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

This is the transcript of Day 14 of the trial, 7 March 2001

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

                                                                    1884

       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                                           January 8, 2001
                                                   9:55 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

                                                                    1885

       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

                                                                    1886

       1            (Trial resumes)

       2            THE COURT:  The record will indicate that the Court

       3   didn't sit on Monday and Tuesday, March 5th and 6th, because

       4   of the weather conditions.

       5            On March 6th I entered an order with respect to the

       6   cross-examination of victim witnesses consistent with my

       7   ruling the previous Thursday that crossed with a motion in

       8   limine by the government dated March 5.  In my March 6

       9   memorandum I said, "If any defense counsel believes that the

      10   vulnerability of the embassy or the failure to issue warning

      11   or take other precautions is a valid defense issue as to

      12   guilt, the Court should promptly be so advised, preferrably in

      13   writing, and we will deal with this issue forth with."

      14            I subsequently received a letter from Frederick Cohn,

      15   which, I've been advised, is also to be sealed, and I have so

      16   marked my copy, in which he makes certain observations but

      17   does not contest that the vulnerability of the embassy or the

      18   failure to advise Kenyans of any threats was relevant.

      19            Does anybody have a contrary view?  Silence is

      20   acquiescence.  I assume, therefore, that questions such as

      21   that posed to Ambassador Bushnell at page 1876, line 16, "As

      22   United States ambassador, did you ever warn the Kenyans about

      23   threats made against U.S. embassies or U.S. facilities?" will

      24   not be asked of any of the victim witnesses and that the

      25   matter need not be addressed before the jury.

                                                                    1887

       1            At some point today, not now and not in open court, I

       2   would like to resume a dialogue which was begun last week with

       3   respect to future timing of this case and what, if anything,

       4   should be said to the jurors.

       5            Any other matter which we should address before we

       6   bring in the jury?

       7            MR. KARAS:  Your Honor, with respect to your Honor's

       8   ruling regarding the in limine motion and Ambassador Bushnell,

       9   we assume that that same ruling would apply to the witnesses

      10   that would testify regarding the Dar es Salaam Embassy and the

      11   Dar es Salaam bombing and any issues regarding vulnerability

      12   and so forth.

      13            MR. RUHNKE:  No problem, Judge.

      14            THE COURT:  I think that's correct, yes.

      15            Mr. Cohn.

      16            MR. COHN:  There will be some matters which should be

      17   taken up before Agent Gaudin takes the stand, which I gather

      18   will be right after the victims.  I can do it now or I can

      19   wait until the recess.

      20            THE COURT:  Let's do it during the recess and let's

      21   bring in the jury and the next witness.

      22            MR. BUTLER:  Your Honor, one quick matter.  We would

      23   request that the victim witnesses not be sketched.

      24            THE COURT:  Not be sketched.

      25            Is there a sketch artist in the courtroom?  No.  All

                                                                    1888

       1   right.

       2            MR. RUHNKE:  Just walked in, I think.

       3            THE COURT:  Ma'am, are you a sketch artist?

       4            SPECTATOR:  No.

       5            MR. SCHMIDT:  Your Honor, just so you're aware, we

       6   have issues concerning the cross-examination of Officer Gaudin

       7   that we would like to take up also.

       8            THE COURT:  Very well.

       9            All right, so let's bring in the jury and the next

      10   witness.

      11            I just advise the marshals, then, if a sketch artist

      12   comes and starts to sketch, that he or she been advised not to

      13   sketch the faces of any of the witnesses this morning.

      14            (Jury present)

      15            THE COURT:  Welcome back.  Welcome back.

      16            THE JURY:  Good morning.

      17            THE COURT:  Before we begin, may I inquire whether

      18   any jurors have seen or read any media reports over the trial

      19   over the weekend or before trial today?

      20            THE JURY:  No.

      21            THE COURT:  Very well.  The government may call its

      22   next witness.

      23            MR. BUTLER:  Government calls Frank Pressley, your

      24   Honor.

      25

                                                                    1889

       1    FRANK PRESSLEY,

       2        called as a witness by the government,

       3        having been duly sworn, testified as follows:

       4            DEPUTY CLERK:  Please be seated, sir.  Please state

       5   your full name.

       6            THE WITNESS:  Frank Pressley.

       7            DEPUTY CLERK:  Please spell your last name.

       8            THE WITNESS:  P-R-E-S-S-L-E-Y.

       9            MR. BUTLER:  May I proceed, your Honor?

      10            THE COURT:  Yes, please.

      11   DIRECT EXAMINATION

      12   BY MR. BUTLER:

      13   Q.  Mr. Pressley, how old are you, sir?

      14   A.  I'm 48.

      15   Q.  How are you presently employed?

      16   A.  I work with the U.S. Department of State.

      17   Q.  How long have you worked for the State Department?

      18   A.  21 years.

      19   Q.  Where are you working for the State Department right now?

      20   A.  I'm presently assigned to our regional office in Florida.

      21   Q.  And where were you assigned before you were sent to the

      22   regional office in Florida?

      23   A.  Frankfurt, Germany, and before that, Nairobi, Kenya.

      24   Q.  And when were you in Nairobi, Kenya?

      25   A.  I arrived in Nairobi in February of 1997.

                                                                    1890

       1   Q.  When did you leave Nairobi, Kenya?

       2   A.  August the 10th, 1998.

       3   Q.  Directing your attention to August 7th, 1998, do you

       4   recall that day?

       5   A.  Very well.

       6   Q.  Where were you on August 7th, 1998?

       7   A.  The morning, Friday morning, I -- I'm the information

       8   management officer.  I handle all the communication activities

       9   in the embassy -- computers, radios, televisions, telephones.

      10   I was called with a problem in the mail facility.

      11            I went to the mail facility, and the problem actually

      12   had happened or originated in the GSO section.  I left the

      13   mail room facility and went upstairs to the second -- first

      14   floor, I'm sorry, first floor, to the General Services Office.

      15            MR. BUTLER:  I would like to publish what has been

      16   previously entered into evidence as Government Exhibit 801D,

      17   as in dog.

      18            THE COURT:  801D, as in dog.

      19   Q.  Mr. Pressley, where was the General Services Office

      20   located within the embassy?

      21   A.  The GSO office is on the first floor.

      22   Q.  Is this the correct floor?

      23   A.  I don't have my glasses.

      24   Q.  Why don't you just ignore that.

      25            Why don't you just describe for the jury where it was

                                                                    1891

       1   located, what side of the building it was located on.

       2   A.  Well, the GSO office is a large office.  The office I went

       3   to was the main GSO office, the supervisor GSO office, in the

       4   corner of the building, facing Moi Avenue.

       5   Q.  And where was it located in relationship to where the rear

       6   parking lot and co-op house was located?

       7   A.  Okay.  The GSO section, like I say, it swung all the way

       8   around from Moi all the way to the back.  The actual GSO

       9   office is in the back of the building in the corner, right

      10   beside procurement and across from Customs and shipping.

      11   Q.  And do you recall exactly where you were around 10:30 in

      12   the morning?

      13   A.  I went to the senior GSO office and the person,

      14   supervisor, was not there.  I was standing in front of the GSO

      15   secretary's office and I initiated a conversation with

      16   Michelle O'Connor, then GSO.

      17   Q.  Who is Michelle O'Connor?

      18   A.  Michelle O'Connor was the general services officer in that

      19   office and also a good friend of mine.  She was also my

      20   neighbor.

      21   Q.  And do you recall what you were discussing at the time?

      22   A.  Well, we had a problem with the fax system and I was

      23   discussing her procedures, her staff that were having

      24   problems, continuous problems with those procedures.

      25   Q.  What happened while you were having this conversation?

                                                                    1892

       1   A.  Well, I completed the conversation and I was about to

       2   leave her general office and then she started discussing, you

       3   know, personal things like "see ya later" and "see ya

       4   tonight."  We often went out together because her children,

       5   her three girls, and mine played together.  So we were kind of

       6   talking about personal stuff.

       7            I went to the secretary's desk and I said goodbye and

       8   made a note to the senior GSO that I came by to discuss the

       9   problem, and then Lydia Sparks and Jay Bartley entered the

      10   office.

      11   Q.  Let me go back a second.  Who else was in the office when

      12   you were having this conversation with Michelle O'Connor,

      13   about how many people?

      14   A.  I believe there was five, Rookia Ali, Michelle O'Connor,

      15   Lydia Sparks entered and Jay Bartley entered, and there

      16   were -- some of them were going in and out at the same time so

      17   I don't know who those other people were at the time.

      18   Q.  Who was Jay Bartley?

      19   A.  Jay Bartley was one of the -- I think he was a college

      20   student, actually was a college student there, was the son of

      21   Jay Bartley, Sr., the consul general's son.

      22   Q.  What happened after you began to leave the procurement

      23   office -- the GSO office?  I'm sorry.

      24   A.  Well, it was interesting.  It was a Friday morning and I

      25   was surprised that Jay and Lydia were there.

                                                                    1893

       1            THE COURT:  What happened, sir?

       2            THE WITNESS:  Oh, what happened?

       3            THE COURT:  What happened?

       4            THE WITNESS:  What happened was I started to leave

       5   the office and Rookia was talking to me, and I could see out

       6   the windows from where I was standing.  Where I was standing,

       7   I could see out both sides of the building, two sides of the

       8   building.  There was a glass on that side and I saw people

       9   running away.  You know, I wasn't sure why.

      10            And as I faced toward Michelle O'Connor's office, we

      11   saw the same thing -- people running away, screaming and

      12   making noise.  I really didn't know what was going on and I

      13   wasn't going to pay much attention until I heard some noise,

      14   and the noise was like firecrackers or small explosions, small

      15   fire -- you know, noises.

      16   Q.  What happened after you heard these small firecracker

      17   noises?

      18   A.  Then the screaming got louder and people were really

      19   scattering across the streets.  But I didn't think much about

      20   it.  I wanted to go down the hall and go back to my office.

      21   So I turned to go down the hall and I heard a larger

      22   explosion.  It was large like a tire exploding, a backfire on

      23   a truck or something, and that caught my attention, of course.

      24   Q.  And what happened after you heard this louder explosion?

      25   A.  Almost everyone that I saw ran to the window in the

                                                                    1894

       1   procurement section, looking out the window, and I turned to

       2   Ms. O'Connor and Jay Bartley and Jay Bartley started walking

       3   down the hallway.  I said, I got to go, I don't know what this

       4   is.  I turned to my right to go down the hall, and then all of

       5   a sudden I was flying.  A loud explosion, huge impact.  It

       6   just kind of picked me up and I just went through, flying

       7   through the air.

       8   Q.  What happened after you went flying through the air?  Were

       9   you knocked unconscious?

      10   A.  I think for a few seconds I just kind of lost things.  I

      11   wasn't -- I hit the wall.  I landed on the wall and I looked

      12   up at the ceiling and I didn't really know what had hit me.  I

      13   was surprised, I mean, shocked, basically.  And then I looked

      14   up and I saw the -- I thought it was smoke.  It seemed like

      15   black burling smoke through the hallway, and I noticed that

      16   basically the ceiling was gone.

      17            And I tried to stand up.  It was difficult.  I stood

      18   up, and from that point I just couldn't believe what I saw.  I

      19   looked around.  I saw like chunks of blood or red, kind of

      20   meat on the walls.  Some of the walls were actually missing,

      21   too.  It was pretty shocking.  I mean --

      22   Q.  Did you sustain any injuries as a result of the blast?

      23   A.  Oh, yeah.  I lost part of my jaw.  I lost a large section

      24   of my shoulder.  When I stood up, I actually, after I kind of

      25   figured out where I was, I looked down and saw my bone

                                                                    1895

       1   sticking up out of my shirt.

       2   Q.  And did you see Michelle O'Connor on your way out of the

       3   embassy?

       4   A.  Well, I saw, I -- first of all, I heard a lot of noise,

       5   people crying, screaming.  And I did see, I thought, Michelle

       6   O'Connor's body.  But more than that, I saw some legs, a pair

       7   of just man's legs with the pants on.  But I still didn't

       8   realize what was going on.  You know, I thought maybe that the

       9   boiler had blown up or -- I wasn't sure what had happened at

      10   that point.

      11   Q.  And were you able to get out of the embassy?

      12   A.  I started walking to the hallway and trying to focus on

      13   what had happened, not really sure what had happened.  I tried

      14   to go down the stairwell.  One of the stairwells was

      15   completely blocked, concrete door had blown off.  So I went to

      16   the other stairwell, and I started walking down the stairwell

      17   and then someone came up behind me about halfway down and

      18   started helping me down the stairwell.

      19   Q.  Did you eventually get out of the embassy?

      20   A.  I got out of the embassy.  I stood in front of the embassy

      21   after that and just watched.  I couldn't believe my eyes.

      22   Q.  Was there anyone else inside the embassy that you were

      23   looking for?

      24   A.  Well, as I stood there, I, in front of the embassy, facing

      25   towards the embassy and people were all around me, I saw my

                                                                    1896

       1   wife's boss walk in front of me, Mr. Cavalier.  I asked him if

       2   he had seen my wife because my wife worked for him.  He didn't

       3   seem to know anything.  He was very nervous and crying and

       4   worried about his wife, as I was.

       5   Q.  And did your wife make it out of the embassy?

       6   A.  Yes.  She came down the steps eventually and she came over

       7   to me from behind.  I heard her voice.  People were trying to

       8   take care of me because I didn't realize that I was hurt as

       9   bad as I was.  As she came close to me, she was -- her eyes

      10   got bigger and she started crying.

      11   Q.  Do you know what happened to Michelle O'Connor and Jay

      12   Bartley?

      13   A.  Well, I know now.  At that time I knew they were hurt, but

      14   I didn't know how bad.  I know now they were killed.

      15            MR. BUTLER:  No further questions, your Honor.

      16            THE COURT:  Any cross-examination?

      17            MR. COHN:  No.

      18            MR. SCHMIDT:  No, your Honor.

      19            THE COURT:  Thank you.  You may step down.

      20            (Witness excused)

      21            THE COURT:  Government may call it's next witness.

      22            MR. BUTLER:  Government calls George Mimba, your

      23   Honor, M-I-M-B-A.

      24    GEORGE MIMBA,

      25        called as a witness by the government,

                                                                    1897

       1        having been duly sworn, testified as follows:

       2            DEPUTY CLERK:  Please be seated, sir.  Please state

       3   your full name.

       4            THE WITNESS:  My name is George Mygit Mimba.

       5            DEPUTY CLERK:  Please spell your last name.

       6            THE WITNESS:  My last name is M-I-M-B-A.

       7   DIRECT EXAMINATION

       8   BY MR. BUTLER:

       9   Q.  Good morning, Mr. Mimba.

      10   A.  Good morning.

      11   Q.  How old are you, sir?

      12   A.  I'm 35 years old.

      13   Q.  Where were you born?

      14   A.  I was born there Yaza Gzmet.  Yaza is a province in

      15   Nairobi, Kenya.

      16   Q.  Have you lived in Kenya your entire life?

      17   A.  Yes, your Honor.

      18   Q.  And how are you presently employed?

      19   A.  Say again?

      20   Q.  How are you presently employed?  What is your job?

      21   A.  My job is information systems manager.

      22   Q.  And where is that?

      23   A.  That is in Nairobi.  I'm in charge of American embassies

      24   in Eastern and Central Africa, Nairobi's regional office.

      25   That covers about five embassies.

                                                                    1898

       1   Q.  So you work for the American Embassy?

       2   A.  Yes, sir.

       3   Q.  And how long have you worked for the American Embassy?

       4   A.  I've worked for the embassy for a total of 11 years.  The

       5   first four years with U.S. Aid, which is also an agency of the

       6   United States.

       7   Q.  And were you working at the American Embassy on the

       8   morning of August 7th, 1998?

       9   A.  Yes, sir.

      10   Q.  Where was your office in the embassy located?

      11   A.  My office was on -- I don't know how to explain it, but

      12   when you come into the embassy it was on the first floor,

      13   first floor when you arrived when you get into the building.

      14   Q.  And how many people worked in your office?

      15   A.  We -- right now or then?

      16   Q.  Back then, on August 7?

      17   A.  Back then we had one American who was the information

      18   systems officer and three FSNs.  Including me, we were four

      19   Kenyans working on the embassy.  So we were a total of five

      20   people.

      21   Q.  What time did you arrive at the embassy, approximately, on

      22   August 7th, 1998?

      23   A.  That day I was picked up early because I was supposed to

      24   travel to attend an information systems managers conference in

      25   Nakra.  So they picked me up at around 6:30.  We arrived at

                                                                    1899

       1   the embassy some minutes to 7 -- some minutes after 7, about

       2   7:15.

       3   Q.  And what did you do at the embassy that morning?

       4   A.  When I got into the embassy, I started preparing to leave,

       5   taking my money, having meetings with my staff, telling them

       6   what I need done in my absence, and stuff like that.

       7   Q.  When you say you went to get your money, where did you go

       8   to get your money?

       9   A.  The cashier was on the first floor.  In between my office

      10   and the cashier we had a telephone strong room and then the

      11   lifts.  So behind the lifts we had the cashier's office.  So

      12   that is where I went to get my money.  The first thing in the

      13   morning, immediately after the cashier had opened I took about

      14   15 minutes before I went there.  And so when I went there, I

      15   found a queue of other people in the queue, the people who

      16   wanted to cash their money for the weekend, some Americans who

      17   wanted to go on a safari, like a tour or something, and also

      18   the consular lady, the cashier who takes the money from Visa

      19   applicants also was there.

      20            So the queue was long when I went in the first time.

      21   I decided to come back to the office and finish up sending

      22   e-mails to my staff.  When I went back the second time, the

      23   queue was still long.  That's when the lady spotted me, the

      24   cashier, and shouted.  Because back in Nairobi I was the

      25   president of foreign service national, the non-Americans who

                                                                    1900

       1   work at the American Embassy, so I was the president.  So when

       2   I was leaving, they knew that I will be out.  And so she saw

       3   me and just welcomed me, please come, come, come and join the

       4   queue.  You don't need to sit in the queue, come and be at the

       5   front.  I want you to be served first because your flight is

       6   at 11.  And so I did not have to wait in the queue, I just

       7   went to the front to be served first by the cashier.

       8   Q.  Do you recall about what time that was?

       9   A.  That was about 10:15, 16, 25, there, because I did not --

      10   it did not take -- it was about 10:25 because it did not take

      11   me about five or so minutes before everything went.

      12            MR. BUTLER:  Can we publish Government Exhibit 801D

      13   again, please.

      14   Q.  Mr. Mimba, could you point out for the jury where the

      15   embassy cashier's office is located on Government Exhibit

      16   801D.

      17   A.  Where is the gate to the embassy here?  I can't tell.

      18   Q.  If you look to the bottom left-hand corner of the screen

      19   and move upward, do you see where the embassy cashier's office

      20   is?

      21   A.  Now, which -- I don't know how this is --

      22   Q.  Let's ignore this.  We're having some difficulty with

      23   this.

      24            Where did the embassy cashier's office face?  Do you

      25   know?  Did it face on --

                                                                    1901

       1   A.  It was facing the cooperative building side.

       2   Q.  So it was on the first floor.  Was it in the rear of the

       3   embassy?

       4   A.  Yes, in the rear of the embassy, yes.

       5   Q.  What happened after you left the embassy cashier's office?

       6   A.  After I left the embassy, I know the lady haggled me

       7   because she was really nice.  So I just said bye to the people

       8   who were in the queue.  I told them I was sorry the lady made

       9   me jump the queue.  So they were all students, they were all

      10   laughing because the lady was still joking and funny.

      11            So after leaving the queue, I was heading back to my

      12   office.  I went back to my office, put the per diem, the money

      13   I had in my briefcase, then I came out.  As I came out of my

      14   office, I met another lady.  She used to work at the personnel

      15   office, the lady Lucy Onono, and she stopped me.  Then she

      16   called me chairman.  President there is like the same as

      17   chairman.  She called me chairman.  I understand you are going

      18   to Nakra.  I said yes.  What are you going to bring me?

      19   That's what everybody was asking for, because if I go out

      20   there, it's like I'm a father, I'm supposed to bring everybody

      21   gifts and stuff like that.

      22   Q.  After you had this conversation with her, what did you do?

      23   A.  That is right in front of my office, facing the cashier,

      24   because when you are slightly in front of my office, you

      25   could -- there was a path through to the cashier's office.  So

                                                                    1902

       1   you could see the people, like you go straight on and then you

       2   turn right to get to the queue.  And so I had just come from

       3   my office when I met Lucy.

       4   Q.  After you met Lucy, what did you do next?

       5   A.  After I met Lucy, I promised her, yes, I'll bring -- then

       6   she told me to bring her an African dress and I told her I

       7   would do so.

       8   Q.  Where did you go after your conversation with Lucy?  What

       9   did you do after that?

      10   A.  I went to my office then.  I received a call from the late

      11   Julian Bartley and Julian insisted that he wanted to see me

      12   off.  The previous night we had stayed with Julien until

      13   around 10:30 at night.  He was a good friend of mine.  He

      14   liked me and he used to tell me all about his background, how

      15   he was raised up, how he admires the way I work hard, and they

      16   encouraged me that I should keep on working hard, even told me

      17   how he was raised up, how he went to school.  The first day he

      18   went to high school, I think the president asked him --

      19   Q.  Mr. Mimba, let's move on to --

      20            MR. COHN:  Your Honor --

      21            Thank you.

      22   Q.  Where were you around 10:30 that morning?

      23   A.  Around 10:30 I was right in front of my office.  After

      24   talking to this lady, then I was -- I went back to my office,

      25   was trying to send an E-mail, and then I heard the first

                                                                    1903

       1   explosion.  It came like a tremor.  And I don't know, somehow

       2   I thought it was something outside the embassy.  So I --

       3   somebody asked, what was that?  Then I said, I think it's a

       4   bomb, but I think it's somewhere.  There's a place called

       5   Lamaru, which is many miles from Nairobi, some miles from

       6   Nairobi.

       7   Q.  So after you heard the first explosion, what happened

       8   next?

       9   A.  Then people were rushing to the window.  Then I thought

      10   about locking my office before I could also join them.  So I

      11   was heading towards the open area, which was on the Budget

      12   section, to see what people were going to see.  And on my way

      13   there, there was a computer room, which was a sealed room.  On

      14   my way there, just reaching the corner, that's when the second

      15   deadly explosion came and --

      16   Q.  And what happened after the explosion came?

      17   A.  I didn't know where I was.  I lost -- I didn't know.  I --

      18   the house came on me because the ceiling came on me.  I was

      19   thrown down.  The house was dark.  It was dusty.  It was

      20   smoky.  Choking because the duct smoke somehow choked me, and

      21   I could not open my eyes.  I cannot see nothing.

      22            Then I went down.  I was thrown down.  Then the

      23   bodies were burying me.  Then I heard people cry and some of

      24   them were -- I could hear, I could get their voices and could

      25   know, that's so and so's voice, but I could not open my eyes.

                                                                    1904

       1   I could not breathe.  I could not do nothing.  Though I

       2   prayed.  I said a prayer, about three seconds, that, Lord,

       3   just take my soul.

       4            Then I remembered, I fumbled for my I.D. because I

       5   remembered my dad and my brothers loved me so much that I

       6   would want them to see my body.  And so I was looking for a

       7   form of identification where if I'm found, they would get an

       8   I.D.  It didn't occur to me that an I.D. would burn if the

       9   house burns.

      10   Q.  Were you eventually able to get outside the embassy?

      11   A.  Yes.  I started crawling after that when I could feel like

      12   I was alive, I started crawling because I was choking.  I

      13   started moving torwards a place I could get fresh air.

      14            Then all of a sudden I felt a breeze come from a

      15   direction.  I didn't want to open my eyes.  I didn't want to

      16   breathe.  I started crawling towards that place.  I didn't

      17   know where it was.  Then after reaching that place, I realized

      18   there was a cold breeze coming from outside.  So I started

      19   moving towards that side.  It was the window that had been

      20   blown.

      21            So as I moved, and I wanted to like keep moving, I

      22   realized that I was at the edge.  Then I slept there for some

      23   time.  I was shaking.  When I opened my eyes, I saw the

      24   garden, a green garden.  I said, where am I?  As I was moving

      25   toward the window, I could feel people's -- could feel bodies

                                                                    1905

       1   of the dead people.

       2   Q.  Were you able to get outside the embassy to the garden?

       3   A.  Yes.  After that, then I realized that I was looking for

       4   an I.D., I could not get it, I would like my dad to see my

       5   body, so I have to jump, to die outside.  So I looked at where

       6   I was going to jump.  It was far, and I closed my eyes because

       7   I didn't know where I was going to die.  I wanted my body to

       8   be found by my dad.  So I just closed my eyes and then jumped

       9   through the window.

      10            Then I landed on, on something, a sharp object.  I

      11   think it's the stand that was making the flowers stand upright

      12   there.  They were metallic, kind of.  So I had something cut

      13   me, my back and my knee and here.  Then I went down.  I was

      14   not conscious for some time.  When I raised my head, I

      15   realized that I did not die.

      16   Q.  What did you see when you were outside the embassy?

      17   A.  When I came down, I saw like it was not the embassy that

      18   has been bombed.  Somehow I saw so many things, like the

      19   houses.  Then I realized that I thought the world was coming

      20   to an end.  I didn't know, I didn't know where I was.

      21            Then I realized that if I sleep down there, I was

      22   going to be buried because somehow I had the feeling that this

      23   building is going to burn down.  So I jumped.  I climbed the

      24   fence again.  Then I jumped over to the pavement and I landed

      25   out at the pavement next to the parking lot.

                                                                    1906

       1   Q.  What did you see in the roadway on the roundabout outside

       2   the parking lot?

       3   A.  Outside the parking lot I saw so many people.  Then as I

       4   was lying down there I could see people run, running towards

       5   my direction.  Some were coming from the other direction.

       6            Then there was this man who was running and he didn't

       7   know that his intestine was out.  His belly's been chopped off

       8   so he's trying to hold onto his intestine at the same time

       9   he's running.

      10            Then when I came down, I saw an American lady and two

      11   kids, two daughters.  She's within the fence, crying for help.

      12   Then she's crying, please help me, please help, help my kids,

      13   help.  Then I, after lying down, another object almost came on

      14   me somehow, some object was flying down.  I thought it was a

      15   helicopter that's been sent to help people.  I didn't know, it

      16   was like something that was going to bang.  I just missed me

      17   and I rolled under it.

      18   Q.  What, if anything, happened to the lady and the two

      19   children?

      20   A.  When I heard these kids cry, then I decided to run back

      21   towards the embassy.  Then I tried to pass my hand to reach

      22   the kids.  They were crying.  They didn't know me.  Their

      23   mother is also crying.  Then the mother convinced them,

      24   please, honey, go, go, go, get out of here, go.

      25            Then I, together with an American called Bob Gaudy,

                                                                    1907

       1   we moved next to the fence and we were able to lift the kid.

       2   I passed my hand inside the fence.  Then we were able to lift

       3   the kid up to the sharp end and took the two daughters out.

       4            I don't know whether the lady survived.  I don't know

       5   who she was.  What I know is we were able to get the two girls

       6   out to an ambulance that was somewhere.

       7   Q.  Did you go back into the embassy after this?

       8   A.  Yes.  After this I tried to run away towards the railway

       9   station to, like go out.  As I was running, I realized there

      10   was a Kenyan bus and another school bus that was shut down

      11   where I could see everybody was dead, the driver.  Then I said

      12   wherever I go, I don't think I'm going to survive.  Let me go

      13   and save my colleagues in there who were still trapped.

      14            So I headed back to the embassy and I saw a Marine by

      15   the stair.  He had a gun and he's crying also.  He had -- I

      16   think he was in pain.  And then I tried to go and he told me,

      17   please don't come in this house, it's weak.  But I insisted.

      18   When I went back in -- then I sneaked and went back in.  Then

      19   I sneaked to the first floor.  That was where my office was,

      20   and I, I --

      21   Q.  Why don't we publish what has been previously marked as

      22   Government Exhibit 806A.

      23            Mr. Mimba, is that you in that photograph in

      24   Government Exhibit 806A?

      25   A.  Yeah.

                                                                    1908

       1   Q.  And what's depicted in Government Exhibit 806A?

       2   A.  Your Honor, when I went to the first floor, the whole

       3   place was squared.  I could not open my eyes because I was

       4   still choking, but I was fumbling for any, any, something,

       5   anybody I could get.  I was moving, kneeling, I'd been

       6   crawling down and feeling the bodies.  They're all dead.

       7            Then another lady, I think -- I started calling out,

       8   is anybody out there?  Please, can you hear me?  Can anybody

       9   hear me?  Then as I was heading back, another lady called me:

      10   George, George, please help me.  I did not want to open my

      11   eyes.  I did not want to -- so I started moving towards in the

      12   direction where the sound had come from.

      13            And as I was moving, feeling the bodies, I held to

      14   something that made a move and I yelled, I said, this is the

      15   lady who called me.  I did not look at what I had held, I just

      16   held the object tightly and started pulling the body, heading

      17   back to where I had come from.  When I came down and people

      18   came down to help me, then I realized that the person I had

      19   helped was a man.  And the lady's voice kept coming back to

      20   me.

      21   Q.  Do you know who this person was that you assisted out of

      22   the building?

      23   A.  I don't know.  I don't know, sir.  It's been haunting me.

      24   I really wanted to know if he survived.

      25            MR. BUTLER:  No further questions, your Honor.

                                                                    1909

       1            THE COURT:  Any cross-examination?

       2            MR. COHN:  No.

       3            THE COURT:  Thank you.  You may step down.

       4            (Witness excused)

       5            THE COURT:  Government may call its next witness.

       6            MR. BUTLER:  Government calls Samuel, NGANGA, your

       7   Honor.

       8    SAMMY NGANGA,

       9        called as a witness by the government,

      10        having been duly sworn, testified as follows:

      11            DEPUTY CLERK:  Please be seated.  Please state your

      12   full name.

      13            THE WITNESS:  Sammy Nganga.

      14            DEPUTY CLERK:  Please spell your last name.

      15            THE WITNESS:  N-G-A-N-G-A.

      16   BY THE COURT:

      17   Q.  Sir, if I could ask you to please try to keep your voice

      18   up and speak, if you could, into the microphone, okay?

      19   A.  Yes.

      20   Q.  How old are you, sir?

      21   A.  I'm about 53 years.

      22   Q.  And where were you born?

      23   A.  Born in Kenya.

      24   Q.  Have you lived in Kenya your whole life?

      25   A.  I have lived in Kenya my whole life.

                                                                    1910

       1   Q.  Going back to August of 1998, how were you employed?

       2   A.  In August of 1998 I was office at Ufundi Cooperative

       3   House.

       4   Q.  If you could just maybe lean forward a little bit into the

       5   microphone and try to keep your voice up, sir.

       6            So you were in your office in Ufundi Cooperative

       7   House?

       8   A.  Yes.

       9   Q.  And what type of business were you in?

      10   A.  When I was there around 10:30, I had --

      11   Q.  Mr. Nganga, what type of business were you in?

      12   A.  About 10:30.

      13   Q.  What business?  What was your business in the Ufundi

      14   House?

      15   A.  I was doing business of governmental.  I was a

      16   governmental dealer.

      17   Q.  And where was your office located?

      18   A.  The office was located Ufundi Cooperative House.

      19   Q.  Where in the Ufundi House?

      20   A.  First floor.

      21   Q.  And where in relationship to the American Embassy was it?

      22   A.  It was just adjacent to the American Embassy.

      23   Q.  Do you recall where you were about 10:30 in the morning on

      24   August 7?

      25   A.  Yes.

                                                                    1911

       1   Q.  Where were you?

       2   A.  I was in my office.

       3   Q.  And what do you recall happening around 10:30 on August

       4   7th?

       5   A.  When I was in the office I heard a loud explosion, and we

       6   were four of us in the office.  I rushed out to the balcony to

       7   see what it was, and before I could reach the balcony, another

       8   powerful explosion occurred and I found myself down in the

       9   rubble of the house.

      10   Q.  Let's go back just a moment.  You say you heard an

      11   explosion, correct?

      12   A.  Yes.

      13   Q.  And then you went out to the balcony of the Ufundi House?

      14   A.  Ufundi House.

      15   Q.  Where was that balcony located?

      16   A.  It was located on the first floor of the Ufundi House.

      17   Q.  And what did it look out onto?

      18   A.  I didn't reach the balcony which was overlooking the

      19   American Embassy, I didn't reach it.  Then another explosion

      20   occurred, powerful explosion occurred, and I was buried.

      21   Q.  And then there was the second explosion?

      22   A.  Yes.

      23   Q.  And what happened after the second explosion?

      24   A.  After the second explosion, everything became dark.  I was

      25   buried in the rubble.

                                                                    1912

       1   Q.  And what happened after you were buried in the rubble?

       2   A.  After I was buried in the rubble, I heard a quick -- I

       3   went to my down to my pocket.  I had matchbooks and I wanted

       4   to see my position.  And I found myself, I had spared about

       5   four feet, four feet high and four feet wide.

       6            So I then, so I was very hot and I started doing my

       7   first aid.  I tied my legs, the bones which were already

       8   protruding from the skin.  I tied the legs and then I tied my

       9   leg, broken leg, to my right leg, which I hung up, and so I

      10   started digging for the other foot.  I was really tired and I

      11   slept.

      12            When I woke up, I, after sleeping, I dreamt having

      13   been rescued.  But when I woke up, I found myself in the same

      14   position I was in the same in the rubble.  So I just then,

      15   before I could think about anything, I started -- I heard

      16   another lady who was trapped inside.  And we started

      17   communicating with the lady who was trapped in the other

      18   building where I was.

      19            So after conversing with the lady for some time, then

      20   the rescuers, I started communicating with the rescuers who

      21   were on top.  And they kept updating the movement, how they

      22   were trying to rescue us and so that we could not worry, so

      23   they were about to rescue us.  I stayed there until I was, I

      24   stayed there until I was rescued on the 9th, on the 9th of

      25   August.

                                                                    1913

       1   Q.  What day of the week was the 9th of August?

       2   A.  Saturday.

       3            (Continued on next page)

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1914

       1   Q.  So you were under the rubble from Friday August 7 till

       2   Sunday August 9?

       3   A.  Up to the 9th.

       4   Q.  Will you publish what has been marked and admitted into

       5   evidence as Government Exhibit 806-I.

       6            Do you recognize Government Exhibit 806-I?

       7   A.  Yes.

       8   Q.  What is Government Exhibit 806-I?

       9   A.  That's rubble of the Ufundi house.

      10   Q.  Again, could you please sir, just lean forward a little

      11   bit into the microphone so everybody can hear you?

      12   A.  This is the collapse of the Ufundi cooperative house.

      13   Q.  And how were you rescued sir?

      14   A.  What?

      15   Q.  Could you please just describe for the jury how you were

      16   rescued?

      17   A.  The rescue part was a difficult one, and I had to keep on

      18   banging the walls so that the rescuers could know where I was

      19   located, and so sometimes they tell me to bang the wall, I had

      20   to bang the wall.  They tell me when they had to come around

      21   they had to cut holes and he had torch and ask me where I

      22   could see the light.  So I could not see the light.  They kept

      23   on changing positions.  Here I could see the light.  So when

      24   they asked me how long the light was I told them because about

      25   four foot from where I was, but they asked me, could I hold

                                                                    1915

       1   them, I could not because my leg was already was broken.

       2            I could not walk and I was badly off.  And so they

       3   came here and then they cut another hole, this where I could

       4   see them on the top.  So though I was talking they thought

       5   where I was near and they followed me to where I was.  So they

       6   followed where I was talking.  I was very badly off, and they

       7   told me to give them my hand.

       8            So I lifted my hand and they took my hand.  Then I

       9   forgot that I already tied my leg with a, my leg was broken so

      10   I had to snatch it, and then I hit myself because I had a lot

      11   of pain, and so then they find a way of coming down to where I

      12   was.  But it was difficult because there was no space, so they

      13   had to leave so they could come and then they were cutting

      14   some holes, cutting holes through.  One of them was able to

      15   come down to where I was.

      16   Q.  Now, were you communicating with this woman that you had

      17   spoken about during this time?

      18   A.  The woman I was I came to know her as Lois, but

      19   unfortunately she was not saved.  She wanted to come out

      20   before I was rescued, but I told her I was, it was a lock on

      21   my side, so I told her I could just, they were nearer her and

      22   they could rescue her.  So I left her with a promise that they

      23   had to rescue her within two hours, maybe because I thought

      24   they could pass the same hole, but, unfortunately, they

      25   couldn't, so it was not.

                                                                    1916

       1   Q.  What was her name?

       2   A.  Lois Gadignu.

       3            MR. BUTLER:  No further questions, your Honor.

       4            THE COURT:  Thank you, sir.  You may step down.

       5            (Witness excused)

       6            MR. BUTLER:  The government calls Father John Kiongo.

       7    JOHN KIONGO KARIUKI,

       8        called as a witness by the government,

       9        having been duly sworn, testified as follows:

      10   DIRECT EXAMINATION

      11   BY MR. BUTLER:

      12   Q.  Father Kiongo, if I could ask you to just keep your voice

      13   up and try to speak directly into the microphone.  You're a

      14   Catholic priest, sir?

      15   A.  Yes, sir.

      16   Q.  And where are you a priest?

      17   A.  In Nairobi diocese Kenya.

      18   Q.  Have you lived in Kenya your entire life?

      19   A.  Yes.

      20   Q.  And do you recall where you were on the morning of August

      21   7, 1998?

      22   A.  Yes.

      23   Q.  And where was that?

      24   A.  I was in the Ruta parish where I am based in Nairobi.

      25   Q.  Where did you go that morning?

                                                                    1917

       1   A.  That morning I went to the American embassy in town.

       2   Q.  And why did you go to the American embassy?

       3   A.  I went to the embassy because my brother was working at

       4   the embassy and my niece wanted to go to America the following

       5   week for studies.

       6   Q.  What did your brother do at the embassy?

       7   A.  He was working at the embassy, shipping department.

       8   Q.  In the shipping department?

       9   A.  Yes.

      10   Q.  About how old was your niece at the time?

      11   A.  Beg your pardon?

      12   Q.  About how old was your niece at the time?

      13   A.  She was 23 or so.

      14   Q.  What happened when you got to the embassy?

      15   A.  When we got, when I got the embassy, my brother came for

      16   me downstairs, so we went to his office and before that we had

      17   made a collection, and I was carrying the money so I was going

      18   to take him to give him the money, so that he can be able to

      19   buy the thing necessary for paying school fees when my niece

      20   came to America.

      21   Q.  And where was your brother's office located, if you

      22   recall?

      23   A.  I think it was first floor.

      24   Q.  And do you know which side of the building it was on?

      25   A.  That was, that was on the, it was not the left side of the

                                                                    1918

       1   main road.  It was on the other side behind.

       2   Q.  Do you know what you saw when you looked out from your

       3   brother's office?

       4   A.  Yes, when I looked out I saw the parking lot.

       5   Q.  The rear parking lot?

       6   A.  Yes.

       7   Q.  How many people were in your brother's office that

       8   morning?

       9   A.  My brother had a big office, but on the corner was his

      10   compartment, a small one, and so I was with him and my niece

      11   we are three, but the other bigger office there are about six

      12   people.

      13   Q.  And what happened while you were visiting with your

      14   brother and your niece that morning?

      15   A.  When we, we counted the money, it was about 400,000 Kenya

      16   shilling, and then my niece came later on because she came

      17   after me, and then we were trying to see how the bank draft,

      18   how many we are going to buy for her to come to pay for school

      19   fees.

      20            And then when we had done that, then my brother told

      21   me, I think now, Father, you can go because Theresa can do the

      22   rest.  She will take this money.  She will take this forms

      23   downstairs to the bank and then she will get the necessary

      24   things, and so that was that.

      25            I did rise up when we heard a loud bang and then we

                                                                    1919

       1   stood up to look to see what happened downstairs.  So we

       2   looked, and for me it was an ordinary parking, but my brother

       3   was saying that man is shooting that, that man is shooting.

       4   What is going on there?  So I was very worried.  I wasn't

       5   happy.  I was worried.

       6            And I sat down, and I held my face like this, and I

       7   said a prayer because I knew this was the embassy, it was like

       8   the foreign country, and might be things, if things go wrong,

       9   then we don't know where we are going to end.

      10   Q.  Then what happened after that?

      11   A.  After that, there was now big thing that came, and then we

      12   all shuddered to almost to death.

      13   Q.  You say you shouted.  What happened after this explosion?

      14   A.  After the explosion everything fell down and when

      15   everything fell on me, the desk, I don't know whether the

      16   doors and I felt I was somewhere very far away, somewhere very

      17   far away, nobody could hear me even when I was shouting.

      18   Q.  And did you hear anything at the time?  Did you hear

      19   anybody speaking to you?

      20   A.  Now, it's only after sometime then I heard people come,

      21   and people saying, this one is not dead, this one is not dead,

      22   get this one, and leave those who are dead alone.

      23            So I knew from there my brother must have died, and

      24   my niece is dead.  And they took me out, and my right hand was

      25   almost off, and so it was very painful, I had to cry out,

                                                                    1920

       1   because my, when my left hand was badly damaged, I could not

       2   see.  Also, I had lost sight, but I could hear a lot of

       3   crying, a lot of noise, people praying, and people crying, and

       4   so forth.

       5   Q.  And what happened to your brother and your niece?

       6   A.  They died.

       7            MR. BUTLER:  No further questions your Honor.

       8            THE COURT:  Is there cross-examination?

       9            Thank you, Father.  You may step down.

      10            MR. BUTLER:  The government calls Tobias Otieno.

      11    TOBIAS OTIENO,

      12        called as a witness by the government,

      13        having been duly sworn, testified as follows:

      14   DIRECT EXAMINATION

      15   BY MR. BUTLER:

      16   Q.  Mr. Otieno, if I could ask you to lean forward just a

      17   little bit, keep your voice up and speak directly into the

      18   microphone.

      19            How old are you, sir?

      20   A.  I am 51 years old.

      21   Q.  Where were you born?

      22   A.  When was I born?

      23   Q.  Where were you born?

      24   A.  I was born in Kenya.

      25   Q.  Have you lived in Kenya your whole life?

                                                                    1921

       1   A.  Yes, sir.

       2   Q.  How are you employed?

       3   A.  I'm employed by the US embassy in the Department of

       4   Commerce as a commercial specialist.

       5   Q.  And how long have you been employed by the American

       6   embassy?

       7   A.  This is my 30th.

       8   Q.  And were you at the embassy on August 7, 1998?

       9   A.  Yes, sir, I was at the embassy on August 7, 1998.

      10   Q.  Where is your office located?

      11   A.  My office was located behind the entrance, the ground

      12   floor, that be directly behind the entrance front of the

      13   embassy.

      14   Q.  And how many people work in your office?

      15   A.  At the time of August we are about, we are eight people.

      16   Q.  Do you recall what happened on the morning of August 7,

      17   1998?

      18   A.  Yes, I can recall.  It was a Friday, and around -- I was

      19   in the office you know as usual on that day.  And at around

      20   10:30 a.m. I was on my desk together with my colleague who was

      21   also sharing the office with me, and also another friend who

      22   also was working at the embassy.  So we were about three

      23   people in the office at that time.  And about 10:30 as I was

      24   saying, we heard an explosion from behind the office and all

      25   of us were curious about the explosion.

                                                                    1922

       1            We all asked what was the noise about or what was the

       2   explosion, because we wanted to know.  And it was what we

       3   thought was a tire bus, you know, some huge tire bus behind

       4   the office.  And just within seconds after that initial

       5   explosion, another big explosion erupted in the building and

       6   we, within seconds the whole lights, the whole building shook,

       7   and terrible outbreak.

       8            I thought it was the end of the world.  Really I

       9   thought it was the end of the world, and in the Christian

      10   sense I thought you know God has come to take his people,

      11   because I didn't know what it was, and --

      12   Q.  What happened to you, Mr. Otieno?

      13   A.  I was thrown back on my chair, and I landed somewhere

      14   which I didn't know, but I came to realize I came to learn

      15   later that, you know, I was still sitting on the chair, but

      16   what happened to me was that I lost my eyesight, the whole

      17   thing went dark, my head was hot, my stomach I felt was bust,

      18   and I lost, I lost all sense of relation at that time.

      19   Q.  How did you get out of the embassy?

      20   A.  After one minute or two minutes I heard the people crying

      21   within the building, and I said, here I am.  There are also

      22   people crying for help, so my only salvation is also to cry

      23   for help.  So I join the others in the cry for help.  And

      24   somebody from behind me came and said, I will help you.  So

      25   the person came and they held my right hand, because my left

                                                                    1923

       1   hand was already gone, and led me towards climbing the debris.

       2            And we went, we reach a wall which he asked me to

       3   climb, and I tried to climb it with all my effort, and we were

       4   on the wall until we reached a point where he asked me to jump

       5   on the ground, and from there when I jump on the ground some

       6   people who I later learned to be military or Marines helped me

       7   into a waiting ambulance when I was taken to hospital.

       8   Q.  What injuries did you sustain as a result of the bombing?

       9   A.  I, my eyes, all my eyes were shattered by the exploding

      10   glasses, I shattered my eyes, I lost my vision, and then I

      11   lost my left hand on the wrist was severed off.  It was

      12   hanging by a thread, and I my four upper teeth, and several

      13   wounds on my face and body.

      14   Q.  And what happened to your colleagues in the commercial

      15   office?

      16   A.  Two of my colleagues died right there in the building, and

      17   one colleague who was with me also within the building at the

      18   time also suffered serious eye injuries similar to my

      19   injuries, and, you know, body wound as well.

      20            MR. BUTLER:  No further questions, your Honor.

      21            THE COURT:  Thank you.  You may step down.

      22            (Witness excused)

      23            MR. BUTLER:  The government calls Staff Sgt. Daniel

      24   Briehl.

      25    DANIEL M. BRIEHL,

                                                                    1924

       1        called as a witness by the government,

       2        having been duly sworn, testified as follows:

       3   DIRECT EXAMINATION

       4   BY MR. BUTLER:

       5   Q.  Staff Sgt. Briehl, if I could just ask you to keep your

       6   voice up and lean toward the microphone when you answer so

       7   everybody can hear you.  Thank you.

       8            What branch of the service are you with, sir?

       9   A.  United States Marine Corp.

      10   Q.  How long have you been a Marine?

      11   A.  I've been in the Marine Corp for a little over six years.

      12   Q.  How old are you now?

      13   A.  I'm 30 years old.

      14   Q.  Where are you presently stationed?

      15   A.  I'm stationed in California at this time.

      16   Q.  And where were you stationed before California?

      17   A.  I was stationed as a Marine security guard in Nairobi

      18   Kenya.

      19   Q.  And how long were you in Nairobi Kenya as a Marine

      20   security guard?

      21   A.  I was there for 15 months.

      22   Q.  And what time period is that?

      23   A.  I reported there about three months before the bombing.

      24   Q.  Where were you on August 7, 1998?

      25   A.  I was in front of the embassy waiting on a Marine who just

                                                                    1925

       1   entered the building.

       2   Q.  To be clear, were you on duty that day?

       3   A.  No, I was off.

       4   Q.  And who were you with?

       5   A.  I was with the Marine driver, Sgt. Aaron Russell, myself,

       6   and Jesse Alanga.

       7   Q.  What were you doing at the embassy that morning?

       8   A.  Sgt. Alanga had to cash a check at the bank and they were

       9   going to go shopping that day.

      10   Q.  And where were you situated around 10:30 in the morning?

      11   A.  We were parked in front of the embassy in the front

      12   parking lot facing the street.

      13   Q.  And what happened around 10:30 in the morning?

      14   A.  Sgt. Alanga was in the building longer then I expected him

      15   to be, and I exited the vehicle and was going to walk in the

      16   embassy and see what was taking him so long, when I heard some

      17   gun fire, went back to the vehicle, and got Sgt. Russell out

      18   of the vehicle.

      19            I thought something was happening, maybe a carjacking

      20   or a bank robbery.  But just to be safe we were going to go

      21   inside the building.  And then we heard an explosion kind of

      22   like a back fire, but a little bit louder, and then the

      23   explosion happened.

      24   Q.  After the explosion happened, what did you do?

      25   A.  We ended up diving under a vehicle in the front parking

                                                                    1926

       1   lot for cover from falling debris, concrete, windows and such,

       2   and then we got up off the ground, and ran into the front

       3   steps of the building.

       4   Q.  And what did you do when you went into the building?

       5   A.  When I entered the building I could not see the Marine on

       6   post one at all.  Post one there was a lot of, it was

       7   completely dark, a lot of soot.  And I started calling his

       8   name through the drop box, which is a small box where you can

       9   slide IDs back and forth.  I was getting no response.  I look

      10   to my left and saw some people trying to get out of the

      11   counsulate section who were getting visas that day and they

      12   were trying to exit the entrance door, which is a one-way door

      13   only.

      14            Sgt. Russell then began to guide them to the correct

      15   door for them to leave the building.  None of them seemed to

      16   be badly banged up, and they got out of the building.  My next

      17   concern was seeing inside the embassy itself.

      18   Q.  Did you eventually get inside the embassy itself?

      19   A.  Yes.  We entered the embassy and did not get inside post

      20   one, as it's being locked and could not still see the Marine

      21   on post one.  I next tried to go to our reaction room where we

      22   keep our gear at and to set off a perimeter around the

      23   building.

      24            There was rubble from the floor to the ceiling behind

      25   post one in my way.  I tried climbing over this, and the pile

                                                                    1927

       1   giving way, I slid down and expected to hit the floor, which I

       2   didn't.  I fell through open elevator shaft that had the door

       3   blown off of it and proceeded to fall two stories down on to

       4   my back.

       5   Q.  And what happened to you after you fell down this elevator

       6   shaft two stories?

       7   A.  At that point I told myself I needed to get up.  I didn't

       8   land on the elevator, therefore, it was probably above me.  I

       9   worried about that or secondary explosion.  I could see some

      10   light coming in from the hallway.  The doors were still closed

      11   but partly open.  I pulled myself up and pushed the doors

      12   opened, and found some people in the hallway.  Told them what

      13   had happened, and that we needed to get them out of the

      14   building and to a secure location and get them medical

      15   treatment as they needed it.

      16   Q.  And what did you do next?

      17   A.  I then climbed the steps and found Sgt. Russell again

      18   upstairs.  And I was bleeding from my arm and my hand, and I

      19   also had a pain in my back from the fall.  He told me that

      20   they were evaccing people to the hospitals and that they it

      21   under control and he thought I should go get medical

      22   attention.

      23   Q.  And did you go get medical attention at that time?

      24   A.  I went outside to where some of the doctors were, and I

      25   saw some people running that way.  I'll never forget a face of

                                                                    1928

       1   a gentleman who was wearing a white shirt was totally covered

       2   in blood.  And I told myself that I could still stand, I could

       3   still do my job, and I went back up on the steps then and put

       4   a set of gear on and took post on the front steps for a while.

       5   Q.  What happened to Sgt. Alanga?

       6   A.  Sgt. Alanga was found the next day, approximately 10 in

       7   the morning, in an area of about four feet of rubble.

       8   Q.  Did he survive the bombing?

       9   A.  No, he did not.

      10            MR. BUTLER:  No further questions, your Honor.

      11            MR. COHN:  Briefly, your Honor.

      12            THE COURT:  Yes. Mr. Cohn on behalf of defendant

      13   Al-'Owhali.

      14   CROSS-EXAMINATION

      15   BY MR. COHN:

      16   Q.  Thank you your Honor.

      17            Sgt. Briehl, when you approached the embassy that day

      18   did you notice, is there something called a swing bar at the

      19   entrance?

      20   A.  Yes, there is.

      21   Q.  And did you notice something particular about the swing

      22   bar that morning as you came in?

      23   A.  It was nothing wrong with the swing bar in the front

      24   entrance.

      25   Q.  Excuse me?

                                                                    1929

       1   A.  There was nothing to notice about the swing bar.

       2   Q.  Well, was the -- the swing bar is normally in a position

       3   where it has to be unlocked, is that right?

       4   A.  It's in a down position.  It has to be opened for a

       5   vehicle to enter.

       6   Q.  That's right.  And on that morning did you, do you recall

       7   that the swing bar had been removed that morning?

       8   A.  The swing bar in front of the embassy was opened for us

       9   when we drove up.  It was intact.

      10   Q.  Well, let me show you, if I may, a report 3518-2.

      11            May I approach the witness, your Honor?

      12            THE COURT:  Yes.

      13   Q.  If you'll take a look, Sgt. Briehl, at the third

      14   paragraph.  Read it to yourself.  Don't worry about the

      15   handwriting on the side.  Just read it to yourself.

      16            (Pause)

      17            After reading that, do you, does that change your

      18   recollection about what you saw that day?

      19   A.  No, it does not.  The embassy was in charge of two swing

      20   bars.  There was one in the front and one in the rear.  This

      21   swing bar that I'm mentioning in the statement belonged to the

      22   cooperative bank as it says, and so there was three swing bars

      23   in the immediate area of the embassy.  This one was towards

      24   the rear of the building.

      25            MR. COHN:  All right.  Thank you.  I have nothing

                                                                    1930

       1   further.

       2            THE COURT:  Thank you.  You may step down.

       3            (Witness excused)

       4            MR. BUTLER:  Your Honor, I believe the next witness

       5   needs a Swahili interpreter.  I would ask the interpreter to

       6   come forward.  The government calls Pinanah Muhoho.

       7    PININAH MUHOHO,

       8        called as a witness by the government,

       9        having been duly sworn, testified through

      10        the interpreter as follows:.

      11   DIRECT EXAMINATION

      12   BY MR. BUTLER:

      13   Q.  Ma'am, where were you born?

      14   A.  West side.

      15   Q.  Is that in Kenya?

      16   A.  Yes.

      17   Q.  Have you lived in Kenya your entire life?

      18   A.  Yes.

      19   Q.  Do you recall where you were on the morning of August 7,

      20   1998?

      21   A.  Yes.

      22   Q.  Where were you?

      23   A.  Ugi.

      24   Q.  Do you recall where you were about 10:30 in the morning on

      25   August 7, 1998?

                                                                    1931

       1   A.  Yes.

       2   Q.  Where was that?

       3   A.  I was coming from Ugi and I was coming through, from Ugi

       4   went to the road call Haile Selassie.  And we, I reached this

       5   the bus station and the bus stopped there.  We stopped there

       6   at the bus station and there is a truck came by, there is a

       7   car came passing out, stopped near to us.

       8   Q.  What type of vehicle were you in?

       9   A.  It was a bus.

      10   Q.  And you were located on Haile Selassie Avenue?

      11   A.  Yes.

      12   Q.  And where were you in relationship to the American

      13   embassy?

      14   A.  I was in the bus stop near to the American embassy.

      15   Q.  And what did you see at that time?

      16   A.  It was a jam of so many cars and behind us was a pickup.

      17   Q.  And what did the pickup do?

      18   A.  The pickup came and it came up to the stairs, one stairs

      19   where they were standing near the embassy of the American

      20   embassy.  When it went up to the stairs, the pickup went up

      21   one of the stairs and we are there standing, was which at the

      22   bus station and they heard this paw.

      23            And I some people start running and some people start

      24   laying down on the floor.  And the person I was sitting near

      25   to me asked me, do you know what is that?  Is a bomb.  And the

                                                                    1932

       1   person who was in the car came out from the pickup, came out

       2   and stand on top of the, at the door.  He open the door and he

       3   stand on top there.  And they took out something long like

       4   this size (indicating).  And he was targeting like the upper,

       5   the upper floor of the house.

       6   Q.  And then did you hear a second explosion?

       7   A.  After he stood up over there and he did with two hands and

       8   a lot of noise came out, pop pop.  And then he walk up to the

       9   main door again to the stairs and again he did paw paw, and it

      10   came out like a thunder storm.

      11   Q.  What happened to you after this thunder storm that you

      12   heard?

      13   A.  And after that we was coming, we was running out of the

      14   bus, and all of us was fall down.  And after that I heard one

      15   of the kids crying, help me, help me.  And the other woman was

      16   saying, help me.

      17            And then I touch my mouth and I found that I don't

      18   have no teeth in my mouth.  And I asked for help and pray.

      19   And one person came and pulled her by hand, and then I heard

      20   other people crying.  And they tried, they pull us to the end

      21   of the car and there was another person.

      22   Q.  And Ms. Muhoho, did you lose your eyesight as a result of

      23   the injuries that you suffered in the blast?

      24   A.  In the time they was taking us and another woman to the

      25   hospital that I realize I lost even my eyes.

                                                                    1933

       1            MR. BUTLER:  No further questions, your Honor.

       2            THE COURT:  Thank you.  You may step down.

       3            (Witness excused)

       4            MR. BUTLER:  The government calls Elijah Mutie Mue.

       5    ELIJAH MUTIE MUE,

       6        called as a witness by the government,

       7        having been duly sworn, testified as follows:

       8   Q.  How old are you, sir?

       9   A.  I'm now 37 years.

      10   Q.  Where were you born?

      11   A.  I was born in the Katri district, that's in Kenya.

      12   Q.  Have you lived in Kenya your entire life?

      13   A.  Yeah, I have been there my whole life.

      14   Q.  And where are you presently employed?

      15   A.  I'm presently employed by Kenya secretarial consultants.

      16   Q.  And how long have you had that job?

      17   A.  What?

      18   Q.  How long have you been employed at the present position?

      19   A.  It should be now around from 1994, around, about eight

      20   years now.

      21   Q.  If I could just ask you to keep your voice up and try to

      22   lean forward a little into the microphone.  Thank you.

      23            In August, 1998 where was your office located?

      24   A.  Our office was located in a building call the NHC,

      25   National Housing Corporation on the first floor.

                                                                    1934

       1   Q.  Where was that in relation to the American embassy?

       2   A.  It was about a hundred meters from there, from their

       3   building.

       4   Q.  If we could publish what's been previously admitted into

       5   evidence as Government Exhibit 805-A.

       6            Look at Government Exhibit 805-A.  Do you see your

       7   office building there?

       8   A.  Yes.

       9   Q.  Where is it located?

      10   A.  There (pointing).

      11   Q.  If you could just describe it for the jury?  Is it looking

      12   to the bottom of the exhibit there you see a row of buildings

      13   with a sort of bluish roof?

      14   A.  Yes.

      15   Q.  Is it located in that row of buildings there at the bottom

      16   of the screen?

      17   A.  Yes, cooperative is a tall building next to it.

      18   Q.  So it's the tall building directly behind the cooperative

      19   house?

      20   A.  Yes, yes.

      21   Q.  Where were you on the morning of August 7, 1998, Mr. Mue?

      22   A.  That morning at around 10 I was in my office which is in

      23   the first floor of that building.

      24   Q.  And what happened on the morning of August 7, 1998?

      25   A.  As I was sitting there I heard some, my office is next to

                                                                    1935

       1   a window, is facing the embassy, so I heard something like gun

       2   shots, and I stood from my chair, I looked out the window,

       3   because I just sitting in the window:

       4            Then all of a sudden, you know, I heard a very big

       5   blast, I mean blast, which, you know, after that was really

       6   very difficult to say what happened.

       7   Q.  And what happened after you heard this blast?

       8   A.  Well, the blast was so big that, you know, I was standing

       9   behind the window, has a window pane that's metal dividing the

      10   window, and, in fact, that is the one that saved me, because

      11   the glass which came from the window, after the blast that

      12   window fell, hit me in my chest, and the glass and cut me, you

      13   know, to pieces in my face.  I fell down and I lost

      14   consciousness for about ten, 15 minutes.

      15   Q.  And what injuries did you receive as a result of the

      16   bombing?

      17   A.  I had several lacerations on my face here (indicating).  I

      18   almost lost this eye.  A big one here (indicating).  And I

      19   also had three ribs broken, because of being hit by that

      20   window pane.

      21   Q.  And could you describe briefly the damage that your office

      22   in this building sustained?

      23   A.  It was completely damaged because the partitions in the

      24   office they all came down.  The walls which were of course

      25   wood partitions in the office, they came down.

                                                                    1936

       1   Q.  And what kinds of businesses were located in your

       2   building?

       3   A.  Recruitment bureau, but are also training computer, so you

       4   had some computer its there.

       5            MR. BUTLER:  No further questions, your Honor.

       6            THE COURT:  Thank you.  You may step down.

       7            (Witness excused)

       8            THE COURT:  The government may call the next witness.

       9            MR. BUTLER:  The government calls Moses Kinyua.

      10    MOSES KINYUA,

      11        called as a witness by the government,

      12        having been duly sworn, testified as follows:

      13   DIRECT EXAMINATION

      14   BY MR. BUTLER:

      15   Q.  Good morning, sir.  I ask you to please do what you're

      16   doing, which is to try to keep your voice up and speak

      17   directly into the microphone.  Thank you.  How old are you,

      18   sir?

      19   A.  I'm 40.

      20   Q.  Where were you born?

      21   A.  Used to work with the US embassy.

      22   Q.  I'm sorry.  Where were you born?  What country were you

      23   born in?

      24   A.  I'm a Kenyan.

      25   Q.  And have you lived in Kenya your whole life?

                                                                    1937

       1   A.  Sure.

       2   Q.  And you mentioned you are presently employed at the

       3   American embassy?

       4   A.  Yeah.

       5   Q.  How long have you been working at the American embassy in

       6   Nairobi?

       7   A.  For the last eight years.

       8   Q.  And on August 7, 1998 what job did you hold at the

       9   American embassy?

      10   A.  I was holding a driver clerk job.

      11   Q.  Why don't you explain briefly to the jury what you did for

      12   the embassy?

      13   A.  I was working with the Department of Agriculture, and we

      14   used to go out for reports for trade and so on.

      15   Q.  Do you recall where you were on the morning of August 7,

      16   1998?

      17   A.  I was at the embassy building.

      18   Q.  And what were you doing at the embassy building?

      19   A.  I was preparing for a trip to out of the town, up country

      20   where we were going for a report.

      21   Q.  What happened on the morning of August 7, 1998?

      22   A.  During the preparation I was working in the second floor,

      23   where the office was, and the vehicle was parked at the rear

      24   gate of the embassy, so I was packing the vehicle and wrap ups

      25   in the vehicle for the travel, and I was traveling down up and

                                                                    1938

       1   down from the office and to the vehicle.

       2            On my way to the vehicle on my way back to the office

       3   that's when the, this bombing happened, so I was on the

       4   stairs.  So I can't say much about whatever happened beyond

       5   that because I lost consciousness.

       6   Q.  You said you didn't see anything at around the time of the

       7   bombing?  You were in the interior stairwell, correct?

       8   A.  Yes.

       9   Q.  And what happened to you after the bomb went off?

      10   A.  From the vehicle where I was the rear gate there is a

      11   barrier, and another gate, and now the vehicle, my vehicle was

      12   on the inner side, so --

      13   Q.  Let me just see if I can get you focused on the question.

      14            You were at the interior stairwell.  What happened to

      15   you, sir, as a result of the bombing?  What happened after the

      16   bomb went off?

      17   A.  After the bombing I was hit and the head was blown open.

      18   Half of it was got lost, the forehead and the ear, the eye,

      19   and the rest of the part was crushed.  So I lost consciousness

      20   after that.  So the construction was done later with the

      21   plastic.  So I can't say much about anything more, because I

      22   lost consciousness.

      23            MR. BUTLER:  No further questions, your Honor.

      24            THE COURT:  Thank you.  You may step down.  We'll

      25   take a recess.

                                                                    1939

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                                                                    1940

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                                                                    1948

       1            (In open court)

       2            THE COURT:  Let's bring in the jury and the next

       3   witness.

       4            (Pause)

       5            THE COURT:  While we're waiting, with respect to the

       6   sketching of the faces of witnesses, the government is, in

       7   advance of each day, going to give the marshals a list of

       8   witnesses whose facial features are not to be sketched, and

       9   the marshals will enforce that.  Obviously that is a list that

      10   somebody from CNN can also look at.

      11            (Jury present)

      12            THE COURT:  Government may call its next witness.

      13            MR. BUTLER:  Your Honor, the government calls

      14   Caroline Gicharu.

      15    CAROLINE  GICHURU,

      16        called as a witness by the government,

      17        having been duly sworn, testified as follows:

      18            DEPUTY CLERK:  Please be seated.  Please state your

      19   full name.

      20            THE WITNESS:  Caroline Gichuru,

      21            DEPUTY CLERK:  Please spell your last name.

      22            THE WITNESS:  G-I-C-H-U-R-U.

      23            DEPUTY CLERK:  U-R-U?

      24            THE WITNESS:  Yes.

      25            DEPUTY CLERK:  Thank you.

                                                                    1949

       1   DIRECT EXAMINATION

       2   BY MR. BUTLER:

       3   Q.  Ms. Gichuru, where are you from?

       4   A.  I'm from Kenya.

       5   Q.  Have you lived in Kenya your whole life?

       6   A.  I was born and raised in Kenya, but I have been in the

       7   U.S. on several occasions for treatment and training.

       8   Q.  How are you presently employed?

       9   A.  I'm employed at the American Embassy in Nairobi as a human

      10   resources clerk.

      11   Q.  How long have you been employed with the American Embassy?

      12   A.  It will be five years May of this year.

      13   Q.  What was your position on August 7th, 1998, what was your

      14   job?

      15   A.  I was a secretary to the personnel office at that time.

      16   Q.  Where was the personnel office located?

      17   A.  It was on the second floor of the embassy, which faced the

      18   cooperative building.

      19   Q.  And how many people worked in the personnel office?

      20   A.  We were seven, but at that particular time, day, we were

      21   six because the personnel officer was not in.

      22   Q.  Were you in the office on the morning of August 7th, 1998?

      23   A.  Yes.  That time I was at my desk.

      24   Q.  Could you please tell us what you remember about that

      25   morning.

                                                                    1950

       1   A.  Yes.  I had a friend who had a birthday on that Saturday,

       2   and also my colleague, her name is Lucy Onono, they had a

       3   wedding anniversary that weekend.  So we had agreed that that

       4   day we would go out and buy some cards, and at that time I was

       5   on the phone calling her to find out what time she wanted us

       6   to go to the bookstore and get the card.

       7            My other colleagues were behind me.  They were

       8   working on the Xerox machine, which was not working.  There

       9   were three of them.  And while I was on the phone, I heard a

      10   loud noise outside, but I didn't wake up to go and find out

      11   what was happening because at that particular time there were

      12   teacher strikes and the offices were housed at the cooperative

      13   building.  So I didn't stand to go.  And after a while, I

      14   don't know how long, I just felt like I was lifted and thrown

      15   somewhere.  And everything went dead.

      16            I was out, but I don't know for how long, and when I

      17   woke up I could hear a lot of voices.  I could hear sirens

      18   from outside and I could smell dust and I could feel blood all

      19   over me.  And I remember that we were many in my office, so I

      20   was looking around to see where my colleagues were.  And at

      21   that time I saw one of my colleague's legs hanging up in the

      22   air and that time I started feeling myself, I could feel blood

      23   on my face.  I looked at my hand and I could see right through

      24   to the bone and that's when I started screaming for help.

      25            I tried standing, but I can't.  There was something

                                                                    1951

       1   heavy lying on my feet so I could not stand.  But after I

       2   shouted, the regional security officer by that time came and

       3   he helped me out of the building.

       4   Q.  What happened to your colleagues in the personnel office?

       5   A.  They all died in the bombing that day.

       6            MR. BUTLER:  No further questions, your Honor.

       7            MR. COHN:  No questions, your Honor.

       8            THE COURT:  Thank you, ma'am.  You may step down.

       9            (Witness excused)

      10            MR. BUTLER:  Government calls Caroline Ngugi,

      11   N-G-U-G-I.

      12    CAROLINE NGUGI,

      13        called as a witness by the government,

      14        having been duly sworn, testified as follows:

      15            DEPUTY CLERK:  Please be seated.  Please state your

      16   full name.

      17            THE WITNESS:  Caroline Gnugi.

      18            DEPUTY CLERK:  Please spell your last name.

      19            THE WITNESS:  N-G-U-G-I.

      20   DIRECT EXAMINATION

      21   BY MR. BUTLER:

      22   Q.  Where were you born, Ms. Ngugi?  Where were you born?

      23   A.  I was born in Nairobi.

      24   Q.  Have you lived in Kenya, have you lived there in Nairobi

      25   your whole life?

                                                                    1952

       1   A.  Yes.

       2   Q.  Where are you presently employed?

       3   A.  I'm employed in U.S. embassy, the U.S. Department of

       4   Agriculture.

       5   A.  In the foreign office, that's the residency of the United

       6   States Department of Agriculture.

       7   Q.  How long have you been employed at the embassy?

       8   A.  This is my third year.

       9   Q.  And were you employed at the embassy on August 7th, 1998?

      10   A.  Yes.  By that time I was only five months old in

      11   employment.

      12   Q.  And were you working for the Department of Agriculture

      13   office at that time?

      14   A.  Yes.

      15   Q.  Where was your office located?

      16   A.  It was on the second floor, second floor, at the corner.

      17   The end of the corridor office, second floor.

      18   Q.  Where did it look out to?

      19   A.  It faced the cooperative and the Ufundi Building.

      20   Q.  How many people worked in the agricultural office with

      21   you?

      22   A.  It's was an office of five people.  The agricultural

      23   attache, the driver, the secretary and two agricultural

      24   specialists.

      25   Q.  Were you in your office on the morning of August 7th,

                                                                    1953

       1   1998?

       2   A.  Yes.

       3   Q.  Could you please tell us what happened on the morning of

       4   August 7, 1998?

       5   A.  Okay.  Like any other office, they were all there and

       6   ready to start off our day.  I used to go to college in the

       7   Ufundi House, but that morning for a strange reason I decided

       8   not to go.

       9            My other colleague we used to share the office with,

      10   my colleague, Evans Onsongo, was killed in the blast, and

      11   during that morning he came in around 9.  He came in late for

      12   work.  We normally report at 7, 7:30.  He used to report at

      13   7:30 at that time but he came in at 9.  The agricultural

      14   attache was not there.  He was on home leave.  He was in the

      15   U.S.  And it was only me in the office and the secretary and

      16   now our driver had also called in late.

      17            And around just before 10:30, we heard a loud bang.

      18   Evans was there, I was sharing the office with him, he was

      19   seated cross to the window.  I was, I used to sit cross to the

      20   door and the window was next to the, or near the cooperative

      21   building.  So we heard a loud bang and he shrugged his

      22   shoulders and asked me, Carol, what's that?  And I was like,

      23   in Kenya the teachers were on strike and I told him, oh, those

      24   must be teachers bombing the co-op house.

      25            I stood up from my seat, he stood up and faced the

                                                                    1954

       1   building, and I went and leaned on him like a small baby, I

       2   don't know why I did that, and from there I was -- I think we

       3   were just knocked off.  And I was unconscious for quite some

       4   time.  Then after some time I woke up and I couldn't see.

       5   Part of my head was all shattered with glass and I was hot on

       6   my left arm and my face was all shattered by glass.  And I was

       7   just breathing and the whole place was just open, it was like

       8   an open.

       9            I started walking towards the square.  I could see

      10   light and I could see his legs standing on top of the desk.

      11   Me, I was under the desk, and I was desparate to, oh, God,

      12   just save my soul.  I woke up, and as I got towards the right

      13   I grabbed on the window sill, the window from which you could

      14   see outside, and just by God's luck that I didn't fall.  And

      15   it attracted a lot of attention from the crowd, and everybody

      16   was like, don't jump, don't jump, because I could have fallen,

      17   I could have just gotten down and died there.

      18            And as I attracted a lot of attention, Marines from

      19   somewhere stated, and just two guys came over, I remember it

      20   was an American, and he carried -- he told me just come over.

      21   And they carried me.  There were two guys, they carried me

      22   down and I was taken to the hospital.

      23   Q.  And the man who stood in front of you at the window, do

      24   you know what happened to him?

      25   A.  Yeah.  He was killed in the blast.

                                                                    1955

       1            MR. BUTLER:  No further questions, your Honor.

       2            MR. COHN:  No questions, your Honor.

       3            THE COURT:  Thank you.  You may step down.

       4            (Witness excused)

       5            MR. BUTLER:  Government calls Dr. Gretchen McCoy,

       6   your Honor.

       7    DR. GRETCHEN McCOY,

       8        called as a witness by the government,

       9        having been duly sworn, testified as follows:

      10            DEPUTY CLERK:  Please be seated.  Please state and

      11   spell your last name.

      12            THE WITNESS:  Gretchen Anne McCoy, M-c-C-O-Y.

      13   DIRECT EXAMINATION

      14   BY MR. BUTLER:

      15   Q.  You're a medical doctor?

      16   A.  Yes.

      17   Q.  When did you graduate from medical school?

      18   A.  I graduated from medical school in 1973.  Sorry, 1976.

      19   Q.  How are you presently employed?

      20   A.  I'm employed as a regional medical officer for the

      21   Department of State.

      22   Q.  How long have you worked for the State Department?

      23   A.  Eight years.

      24   Q.  Where did you work in August of 1998?

      25   A.  I was working at the American Embassy in Nairobi, Kenya.

                                                                    1956

       1   Q.  How long had you been at the American Embassy in Nairobi?

       2   A.  One year.

       3   Q.  What was your position with the embassy in Nairobi?

       4   A.  I was the regional medical officer there.

       5   Q.  What were your duties and responsibilities as the regional

       6   medical officer?

       7   A.  About 40 percent of the time I was at the mission in

       8   Nairobi and I provided care to the staff, the American staff

       9   there, and also provided assistance for any injuries of

      10   Kenyans related to their work.  The other 60 percent of the

      11   time I did administrative work, and that included traveling to

      12   eight other countries and providing medical care and

      13   supervising medical care for those areas.

      14   Q.  Where was your office located?

      15   A.  My office was located on, in the first sub-basement, the

      16   level of the parking lot.  Our offices were located on the

      17   side of the building adjacent to the Aga Khan walkway.  My

      18   office was on the back side of the building, and the medical

      19   offices extended forward toward the front of the building.

      20   Q.  Were you in your office on the morning of August 7, 1998?

      21   A.  Yes, I was.

      22   Q.  Who else was in the office with you at that time?

      23   A.  We had two other RNs that were in the office at the time

      24   and a nurse practitioner that we were all co-located there.

      25   We also had two small children and their mother who were in

                                                                    1957

       1   the office at the time.

       2   Q.  They were there for a visit?

       3   A.  Right.

       4   Q.  Could you tell the jury what you recall that happened on

       5   the morning of August 7, 1998?

       6   A.  I was in my office on the telephone at the time and heard

       7   just a very small, what turned out to be an explosion, a pop,

       8   and about ten seconds later there was a huge explosion.  The

       9   whole building just vibrated.  The lights immediately went out

      10   and it was very quiet.

      11            We, the staff, the nursing staff that was there, we

      12   all yelled to make sure everybody was okay.  Fortunately,

      13   everybody was.  We had one emergency light in one of the exam

      14   rooms, otherwise the entire area was pitch dark.  We sort of

      15   gathered ourselves together.  One of the nurses grabbed our

      16   emergency treatment bag and we went out into the waiting area,

      17   and the furniture there was all disheveled.  We basically

      18   crawled over that furniture.

      19            The nurses went first.  I grabbed the hand of Joanne

      20   Husky, who was the mother that was there, and she had her two

      21   children, and we attempted to exit.  The nurses went up the

      22   front stairway and I took the Huskys on out through a door

      23   that was approximately 15 feet farther on down that exited

      24   into the parking lot area.

      25            The door was ajar.  We managed to get that open and I

                                                                    1958

       1   could see that there was a pathway, a clear pathway that they

       2   could get up the ramp area.  They walked on up the ramp and I

       3   went back in to make sure that everybody else was out of that

       4   section of the building.

       5   Q.  What did you do after that?

       6   A.  Well, I went back in.  There were some offices adjacent to

       7   our offices and that were responsible for repairing

       8   telephones, and there was one person in there.  He was fine.

       9   Got him out.  And as I was exiting through the parking lot

      10   door again, there was a person on the floor or on the ground

      11   that we had missed when we walked out.  When we first exited

      12   building, there was a lot of smoke and it was very difficult

      13   to see and it was very difficult to breathe, and as I said, we

      14   totally missed this one person, we literally tripped over.

      15            At any rate, I found her on the way out the second

      16   time and basically picked her up and sort of half dragged her

      17   out.  I was afraid -- there was still a lot of smoke, I was

      18   afraid that there was going to be a fire, and drug her out up

      19   the ramp area.  And the chief security officer, Paul Peterson,

      20   met me and he took Carol and carried her on out to the front

      21   of the building.

      22            I went around to the front where the nurses were.  We

      23   had sort of planned to set up what's called a triage area in

      24   the front parking lot.  Basically that's an area that you hope

      25   to have all the injured kind of go through that area, where we

                                                                    1959

       1   kind of collect them and get them transported to the hospital

       2   and basic first aid applied.

       3            Unfortunately, it quickly became evident that people

       4   weren't coming that way.  I mean, the back of the embassy was

       5   basically wide open.  People were being taken out, put into

       6   vehicles from the back side of the mission, so we were

       7   basically losing a lot of patients that way.

       8            At the same time, there were some additional medical

       9   staff from some of the other embassies that had arrived, so

      10   the nurse practitioner and I went back into the building and

      11   our two nurses stayed there.  One of them subsequently took

      12   patients to the hospital, Barbara Mooley.

      13   Q.  What did you do when you went back inside the building?

      14   A.  I basically tried to just start going through the areas

      15   that I could get to.  I went back to the back side of the

      16   building, went into the basement, and there were three Kenyans

      17   that were unconscious in the garage area.  There were some

      18   bystanders there.  We managed to find some pieces of metal

      19   roofing that we put these people on and got them out and

      20   transported to the hospital.

      21            Also, there was an American there by the name of Gary

      22   Spears who had fractured his upper arm and had some shrapnel

      23   injuries to the abdominal wall.  We got them taken care of,

      24   and then I went back into the building and went to the first

      25   floor and there were two Americans that were in the GSO area,

                                                                    1960

       1   O'Connor, Michelle O'Connor and Jay Bartley, and Michelle was

       2   basically decapitated from the jaw up and Jay Bartley was in

       3   the doorway and his legs were basically thrown over his

       4   shoulders.  They were clearly dead.  There was nothing more

       5   that could be done for them.  And continued through the

       6   building.

       7            A lot of areas I couldn't get into because it was

       8   very dark and there was debris many feet deep, so just started

       9   going through the floors.  I think it was on the third or

      10   fourth floor that Carolyn Reilly, we found her.  She was an

      11   American that was complaining of a lot of shortness of breath

      12   and chest pain.  We managed to find a piece of the door to get

      13   her on and get her transported downstairs.

      14            It was very, very difficult to get her down the

      15   stairs.  There were a lot of people that were on that, there

      16   was a lot of debris, a lot of people that didn't belong in the

      17   embassy that were coming in.  So there was a lot of

      18   competition for the stairs.

      19   Q.  Did you eventually get out of the embassy?

      20   A.  Yes.  After I kind of went through it again, it was clear

      21   that, you know, we weren't coming across anybody else that we

      22   could help there that was immediately evident, so I went on to

      23   Nairobi Hospital to try and locate people that were injured

      24   there and make sure that they were getting proper attention.

      25   Q.  Could you just briefly describe what you encountered at

                                                                    1961

       1   Nairobi Hospital?

       2   A.  Well, as you can imagine, with the number of people that

       3   were injured and killed, it was utter chaos.  There were a lot

       4   of people milling around in the front of the hospital.  When I

       5   entered into the hospital, again, the waiting area was just

       6   jammed.  There were people on the floor, a few people on

       7   stretchers for the stretchers that they had, and basically

       8   just started going through these mobs of people looking for

       9   injured that we could recognize.

      10            MR. BUTLER:  No further questions, your Honor.

      11            MR. COHN:  No questions, your Honor.

      12            THE COURT:  Thank you, Doctor.  You may step down.

      13            (Witness excused)

      14            MR. BUTLER:  Your Honor, at this time the government

      15   would like to read a stipulation.

      16            THE COURT:  Stipulation, yes.

      17            MR. BUTLER:  "It is hereby stipulated and agreed by

      18   and between the United States of America, by Mary Jo White,

      19   the United States Attorney for the Southern District of New

      20   York, Patrick J. Fitzgerald, Kenneth M. Karas and Paul W.

      21   Butler, of counsel, and defendants, by and with the consent of

      22   their attorneys, as follows:

      23            "1.  If called as a witness, A.O. Kirase Olombe would

      24   testify as follows:

      25            A.  He is a medical doctor who graduated from the

                                                                    1962

       1   University of Nairobi with a Bachelor of Medicine and Surgery

       2   degree in 1998 and a Postgraduate Master of Medical Pathology

       3   and Microbiology in 1993.  In 1993, Dr. Olumbe joined the

       4   staff of the nairobi City Mortuary.  In 1995, Dr. Olumbe was

       5   sponsored by the World Health Organization to attend the

       6   Victoria Institute of Forensic Medicine at Monash University

       7   in Melbourne, Australia.  Since 1996, Dr. Olumbe has been the

       8   Chief Government Pathologist at the Kenyan Ministry of Health.

       9   Dr. Olumbe performs autopsies on corpses to determine the

      10   cause of death.  In his experience as a medical examiner,

      11   Dr. Olumbe has examined persons who are killed by explosive

      12   devices.

      13            "B.  Between August 7 and August 14, 1998, Dr. Olumbe

      14   was asked to perform or supervise autopsies on 200 individuals

      15   at the Nairobi City Mortuary.  In summary, all of the persons

      16   listed below were determined to have been killed by injures

      17   resulting from a bombing.

      18            "C.  The bodies examined by Dr. Olumbe were

      19   identified by family members as the following individuals:

      20            Bonita Achola, age 22, female; Samson Oduor Ahomo,

      21   age 31; male; Margaret Akinyi, age 33, female; Emma Adhiambo

      22   Anulo, age 18, female; Elizabeth Anyango, age unavailable,

      23   gender, female; Monicah Apondi, age 39, female; Rosetta Ivayo

      24   Barasa, age 54, female; Chrispine Bonyo, age 42, male; Daniel

      25   Kiprono Cheruiyot, age 28, male; Jean Rose Dalizu, age 60,

                                                                    1963

       1   male; Eva Nyanjau Gacheru, age 22, female; Alice Nduta

       2   Gachiri, age 46, female; Jane Wangui Gakuru, age 31, female;

       3   Ralph Johnstone Gathumbi, age 53, male; Justus Njeru Geoffrey,

       4   age 34, male; Agnes Wanjiku Gitau, age unavailable, female;

       5   Lawrence Amrose Gitau, age 48, male; Bernard Mugambi Gitunga,

       6   age 25, male; Susan Wairimu Gitu, age 36, female; Rosemary

       7   Njeri Gituma, age unavailable, female; Hassan Hukay Guracha,

       8   age 37, male; Burhan Aden Hanshi, age 21, male; Hindu Omar

       9   Iddi, age unavailable, female; Tony Kihato Irungu, age 35,

      10   male; George Irungu, age 62, male; Jane Wangari Itutia, age

      11   unavailable, female; Dorine Aluoch Jow, age 30, female;

      12   Gilbert Mugo Kahindi, age 41, male; John Karoki Kahuthu, age

      13   59, Female; Geoffrey Mulu Kalio, age unavailable, male; Joel

      14   Gitumbo Kamau, age 60, male; Franci Kihara Kamiti, age 27,

      15   male; Lawrence Gitau Kamuti, age 31, male; Margaret Wanjiru

      16   Kangi, age 21, female; Rachel Wambui Karaba, age 25, female;

      17   Charles Mugo Karanja, age 30, male; Lucy Nyamira Karigi, age

      18   53, female; Beatrice Nyambura Kariuki, age 35, female; Moses

      19   Kariuki, age 35, male; Kristine Anne Wairimu Karumba, age 43,

      20   female; Thomas Mudanyi Khahenzi, age 44, male; Francis Kiiru

      21   Kibathi, age 38, male; Jackline Nyawira Kibera, age 18,

      22   female; Rael Biiri Kimami, age 33, female; Felistas Njeri

      23   Kimani, age unavailable, female; Stephen Manina Kimani, age

      24   33, male; Joseph Kamau Kiongo, age 55, male; Teresa Wairimu

      25   Kiongo, age 20, female; David Ndura Koimburi, age 38, male;

                                                                    1964

       1   Naftali Mwangi Kuria, age 32, male; Juliana Mbuli Kwali, age

       2   40, female; Peter Mbithi Kyalo, age unavailable, male; Moses

       3   Muli Kyule, age 40, male; Tirus Muraguri Macharia, age

       4   unavailable, male; Dennis Evans Radcliffe Madegwa, age 47,

       5   male; Francis Watoro Maina, age 34, male; Linda Ndindi Jackson

       6   Maingi, age unavailable, female; Fred Yafes Maloba, age

       7   unavailable, male; Cecelia Mamboleo, age 36, female; James

       8   Otieno Masea, age 33, male; Anne Nyambura Mathenge, age

       9   unavailable, female; James Migwi Mathenge, age 53, male; Pity

      10   Mwihaki Mathenge, age 35, female; Simon Peter Ngumo Matu, age

      11   30, male; Daniel Mutinda Maundu, age 44, male; June Mary

      12   Maweu, age 58, female; Lydia Mukiri Mayaka, age 41, female;

      13   Allan Sabato Mbandu, age 20, male; Doreen N. Mbayaki, age 22,

      14   female; Pamela Mboya, age 29, female; Rachael Kebendi Mboya,

      15   age 30, female; Francis Ndungu Mbugua, age 51, male; Lucy

      16   Waruthi Mbunja, age unavailable, female; Stephen Waweru Mburu,

      17   age 29, male; Catherine Mukeithi Mibere, age 38, female;

      18   Elizabeth Anyango Mito, age 37, female; Ahmed Warku Mohammed,

      19   age 27, male; Edward Mokaya, age 35, male; Lucian Mugambi, age

      20   unavailable, male; Sharon Wangechi Mugo, age 19, female;

      21   Josephat Mutua Muia, age 22, female; Emmanuel Mujyambere, age

      22   40, male; Samuel Vondo Mulalya, age 28, male; Francis Mukenye

      23   Mulehi, age 25, male; Edward Mwea Mungai, age 26, male; John

      24   Amos Mungai, age 48, male; Domi Munzala, age 24, male; Tommy

      25   Nkurume Munzala, age 25, male; Caroline Mumbi Muraguri, age

                                                                    1965

       1   unavailable, female; Fiddes Wambui Muritu, age 33, female;

       2   Alice Waruguru Muriuki, age 20, female; Mary Wanjiku Muriuki,

       3   age unavailable, female; Robert Mwigwi Muriuki, age

       4   unavailable, male; Dominic Kithuva Musyoka, age 52, male;

       5   Wilson Kipkorir Mutahi, age 33, female; Florence Mwende

       6   Muthama, age 32, female; Josephine Nzilani Mutinda, age 28,

       7   female; Emmanuel Nyagah Mutiira, age unavailable, male;

       8   Catherine Ndoome Mutua, age 24, female; Patrick Kariuki Mutui,

       9   age unavailable, male; Caroline Karumba Mutuiri, age 17,

      10   female; Gloria Nkatha Mutuiri, age 16, female; Gabriel

      11   Mwadime, age 26, male; Harrison Njuguna Mwangi, age 56, male;

      12   Roselyn Wanjiku Mwangi, age 36, female; Samuel Githua Mwangi,

      13   age 33, male; Moses Aston Mwani, age 50, male; Anna Mwaniki,

      14   age 48, female; Isaac Mukera Mwaria, age 66, male; Abdalla

      15   Musyoka Mwili Mwilu, age 38, male; Elizabeth Nyarosto Nakhale,

      16   age 50, female; Geoffrey Moses Namai, age 42, male; Moses

      17   Andika Namayi, age 29, male; Mary Nyaguthi Ndirangu, age 28,

      18   female; Simon Kinuthia Ndirangu, age 38, male; Caroline Atieno

      19   Ndolo, age unavailable, female; Martin Kivathe Nduati, age 28,

      20   male; Julius Ndulu, age 28, male; Edwin Paul Ndumbi, age 24,

      21   male; Peter Njoroge Ndungu, age 44, male; Ephraim Kingori

      22   Ndunu, age 27, male; Joyce Njeri Ng'Ang'a, age 19, female;

      23   Loice Njeri Nganga, 23, female; John Mwangi Ngaragari, age 35,

      24   male; Peter Kabau Macharia Ngugi, age 31, male; Jacinta Njoki

      25   Njau, age 29, female; Simon Mwangi Njiima, age unavailable,

                                                                    1966

       1   male; Abel Mutegi Njiru, age 37, male; Agatha Ann Njoki, age

       2   27, female; Catherine Wambara Njoroge, age 41, female; Francis

       3   Ndungu Njoroge, age 48, male; Grace Nyambura Njoroge, age 53,

       4   male; William Waithaka Njoroge, age 29, male; Francis Kibe

       5   Njuguna, age 51, male; Godfrey Muchori Njuguna, 31, male;

       6   Patrick Mbiyu Njuguna, age 29, male; Francis Mbogo Njuige, age

       7   49, male; Michael Oduor Nyademba, age 34, male; Vincent Kamau

       8   Nyoike, age 53, male; Janet Ndumi Nzioka, age 24, female;

       9   Johnson Kimeu Nzioka, age 35, male; Magdaline Mbithe Nzoka,

      10   age 22, female; Joseph Ngove Nzwili, age unavailable, male;

      11   Aineah Joshua Obonyo, age 32, male; Frederick Ezra Ochieng,

      12   age 27, male; Francis Olewe Ochito, age 35, male; Lawrence

      13   Olum Ochola, age 29, male; Duncan Odhiambo, age unavailable,

      14   male; John Oduor Odhiambo, age 33, male; Patricia Atieno Ogol,

      15   age 38, female; Maurice Okatch Ogola, age 50, male; Michael

      16   Ochieng Okeyo, age 30, male; Simon Otieno Olang, age 35, male;

      17   Dominic Otieno Olango, age 32, male; Lepeine Kitatian Olotono,

      18   age 54, female; Hanson Nyabera Omar, age 31, male; Margaret

      19   Atieno Ombunya, age unavailable, female; Edwin Opiyo Omori,

      20   age 47, male; Enoch Omweno, age 42, male; Lucy Grace Onono,

      21   age 48, female; Evans Kibiro Onsongo, age 35, male; Eric Abuor

      22   Onyango, age 32, male; John Ouko Onyango, age 31, male;

      23   Caroline Sella Opati, age 47, female; Sylvia Oriedo, age 35,

      24   female; Godfrey Okuro Orono, age 33, male; Elizabeth Achieng

      25   Orwa, age 30, female; Joseph Ondari Osamba, age 50, male;

                                                                    1967

       1   Elias Otieno Osir, age 32, male; Julius Ochieng Otieno, age

       2   35, male; Mathews Walunya Otieno, age 54, male; Rogers Otolo,

       3   age unavailable, male; Elijah Ngito Owino, age 40, male;

       4   Josiah Odero Owuor, age 35, male; Rachel Magasia Pussy, age

       5   unavailable, female; Margaret Okello Rading, age 31, female;

       6   Peter Evans Mugo Rungu, age 44, male; Ruth Mukami Rungu, age

       7   20, female; Timothy Odhiambo Sande, age 31, male; Fahat

       8   Sheikh, age 40, male; Hassan Jarso Soka, age 36, male;

       9   Shadrack Nyagah Thitu, age 35, male; Samuel Mbugua Thuo, age

      10   36, male; Phaedra Vrontamis, age 51, female; Gloria Wangechi

      11   Wachira, age 27, female; Shadrack Mwangi Wagaiyu, age 54,

      12   male; James Mwangi Wainaina, age 47, male; Adams Titus Wamai,

      13   age 53, male; Anne Mumbi Wambugu, age 44, female; John Gitau

      14   Wamutwe, age 40, male; David Soita Wanabacha, age 30, male;

      15   Margaret Wambui Wangethi, age 42, female; Gladys Wangui, age

      16   33, female; Mercy Wanjiku, age 29, female; John Mwangi

      17   Wanyoike, age 28, male; Margaret Wasike, age unavailable,

      18   female; Sabina Wateri, age 46, female; Benson Wathigo, age 56,

      19   male; Margaret Njeri Waweru, age unavailable, female; Ann Mumo

      20   Zakayo, age 28, female.

      21            "D.  Between August 7 and August 14, 1998, Dr. Olumbe

      22   also prepared death certificates for two individuals.  These

      23   persons were also determined to have been killed by injuries

      24   resulting from a bombing.  The bodies of these two individuals

      25   were identified by family members to be the following persons:

                                                                    1968

       1            "Philip Munyao Kioko, age 52, male; Ruth Mukami

       2   Musyoka, age unavailable, female.

       3            "2.  If equalled as a witness, Joyce Lapa would

       4   testify as follows:

       5            "A.  She is a medical doctor who graduated from the

       6   University of Florida with a Bachelor of Science in Nursing in

       7   1976 and from the Duke University with a medical degree in

       8   1982.  Dr. Lapa was a Pathology Resident at the National Naval

       9   Medical Center in Bethesda, Maryland from 1998 to 1992 and a

      10   Forensic Pathology Resident at the Armed Forces Unit of

      11   Pathology from 1992 to 1993.  Dr. Lapa is a Diplomat in the

      12   National Board of Medical Examiners and is certified by the

      13   American Board of Pathology.  Since 1995, Dr. Lapa has been

      14   the Chief Deputy Medical Examiner at the Armed Forces Unit of

      15   Pathology in Rockville, Maryland.  Dr. Lapa performs autopsies

      16   to determine the cause of death.  In her experience as a

      17   medical examiner, Dr. Lapa has examined persons who were

      18   killed by explosive devices.

      19            "B.  Between August 12 and August 14, 1998, Dr. Lapa

      20   was asked to perform or supervise autopsies on 11 individuals

      21   at the Dover Port Mortuary, Dover, Delaware.  In summary, all

      22   of the persons listed below were determined to have been

      23   killed by injuries resulting from a bombing.

      24            "C.  The bodies examined by Dr. Lapa were identified

      25   by family members as the following individuals:

                                                                    1969

       1            "Jesse Nathaniel Aliganga, age 21, male; Julian

       2   Leotis Bartley, Jr., age 27, male; Julian Leotis Bartley, Sr.,

       3   age 54, male; Molly H. Hardy, age 51, female; Kenneth Ray

       4   Hobson, age 27, male; Prabhi Gutpara Kavaler, age 45, female;

       5   Arlene Bradley Kirk, age 50, female; Mary Louise Martin, age

       6   45, female; Ann Michelle O'Connor, age 37, female; Sherry Lynn

       7   Olds, age 40, female; Uttamlal Thomas Shah, age 37, male.

       8            "23.  All 213 individuals listed in paragraphs 1 and

       9   2 above were found within, or in the vicinity of, the United

      10   States Embassy, located at Moi Avenue and Haile Selassie

      11   Avenue, Nairobi, Kenya, and the neighboring buildings and

      12   grounds during the late morning of August 7, 1998 or during

      13   later rescue and recovery operations at the scene.

      14            "4.  If called to testify as a witness, other doctors

      15   from Nairobi, Kenya would testify that approximately 4,000

      16   persons who were in the vicinity of the American Embassy in

      17   Nairobi, Kenya, during the morning of August 7, 1998 were

      18   injured as a result of a large explosion.

      19            "It is further stipulated and agreed that this

      20   stipulation may be received in evidence as a government

      21   exhibit at trial."

      22            And the government at this point would offer the

      23   stipulation as Government Exhibit 39.

      24            THE COURT:  Received.

      25            (Government Exhibit 39 received in evidence)

                                                                    1970

       1            MR. BUTLER:  Agent Gaudin is the next witness.

       2            THE COURT:  We'll take our lunch break at this point

       3   and we are adjourned until 2:15.

       4            (Luncheon recess)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    1971

       1                 A F T E R N O O N    S E S S I O N

       2                             2:15 p.m.

       3            (In open court; jury not present)

       4            THE COURT:  All right.  Let's be seated.  All right.

       5   The witness may come in and the jury may come in.

       6            (Jury present)

       7            THE COURT:  The government may call its next witness.

       8            MR. BUTLER:  Government calls Stephen Gaudin, your

       9   Honor.

      10    STEPHEN GAUDIN,

      11        called as a witness by the government,

      12        having been duly sworn, testified as follows:

      13   DIRECT EXAMINATION

      14   BY MR. BUTLER:

      15   Q.  How are you employed?

      16   A.  I'm employed by the FBI.

      17   Q.  And how long have you been an agent with the FBI?

      18   A.  I've been with the FBI a little over nine years.

      19   Q.  And where are you currently assigned?

      20   A.  I'm currently assigned to the New York office of the FBI.

      21   Q.  How long have you been with the New York office of the

      22   FBI?

      23   A.  I've been with the New York office of the FBI for a little

      24   over three years.

      25   Q.  Where were you assigned before the New York office?

                                                                    1972

       1   A.  Prior to coming to New York I was assigned with the FBI in

       2   upstate New York in Albany, New York.

       3   Q.  In any unit or section while you were in Albany?

       4   A.  While in Albany I worked on general crimes.

       5   Q.  Concerning your time in Albany, did you conduct facility

       6   interviews of suspects in criminal investigations?

       7   A.  Yes, I did.

       8   Q.  And about how many times?

       9   A.  Dozens of times.

      10   Q.  Now, were you one of the FBI agents sent to Nairobi Kenya

      11   after the bombing of the American embassy on August 7, 1998?

      12   A.  Yes, I was.

      13   Q.  When did you arrive in Nairobi?

      14   A.  I arrived in Nairobi on early Sunday morning, August 9,

      15   1998.

      16   Q.  Prior to your arrival what was your understanding of your

      17   assignment while you were in Kenya?

      18   A.  Prior to arriving in Kenya I wasn't given a specific

      19   assignment but just general instructions that we were going to

      20   Kenya to help out with the investigation of the bombing in any

      21   way we could.

      22   Q.  I'm talking specifically about what you did after arriving

      23   in Kenya.  Did you receive an assignment on August 12, 1998?

      24   A.  Yes, I did.

      25   Q.  And what was that assignment?

                                                                    1973

       1   A.  On August 12th I was instructed to go with my Kenyan law

       2   enforcement counterpart there is the CID, the investigators

       3   from their Criminal Investigation Division.  I was to go with

       4   them to a hotel.

       5   Q.  And were you working with the Kenyan CID in this

       6   investigation?

       7   A.  Yes, I was.

       8   Q.  Where was this hotel you were going to located?

       9   A.  It was in Eastleigh Nairobi.

      10   Q.  And where is Eastleigh located?

      11   A.  It was about a twenty or thirty minute drive outside of

      12   Nairobi.

      13   Q.  And who was with you?

      14   A.  I was with another FBI agent and a New York City Police

      15   detective who was working with us, also.

      16   Q.  And who else was with you?

      17   A.  There were two Kenyan CID officers and their driver.

      18   Q.  And how did you get to Eastleigh that day?

      19   A.  We drove.  We were in the back of a truck.

      20   Q.  And who drove the truck?

      21   A.  The Kenyan CID driver drove the truck.

      22   Q.  Where were you located?

      23   A.  I was in the back of the truck.  It was a covered truck

      24   sort of like a pickup truck with a big cab on the back.

      25   Q.  Did there come a time when you arrived at the Iftin Lodge

                                                                    1974

       1   in Eastleigh?

       2   A.  Yes, there was.

       3   Q.  About what time was that?

       4   A.  It was around 10 o'clock in the morning that day.

       5   Q.  And what happened when you arrived at the Iftin Lodge?

       6   A.  The CID investigators went into the hotel and they came

       7   out with a man.

       8   Q.  And at the time that you were in the truck could you see

       9   the man that the CID officers were with?

      10   A.  Yes, I could.  I was in the back of the truck, but it was

      11   pretty hot, so we had the door open and I could see the CID

      12   officers talking to this man.  I was very close.

      13   Q.  At the time could you see if this person had any documents

      14   on him?

      15   A.  Yes.  This man was, had presented a white slip of paper of

      16   some kind to the Kenyan CID officers.

      17   Q.  And did you see that white slip of paper?

      18   A.  Yes, I did.

      19   Q.  What was it?

      20   A.  It was a hospital, what appeared to me to be a hospital

      21   admissions card showing that someone was treated at the MP Sha

      22   Hospital on August 7, 1998.  It had a patient number written

      23   on the top, printed on the top and a person's name Khalid

      24   Saleh written in the handwritten form.

      25            MR. BUTLER:  Your Honor, may I approach?

                                                                    1975

       1            THE COURT:  Yes.

       2   Q.  I'd like to show you what has been marked as Government

       3   Exhibit 550 for identification.  If we could just show that

       4   just for identification purposes.  Agent Gaudin, is this the

       5   document that the individual who you saw in Eastleigh that day

       6   had on him?

       7   A.  This is it right here in my hand.

       8            MR. BUTLER:  I move Government Exhibit 50350 into

       9   evidence your Honor.

      10            THE COURT:  Received.

      11            (Government's Exhibit 550 received in evidence)

      12   Q.  Now, was this person taken into custody?

      13   A.  Yes, he was.

      14   Q.  What was your understanding as to why this person was

      15   arrested?

      16   A.  He was arrested by the Kenyan CID officers for not having

      17   any official identification on him.

      18   Q.  And to be clear, who made that arrest?

      19   A.  The Kenyan CID officers made that arrest.

      20   Q.  And after the arrest where was he placed?

      21   A.  He was put into the back of the truck with me.

      22   Q.  And once inside the truck did this person confirm that he

      23   was Khalid Saleh?

      24   A.  Yes, he did.

      25   Q.  And did he tell you where he was from?

                                                                    1976

       1   A.  He said he was Yemen.

       2   Q.  Looking around the courtroom do you recognize the

       3   individual who identified himself as Khalid Saleh from Yemen

       4   that day?

       5   A.  Yes, I can.

       6   Q.  Could you tell us where he is?

       7   A.  He's sitting right there in between the two ladies in the

       8   corner.  I can get up and point whatever is easier.

       9            MR. COHN:  We concede the identification.

      10            THE COURT:  The witness identifies the defendant

      11   Al-'Owhali.

      12   Q.  Did you observe whether he had any injuries that day?

      13   A.  Yes, I could see that he did have injuries.

      14   Q.  What type of injuries did he have?

      15   A.  He had stitches on his forehead.  They weren't covered

      16   with a bandage or bandaid.  I could see the stitches and both

      17   of his hands had bandages on them.

      18   Q.  And did you take any pictures of him after his arrest?

      19   A.  Yes, we did.

      20            MR. BUTLER:  May I approach, your Honor?

      21            THE COURT:  Yes.

      22   Q.  Agent Gaudin, I just handed you what has been marked as

      23   Government Exhibits 551 A through I for identification.

      24            If we could just show those for identification

      25   purposes.  Are those copies of the photographs that you took

                                                                    1977

       1   that day?

       2   A.  Yes, these are.

       3            MR. BUTLER:  Your Honor, I would move Government

       4   Exhibits 551 A through I into evidence.

       5            MR. COHN:  No objection.

       6            THE COURT:  Received.

       7            (Government's Exhibits 551-A through I received in

       8   evidence)

       9   Q.  If we could publish 551-A through I to the jury.

      10            Agent Gaudin, do these photographs accurately depict

      11   the injuries that you saw that day on Mr. Al-'Owhali?

      12   A.  Yes.  Except in the fact that on his hand he doesn't have

      13   the bandages on his hand, but at the time of arrest he did

      14   have like a gauze with some bandaid or tape or something

      15   covering those stitches on his hands.  That's the only

      16   difference.

      17   Q.  Now, Mr. Al-'Owhali obviously doesn't have a shirt on, but

      18   did you notice whether the clothes that he was wearing were

      19   the same clothes that he was wearing at the time of his

      20   arrest?

      21   A.  Yes.  In the first picture it does have his shirt on and,

      22   yes, these were the clothes he was wearing on August 12th.

      23   Q.  Did there come a time when you took custody of those

      24   clothes?

      25   A.  Yes, I did.

                                                                    1978

       1   Q.  When did you take custody of those clothes?

       2   A.  On August 13th.

       3   Q.  Did the FBI maintain custody of those clothes?

       4   A.  Yes, they did.

       5            MR. BUTLER:  May I approach, your Honor?

       6            THE COURT:  Yes.

       7   Q.  Agent Gaudin, I've just handed you a bag that's been

       8   marked Government Exhibits 552 through 556 for identification.

       9   I would ask you just to open those bags and just take a look

      10   at those clothes.

      11   A.  These are two paper bags I had put his clothes into.  The

      12   first bag, the belt --

      13   Q.  Don't show them to the jury yet.  Look at those clothes to

      14   yourself, Agent Gaudin, and tell us whether those were the

      15   clothes that you took from the defendant Al-'Owhali that day?

      16   A.  The first bag is a belt, his jeans and his shirt.  The

      17   second bag is socks and long underwear.

      18   Q.  Are those the clothes that you took from him that day?

      19   A.  Yes, they are.

      20            MR. BUTLER:  We move Government Exhibits 552 through

      21   556 into evidence, your Honor.

      22            THE COURT:  Received.

      23            (Government's Exhibits 552 through 556 received in

      24   evidence)

      25   Q.  We have some photographs of the clothing that we could

                                                                    1979

       1   publish to the jury.

       2            (Pause)

       3            Agent Gaudin, drawing your attention to August 22,

       4   1998, did you have an opportunity to interview Mr. Al-'Owhali

       5   on that date?

       6   A.  Yes, I did.

       7   Q.  And where did that interview take place?

       8   A.  That interview took place at the CID headquarters in

       9   Nairobi, Kenya in an office.

      10   Q.  Who else was at that interview?

      11   A.  There was Agent Steve Baugart.  There was an official from

      12   the Department of Justice.  We had an FBI interpreter language

      13   specialist, and there was two Kenyan CID investigators.

      14   Q.  And on August 22 did Mr. Al-'Owhali agree to speak with

      15   you?

      16   A.  Yes, he did.

      17   Q.  And did he place any conditions on his agreement to speak

      18   with you?

      19   A.  Yes, he did.

      20            MR. COHN:  Objection, hearsay, your Honor, and it's

      21   an interpreter question.  It's hearsay because it comes

      22   through a third party, your Honor.

      23            THE COURT:  Develop the events up until that point.

      24   Q.  Agent Gaudin, how did you communicate with Mr. 'Owhali

      25   during this interview?

                                                                    1980

       1   A.  Through a translator.

       2   Q.  And what language was that translator translating in?

       3   A.  In Arabic, Mr. 'Owhali's language.

       4   Q.  Did Mr. Al-'Owhali appear to understand the translator?

       5   A.  Yes, he did.

       6            MR. COHN:  Objection as to what appeared.

       7            THE COURT:  Overruled.

       8   Q.  Did Mr. Al-'Owhali -- were you able to communicate with

       9   him effectively through the translator?

      10   A.  We had no problems communicating with him through the

      11   translator at all.

      12            MR. COHN:  Objection, conclusion.

      13            THE COURT:  Overruled.

      14   Q.  Through the translator did Mr. Al-'Owhali tell you that he

      15   had any conditions on his willingness to speak with you?

      16            MR. COHN:  Renew my objection.

      17            THE COURT:  Overruled.

      18   A.  Yes, he did.  Mr. 'Owhali explained that he would tell us

      19   his involvement in the bombing of the embassy if we would

      20   guarantee him that he would be tried in the United States

      21   because that the United States was his enemy and not Kenya so

      22   he wanted a guarantee that he be tried in America to face his

      23   enemy.

      24   Q.  Did anyone guarantee him at that point that they would

      25   take him to America?

                                                                    1981

       1   A.  No.  He was not given an express guarantee that that would

       2   happen.

       3   Q.  Was the response to his request put into writing?

       4   A.  Yes, it was.

       5   Q.  And what did this writing tell him about whether you could

       6   guarantee you would take him to the United States?

       7   A.  The official from the Department of Justice had prepared a

       8   form explaining all of these things to Mr. Al-'Owhali based on

       9   his conditions.  The form stated that this official from the

      10   Department of Justice would make his best efforts and make his

      11   recommendations to the appropriate people in the US for

      12   Mr. Al-'Owhali to be tried in the United States, but he

      13   couldn't guarantee that that would happen.  It was only that

      14   he would do his best.  He would recommend that this would

      15   happen.

      16   Q.  And did Mr. Al-'Owhali eventually accept the

      17   recommendations eventually?

      18   A.  Eventually, he did.

      19   Q.  And did Mr. Al-'Owhali eventually sign this agreement that

      20   you're referring to?

      21   A.  Yes, he did.

      22            MR. BUTLER:  May I approach, your Honor?

      23            THE COURT:  Yes.

      24   Q.  I'd like to show you what has been marked as Government

      25   Exhibit 557 for identification.  What is exhibit 557, Agent

                                                                    1982

       1   Gaudin?

       2   A.  This is the form that Mr. Al-'Owhali eventually signed on

       3   August 22.

       4            MR. BUTLER:  Move Government Exhibit 557 into

       5   evidence, your Honor.

       6            MR. COHN:  Objection.  Foundation, your Honor.  I

       7   don't want to do a speaking objection, but --

       8            THE COURT:  Trace the form until it gets to the

       9   agent.

      10   Q.  Agent Gaudin, was this the agreement that Mr. Al-'Owhali

      11   was first read?

      12   A.  No, it was not.

      13   Q.  And what was different about the agreement that he was

      14   first read?

      15   A.  In the first form we had Mr. Al-'Owhali's name as we knew

      16   it at the time, Khalid Saleh.  At the time that he was willing

      17   to sign the form he had instructed us that we would need to

      18   put his real name on the form instead of the name that we

      19   thought he had.

      20   Q.  Now, was the agreement, except for the name, otherwise the

      21   same as this agreement marked as Government Exhibit 557?

      22   A.  Except for the name, it was the same agreement.

      23   Q.  And was that first agreement read to him?

      24   A.  Yes, it was.

      25   Q.  And how was it read to him?

                                                                    1983

       1   A.  The official from the Department of Justice read the form

       2   to him through the interpreter, so the Department of Justice

       3   official was speaking in English; the interpreter was

       4   translating for Mr. Al-'Owhali in Mr. Al-'Owhali's native

       5   language.

       6   Q.  Did Mr. Al-'Owhali agree to sign that form at that time?

       7   A.  No, he did not.

       8   Q.  What did he say about why he wouldn't sign the form?

       9   A.  Mr. Al-'Owhali had stated that he wanted to know if

      10   recommend means the same as a guarantee.  And the official

      11   from the Department of Justice told him it's not the same;

      12   that a guarantee means a hundred percent certain or words to

      13   that effect, and recommends means, we'll do our best.

      14            And Mr. Al-'Owhali had expressed that he wanted a

      15   guarantee.

      16   Q.  So what did you do after Mr. Al-'Owhali said that he had a

      17   problem with the word recommend?

      18   A.  The official from the Department of Justice explained to

      19   Mr. Al-'Owhali that this, the wording in this form was

      20   probably about as strong as he could get it to be, as strong

      21   as he could make it.  But it was up to Mr. Al-'Owhali whether

      22   or not he was going to decide to speak with us or not on that

      23   day; that he was the boss on that issue.  If he wanted to talk

      24   to us, it was completely up to him.  If he wanted the

      25   Department of Justice official to try to change the form, the

                                                                    1984

       1   Department of Justice official told him, I can't promise you

       2   that it's going to change any more.  I'll try.  I'll have to

       3   contact my superiors.  This could take some time but I don't

       4   want to get your hopes up that I'm going to come back with

       5   exactly what you want.  This is probably about as strong as we

       6   can make it.

       7            MR. COHN:  Your Honor, at this time I would ask for

       8   the instruction as to why this is not hearsay, that it's not

       9   being asserted for its truth, but merely that it was said, not

      10   Mr. Al-'Owhali's state of mind.

      11            THE COURT:  Yes.  The jury is so instructed this is

      12   an instance in which the testimony is received not for its

      13   truth but as evidence of the words spoken for whatever weight

      14   you give it with respect to Mr. Al-'Owhali's state of mind,

      15   what he understood, what he heard.

      16   Q.  Agent Gaudin, what happened after this discussion took

      17   place?

      18   A.  The official from the Department of Justice left to make

      19   whatever arrangements he could to try to get this.

      20            MR. COHN:  Objection as to why he left.

      21            THE COURT:  He left.

      22   Q.  And what happened after the Justice Department official

      23   left?

      24   A.  After a while Mr. Al-'Owhali instructed me that he would

      25   be willing to sign the form as it is, that he'd be willing to

                                                                    1985

       1   accept our best faith efforts for the recommendation to be

       2   tried in the US instead of the exact guarantee he said would

       3   be fine, and he instructed me to get the official from the

       4   Department of Justice and that we could continue.

       5   Q.  And then did he sign the form at that time?

       6   A.  Yes.  Yes, he did.

       7   Q.  Did he sign at that particular time?

       8   A.  No.  Eventually he signed it.  When the Department of

       9   Justice official came back with the form it was presented to

      10   him, and Mr. Al-'Owhali at that point instructed us that we

      11   needed to put his true name, we had the name Khalid Saleh on

      12   the agreement and at that point he had, Mr. Al-'Owhali told us

      13   that his real name was Mohammed Rashid Daoud 'Owhali and that

      14   he's from Saudi Arabia.  So the Department of Justice official

      15   had to leave the room to put his, to reflect his true name on

      16   the form and then came right back into the room.

      17   Q.  And did Mr. Al-'Owhali sign the agreement at that time?

      18   A.  Yes, he did.

      19            MR. BUTLER:  Your Honor, we would offer Government

      20   Exhibit 557.

      21            MR. COHN:  Brief voir dire, your Honor.

      22            THE COURT:  Yes.  Let me explain what a voir dire

      23   means in this context.  When a document is offered in evidence

      24   the opposing party may conduct a voir dire which is not

      25   cross-examination.  It is intended to explore issues related

                                                                    1986

       1   to the admissibility in evidence of the document and it is

       2   limited to that purpose.  So that's what a voir dire means

       3   during the course of the trial.

       4   VOIR DIRE EXAMINATION

       5   BY MR. COHN:

       6   Q.  Mr. Gaudin, this document was never translated into

       7   written Arabic for Mr. Al-'Owhali, was it?

       8   A.  No, sir, it was not.

       9   Q.  So it's fair to say that he could not read it, is that

      10   right?

      11   A.  That will be fair to say.

      12   Q.  And is it not also true that it was never read to him in

      13   its entirety, but that it was interrupted and a discussion

      14   ensued with this Justice Department official?

      15   A.  No, sir.  The way I remember it is when it was first read

      16   to him it was read to him in its entirety.  Then

      17   Mr. Al-'Owhali expressed whatever problems he may have had

      18   with him, and then those problems were addressed.

      19   Q.  Let me see, it came back.  Were there two written versions

      20   of this document?  Was there another written version of this

      21   document?

      22   A.  With his other name on it, yes, there was.

      23   Q.  And we don't know -- and you're attesting to the fact that

      24   those documents are entirely identical except for the name.

      25   Is that right?

                                                                    1987

       1   A.  To the best I can.

       2   Q.  That's your testimony?

       3   A.  To the best I can, sir.

       4   Q.  To the best you can, which is from memory?

       5   A.  Yes, sir.

       6   Q.  But as to the second document when it came back, there was

       7   an attempt to read it to him, wasn't there, when this second

       8   document came back?

       9   A.  Yes, there was.

      10   Q.  And that was interrupted, was it not?  It was never

      11   completed?

      12   A.  Mr. Al-'Owhali --

      13   Q.  Was it ever completed?  Was it ever completed?

      14   A.  I'm sorry.  Was it read to him again?

      15   Q.  Was it ever read to him in its entirety again?

      16   A.  No, it was not.

      17            MR. COHN:  I object.

      18            THE COURT:  Overruled.  557 is received.

      19            (Government's Exhibit 557 received in evidence)

      20            MR. BUTLER:  Can we publish exhibit 557, please.

      21   Q.  Agent Gaudin, when the name was changed on the agreement

      22   that became exhibit 557, did Mr. Al-'Owhali ever ask you to

      23   read it to him again?

      24   A.  No, he did not.  In fact, it was the official of the

      25   Department of Justice asked him, would you like me to read it

                                                                    1988

       1   again?  I've changed the name.  I'll read it again if you

       2   like.  Mr. 'Owhali said that it wasn't necessary.  He trusted

       3   us and he agreed to sign it.

       4   Q.  I ask you to please read for the jury Government Exhibit

       5   557?

       6   A.  I Mohammed Rashed Daoud Al-'Owhali born in Saudi Arabia,

       7   on January 18, 1977 am in the custody of Kenyan authorities in

       8   Nairobi Kenya and have been fully advised of my rights,

       9   including my right to remain silent and my right not to answer

      10   questions without a lawyer present.

      11            As I have been previously told I understand that

      12   anything I say or have said can be used against me in court in

      13   the United States.  I also understand that if I choose not to

      14   answer questions, my refusal to answer questions cannot be

      15   held against me in court.

      16            I further understand that if I choose to answer

      17   questions, I can always change my mind and decide not to

      18   answer any further questions.  I understand that both Kenyan

      19   and American authorities are investigating the murder of

      20   various American and Kenyan victims in and around the United

      21   States embassy in Nairobi.  I have a strong preference to have

      22   my case tried in the United States court because America is my

      23   enemy and Kenya is not.

      24            I would like my statement about what I have done and

      25   why I have done it to be aired in public in an American

                                                                    1989

       1   courtroom.  I understand that the American authorities who are

       2   interviewing me want to know who committed the bombing of the

       3   embassy and how it was carried out.

       4            I am willing to waive my right and answer the

       5   question of American authorities upon the condition that the

       6   undersigned American law enforcement authorities make all best

       7   efforts to see that I am brought to the United States to stand

       8   trial.

       9            I understand that the undersigned prosecutor is only

      10   empowered to make recommendations to the Attorney General of

      11   the United States and other executive officials in the United

      12   States government, and I further understand that the United

      13   States government only intends to act with the mutual

      14   agreement of the Kenyan government.

      15            No other agreements or promises have been made other

      16   than as set forth in this document.  It's signed Mohamed

      17   Rashid Daoud Al-'Owhali.  It's signed by the interpreter,

      18   myself and Steve Baugart 4:36 p.m. on August 22, 1998.

      19   Q.  After Mr. al-'Owhali signed Government Exhibit 557 did he

      20   agree to speak with you?

      21   A.  Yes, he did.

      22   Q.  Did you interview him that day?

      23   A.  Yes, I did.

      24   Q.  And starting on August 22 over the course of how many days

      25   did you interview him?

                                                                    1990

       1   A.  We interviewed him on the 22nd, the 23rd, the 24th and the

       2   25th of August.

       3   Q.  What language did you interview him in?

       4   A.  I spoke in English and the interpreter translated to

       5   Mr. Al-'Owhali in his native language.  Mr. Al-'Owhali would

       6   usually respond back in his native language back through the

       7   interpreter to me, and then I would come into English to me.

       8   Q.  And approximately how many hours did each of these

       9   interviews last?

      10   A.  Around four hours each day.  Some less, some a little bit

      11   more.

      12   Q.  Was Mr. Al-'Owhali permitted breaks during the interviews?

      13   A.  Yes, he was.

      14   Q.  Was he given food during the course of these interviews?

      15   A.  Yes, he was.

      16   Q.  And was he permitted time to pray during the course of

      17   these interviews?

      18   A.  Every single time he asked to pray he was offered the

      19   opportunity to do so.

      20   Q.  And did you reread Government Exhibit 557 to him?

      21   A.  No, I didn't.

      22   Q.  Tell us what you did during each interview with regard to

      23   Government Exhibit 557?

      24   A.  At the beginning of each interview I would take the form

      25   that he sign on the 22nd and tell him this is the form you

                                                                    1991

       1   signed on the 22nd saying that you'd be willing to speak to

       2   us.  Do you still, do you understand you still want to speak

       3   to us now?  You want to continue?  And he said he did want to

       4   continued.  But I didn't reread it to him every time.

       5   Q.  Did Mr. Al-'Owhali during this period ever complain about

       6   the treatment that he was receiving?

       7   A.  No, he did not.

       8   Q.  Did you ever see him being mistreated?

       9   A.  I never saw him being mistreated.

      10   Q.  Did you ever see him being mistreated by the Kenyans?

      11   A.  Absolutely not.

      12   Q.  Did you ever see any new injuries visible to you other

      13   than the ones you saw on August 12th when you left him?

      14   A.  No, I did not.

      15   Q.  Did you ever see him getting medical treatment during this

      16   period?

      17   A.  Yes, he did.

      18   Q.  Now, what happened after these interviews were concluded?

      19   A.  After the interviews were concluded he was taken back to

      20   the United States.

      21   Q.  And what day was he taken back to the United States?

      22   A.  We left Nairobi Kenya in early morning on the 26th of

      23   August.

      24   Q.  Going to the interview on August 22nd, did Mr. Al-'Owhali

      25   say anything to you about how he wanted that interview to

                                                                    1992

       1   proceed?

       2   A.  Yes, he did.

       3   Q.  What did he say?

       4   A.  Mr. Al-'Owhali had told me that he wanted to tell his

       5   entire story from the beginning to the end, and once he was

       6   done telling his whole story, then I could go back and sort of

       7   go over the questions with him.

       8            He explained that this was going to be a very

       9   emotional story, and that he was going to say names, and thing

      10   like that that would be code names or movement names, may not

      11   in fact be people's true names, but names as he knew them to

      12   be.

      13   Q.  And did he in fact finish his whole story on August 22nd?

      14   A.  Yes, he did.

      15   Q.  And did you then begin to ask him some questions on August

      16   22nd?

      17   A.  On August 22nd maybe some, a little followup questions but

      18   not much on the 22nd.

      19   Q.  Now, what did Mr. Al-'Owhali tell you about where he was

      20   from during the course of this interview?

      21   A.  Mr. Al-'Owhali told me that he was a Saudi citizen of

      22   Saudi Arabia but that in fact he was born in Liverpool,

      23   England.

      24   Q.  Did he tell you how he came to be born in Liverpool,

      25   England?

                                                                    1993

       1   A.  Al-'Owhali told me that his father was in England

       2   attending some sort of master's degree program and during that

       3   point is when he was born January 18, 19977.

       4   Q.  And did Mr. Al-'Owhali tell you anything else about his

       5   family in Saudi Arabia?

       6   A.  Al-'Owhali explained to me that his family comes from, has

       7   a, his family's heritage has prominence in Saudi Arabia dating

       8   back to certain point back and also up to this day; that he

       9   comes from a very wealthy family and a very prominent family

      10   in Saudi Arabia.

      11   Q.  Did he tell you anything about his religious upbringing?

      12   A.  Yes, he did.

      13   Q.  What did he tell you about his religious upbringing?

      14   A.  Al-'Owhali explained to me that a religion was a very big

      15   part of his life and that even in his early teens he started

      16   to become more and more deeply involved in conservative

      17   religious teachings, and that he would read all kinds, certain

      18   magazines and books and listen to audio cassettes and he

      19   started to detail some of those for me.

      20            Al-'Owhali told me that some of the magazines were Al

      21   Jihad, al mujahideen, and al Shad, and that some of the books

      22   two of the books that I can remember they were entitled U

      23   Shakal, and the Love and Hour of the Martyrs.  Al-'Owhali

      24   explained to me that that's books or magazines detailed Muslim

      25   men who died fighting in the jihad and went to Paradise.

                                                                    1994

       1   Q.  Did he tell you about any specific scholars that he used

       2   to listen to?

       3   A.  Al-'Owhali explained to me that he would listen to these

       4   sermons or teachings on audio cassettes and one in particular

       5   was by a Sheik, Sheik Safa, Sheik Safa, Abdul Rachman al

       6   Howari, and this particular audio cassette detailed what

       7   Al-'Owhali explained to me as the Kissinger promise and

       8   Al-'Owhali further described that as Kissinger's plan to

       9   occupy the Arabian peninsula.

      10            And Al-'Owhali told me that the teachings on this

      11   particular cassette solidified his resentment towards any

      12   presence, any US presence in the Arabian peninsula.

      13   Q.  Did Mr. Al-'Owhali tell you what he did after high school?

      14   A.  Yes, after high school Mr. Al-'Owhali told me after high

      15   school he attend two years of religious university in Riyadh,

      16   Saudi Arabia called Mohamed Bin Saud.

      17   Q.  And what happened after he graduated from the university?

      18   A.  Al-'Owhali told me about two years before the bombing

      19   happened that a friend of his had come back from Bosnia and he

      20   and his friends started discussing joining a jihad in

      21   particular areas, Turkestan, Bosnia, Cheknia and that's what

      22   they wanted to do, but they couldn't find what he described to

      23   me as a cell to go there.  So they decided instead to go to

      24   Afghanistan for training and join the jihad there.

      25   Q.  Did Mr. Al-'Owhali actually go to Afghanistan?

                                                                    1995

       1   A.  Al-'Owhali explained to me he and this friend left Saudi

       2   Arabia, they traveled to the country of Qatar, and then from

       3   Qatar they made their way to Pakistan, and then from Pakistan

       4   they made their way eventually into Afghanistan.

       5   Q.  And did he tell you where he went once he went to

       6   Afghanistan?

       7   A.  Yes, he told me in Afghanistan they went to the Khaldan

       8   Camp as what he described it to me as.

       9   Q.  Did he meet anybody at the Khaldan Camp?

      10   A.  Al-'Owhali explained to me that at the Khaldan Camp he was

      11   met by the person who was in charge of the hospitality section

      12   at the camp and this person's name was Abu Sayyid al Kirdi,

      13   and this person al Kirdi had instructed them that from this

      14   point on they could never use their true names again and never

      15   say they were from Saudi Arabia again.  And that's when he was

      16   given his first in a long series of aliases, as he described

      17   them to me.

      18   Q.  And what was that alias?

      19   A.  He received an alias of Mohammed Akbar from the country of

      20   Qatar.

      21   Q.  And did Mr. Al-'Owhali tell you about any other aliases

      22   that he had used?

      23   A.  He said he explained to me he has many aliases, some to

      24   include, the one I just said, Khalid Salim Saleh, Bin Rashid,

      25   Abdul Jabar Ali Abdul Lahit, Mowat, and a series of long

                                                                    1996

       1   series of other aliases.

       2   Q.  Now, what did Mr. Al-'Owhali do once he reached the

       3   Khaldan Camp in Afghanistan?

       4   A.  Al-'Owhali explained to me that the Khaldan Camp was sort

       5   of a basic training type of camp for, a basic military

       6   training camp.  Al-'Owhali explained to me that prior to his

       7   arrival at the Khaldan Camp he had absolutely no comprehension

       8   of military training before.  This was his first exposure to

       9   that type of thing.

      10            He told me he was instructed in different type, basic

      11   types of military training to include light weapons, some

      12   demolition, some artillery, some communication, things of that

      13   nature, but he was also received periods of instruction in

      14   religious ideology.

      15   Q.  What did he tell you about the religious instruction that

      16   he received?

      17   A.  Al-'Owhali explained to me that part of his religious

      18   ideology training included fatwas which called for violence,

      19   and Al-'Owhali explained to me that if a ruler had changed

      20   something in contradiction to Islam, well, that particular

      21   ruler had blasphemed and therefore it was your right and duty

      22   to kill him.

      23   Q.  Did Mr. 'Owhali tell you about any other religious

      24   statements or teaching that he heard in the Khaldan Camp?

      25   A.  While also at the Khaldan Camp Al-'Owhali had heard

                                                                    1997

       1   statements from Usama Bin Laden and that these statements

       2   further solidified his religious feelings and his religious

       3   thoughts and things like that.

       4   Q.  What happened after Mr. Al-'Owhali received his training

       5   in the Khaldan Camp?

       6   A.  Al-'Owhali explained to me that the emir of this camp, the

       7   leader of this camp had nominated Al-'Owhali to have an

       8   audience in front of Usama Bin Laden, because of his good

       9   progression in the training, and that Al-'Owhali along with

      10   some others were actually granted this audience with Usama Bin

      11   Laden.  He said it was about three days before Ramadan of that

      12   year.

      13   Q.  What happened with this audience with Usama Bin Laden?

      14   A.  At this audience with Usama Bin Laden, Bin Laden had spoke

      15   to the group in general and he impressed upon them the need to

      16   fight the Americans and to cast them out of the Arabian

      17   peninsula.  He also instructed them that they should try to

      18   get more training.

      19   Q.  What did 'Owhali do after this meeting with Usama Bin

      20   Laden?

      21   A.  Al-'Owhali explained to me that he took Mr. Bin Laden's

      22   advice and did get more training in what he called the al

      23   Qaeda camps.

      24   Q.  And did he name those camps for you?

      25   A.  Al-'Owhali told me the al Qaeda camps he went to were al

                                                                    1998

       1   Sadeek, al Farouq, and the jihad war camp, and explained to me

       2   that al Qaeda is not a particular place, but it's a group, and

       3   it stands for the base of God's support, and that Bin Laden is

       4   overall in charge of al Qaeda.

       5   Q.  And what types of training did Mr. Al-'Owhali receive at

       6   these camps?

       7   A.  Al-'Owhali described the difference between the training

       8   at these three camps from the Khaldan Camp to be more advanced

       9   and more specialized; that he received training in security

      10   and intelligence, how to gather information, how to protect

      11   information from being divulged, how to conduct hijackings of

      12   buses or planes, how to do kidnappings, how to seize and hold

      13   buildings, things of that nature.

      14   Q.  Did Mr. Al-'Owhali tell you whether he actually ever

      15   joined al Qaeda?

      16   A.  Mr. Al-'Owhali explained to me that it's not necessary for

      17   you to actually join al Qaeda to actually serve with them.

      18   Al-'Owhali explained this process of joining al Qaeda to be

      19   taking the bayat is what he told me.  Al-'Owhali explained to

      20   me the bayat is an oath or an allegiance to Bin Laden and al

      21   Qaeda, but I don't have to do it.

      22            Al-'Owhali explained to me that he had decided not to

      23   take the bayat for a couple of different reasons.  He

      24   explained that once you take the bayat and that's it, you no

      25   longer have a choice of what missions you would like to do or

                                                                    1999

       1   want to do.  If you've taken a bayat you have to do whatever

       2   is pretty much told to you.  And 'Owhali explained that al

       3   Qaeda can assign you to both direct military roles, but also

       4   supporting roles, administrative roles, bodyguards, thing like

       5   that.

       6            Al-'Owhali explained to me that he had a desire and

       7   interest to make sure that he did military roles and he was

       8   afraid that if he took the bayat he may end up in a

       9   nonmilitary role, so he decided not to take it.

      10   Q.  Did Mr. Al-'Owhali tell you what he did after he received

      11   this training?

      12   A.  Al-'Owhali explained to me that during and at the end of

      13   this training he had met with Mr. Bin Laden several times, and

      14   had expressed to him interest in missions that he would like

      15   to do, and Mr. Bin Laden told him that, take your time.  Your

      16   mission will come in time.

      17   Q.  And what did he do after he had this meeting with Usama

      18   Bin Laden?

      19   A.  After this meeting Mr. -- I'm sorry -- Al-'Owhali

      20   explained to me that he had heard that the Taliban was in a

      21   crisis in the city of Kabul in Afghanistan and he had sought

      22   permission from Bin Laden to go and assist the Taliban in the

      23   fighting in that area, and Bin Laden granted him permission to

      24   do that.

      25   Q.  Did he tell you who the Taliban was?

                                                                    2000

       1   A.  He didn't really explain to me much about the Taliban but

       2   I had some idea of what it was at the time.

       3   Q.  And what's the Taliban?

       4   A.  The Taliban --

       5            MR. COHN:  Objection.

       6            THE COURT:  What's the basis of your information

       7   about the Taliban?

       8            THE WITNESS:  Newspapers and works, things like that,

       9   sir.

      10            MR. COHN:  Objection.

      11            THE COURT:  Sustained.

      12   Q.  We'll move on.  Did 'Owhali tell you whether he actually

      13   went to fight with the Taliban at this time?

      14   A.  Al-'Owhali explained to me that once given permission he

      15   did go to fight alongside Taliban, but initially he wasn't

      16   assigned to anything on the front lines, that he was more in a

      17   support role.  And --

      18   Q.  What happened once he went to fight with the Taliban in

      19   the support role?

      20   A.  He, Al-'Owhali, explained to me that he contracted

      21   tuberculosis and became ill, and had to seek medical

      22   assistance, and he did get that assistance alongside the

      23   Taliban there and he was treated, not really treated, but he

      24   had one of the people who helped with his treatment was a man

      25   by the name of Azzam, and this person Azzam had also been

                                                                    2001

       1   trained.  He explained to me this person Azzam had also been

       2   trained in the al Qaeda camps.

       3   Q.  Did Mr. Al-'Owhali describe who Azzam was?

       4   A.  'Owhali described Azzam to be from Saudi Arabia and has

       5   another name of Jihad Ali.  He was also trained as at the Bin

       6   Laden camps, and that Azzam had told 'Owhali that fighting

       7   alongside the Taliban here, this is a good mission for us,

       8   this is honorable, but there are bigger missions, better

       9   missions that we could be doing.  And Al-'Owhali advised that

      10   he would be interested in one of those.  So Azzam told him

      11   I'll be in contact when the mission starts to get ready, I'll

      12   let you know.

      13   Q.  And did Mr. Al-'Owhali eventually recover from his

      14   tuberculosis?

      15   A.  Al-'Owhali explained to me that did eventually overcome

      16   his illness.

      17   Q.  And what did he do after that?

      18   A.  He then started to get in the direct fighting in and

      19   around Kabul alongside of Taliban.  Al-'Owhali explained to me

      20   that he had fought with them for a while and that the Taliban

      21   had suffered a major defeat near the city of Kabul.  He

      22   explained some very fierce fighting that had happened and many

      23   of the people that he was with that were trained also in the

      24   al Qaeda camps had been killed in this fighting.

      25            And that Al-'Owhali and five other of the men were

                                                                    2002

       1   actually able to retreat into this hill, into a series of

       2   hills.  'Owhali explained to me this was known as the, what he

       3   said the C formation battle and 'Owhali described this as very

       4   fierce fighting that he and only these five other people were

       5   able to repel the forces that were fighting against them, and

       6   they were actually able to hold their position.  They didn't

       7   lose it.

       8   Q.  What happened after this C formation battle?

       9   A.  'Owhali explained to me that because of his fighting in

      10   the C formation battle that he earned a reputation for loyalty

      11   and proved himself to be a very good soldier and received a

      12   lot of prominence in the Bin Laden camps because of his

      13   ability as a fighter.

      14   Q.  Is there anything in particular that indicated his

      15   prominence in the camps?

      16   A.  Al-'Owhali explained to me that he was actually, because

      17   of his reputation that he earned during the fighting in the C

      18   formation battle, that he was actually allowed to carry his

      19   rifle anywhere in the al Qaeda camps that he went, even in

      20   front of, even to include in the presence of Usama Bin Laden.

      21   Q.  And now what did Al-'Owhali do after this C formation

      22   battle?

      23   A.  Shortly after that he was again contacted by Azzam, and

      24   Azzam had told him that the mission that you said you might be

      25   interested in is going forward.  Are you still interested?  If

                                                                    2003

       1   you are, we need to start getting ready.  An Al-'Owhali

       2   advised Azzam, told me that he advised Azzam that he was still

       3   interested and he did want to participate in the mission.

       4   Q.  And what did they do after that?

       5   A.  From there al-'Owhali tells me that he Azzam and four

       6   others attended what he described as a very specialized

       7   training for about a month.  They went somewhere outside of

       8   Kabul, and received what he called the operation and

       9   management of the cell training, which he described as far

      10   more advanced than anything he had received up to this point.

      11   Q.  Did Al-'Owhali tell you who he had gone to the training

      12   with?

      13   A.  He said he went with Azzam and four others but he didn't

      14   give me the other people's names.

      15   Q.  Did he tell you who taught the training?

      16   A.  Al-'Owhali explained to me that the person who taught this

      17   particular training whose name was Abdul Jafar and that he was

      18   from Egypt.

      19   Q.  What did 'Owhali tell you about this training?

      20   A.  Al-'Owhali explained that this training which dealt with

      21   the cell, he explained to me that the cell is made up of four

      22   separate sections, the intelligence section, the

      23   administration section, the planning and preparation section,

      24   and then the execution section.

      25            Al-'Owhali explained to me that the person who is in

                                                                    2004

       1   top of the intelligence section is in charge of the overall

       2   cell, and that he assigns deputies to conduct various tasks to

       3   complete their mission.  He was also trained in intelligence,

       4   in security and how to do site surveys of a particular target

       5   using cameras with both still and video photography, and that

       6   once a cell's target was actually identified it was also

       7   called a station.

       8   Q.  Did Mr. Al-'Owhali mention anyone else who was involved in

       9   this training who taught this training?

      10   A.  Al-'Owhali explained to me that he was, it was his

      11   impression that this type of cell training was first taught at

      12   the al Qaeda camps by another Egyptian man but he didn't know

      13   that person's name.

      14            Al-'Owhali further described that guy to be another,

      15   I'm sorry, an Egyptian man that was trained either by the

      16   American military or the American intelligence agencies, but

      17   for some reason this man was no longer trusted in the Bin

      18   Laden camps, so he no longer teaches there and Al-'Owhali

      19   believers he lives somewhere in the United States.

      20   Q.  Did Mr. Al-'Owhali tell you what happened after he

      21   received this training?

      22   A.  After this training Azzam again told Al-'Owhali that you

      23   know the mission is getting more and more ready.  You need to

      24   travel from here to Yemen.  And Al-'Owhali agreed to do that.

      25   So in preparation to travel to Yemen he shaved his beard, and

                                                                    2005

       1   in the al Qaeda camps he received a new passport.

       2            Al-'Owhali said he could choose from a variety of

       3   passports and he picked and Iraqui passport in the name of

       4   Abdul Ali Latif from Iraq.  Al-'Owhali further explained to me

       5   that Azzam's cousin Bilal left the area with and went to Yemen

       6   in order to facilitate 'Owhali obtaining a Yemeni passport

       7   once he got there because this person had connections, this

       8   Bilal person had connections in Yemen that he could make that

       9   happen.

      10   Q.  And did Mr. Al-'Owhali tell you approximately when this

      11   happened, when he took his trip to Yemen?

      12   A.  He said it was sometime about three to five months before

      13   the bombing.

      14   Q.  Did he actually go to Yemen?

      15   A.  He did.  He told me he did.

      16   Q.  And what did he do in Yemen?

      17   A.  Al-'Owhali explained to me that prior to getting to Yemen

      18   that he had telephoned Bilal because he had a small delay in

      19   obtaining an exit visa, couldn't pick up his plane tickets

      20   right away and Bilal had told him you know when you get here,

      21   don't stay at a hotel, stay at a member, stay at a house of

      22   one of the people from the camps.

      23            So Al-'Owhali did that.  Upon arrival Al-'Owhali

      24   stayed with his friend Ahmed al Hazza who he also gave another

      25   name of Abdul Aziz.  He said this Ahmed al Hazza was someone

                                                                    2006

       1   was a very good friend of his who was also trained in the Bin

       2   Laden camps who fought alongside Al-'Owhali in that famous, as

       3   he describe the famous C formation battle.  So Al-'Owhali

       4   stayed at this person's house.

       5   Q.  What did Al-'Owhali do while he was in Yemen?

       6   A.  Al-'Owhali telephoned his parents, and it was decided,

       7   Al-'Owhali decided it would be too dangerous for him to travel

       8   to Saudi Arabia, so his father, it was agreed that his father

       9   would travel from Saudi Arabia to Yemen, and he did and he met

      10   with Al-'Owhali and Ahmed al Hazza.

      11   Q.  And did Al-'Owhali mention anything else he did while he

      12   was in Yemen?

      13   A.  While he was in Yemen he did receive the passport that was

      14   facilitated by Bilal and he received a Yemen passport in the

      15   name of Khalid Salim Saleh Bin Rashid.  Al-'Owhali also met

      16   with Ahmed al Hazza and his father and there was an agreement

      17   made that Ahmed al Hazza would be the middleman in between

      18   Al-'Owhali and his father.  From this point on if Al-'Owhali

      19   needed anything from his father, Ahmed al Hazza would be the

      20   go between to make any of that happen.

      21   Q.  It did Mr. Al-'Owhali eventually leave Yemen?

      22   A.  Yes.  He was again contacted that the mission was getting

      23   closer and that he needed to come back to Pakistan.

      24   Q.  And who contacted him?

      25   A.  It was Azzam who had contacted him.

                                                                    2007

       1   Q.  And did he eventually go back to Pakistan?

       2   A.  Yes, he did.

       3   Q.  Did he tell you about when this was?

       4   A.  This is about three months before the bombing.

       5   Q.  What did he do when he went back to Pakistan?

       6   A.  Al-'Owhali explained to me upon arrival in Pakistan he was

       7   met by Azzam, and another person that Al-'Owhali described to

       8   me to be named Khalid.

       9   Q.  Did he describe Khalid at all?

      10   A.  He described Khalid to be someone in his twenties from

      11   Saudi Arabia but that's all, that's about all the description

      12   he gave me.

      13   Q.  And what happened when he met with Khalid and Azzam?

      14   A.  Azzam told Al-'Owhali that Khalid was going to give him

      15   his instructions on what the mission was and then to listen to

      16   Khalid.  And then Azzam departed.

      17   Q.  Did Al-'Owhali eventually have a meeting with Khalid?

      18   A.  Yes, he did.  Al-'Owhali explained to me that Khalid told

      19   him that the mission was going to be a martyrdom operation

      20   that would end, that would result in Al-'Owhali's own death;

      21   that there was going to be, there was a target against the

      22   United States where Al-'Owhali would be assisting in driving a

      23   truck full of explosives, and somehow at that target the truck

      24   would explode and Mr. Al-'Owhali would become a martyr.

      25   Q.  Did Khalid tell him anything about what the target was at

                                                                    2008

       1   that time?

       2   A.  He just told him it was a US target somewhere in East

       3   Africa, but didn't specify the exact location of the target at

       4   that time.

       5   Q.  And did Al-'Owhali tell you he did anything else with

       6   Khalid at this meeting?

       7   A.  Al-'Owhali explained to me that Khalid then took what

       8   Al-'Owhali described to me to be a martyrdom video where

       9   Khalid operated a video camera and instructed Al-'Owhali to

      10   say something while it was being filmed, and that this video

      11   would be played upon the successful completion of his mission

      12   and Mr. Al-'Owhali's martyrdom or death.

      13   Q.  Did Mr. Al-'Owhali film this video?

      14   A.  I'm sorry?

      15   Q.  Did they actually film this video?

      16   A.  'Owhali explained to me they did film the video and during

      17   the filming Khalid instructed to Al-'Owhali to say that he was

      18   with a particular unit.

      19   Q.  Do you recall the name of that unit?

      20   A.  Al-'Owhali told me the unit was the Third Martyr Barracks

      21   First Squad of the El bara bin Malik division of the

      22   Liberation Army of the Army of the -- I'm sorry -- of the Army

      23   of Liberating the Islamic holy lands.

      24   Q.  And did Mr. Al-'Owhali tell you whether he had ever heard

      25   of this group before?

                                                                    2009

       1   A.  Mr. Al-'Owhali explained to me that he wasn't exactly sure

       2   what that group was, but that's what Khalid told him to say so

       3   that's what he said on the video.

       4   Q.  Now, did Mr. Al-'Owhali tell you about any other public

       5   statements that he had heard from the group at around that

       6   time?

       7   A.  Al-'Owhali explained to me that around this time, around

       8   the time of the filming of the ABC interview with Khost,

       9   Afghanistan of Bin Laden that he did meet with Bin Laden one

      10   more time.

      11   Q.  Did he hear about any public statement by any particular

      12   group around that time?

      13   A.  Al-'Owhali explained to me that he had learned of fatwas

      14   that were put out and he described the fatwas put out by the

      15   International Islamic Foundation -- I'm sorry -- the

      16   International Islamic Front.  And that this particular fatwa

      17   called for violence against the United States was the main,

      18   the main cause of the fatwa of its main cause.

      19   Q.  Did Mr. Al-'Owhali say anything about who he understood

      20   belonged to the International Islamic Front?

      21   A.  He said this particular fatwas was signed by Usama Bin

      22   Laden and several other leaders of jihad groups.

      23   Q.  Did Mr. Al-'Owhali tell you about anyone else who was

      24   present in Khost during the time of the Bin Laden interview

      25   with ABC News in May 1998?

                                                                    2010

       1   A.  Al-'Owhali explained to me that Azzam was actually present

       2   during the filming of that ABC interview of Usama Bin Laden.

       3   Q.  Now, after Mr. 'Owhali filmed in videotape, did he have

       4   any further conversations with Khalid?

       5   A.  He told me that Khalid instructed him that time to go and

       6   you're going to be traveling to Nairobi, Kenya, and upon

       7   arrival in Nairobi Kenya you'll be met by others in the group

       8   who will give you your last, your final instructions on the

       9   mission.

      10   Q.  Did Mr. Al-'Owhali eventually leave Pakistan for Nairobi?

      11   A.  Al-'Owhali explained to me that he left, his itinerary to

      12   leave Pakistan on July 31st and he was schedule to arrive in

      13   Nairobi Kenya on Saturday, August 1st.  'Owhali explained to

      14   me that his route of travel was on the Gulf Airline from Lahor

      15   Pakistan to Karachi Pakistan, from Karachi to Muscat and from

      16   Muscat to Abu Dhabi of the United Arab Emirates and from there

      17   to one last leg to Nairobi Kenya where he should have arrived

      18   on the 1st of August.

      19            (Continued on next page)

      20

      21

      22

      23

      24

      25

                                                                    2011

       1   Q.  Did Mr. al-'Owhali actually arrive in Nairobi on August 1?

       2   A.  Al-'Owhali told me that on this journey that he missed a

       3   connecting flight between Muscat and Abu Dhabi, and because he

       4   missed his connection flight he calls Khalid and Khalid

       5   explains to him that you're not going to arrive on time now so

       6   you're going to miss the link-up with Azzam and the others who

       7   are going to be going to Mombasa, but get the next connecting

       8   flight to Nairobi and someone from the group will eventually

       9   pick you up.  Upon arrival in Nairobi, take a taxi to the

      10   Ramada Hotel in Iftin.

      11   Q.  And when did Mr. al-'Owhali actually arrive in Nairobi?

      12   A.  Al-'Owhali arrived in Nairobi on the Sunday, the 2nd of

      13   August.

      14   Q.  What did he do once he arrived in Nairobi?

      15   A.  Upon arriving in Nairobi, he followed Khalid's

      16   instructions and he took the taxi to the Ramada Hotel.  Upon

      17   arrival at the hotel, he used a phone service, not at the

      18   Ramada but nearby the Ramada, as he explained it to me, and

      19   telephones Khalid and advised Khalid that he, Al-'Owhali, had

      20   checked into room 24.  Khalid explains to Al-'Owhali that he

      21   would contact Saleh in Mombasa and explain to him where he was

      22   and to instruct someone to go pick up Al-'Owhali at the Ramada

      23   Hotel.

      24   Q.  And did Mr. al-'Owhali tell you about what time he arrived

      25   in Nairobi?

                                                                    2012

       1   A.  He arrived on early morning on Sunday, the 2nd of August.

       2   Q.  What happened after he checked into the Ramada Hotel in

       3   Iftin?

       4   A.  Like I said, he called Khalid, let people know that he was

       5   in room 24, and before sunset that same day, a man Al-'Owhali

       6   identified as Harun picked him up from the Ramada Hotel.

       7   Q.  Did he describe Harun?

       8   A.  He described Harun to be a Somali-looking man who was in

       9   his 20s, around five-foot-five, just basic description like

      10   that.

      11   Q.  Did Mr. al-'Owhali eventually identify Harun?

      12   A.  Yes, he did.

      13   Q.  How did he identify Harun?

      14   A.  We had a videotape queued up in a VCR for Mr. al-'Owhali

      15   to view and when we put in the videotape he realized, and he

      16   expressed to me that he realized, that this video was

      17   regarding a ferry accident in Lake -- ferry accident, and at

      18   the particular point where Harun's face became clear in the

      19   monitor, he identified the person to be Harun.

      20   Q.  What did Harun do once he got to the Ramada Hotel?

      21   A.  Upon Harun arriving at the Ramada Hotel, he paid the bill

      22   for Al-'Owhali even though he didn't stay there for the night,

      23   he paid for whatever time he had stayed there, collected

      24   Al-'Owhali and took Al-'Owhali to his house in Nairobi.

      25   Q.  What happened after Mr. al-'Owhali went back to Harun's

                                                                    2013

       1   house in Nairobi?

       2   A.  Al-'Owhali explained to me that he stayed at Harun's house

       3   for the rest of the week up to the time of the bombing.  He

       4   arrived in Harun's house again on the 2nd.  The very next day,

       5   Azzam and Saleh came to Harun's house and that's when they

       6   started to get the instructions on the mission from Azzam and

       7   Saleh.

       8   Q.  You mentioned Saleh.  Did Mr. al-'Owhali tell you who

       9   Saleh was?

      10   A.  Al-'Owhali described Saleh to be an Egyptian male in his

      11   30s, physical, not very much more than that, other than that

      12   he was the leader of the cell.

      13   Q.  Did Mr. al-'Owhali say anything about Saleh's role in the

      14   bombings?

      15   A.  Al-'Owhali explained to me that Saleh was the planner of

      16   both, of the bombing in Nairobi and the bombing in Dar es

      17   Salaam.  Saleh was the leader of the cell that was going to

      18   carry out both of these attacks.

      19   Q.  Did Mr. al-'Owhali tell you anything about what Saleh said

      20   about Harun?

      21   A.  On this day when Saleh and Azzam came from Mombasa, Saleh

      22   had given Al-'Owhali the details of what the mission was going

      23   to be.  He said first that this Harun was the facilitator or

      24   the person who was the administrator of inside the cell, that

      25   Harun had obtained the house that they were staying at that

                                                                    2014

       1   time, his house here in Nairobi, and also that this is where

       2   the truck and the bomb -- the truck was kept and where the

       3   bomb was assembled, in the garage of Harun's house.

       4   Q.  Did Mr. al-'Owhali meet with Saleh that day, on August 3?

       5   A.  Yes, he did.

       6   Q.  What did they discuss on August 3?

       7   A.  On that day, Saleh started to give Al-'Owhali the details

       8   of the mission.  Saleh explained to Al-'Owhali that in fact

       9   there were going to be two bombings, there was going to be a

      10   bombing of the U.S. embassy in Nairobi, Kenya and the bombing

      11   of the U.S. embassy in Dar es Salaam, Tanzania; that both of

      12   these were going to occur on the same day, on Friday, August

      13   7th, between 10:30 and 11:00 in the morning.

      14            Saleh then showed Al-'Owhali some photographs and

      15   some drawings of the embassy in Nairobi and started to give

      16   Al-'Owhali details of what his mission was going to be.  Saleh

      17   explained to Al-'Owhali that Al-'Owhali's role was to assist

      18   Azzam in getting the bomb truck to the embassy in Nairobi.

      19   Azzam would be the driver, Al-'Owhali would be the passenger.

      20            Upon arriving at the embassy, Al-'Owhali was to exit

      21   the vehicle -- he had a couple missions.  One was to exit the

      22   vehicle and use a pistol to get the guard to open the drop bar

      23   so that Azzam could drive the truck as close to the embassy as

      24   possible.  Upon that happening, Al-'Owhali was instructed that

      25   he was to fire his gun in the air and also to throw several of

                                                                    2015

       1   what Al-'Owhali described to me as homemade stun grenades

       2   around the area and this was to scatter people out of the

       3   area.

       4            The last part of his mission was that the particular

       5   truck, the way it was designed was that the bomb had to be

       6   detonated by pressing some electric buttons from inside the

       7   truck, that the driver of the truck would actually have to do

       8   it.  It wasn't like a remote control or anything like that,

       9   the driver had to press some buttons inside the truck.

      10            If for some reason the electrical circuit didn't

      11   work, Al-'Owhali's last portion of the mission was, he had

      12   keys to the back of the truck where the door was in the back

      13   and that's where the bomb was housed, and if for some reason

      14   the electrical detonation didn't work, that he was to take

      15   his -- these homemade stun grenades that were made out of a

      16   portion of TNT and some other materials and he was to throw

      17   them inside the back of the truck to cause the bomb to

      18   manually explode instead of being detonated from the front.

      19   Q.  Did Saleh tell anything to Mr. al-'Owhali about the bomb

      20   that was going to be used?

      21   A.  Saleh, Azzam and Harun and Al-'Owhali all then went to the

      22   garage and they showed Al-'Owhali the truck that the bomb was

      23   in, and Saleh had explained to Al-'Owhali that the bomb had

      24   been built about two weeks ago.  And Al-'Owhali described the

      25   truck to be light brown or beige-colored, that it had two

                                                                    2016

       1   wheels in the front on the front axle and four wheels on the

       2   back axle, and that the truck was, the compartment of the

       3   truck was encased with metal.  The front part of the truck

       4   just had a regular compartment for the driver and the

       5   passenger, no additional seats, and that the bomb itself was

       6   comprised of TNT, aluminum nitrate and aluminum powder that

       7   were put in many, many wooden boxes or wooden crates and these

       8   were all connected with wires to some batteries in the back of

       9   the truck and that then the wiring would go to the front of

      10   the truck where the bomb would be detonated.

      11   Q.  Did Saleh tell anything to Mr. -- say anything to

      12   Mr. al-'Owhali about the plan for the bombing in Dar es

      13   Salaam?

      14   A.  Yes, he did.  Al-'Owhali explained to me that Saleh told

      15   him that in addition to the bombing in Nairobi on the 7th of

      16   August, there would also be a truck bombing of the U.S.

      17   embassy in Dar es Salaam and he explained to me some of the

      18   differences between the two:  Whereas in Nairobi there would

      19   be two people in the truck, in Dar es Salaam there would only

      20   be one person in the vehicle.  And Al-'Owhali told me that

      21   person's name was Ahmed Abdallah, who Al-'Owhali also knew as

      22   Ahmed the German.

      23   Q.  Did Mr. al-'Owhali tell you anything about Ahmed Abdallah?

      24   A.  He referred to Ahmed the German to be someone who was from

      25   Egypt who was a trainer in the Jihad Wal Camp in Afghanistan,

                                                                    2017

       1   one of the al Qaeda's camps, and Al-'Owhali and him were

       2   friends from that time at the camp.

       3            Al-'Owhali expressed to me at that point that because

       4   he had arrived a day late in Nairobi, he missed the link-up

       5   that would have happened in Mombasa and he expressed to me

       6   that because of him missing that date, he didn't get to say

       7   good-bye to Ahmed the German in Mombasa.  He expressed to me

       8   that he would have liked to have done that.

       9   Q.  Did he give you any physical description for Ahmed the

      10   German?

      11   A.  He was from -- that he was actually fair-skinned with

      12   light hair and light eyes and that's, Al-'Owhali said, how he

      13   gets the name Ahmed the German, even though he's someone from

      14   Egypt.

      15   Q.  Did Saleh tell him anything about the plan to bomb the

      16   embassy in?

      17   A.  Al-'Owhali told me that the plan to bomb the embassy

      18   again, the bomb itself was also going to be delivered by a

      19   truck, but this particular truck was a refrigerator truck.  So

      20   I asked him, was it meant to be kept cold for something?  He

      21   said, no, it's a refrigeration truck because it was the only

      22   truck available.

      23            Al-'Owhali told me that Saleh had bragged to

      24   Al-'Owhali that they were able to build this bomb and get

      25   everything ready in only ten days.  He had said that several

                                                                    2018

       1   days, Saleh was very boastful about being able to put the Dar

       2   es Salaam bombing together in such a short period of time.

       3   But also, one of the other differences between the two

       4   bombings was that also comprised of the bomb in Dar es Salaam

       5   was comprised of TNT, batteries, wires and things of that

       6   nature, but also would also have a number of oxygen tanks or

       7   gas canisters in the back of the -- in the back with the TNT.

       8   And I asked Al-'Owhali why that was, and he said he wasn't a

       9   bomb builder but from what he understood, it was for

      10   additional fragmentation.

      11   Q.  Did Mr. al-'Owhali tell you anything about the location of

      12   the bomb truck in Dar es Salaam?

      13   A.  He said that initially the plan was to put the truck

      14   within a three-meter space at the embassy at Dar es Salaam.  I

      15   didn't have a picture, he couldn't identify it, but I remember

      16   him specifically saying a three-meter space, but for some

      17   reason that this particular space was too close to the French

      18   Embassy so that the planners decided to move it to one of the

      19   security gates.

      20   Q.  Did Mr. al-'Owhali tell you how Saleh kept in contact with

      21   Ahmed the German in Dar es Salaam?

      22   A.  Yes.  Al-'Owhali explained to me that Ahmed the German had

      23   a mobile phone and that he would keep in touch with Saleh with

      24   using that phone in case anything needed to be changed with

      25   the mission or anything like that.

                                                                    2019

       1   Q.  Did Mr. al-'Owhali tell you anything about who he reported

       2   to in this mission?

       3   A.  Al-'Owhali explained to me that his organization is

       4   loosely structured; that depending on the mission, you report

       5   to different people at different times.  Al-'Owhali explained

       6   to me in this mission that he reported to the person who

       7   recruited him, which would be Azzam, and then Azzam in turn

       8   reported to somebody higher up, and that person higher up and

       9   so on all the way up to the top.

      10   Q.  Did Mr. al-'Owhali tell you what if anything he believed

      11   Usama Bin Laden's role in the bombing was?

      12   A.  Al-'Owhali explained to me that Usama Bin Laden is at the

      13   very top of al Qaeda but that he has several senior military,

      14   several senior military leaders directly under him, and that

      15   Bin Laden provides the political objectives to these military

      16   leaders or these senior leaders and that these people would

      17   then provide the instructions down, down lower to the lower

      18   chains of command.  Al-'Owhali explained that it wouldn't be

      19   normal for Bin Laden to directly give instructions to someone

      20   like Azzam or directly to him.

      21   Q.  What happened after this meeting on August the 3rd that

      22   Mr. al-'Owhali had with Saleh?

      23   A.  Al-'Owhali explained that on the 3rd of August -- I'm

      24   sorry, on Tuesday, which would be the 4th of August, Saleh had

      25   took Al-'Owhali to the American Embassy in Nairobi and showed

                                                                    2020

       1   him where he wanted the bomb truck to be placed by the drop

       2   bar in the rear rear of the U.S. embassy.

       3            Al-'Owhali had expressed to Saleh that, wouldn't it

       4   be better if we were to put the bomb truck in the front of the

       5   U.S. embassy, and Saleh disagreed.  And then Al-'Owhali

       6   suggested, wouldn't it be better for us to put the bomb

       7   underneath the U.S. Embassy in the garage that goes underneath

       8   and that way we would cause more damage to the Americans since

       9   it's the U.S. Embassy, but Saleh had explained to him that

      10   would be difficult to do, to get it past the section of the

      11   security gate to Al-'Owhali.  The plan didn't get changed.

      12   Q.  Did Mr. al-'Owhali tell you anything about why the day,

      13   that particular day was selected, Friday, August 7?

      14   A.  Al-'Owhali explained to me that he was part of the

      15   execution phase of the bombing.  He, you know, he didn't know

      16   all that much about the planning and preparation except what

      17   Saleh was telling him.

      18            Saleh had explained to him that they had chose Friday

      19   between 10:30 and 11 because that would be when most of them

      20   should be either at mosque or on their way to mosque at that

      21   time.  This way, by doing it at that time on Friday, they

      22   would be less likely to hurt any Muslims.

      23   Q.  Did Saleh say anything about why the embassy in Nairobi

      24   was targeted?

      25   A.  Al-'Owhali explained to me that there were several reasons

                                                                    2021

       1   for picking -- explained to him through Saleh there were

       2   several reasons why the embassy in Nairobi was picked.  First,

       3   there was a large American presence at the U.S. Embassy in

       4   Nairobi; that the ambassador of the U.S. Embassy was a female

       5   and if the bomb resulted in her being killed, it would further

       6   the publicity for the bombing.

       7            Also, that there were embassy personnel in Nairobi

       8   who were responsible for work in the Country of Sudan.  There

       9   were also a number of Christian missionaries at the embassy in

      10   Nairobi.  And lastly, that it was what Al-'Owhali explained as

      11   ease of access to the embassy.  It was an easy target.

      12   Q.  Did Mr. al-'Owhali discuss any other targets with Saleh at

      13   this time?

      14   A.  Al-'Owhali explained to me -- explained to me that there

      15   were, there's a number of different targets.  He doesn't know

      16   where they all are, but they're in the planning stages.

      17            Al-'Owhali discussed with Saleh when, you know, are

      18   there targets in the United States that we can attack?  Saleh

      19   had explained to him there are targets in the U.S. that we

      20   could hit, but things aren't ready yet, we don't have

      21   everything prepared to do that yet.  First, we must -- first,

      22   Saleh explains to Al-'Owhali that we have to have many attacks

      23   outside the United States and this will weaken the U.S. and

      24   make way for our ability to strike within the United States.

      25   Q.  Did Mr. al-'Owhali tell you about anything that he learned

                                                                    2022

       1   about targets during his training on camps in Afghanistan?

       2   A.  Al-'Owhali explained to me during his training they

       3   emphasized priorities of attacks, three of those to be

       4   military bases, U.S. missions or diplomatic posts and

       5   kidnapping ambassadors.

       6   Q.  Did Mr. al-'Owhali see Saleh again after Tuesday, August

       7   4th?

       8   A.  Al-'Owhali explained to me that after Tuesday, the 4th, he

       9   never saw Saleh again.

      10   Q.  What did Mr. --

      11            MR. BUTLER:  Your Honor, we have about another half

      12   an hour or so on direct.  Would you like to take a break?

      13            THE COURT:  We'll take a recess at this point.

      14            (Jury not present)

      15            THE COURT:  Is this too early for a prayer recess?

      16            MR. COHN:  Yes, prayer's okay now.

      17            THE COURT:  Prayer is okay now.  Let's take a prayer

      18   recess.

      19            MR. COHN:  May I just raise scheduling?  Since the

      20   government has another half hour and this will take to 4:15,

      21   quarter to, leave us to quarter after, unless you're prepared

      22   to let me finish my cross until the end, I would like to break

      23   at the end of the government's witness's direct.

      24            THE COURT:  Of direct.

      25            MR. COHN:  I will either go to the end of mine, which

                                                                    2023

       1   is about 45 minutes, or I would like to go tomorrow.  I don't

       2   want to split it up.

       3            THE COURT:  I have no problem with it.  The

       4   government has no problem.

       5            MR. COHN:  Very good.

       6            THE COURT:  All right.

       7            (Recess)

       8            THE COURT:  All set to resume?  All right, the

       9   witness and the jury.

      10            MR. COHN:  Judge, while we're waiting, just for the

      11   record, we had a problem with the clothing.  I made an

      12   objection in the robing room.  I didn't object when it came in

      13   and that's because the government convinced me that I was

      14   wrong, and I have withdrawn the objection.

      15            THE COURT:  Very well.

      16            (Jury present)

      17            THE COURT:  Mr. Butler.

      18   BY MR. BUTLER:

      19   Q.  Agent Gaudin, you testified, I believe, as to certain

      20   information that Mr. al-'Owhali learned about targets while he

      21   was in the training camps in Afghanistan.  Did he tell you

      22   anything about why embassies are specifically targeted?

      23   A.  In addition to telling me the types of targets, he also

      24   explained that hitting embassies achieves certain objectives

      25   that he was instructed or that he was taught at the camps, and

                                                                    2024

       1   by hitting an embassy the objectives are that you would

       2   achieve would be you hit the ambassador by hitting the

       3   embassy, you would also -- also an objective would be the

       4   military attache, the press attache and what Al-'Owhali

       5   described as, most importantly, the intelligence officers at

       6   the embassy.

       7   Q.  Just to be clear, what did Mr. al-'Owhali tell you about

       8   what his understanding was of Usama Bin Laden's role in the

       9   bombing of the embassy in Nairobi?

      10   A.  Al-'Owhali explained to me that he was never specifically

      11   told that this mission was Usama Bin Laden's mission, but he

      12   always believed it to be so.  Al-'Owhali explained to me that

      13   his understanding of the way things work is that Usama Bin

      14   Laden, it's not likely that he would take direct credit for

      15   attacks like this.  That's how he explained it to me.

      16   Q.  Now, after this meeting with Saleh on August 4th, 1998,

      17   what did Mr. al-'Owhali do after that?

      18   A.  Al-'Owhali explained to me that after the 4th he spent the

      19   next several days at Harun's house mentally preparing himself

      20   to become a martyr, to die in the operation that was scheduled

      21   for the 7th.  He explained to me that on either Wednesday or

      22   Thursday, he wasn't sure which day, either the 5th or 6th of

      23   August, another person came to Harun's house and they all

      24   accompanied this person to the garage.

      25            Al-'Owhali explained that this person's name was

                                                                    2025

       1   Abdel Rahman and he was the, what Al-'Owhali described to me

       2   as the technician who was, who would make the final electrical

       3   connection between the bomb in the back of the truck and the

       4   detonating device in the compartment, the driver's

       5   compartment.

       6   Q.  Did Mr. al-'Owhali describe Abdel Rahman for you?

       7   A.  He described Abdel Rahman to be an Egyptian man who was in

       8   his 30s, pretty much the basic description.

       9   Q.  Did Mr. al-'Owhali tell you anything else that Abdel

      10   Rahman did?

      11   A.  Al-'Owhali explained that Abdel Rahman not only made the

      12   final electrical connection for the bomb in Nairobi, but he

      13   also did the same thing for the bomb in Dar es Salaam as well.

      14   He said that this connection was done right in Al-'Owhali's

      15   presence and that it didn't take very long at all.

      16   Q.  And that was the connection in Nairobi?

      17   A.  The connection in Nairobi, yes.

      18   Q.  What else did Al-'Owhali tell you, if anything, that

      19   happened while he was in Harun's house on Wednesday and

      20   Thursday before the bombing?

      21   A.  Al-'Owhali had explained to me that both on the -- between

      22   the 4th and up to the day of the bombing that he made a series

      23   of telephone calls to his friend in Yemen, Ahmed al Hazza, who

      24   had fought with him in the C Formation battle I described

      25   earlier today.

                                                                    2026

       1            Al-'Owhali explained to me he made these phone calls,

       2   they were collect calls that he had made from Harun's house,

       3   and the number that he called in Yemen to reach Ahmed al Hazza

       4   was 9671200578, he called that number to reach Ahmed al Hazza.

       5   Q.  Did he tell you when the last call that he made to that

       6   number was?

       7   A.  Al-'Owhali explained to me the last phone call he made was

       8   approximately an hour before the bomb exploded on Friday, the

       9   7th of August.

      10   Q.  Did Mr. Al-'Owhali tell you anyone else made phone calls

      11   from Harun's house during this time period?

      12   A.  Al-'Owhali explained to me that Azzam, Jiad Ali, also made

      13   a series of phone calls to his family, to Azzam's family in

      14   Saudi Arabia on those last few days before the bomb exploded.

      15   Q.  Did Mr. al-'Owhali tell you about any instructions that

      16   were made to the group during this time?

      17   A.  Yes, he did.  Al-'Owhali explained that he was told from

      18   both Harun and Azzam that Saleh had put out an order that

      19   anyone even remotely associated with the bombings had to leave

      20   the area immediately, had to leave before the explosion

      21   actually took place.  Then Al-'Owhali gave me a couple of

      22   examples of what that was.

      23            Al-'Owhali said to me, for instance, whoever bought

      24   the truck, the person responsible for buying the truck, that

      25   person would have to leave immediately; and also anyone who

                                                                    2027

       1   even knew what Saleh was doing would also have to leave before

       2   the attack occurred.  The only people that should be remaining

       3   in Nairobi on the day of the attack are the people who were

       4   necessary to actually carry the attack out.

       5   Q.  Now turning to the day of the bombing, what did

       6   Mr. al-'Owhali tell you about the day of the bombing, August

       7   7th?

       8   A.  Well, on the 7th of August, on the day of the bombing,

       9   August 7, Al-'Owhali had made his last phone call to his

      10   friend Ahmed al Hazza around 20 past 9 in the morning.  At

      11   about 9:45, they began to leave Harun's house.

      12            Al-'Owhali explained that he was wearing black shoes,

      13   blue jeans, white-colored shirt with short sleeves with

      14   buttons that didn't go all the way down the shirt, just a few

      15   buttons, and that the shirt had some sort of colored pattern

      16   on it.  He also had a jacket, a blue cotton jacket, and inside

      17   the jacket is where his pistol was, in the pocket of the

      18   jacket, and he also had four of what he described to me as

      19   these homemade stun grenades tucked into his belt.

      20            He described these stun grenades to be comprised of a

      21   quarter finger of TNT, some aluminum powder and some black

      22   tape.  He had those tucked in his belt.  Around 9:45 that

      23   morning, they departed Harun's house.  Harun would be driving,

      24   and was driving, according to Al-'Owhali, a white pickup truck

      25   and that Harun would be acting as the lead vehicle towards the

                                                                    2028

       1   U.S. Embassy in Nairobi.  Azzam would be the driver of the

       2   bomb truck, the bomb vehicle, and Al-'Owhali was the only

       3   passenger in the truck.

       4   Q.  What did Mr. al-'Owhali tell you about what he did on the

       5   way to the embassy?

       6   A.  Okay.  On the way to the embassy, Azzam had instructed

       7   Al-'Owhali that your wearing that jacket may cause you

       8   problems at reaching the stun grenades, you should take your

       9   jacket off.  So Al-'Owhali did take his jacket off.

      10            They continued to drive towards the embassy.  Harun

      11   is driving the lead vehicle, Al-'Owhali and Azzam are

      12   following them in the bomb vehicle, and on their way

      13   Al-'Owhali described to me that he and Azzam were listening to

      14   an audio cassette of what he described as chanting poems for

      15   motivation in preparing to die on the way to the embassy.

      16   Q.  Now, did Harun go all the way to the embassy with Azzam

      17   and Al-'Owhali?

      18   A.  Al-'Owhali explained to me that Harun didn't drive all the

      19   way, they drove to a certain point, a traffic circle or

      20   roundabout or something, and pulled off to the side and that

      21   Azzam and Al-'Owhali continued on in the direction of traffic

      22   along Haile Selassie Avenue towards the embassy.

      23   Q.  What happened when they reached the embassy?

      24   A.  Upon reaching the rear parking lot of the embassy, Azzam

      25   pulls into the embassy and starts to head for the drop bar in

                                                                    2029

       1   the back of the U.S. Embassy by the parking lot.  At that

       2   point another vehicle had just exited that drop bar from the

       3   U.S. Embassy and it created a little bit of a backup.  So

       4   Azzam wasn't able to get exactly where he wanted to go.

       5            As Azzam gets close to the drop bar, Al-'Owhali jumps

       6   out of the vehicle and starts to go towards the guard.  And he

       7   realized that his pistol that he was supposed to use to

       8   confront the guard was in his jacket pocket that he had took

       9   off in the truck, so he tells me that he hesitated for a

      10   second to go back to the truck to get the gun but realized

      11   that that was probably going to -- it was too much time, he

      12   didn't want to do that.  So instead of using the gun, he ends

      13   up pulling out one of those stun grenades in his right hand

      14   and approaches the guard and demands that the guard open the

      15   drop bar in English.  And Al-'Owhali explained to me that the

      16   guard didn't move fast enough, so he pulls the pin with his

      17   left hand and he throws the stun grenade in the direction of

      18   the guard and that that caused a loud explosion and the guard

      19   ran.

      20            At that point, other people started to run also,

      21   other people started to scatter from the area from the loud

      22   explosion, and Azzam started to move the truck.  And as

      23   Al-'Owhali described it, Azzam moved the truck somewhat

      24   parallel to the embassy.  Al-'Owhali says at this point Azzam

      25   starts shooting directly at the U.S. Embassy with a pistol.

                                                                    2030

       1            And Al-'Owhali explains between Azzam firing the

       2   pistol at the embassy and the loud explosion that was created

       3   from when he threw the stun grenade, people started to

       4   scatter.  And Al-'Owhali explains to me at this point he

       5   realized that his mission is complete, that he did exactly

       6   what he was instructed to do.  His mission was to help Azzam

       7   get the truck as close as possible to the embassy and to

       8   scatter away the people, the Kenyan people in and around the

       9   area.  Al-'Owhali says to him -- says to me that, at that

      10   point, that had happened and it was no longer necessary for

      11   him to die in the attack.

      12            Al-'Owhali explained to me that the reason he had

      13   died was the mission didn't go exactly point for point and

      14   time to time the way it was supposed to.  Al-'Owhali explained

      15   to me that he was fully prepared to die in carrying out the

      16   mission and that that would equate to being a martyr, to reach

      17   martyrdom, dying in completion of your mission.  But to die

      18   after your mission had already been complete, Al-'Owhali

      19   explains to me, is not martyrdom, it's suicide, and he

      20   explains that suicide is -- it's not acceptable in his

      21   religion and that that wasn't what his mission was.  To die as

      22   a martyr carrying out the mission was fine, but there was no

      23   reason for him to commit suicide.

      24   Q.  So what did Al-'Owhali do?

      25   A.  Al-'Owhali ran toward, he explains to me that he ran

                                                                    2031

       1   towards the co-op building, and as he was running towards the

       2   co-op building, Azzam detonated the bomb, causing the

       3   explosion.

       4   Q.  What happened to Al-'Owhali after the explosion?

       5   A.  Al-'Owhali says in the blast that he's knocked down and

       6   suffers some injuries and that he's able -- he picks himself

       7   up and is able to walk to a first aid station or a clinic to

       8   receive treatment for his injuries.  Upon arriving at the

       9   clinic, he realized that he still had one of those stun

      10   grenades tucked into his belt, so he got it and he threw it in

      11   a trash can in the clinic.

      12            After receiving some initial first aid from the

      13   clinic he's taken by an ambulance to an actual hospital, which

      14   Al-'Owhali describes to me as the MP Sha Hospital.  Upon

      15   arriving at the MP Sha Hospital, he actually receives stitches

      16   to his forehead, to his right hand, his wrist, I don't

      17   remember which one, but inside both hands and also in the

      18   center of his back.

      19            After receiving treatment at the hospital, Al-'Owhali

      20   starts to leave the hospital and is going to go back to

      21   Harun's house.  So Al-'Owhali explains to me that he was

      22   supposed to die in this attack.  There was absolutely no

      23   extraction plan for him to leave the country.  All his plane,

      24   his plane tickets, his passport in the name of Khalid Salim

      25   Bin Rashed, the Yemen passport, a bunch of other travel

                                                                    2032

       1   documents as well as Azzam's documents were all left with

       2   Harun.  So he wanted to get back to Harun's house.

       3            When he got out in front of the hospital, he went to

       4   reach to see if he had any money on him.  He realized that he

       5   still had the keys to the back of the truck and that was where

       6   in case the bomb didn't get detonated by Azzam, he was

       7   supposed to open the back of the truck and throw the stun

       8   grenades in to manually detonate it.  He had the keys and he

       9   also had three bullets in his pocket as well from that pistol.

      10            So he goes back inside the hospital, and inside the

      11   hospital he goes into the men's room and he tells me that he

      12   washes the keys and the bullets in the sink to remove any

      13   fingerprints on them and then tries to flush them down the

      14   toilet to get rid of them.  But for some reason, he explained

      15   that he couldn't get the toilet to flush them down, so he

      16   retrieved them from the toilet and he hid them on a ledge in

      17   the men's bathroom and then left the hospital.

      18            MR. BUTLER:  Your Honor, may I approach?

      19            THE COURT:  Yes.

      20   Q.  Agent Gaudin, I have placed before you Government Exhibit

      21   558 and 559 for identification.  Do you recognize Government

      22   Exhibits 558 and 559?

      23   A.  Yes, I do.

      24   Q.  What are Government Exhibits 558 and 559?

      25   A.  There's two keys and three bullets.

                                                                    2033

       1   Q.  Did you show these items to Mr. al-'Owhali during the

       2   course of your interview?

       3   A.  Yes, I did.

       4   Q.  What did Mr. al-'Owhali say when you showed him these

       5   items?

       6   A.  Al-'Owhali said to me that these are the keys and the

       7   bullets that he hid in the MP Sha Hospital's bathroom, the

       8   men's room.

       9            MR. BUTLER:  Move Government Exhibits 558 and 559

      10   into evidence, your Honor.

      11            MR. COHN:  No objection.

      12            THE COURT:  Received.

      13            (Government Exhibits 558 and 559 received in

      14   evidence)

      15            MR. BUTLER:  May we publish a photo of those items to

      16   the jury, your Honor?

      17            THE COURT:  Yes.

      18   Q.  Just to be clear, Agent Gaudin, Government Exhibit 558 is

      19   what?

      20   A.  They are two keys, Tri-Circle keys, they're called, the

      21   name of the company of the keys.  I believe there's another

      22   picture on the back that says Tri-Circle.

      23   Q.  Can we show Government Exhibit 559, please.

      24            What is Government Exhibit 559?

      25   A.  Okay, it's actually three bullets.  You may see four

                                                                    2034

       1   objects there, but one of the bullets is removed, the actual

       2   bullet is removed from its casing.  That was done at the

       3   laboratory.  The other two bullets are still intact.

       4   Q.  After Mr. al-'Owhali left the MP Sha Hospital, what if

       5   anything did he tell you that he did?

       6   A.  Mr. al-'Owhali explained that he tried to find Harun's

       7   house.  He left on foot but he couldn't find Harun's house, so

       8   he decided to take a taxi back to what he explained to me as

       9   the only other place he knew to go.  He went back to the

      10   Ramada Hotel, which is the hotel he had checked in when he

      11   arrived in Nairobi on Sunday, the 2nd.

      12   Q.  What happened when he arrived in the Ramada Hotel?

      13   A.  When he arrived at the Ramada Hotel, he had no money and

      14   he went in to talk to the hotel clerk and explain to the hotel

      15   clerk, I was here on the 2nd of August, I'm sure you remember

      16   me, you keep my name in the ledger, I was here, I'm from

      17   Yemen, but I lost all my travel documents and I was injured in

      18   the explosion that happened earlier today.  Could you please

      19   give me some credit and let me stay here, pay for my taxi, and

      20   I'll contact people who will send me money and then I'll be

      21   able to pay you whatever I owe you.  And the hotel clerk,

      22   Al-'Owhali explained to me the hotel clerk agreed to do that.

      23   Q.  Did he tell you what room he checked into?

      24   A.  Al-'Owhali told me at that point he checked into room

      25   number 7 at the Ramada Hotel.

                                                                    2035

       1   Q.  What happened after he checked into room 7 at the Ramada

       2   Hotel?

       3   A.  Al-'Owhali explained to me that the clerk of the hotel

       4   went into the town and tried to find another person from his

       5   country, another person from Yemen who may be able to provide

       6   Al-'Owhali with some help because he obviously needed help

       7   from being injured in the explosion.

       8            So this hotel clerk does find a person from Yemen and

       9   that person gets a set of clothes for Mr. al-'Owhali.

      10   Al-'Owhali takes off the clothes he was wearing.  Al-'Owhali

      11   explained that he had blood on them, so he took the bloody

      12   clothes off and he put them in a drawer inside of room 7 and

      13   then put on the new clothes that this other person from Yemen

      14   had just provided him.

      15   Q.  What else did Al-'Owhali tell you that he did during this

      16   period?

      17   A.  Al-'Owhali explained to me that the next morning, the 8th,

      18   he began to make a series of phone calls back to his friend in

      19   Yemen, Ahmed al Hazza, at the number I had said earlier.

      20   Al-'Owhali explained to me that again he had no plans to leave

      21   the country.  He was supposed to die, he was prepared to die

      22   in the explosion.  He had no money, no passport, no plane

      23   tickets left, that was all left in the room.

      24            He explains that calling his friend Ahmed al Hazza

      25   was very frustrating for him because he was afraid the phones

                                                                    2036

       1   were being tapped or monitored, so when he would call him he

       2   was talking to him as cryptically or as coded as he could.  So

       3   he had to make a series of different phone calls to Ahmed al

       4   Hazza and eventually get the point across that, I need help, I

       5   need you to wire transfer me money and I also need you to get

       6   me travel documents so that I can leave.  But ensure that

       7   these travel documents that you get to me, make sure that they

       8   are stamped, there's an entry stamp as entering Kenya after

       9   the 7th of August, not before.

      10            Also, he instructed Ahmed al Hazza to telephone

      11   Khalid for him and give him the following message, and the

      12   message was "tell Khalid I did not travel."  And Al-'Owhali

      13   explained to me that that was code that Khalid would

      14   understand is that Al-'Owhali didn't die while carrying out

      15   the mission.

      16   Q.  Did Mr. al-'Owhali eventually receive this wire transfer?

      17   A.  Al-'Owhali explained to me that the money did eventually

      18   get wire transferred to him and Al-'Owhali said that he picked

      19   up a thousand dollars, a thousand U.S. dollars at a jewelry

      20   store or a gold store near the Ramada Hotel called Sheer Gold

      21   and he did receive that money.

      22   Q.  What happened after Al-'Owhali received the thousand

      23   dollars?

      24   A.  Al-'Owhali explained to me that plans were in the works

      25   for this Ahmed al Hazza to come to assist Al-'Owhali getting

                                                                    2037

       1   out of the country, but Al-'Owhali explains that he was

       2   arrested on the 12th.  Had he been arrested the day or two

       3   after, maybe he, both he and Ahmed al Hazza would have been

       4   arrested instead of just him.

       5   Q.  Did this essentially complete Mr. al-'Owhali's story on

       6   the 22nd?

       7   A.  Yes, it did.

       8   Q.  And did you ask him any questions following this story?

       9   A.  Yes, I did.  In addition --

      10   Q.  What did you ask him?

      11   A.  In addition to making sure that I had the details of what

      12   he explained to me as correct as I could, I asked him the

      13   question of, what would it take for this fighting to stop, you

      14   know, how can we prevent this, how can we end this?

      15            Al-'Owhali explained to me that there were several

      16   conditions that would have to be met, and he said the first

      17   condition was that his -- he first said that the United States

      18   is going to remain a target; that there's -- that the planning

      19   to target the United States will not stop unless certain

      20   conditions were met.  First condition was that there would

      21   have to be no U.S. presence, absolutely no U.S. presence

      22   anywhere in the Arabian Peninsula; that the U.S. would also

      23   have to stop providing any type of support for the enemies of

      24   the Muslims, and he included specifically Israel and the

      25   Serbs; and then the third statement was that the U.S. would

                                                                    2038

       1   have to stop using its influence from preventing Muslims from

       2   instituting the sharia worldwide.

       3   Q.  Did Mr. al-'Owhali identify a photograph of Azzam, also

       4   known as Jiad Ali?

       5   A.  Yes, he did.  When I presented him a photograph to

       6   identify, Al-'Owhali picked up the photograph and he said this

       7   is Azzam, also known as Jiad Ali.  He called Azzam a hero and

       8   then he kissed the picture.

       9   Q.  How did this interview end?

      10   A.  The interview ended where Mr. al-'Owhali stated that he

      11   would like to recite a poem to the investigators and he wanted

      12   the official from the Department of Justice to also stay and

      13   hear the poem as well.  So Al-'Owhali began to say this poem,

      14   and it wasn't so much normal speak, it was a chanting, almost

      15   a singing-type poem.

      16            He was doing it in his -- in Arabic, in his language

      17   and through the translator I was able to determine that this

      18   particular chanting poem questioned whether or not two friends

      19   would ever meet again in paradise, and Al-'Owhali explained to

      20   me that this chanting poem is what he and Azzam were listening

      21   to as they were driving for motivation, they were listening to

      22   for motivation as they were driving to attack the U.S.

      23   Embassy.  And as Al-'Owhali was reflecting on his friendship

      24   with Azzam and this chanting poem, he started to cry.

      25            MR. BUTLER:  No further questions, your Honor.

                                                                    2039

       1            THE COURT:  All right, ladies and gentlemen, I think

       2   we'll call it a day.  Have a pleasant evening.  Please

       3   remember about not reading or listening or watching anything

       4   about this case, and we'll resume tomorrow at the regular

       5   time.

       6            (Jury not present)

       7            MR. COHN:  Your Honor, before Agent Gaudin leaves,

       8   would your Honor instruct him that although no questions has

       9   been asked, the government has stopped and he's under cross

      10   and he's not to talk with the government overnight?

      11            MR. BUTLER:  Your Honor, cross hasn't begun, so --

      12            MR. COHN:  I'll ask a question for that.

      13            THE COURT:  No.  No.

      14            MR. BUTLER:  Mr. Cohn requested that we break after

      15   direct.

      16            THE COURT:  Yes.  I decline to give that instruction.

      17            Anything that has to be addressed before the

      18   resumption of the proceedings before the jury tomorrow?

      19            MR. COHN:  Your Honor, we are checking.  It's our

      20   feeling, and I just can't document it yet, that one of the two

      21   numbers that was mentioned, telephone numbers that was

      22   mentioned by Agent Gaudin as being given on the 22nd was in

      23   fact being given during the period before the 22nd.  We're

      24   checking.  We have no way of knowing that.  We'll advise the

      25   Court.

                                                                    2040

       1            THE COURT:  All right.  In which case, if it's to be

       2   stricken, that --

       3            MR. COHN:  Or something.  I can't conceive we would

       4   say this is something that would cause a mistrial, no.

       5            THE COURT:  Anything else?

       6            I was asked about my availability on Friday.  I will

       7   be available until about noon on Friday if there is any matter

       8   counsel wishes to --

       9            MR. COHN:  May I just advise the Court that I am, if

      10   everything goes as planned, I am going to be missing all of

      11   next week.  I have told my client and I have told my client

      12   why.  I will be available by phone if there are emergencies in

      13   which it's necessary.  I have advised the Court of some of the

      14   situation, and this is it.  And Mr. Baugh plans to be here.

      15            THE COURT:  Mr. Baugh will be here then, all right.

      16            You understand that, Mr. al-'Owhali, and is that

      17   agreeable to you?

      18            THE DEFENDANT:  (In English) Yes.

      19            THE COURT:  All right.  Anything further?

      20            MR. COHN:  Thank you.

      21            THE COURT:  All right, we're adjourned, then, until

      22   tomorrow morning.

      23            (Adjourned to 10:00 a.m. on August 8, 2001)

      24

      25

                                                                    2041

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   FRANK PRESSLEY..........1889

       5   GEORGE MIMBA............1896

       6   SAMMY NGANGA............1909

       7   JOHN KIONGO KARIUKI.....1916

       8   TOBIAS OTIENO...........1920

       9   DANIEL M. BRIEHL........1923   1928

      10   PININAH MUHOHO..........1930

      11   ELIJAH MUTIE MUE........1933

      12   MOSES KINYUA............1936

      13   CAROLINE  GICHURU.......1948

      14   CAROLINE NGUGI..........1951

      15   DR. GRETCHEN McCOY......1955

      16   STEPHEN GAUDIN..........1971

      17                        GOVERNMENT EXHIBITS

      18   Exhibit No.                                     Received

      19    39 .........................................1969

      20    550 ........................................1975

      21    551-A through I ............................1977

      22    552 through 556 ............................1978

      23    557 ........................................1987

      24    558 and 559 ................................2033

      25

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