asked whether

       8   he met with them and whether CID was a different branch of

       9   government, and the answer was yes, I assume it was, to both

      10   parts, but it's not clear.

      11            MR. WILFORD:  The witness answered the first one.  I

      12   believe the answer to both was yes.

      13            THE COURT:  Very well.

      14   Q.  Isn't it a fact, sir, that Mr. Odeh personally went out on

      15   a boat, with a boat and went out to get fish and move fish;

      16   isn't that correct?

      17   A.  I beg your pardon?

      18   Q.  Mr. Odeh personally went out on a boat when the boat went

      19   out to move fish from one location to another; isn't that

      20   correct?

      21   A.  Sometimes he had accompanied the boat to go and take the

      22   fish.

      23   Q.  Right.  Not all the time, but sometimes he accompanied the

      24   boat; isn't that correct?

      25   A.  Yes.

                                                                    1609

       1   Q.  And he also, sir, isn't it correct, had people working for

       2   him on the boat; isn't that correct?

       3   A.  There were people working on his boat.

       4   Q.  Yes, there was a captain?

       5   A.  Yes.

       6   Q.  And there were some crewmen; isn't that correct?

       7   A.  Yes.  I know their names.

       8            MR. WILFORD:  I would ask that the map be displayed

       9   to the witness and counsel at this point.

      10            (Pause)

      11            MR. WILFORD:  I'll move on and hopefully we'll solve

      12   the technology glitch.

      13   Q.  Sir, when you were discussing Mr. Odeh's moving fish on

      14   the boat, do you know where he went to obtain the fish?

      15   A.  He told me personally that he took the fish from Kiunga.

      16   Q.  From where?

      17   A.  Kiunga.

      18   Q.  Could you spell that please, sir?

      19   A.  K-I-U-N-G-A.

      20   Q.  And that's in Kenya; isn't that correct?

      21   A.  Yes, it's in Kenya.

      22   Q.  Now, isn't it a fact that he also went to Kismayo,

      23   Somalia, to get fish as well?

      24   A.  That much I don't know.

      25   Q.  Excuse me?

                                                                    1610

       1   A.  That much he didn't tell me.

       2   Q.  Well, did you, sir, in fact not tell the American

       3   authorities when you spoke with them that one of the places

       4   that Mr. Odeh went to obtain fish was Kismayo, Somalia?

       5            You want to take a moment to think about it?

       6   A.  Me?

       7   Q.  Yes, you.

       8   A.  No, I didn't.  What he told me, Mr. Odeh, is that he took

       9   fish from either Lama or Kiunga.

      10   Q.  I'm not asking you what he told you at this point, sir.

      11   I'm asking you, isn't it a fact that you told the American

      12   authorities when they spoke with you that he obtained fish at

      13   Kismayo, Somalia?

      14   A.  No.  I don't remember that.

      15   Q.  You don't remember that?

      16   A.  No.

      17            MR. WILFORD:  The map is up now?  No.

      18            Judge, may I have just one moment?  May I approach

      19   the witness --

      20            THE COURT:  Yes.

      21            MR. WILFORD:  -- in an effort to refresh his

      22   recollection.

      23   Q.  Sir, I would ask you to read that particular paragraph to

      24   yourself and tell us if that refreshes your recollection as to

      25   whether or not you have told the American authorities that

                                                                    1611

       1   Mr. Odeh obtained fish at Kismayo, Somalia.

       2            MR. WILFORD:  Your Honor, may I just stay here for a

       3   moment?

       4            THE COURT:  Yes.

       5   A.  Yeah.

       6   Q.  Did you have an opportunity to read this, sir?

       7   A.  Now I remember.

       8   Q.  Did it refresh your recollection?

       9   A.  Yeah.

      10   Q.  Isn't it a fact that you told them that?

      11   A.  I beg your pardon?

      12   Q.  Isn't it a fact that you told them that you obtained fish

      13   in Kismayo --

      14   A.  Yeah.

      15   Q.  -- somalia; isn't that correct?

      16   A.  Yeah.

      17   Q.  Now, sir, I would ask you to be kind enough to look at the

      18   screen.  You might want to use your glasses because it's

      19   not --

      20            Yes, do you see Kismayo?  Do you see Kiunga on the

      21   map?

      22   A.  I see Kiunga, but I don't see Kismayo.

      23   Q.  Okay.  Kismayo is north of Kiunga; isn't that correct?

      24   A.  North?

      25   Q.  North of Kiunga?

                                                                    1612

       1   A.  Yeah.

       2   Q.  Now, when you were -- I'm sorry, could you please tell the

       3   jury what the distance is from, if you know, from Kilifi,

       4   Kilifi to Mombasa?

       5   A.  Should be around 56 kilometers.

       6            (Continued on next page)

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1613

       1   Q.  Fifty-six kilometers?

       2   A.  Yes.

       3   Q.  Do you know how far it is from Kilifi to Witu?

       4   A.  I don't know.

       5   Q.  What about from Mombasa to Nairobi?

       6   A.  I don't know.  I don't exactly know.

       7   Q.  Is it a long drive from Mombasa to Nairobi?

       8   A.  It's very far.

       9   Q.  When you were speaking about the fish being offloaded at

      10   Kilifi, the fish was then transported to Mombasa; isn't that

      11   correct?

      12   A.  Yes.

      13   Q.  Mr. Odeh used a driver, a truck to drive the fish from

      14   Kilifi to Mombasa for sale; isn't that correct?

      15   A.  Yes.

      16   Q.  Because there are no markets in Kilifi.  The real markets

      17   where you can make money with your fish is in Mombasa; isn't

      18   that correct?

      19   A.  Yes.

      20   Q.  Sir, when you spoke about the fish being offloaded at

      21   night by Mr. Odeh, he wasn't doing that by himself, was he?

      22   A.  He was doing it maybe with his crews.

      23   Q.  With his crew?

      24   A.  Yes.

      25   Q.  And the reason you got a complaint was because he was

                                                                    1614

       1   using his own people to offload the fish and the people at the

       2   port who were making money offloading the fish weren't getting

       3   paid, right?  That's the reason you got the complaint, right?

       4   A.  No.  Personally, the department was missing information,

       5   statistics from Mr. Odeh.  One of our duties is to collect

       6   statistics.

       7   Q.  So you were missing statistics?

       8   A.  Yes, because he was making it at night.

       9   Q.  But didn't you also just tell the jury on direct

      10   examination that the people who offloaded the fish from the

      11   boats came to you and said Mr. Mjitta, this boat is unloading

      12   at night because you didn't know because you went home, right?

      13   A.  The complaint was there and we were also missing the

      14   statistics for Mr. Odeh.

      15   Q.  I understand, but there was a complaint.

      16   A.  From?

      17   Q.  People who told you about it, right, people who offloaded

      18   the fish, isn't that correct, they told you there is a problem

      19   here, right?

      20   A.  Sure.

      21   Q.  Sir, the truck that was used, that was a personal contract

      22   that Mr. Odeh had with that particular truck; isn't that

      23   correct?

      24   A.  I beg your pardon.

      25   Q.  The truck that was used to transport the fish from Kilifi

                                                                    1615

       1   to Mombasa, that wasn't one of the trucks that was part of the

       2   ordinary Kilifi run; isn't that correct?

       3   A.  It was not from Kilifi.

       4   Q.  Right.  Mr. Odeh had his own contract with that truck,

       5   right, and he used the same truck all the time, right?

       6   A.  I can't remember, but I know there was a truck with a

       7   double cabin, blue, that used to carry his fish.

       8   Q.  And that was the only truck that carried his fish; isn't

       9   that correct?

      10   A.  Yes.

      11   Q.  Sir, isn't it a fact that fish that sold at the market in

      12   Mombasa has to be there very early in the morning?

      13   A.  Not necessarily.

      14   Q.  No?  You don't have the fish when the market opens, fresh

      15   fish early in the morning for restaurants and entities of that

      16   sort?

      17   A.  Not necessarily.

      18   Q.  OK.  The bottom line is this, though.  When Mr. Odeh was

      19   offloading his boat at night, you spoke to him and told him

      20   that you shouldn't do that; isn't that correct?

      21   A.  Yes.

      22   Q.  And when you spoke to him, he stopped offloading at night

      23   and it wasn't done again; isn't that correct?

      24   A.  He didn't do it but it was up there, it was the end of

      25   1997, and then I didn't see him again.

                                                                    1616

       1   Q.  But it ended.  You told him not to do it and he didn't do

       2   it any more, isn't that correct?

       3   A.  Yes.

       4            MR. WILFORD:  Thank you very much.  No further

       5   questions, your Honor.

       6            THE COURT:  Any redirect?

       7            MR. FITZGERALD:  No, Judge.

       8            THE COURT:  Thank you.  You may step down.

       9            (Witness excused)

      10            MR. FITZGERALD:  The government calls Special Agent

      11   John Anticev, A-N-T-I-C-E-V.

      12    JOHN MICHAEL ANTICEV,

      13        called as a witness by the government,

      14        having been duly sworn, testified as follows:

      15   DIRECT EXAMINATION

      16   BY MR. FITZGERALD:

      17   Q.  Agent Anticev, just keep your voice up, as you have been

      18   doing, and recognize that is a directional microphone.  So if

      19   you stay close to it, everyone will hear.

      20            Can you tell the jury what you do for a living.

      21   A.  I am a special agent with the FBI, assigned to the New

      22   York office.

      23   Q.  For how long have you been an FBI agent?

      24   A.  I am in my 14th year.

      25   Q.  Directing your attention to August 1998, did there come a

                                                                    1617

       1   time that you deployed to Kenya as part of your duties with

       2   the FBI?

       3   A.  Yes.

       4   Q.  Was that following the bombings in Africa?

       5   A.  Yes.

       6   Q.  Let me direct your attention to later that month.  Did

       7   there come a time when you interviewed Mohamed Sadeek Odeh?

       8   A.  Yes.

       9   Q.  Can you tell the jury what day you began to interview

      10   Mohamed Sadeek Odeh.

      11   A.  We began the interview on August 15.

      12   Q.  For how many days did you interview Mohamed Odeh in Kenya?

      13   A.  Until August 27.

      14   Q.  After that point in time, was Mohamed Odeh brought back to

      15   the United States?

      16   A.  Yes, he was.

      17   Q.  Between August 15 and the 27th, did you interview him

      18   every day?

      19   A.  Not every day.

      20   Q.  Do you know how many days you did not speak to him during

      21   that time?

      22   A.  Approximately two days.

      23   Q.  When you did interview him, what was the earliest, or when

      24   did you generally start interviewing him during each

      25   interview?

                                                                    1618

       1   A.  During the daytime we started about, the earliest we

       2   started was about 9, sometimes later.

       3   Q.  How late would you work during those interview sessions?

       4   A.  We never worked past -- one time we worked till 6.  That

       5   was probably the latest.

       6   Q.  Did you always interview him for the full day or did you

       7   ever work half days?

       8   A.  We worked several half a days.

       9   Q.  Let me direct your attention to the first day of the

      10   interviews, August 15.  Do you know what time you started that

      11   day?

      12   A.  We started approximately 10:00.

      13   Q.  Where did the interview take place?

      14   A.  At Kenyan police department headquarters.

      15   Q.  Was it inside that Kenyan police headquarters building?

      16   A.  Yes.

      17   Q.  Can you tell the jury who was present for the interview?

      18   A.  Myself, two other US officials, and three Kenyan

      19   officials.

      20   Q.  Over the course of the following days, was it always the

      21   same people there?

      22   A.  No.

      23   Q.  Generally, how many American officials were present during

      24   the interview?

      25   A.  Two to three.

                                                                    1619

       1   Q.  How many Kenyan officials would be present?

       2   A.  It varied.  Sometimes three, sometimes two, sometimes one.

       3   Q.  In what language did you conduct the interview?

       4   A.  In English.

       5   Q.  Did you have any difficulty understanding Mr. Odeh in

       6   English?

       7   A.  No.

       8   Q.  Did you ever have to repeat a question or have him repeat

       9   an answer to a question?

      10   A.  Yes.

      11   Q.  Did he ever ask you to repeat a question to him?

      12   A.  Yes.

      13   Q.  Can you tell the jury how you began the interview on

      14   August 15.

      15   A.  On August 15 we started the interview by first advising

      16   Mr. Odeh of his rights.  We told him that he had the right to

      17   remain silent, anything he said would be used against him.  We

      18   were going over a form that the FBI uses when dealing with

      19   subjects overseas, and the form also went on to say that if

      20   you were in the United States you would have the right to have

      21   an attorney present and if you were in the United States, if

      22   you could not afford an attorney one would be appointed to

      23   you.

      24   Q.  Let me approach you with what has been premarked as

      25   Government's Exhibit 3 for identification, and I will ask you

                                                                    1620

       1   if you recognize this form?  Do you recognize Government's

       2   Exhibit 3?

       3   A.  Yes.

       4   Q.  What is that?

       5   A.  That is the advice of rights form that he signed.

       6   Q.  You mentioned that you read it to him.  Did you show him a

       7   copy of that form?

       8   A.  Yes.

       9   Q.  What happened when you finished reading the form or while

      10   you were reading the form and showing him a copy of the form?

      11   A.  While we were explaining the form to him he had a

      12   question.  When we were talking about attorneys, he said, he

      13   mentioned something about having an attorney available; a

      14   Kenyan attorney.

      15   Q.  What happened then?

      16   A.  He asked a couple of other questions, and that original

      17   question got lost because he followed up with another

      18   question, and eventually he stated that he would be willing to

      19   talk to us, but he did not want to sign the form, he first

      20   wanted to talk, how he called it, small talk to get to know

      21   each other.

      22   Q.  What happened then?

      23   A.  At that point we didn't want to pursue that, with that

      24   question that he had outstanding, so we broke and we went out

      25   into the hallway to discuss that amongst ourselves and with

                                                                    1621

       1   the Kenyans.

       2   Q.  Did you go back into the room with Odeh after that?

       3   A.  Yes.

       4   Q.  What if anything was Odeh told at that point?

       5   A.  We told him that I had talked to the Kenyan authorities

       6   and that under their rule of law, that a Kenyan -- that they

       7   don't have the same thing as we do, they don't have the right

       8   to counsel at that stage of the investigation.

       9   Q.  What else if anything was said to Odeh at that point about

      10   his rights?

      11   A.  We told him that we could not provide him with an

      12   attorney, we did not have a United States, a U.S. attorney

      13   with us to represent him.  We told him that if he wished to

      14   have an attorney that we would respect that wish, and then the

      15   US representatives would not partake in the interview and we

      16   would leave the room.

      17   Q.  Just so we are clear for the record, he had asked about an

      18   Kenyan attorney and one of the things you made clear to him

      19   was that you did not have an American attorney available there

      20   to represent him.

      21   A.  Right.

      22   Q.  Can you explain what you understood about a Kenyan

      23   attorney.

      24   A.  We also asked him if he had his own Kenyan attorney.  He

      25   said he did not have an attorney.  We told him we could not

                                                                    1622

       1   provide him a Kenyan attorney.

       2   Q.  What was he told about what his options were at that point

       3   in time?

       4   A.  We told him he had basically three options.  One was that

       5   he had the right to remain silent and he did not have to talk

       6   to either the Kenyan authorities or the US authorities, and if

       7   he invoked that right to not talk, that would have ended the

       8   matter right there.  And the second option was that if he

       9   wished to have an attorney present during that questioning,

      10   that we would oblige that and we would leave the room.  And

      11   then he would have to be with the Kenyan authorities to

      12   continue the interview or interrogation, but he also had the

      13   right to tell them that he didn't want to talk.  And the third

      14   option was that he could talk to the US authorities and the

      15   Kenyan authorities together with no attorney.

      16   Q.  What if anything did Odeh say when that was explained to

      17   him?

      18   A.  He came up with a fourth one.  He said can I just talk to

      19   the US authorities alone?

      20   Q.  What happened at that point?

      21   A.  At that point we all left the room to discuss that.

      22   Remaining in the room with Mr. Odeh was a Kenyan official, and

      23   by the time I got out to the hallway, the Kenyan official came

      24   out and said he's agreed to talk to both of us, to both

      25   authorities.

                                                                    1623

       1   Q.  Did you go back in the room with Odeh at that point?

       2   A.  Yes.

       3   Q.  Did he indicate anything about whether he was willing to

       4   talk to both the Kenyan and American authorities?

       5   A.  Yes.  He said that he figured that if he spoke to the US

       6   authorities alone, that we would tell the Kenyan authorities

       7   anyway, so he figured why not just talk to both of them at the

       8   same time.

       9   Q.  What happened at that point?

      10   A.  At that point he agreed to talk and he signed the form.

      11   Q.  What happened then?

      12   A.  He asked some questions about what if I change my mind.

      13   We told him that it was fine, that he was the boss, that he

      14   was in complete control of his own way of dealing with us.  He

      15   could stop talking at any time.  He could pick and choose to

      16   answer the questions, if he didn't like a question he didn't

      17   have to answer it.

      18   Q.  Did he then answer questions after that point?

      19   A.  Yes.

      20   Q.  What did he tell you about where he was born and where he

      21   grew up?

      22   A.  He told me that he was born in Saudi Arabia and grew up in

      23   Jordan.

      24   Q.  Did he indicate what his ethnic heritage was?

      25   A.  That he was of Palestinian heritage.

                                                                    1624

       1   Q.  Over the course of the interviews, did he indicate what

       2   other names he was known by besides Mohamed Sadeek Odeh?

       3   A.  He is also known as Abu Yasser, Noureldine, Marwan, and

       4   Abu Moath.

       5   Q.  Did he indicate whether he had a son during the interview?

       6   A.  Yes.

       7   Q.  What was the son's name?

       8   A.  Yassi.

       9   Q.  What did he tell you about where he went to school?

      10   A.  He, I believe, went to school for the earlier grades back

      11   in Jordan, but in 1986 he went to university, the Far Eastern

      12   University in Manila, Philippines.

      13   Q.  Did he indicate what he studied at that school?

      14   A.  Architecture and engineering.

      15   Q.  Did he indicate whether he became involved in any studies

      16   besides school during the time he was in the Philippines?

      17   A.  Yes.  During his studies in the Philippines, he became

      18   active in Islamic societies, and he also mentioned a Kuwaiti

      19   Islamic center that he used to go to.

      20   Q.  Did he indicate what if anything he was exposed to when he

      21   would go to Islamic societies in the Philippines?

      22   A.  Yes.  He became particularly interested, he told me, in

      23   the concept of jihad by listening to tape recordings and

      24   videos of individual named Abdallah Azzam, who was the leader

      25   of Arabs who were fighting in Afghanistan.

                                                                    1625

       1   Q.  Did he indicate whether there came a time when he left the

       2   Philippines?

       3   A.  Yes.  In his final year of school, he was getting ready to

       4   do his thesis, but he needed a thousand dollars, and his

       5   father sent him a thousand dollars, and when he got that money

       6   he decided to call a religious scholar back home where he came

       7   from, to ask him his advice on what to do with the thousand

       8   dollars, should he use it to complete his studies or should he

       9   use it to join the jihad movement and go to Afghanistan and do

      10   jihad.

      11   Q.  Did he indicate what advice he was given and what he did?

      12   A.  His advice that was given to him was to stop what he was

      13   doing immediately and go do jihad.

      14   Q.  What did he tell you that he did?

      15   A.  From the Philippines he traveled to -- made his way to

      16   Afghanistan but he traveled first to Hong Kong and then to

      17   Pakistan.

      18   Q.  Did he indicate where he went in Pakistan?

      19   A.  Yes.  He landed in Karachi and then went from Karachi to

      20   the city of Peshawar.

      21   Q.  Did he indicate how he got from Karachi to Peshawar?

      22   A.  By bus.

      23   Q.  What did he tell you that he did once he arrived in

      24   Peshawar?

      25   A.  When he first arrived at Peshawar, he went to a place

                                                                    1626

       1   called Bait Al Ansar, which I think it translates to House of

       2   Support, where people who were doing that, that's the first

       3   place they stopped.

       4   Q.  Did he tell you approximately what year, and, if you

       5   remember, what month it was that he went from the Philippines

       6   to Peshawar, Pakistan?

       7   A.  I think it was October 1990.

       8   Q.  What did he tell you happened when he arrived at the Bait

       9   al Ansar in Peshawar, Pakistan?

      10   A.  He stayed there for two days, I believe, and then he made

      11   his way by bus to the Afghan border.

      12   Q.  Then what did he tell you happened there?

      13   A.  After he got to the border they transferred to another

      14   vehicle, and they went to one of the camps, called the Farouq

      15   camp.

      16   Q.  Did he tell you what city, if any, was located near the

      17   Farouq camp?

      18   A.  It's in the area of Khost.

      19   Q.  What did Mr. Odeh tell you happened at the Farouq camp?

      20   A.  That was where he received his first series of basic

      21   training.

      22   Q.  Did he tell you how long he spent at the Farouq camp?

      23   A.  Approximately two months.

      24   Q.  Did he tell you what type of training he received during

      25   those two months?

                                                                    1627

       1   A.  He received military training that was broken up into

       2   three segments.  The first segment was basic use of firearms,

       3   particularly the AK47, and kind of moved up to a belt-fed

       4   machine gun.

       5   Q.  Did he describe what the second level of training was like

       6   at the Farouq camp?

       7   A.  The second level, they started learning about topography,

       8   map reading, and they got introduced to explosives,

       9   particularly C3, C4, and TNT.

      10   Q.  Did he indicate what happened at the third level of

      11   training?

      12   A.  The third level of training involved more sophisticated

      13   weapons, like antitank missiles, rocket launchers, mortars,

      14   and antiaircraft weapons.

      15   Q.  Did Odeh indicate who was the person in charge of the camp

      16   at the time he was training?

      17   A.  For most of the time there, except for the first two

      18   weeks, the person in charge was a guy named Basheer.

      19   Q.  Did Odeh indicate what country Basheer was from?

      20   A.  I don't remember.

      21   Q.  Did Odeh indicate whether or not he was approached by any

      22   organization at or about the time or after the time he

      23   attended the Farouq camp?

      24   A.  While at the Farouq camp, he was approached by members of

      25   the of Al Qaeda organization, if he was interested in joining.

                                                                    1628

       1   Q.  Did he indicate his belief as to why he had been

       2   approached?

       3   A.  He stated that he was approached because of his good

       4   character, his understanding of the religion, and his ability

       5   to get along with other people.

       6   Q.  Did Mr. Odeh tell you at that time whether he decided at

       7   that time to join the Al Qaeda group?

       8   A.  At that time he decided against joining.  He wanted to

       9   wait for a while.

      10   Q.  Did he tell you what he then did after he finished his

      11   training at the Farouq camp?

      12   A.  After he finished the training at the Farouq camp, they

      13   were sent back to Peshawar, where they were going to be

      14   deployed.

      15   Q.  Did he indicate how long he stayed at Peshawar after he

      16   went back there?

      17   A.  He didn't stay very long.  He had to take care of some

      18   dental work.  He had dental problems.

      19   Q.  What happened after that?

      20   A.  After that, he was sent to Jalalabad to work -- that's not

      21   too far from where the fighting was going on.  He was sent to

      22   Jalalabad to work in a rear area support for the front lines.

      23   Q.  Did he indicate what role he played in the rear area

      24   support in Jalalabad?

      25   A.  I believe he was taking care of wounded.

                                                                    1629

       1   Q.  Do you know if he was working as a medic?

       2   A.  Yes, medic.  He was taking care of wounded people.

       3   Q.  Did Odeh indicate how long he spent in the area of

       4   Jalalabad at that time?

       5   A.  I believe he was there for about a month.

       6   Q.  What did Odeh tell you he did after that month in the area

       7   of Jalalabad?

       8   A.  After that, he went back to Peshawar.

       9   Q.  Did he indicate what he did there?

      10   A.  After he returned to Peshawar, he was only there a short

      11   time, and then I believe he wound up going back to Jalalabad.

      12   Q.  Did he indicate what happened on his second time he went

      13   to Jalalabad?

      14   A.  The second time he went to Jalalabad, he went back as a

      15   medic and he was -- well, when he was in Peshawar that

      16   first -- after the camp, after Jalalabad the first time, a

      17   doctor, I believe his name was Mohamed, approached him and

      18   said if he wanted to go back and be a medic for a small

      19   salary, and he did.

      20   Q.  What happened when he went back to Jalalabad to serve as a

      21   medic?

      22   A.  While there, he was injured in an air raid.  He was

      23   wounded in the head.

      24   Q.  What did he do as a result of the wounds?

      25   A.  He went again back to Peshawar to recover.

                                                                    1630

       1   Q.  Did he indicate what he did after he recovered from the

       2   injury?

       3   A.  I believe that --

       4   Q.  Let me ask you this.  Did he tell you about a number of

       5   different camps and places where he served --

       6   A.  He went back into Afghanistan to several of the camps.  I

       7   believe the second camp he went to after that was the Jihad

       8   Wal camp.

       9   Q.  What did he tell you -- first of all, did he tell you how

      10   long, approximately, he spent at the Jihad Wal camp?

      11   A.  I think 45 days.

      12   Q.  Did he tell you what he did at the Jihad Wal camp?

      13   A.  At that camp, they learned different military tactics.

      14   They trained in how to attack certain installations and

      15   certain points.

      16   Q.  Did he indicate whether or not he received any nonmilitary

      17   training during that time period after he was done in the

      18   Jihad Wal camp?

      19   A.  After the Jihad Wal, a friend of his asked him if he

      20   wanted to go for a three-month religious studies course.

      21   Q.  Did Odeh indicate whether he did --

      22   A.  Yes, and he did, he went to that course.

      23   Q.  Did he indicate where he attended these studies?

      24   A.  In the area, I believe, around Pakistan -- I mean, in

      25   Peshawar.

                                                                    1631

       1   Q.  Did he indicate when he was done the three months of his

       2   Islamic training or study, do you recall what time frame he

       3   indicated that would be?

       4   A.  That was around early '92.

       5   Q.  Did he indicate whether or not the topic of his joining Al

       6   Qaeda ever came up again in 1992?

       7   A.  Yes.  And he was approached to join Al Qaeda at that time,

       8   and he decided that he wanted to join Al Qaeda, he was

       9   impressed with the philosophy of it and he wanted to join.

      10   Q.  Did he indicate what it was about Al Qaeda versus other

      11   groups that made Al Qaeda attractive to him?

      12   A.  He liked Al Qaeda because it represented the whole Muslim

      13   world.  He told me that he didn't want to join like a

      14   Palestinian group or another group based upon one country, one

      15   ethnic background, because Al Qaeda represented all Muslims.

      16   Q.  Did he indicate what he thought of whether or not Al Qaeda

      17   was Islamically pure as compared to the other groups?

      18   A.  He did.  He said that compared to the other groups that Al

      19   Qaeda was Islamically pure and that the leadership in other

      20   groups might do things that are not Islamically correct.

      21   Q.  Did he indicate how he went about becoming a member of Al

      22   Qaeda?

      23   A.  Yes.  He took bayat, it's called.

      24   Q.  Did Odeh explain to you what his understanding -- this

      25   will be the last question, your Honor.

                                                                    1632

       1            Did Odeh indicate to you what his understanding was

       2   of what the bayat required him to do?

       3   A.  Bayat is when he pledges his allegiance to Usama Bin Laden

       4   and that he will follow his orders as long as those orders are

       5   Islamically correct.

       6            (Continued on next page)

       7

       8

       9

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      11

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      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1633

       1            MR. FITZGERALD:  Your Honor, I think we could break

       2   there.

       3            THE COURT:  All right.  We will call it a day.  Thank

       4   you for your patience and cooperation, and we will resume

       5   tomorrow at 10:00 a.m.

       6            (Witness excused)

       7            JUROR:  Your Honor, can we take these transcripts

       8   with us?

       9            THE COURT:  Are the transcripts to be taken or not?

      10            MR. FITZGERALD:  I think they should, yes.

      11            THE COURT:  Yes, you may keep them.

      12            (Jury excused)

      13            THE COURT:  Anything which needs to be addressed

      14   before we continue?  We are adjourned until tomorrow.

      15            (Proceedings adjourned until 10:00 a.m., Wednesday,

      16   February 28, 2001)

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1634

       1                        INDEX OF EXAMINATION

       2   Witness                    D      X      RD     RX

       3   L'HOUSSAINE KHERCHTOU...1508   1508    1538    1556

       4   KIBARUA MJITTA..........1593   1601

       5   JOHN MICHAEL ANTICEV....1616

       6                        GOVERNMENT EXHIBITS

       7   Exhibit No.                                     Received

       8    5 ..........................................1555

       9    35, 93 and 93-T ............................1571

      10    34, 81 and 81-T ............................1572

      11    36; 201A and 201A-T;

      12    202A and 202A-T; 203A

      13    and 203A-T; 204A and 204A-T;

      14    204B and 204B-T; 205A and 2505A-T;

      15    207A and 207 ...............................1577

      16                         DEFENDANT EXHIBITS

      17   Exhibit No.                                     Received

      18    A ..........................................1602

      19    B ..........................................1603

      20

      21

      22

      23

      24

      25

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