8 May 2001: Today the Court Reporter reissued the transcript for Day 40 to correct page numbers. This is now the corrected version.

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

This is the transcript of Day 40 of the trial, May 7, 2001.

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

                                                                    5687

       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

       6   USAMA BIN LADEN, et al.,

       7                  Defendants.

       8   ------------------------------x

       9
                                                   New York, N.Y.
      10                                           May 7, 2001
                                                   9:55 a.m.
      11

      12

      13   Before:

      14                       HON. LEONARD B. SAND,

      15                                           District Judge

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5688

       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   MARSHALL MINTZ
                Attorneys for defendant Wadih El Hage
       9
           ANTHONY L. RICCO
      10   EDWARD D. WILFORD
           CARL J. HERMAN
      11   SANDRA A. BABCOCK
                Attorneys for defendant Mohamed Sadeek Odeh
      12
           FREDRICK H. COHN
      13   DAVID P. BAUGH
                Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
      14
           DAVID STERN
      15   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5689

       1            (In open court)

       2            THE COURT:  Mr. Schmidt had faxed me on May 4th that

       3   his time computation is he's got 45 minutes left of the four

       4   hours he requested, and so he will be allowed the 45 minutes.

       5            Any reason not to bring in the jury?

       6            (Pause)

       7            MR. RUHNKE:  Your Honor, while the jury is being

       8   brought in.

       9            THE COURT:  Yes.

      10            MR. RUHNKE:  I received the government's response to

      11   my Brady demand.

      12            THE COURT:  Yes.

      13            MR. RUHNKE:  I would like to have until Wednesday

      14   morning to file a brief reply, if that's all right with your

      15   Honor.

      16            THE COURT:  Yes, very well.

      17            (Pause)

      18            MR. FITZGERALD:  Judge, while we're awaiting the

      19   jury, with regard to Government Exhibit 6, which is a written

      20   report by Agent Anticev concerning Mr. Odeh's statements, in

      21   reviewing that statement we realized there were two areas that

      22   needed to be redacted that we called to Mr. Ricco's attention.

      23   He has agreed and he found an additional word, so we have

      24   corrected the redactions.

      25            Nothing has been added, just things have been taken

                                                                    5690

       1   out.  But I just wanted to note that.

       2            THE COURT:  It is very important when the jury starts

       3   deliberating that there is a set of exhibits in a condition in

       4   which they can be sent into the jury upon request.

       5            (Jury present)

       6            THE COURT:  Good morning.

       7            THE JURY:  Good morning.

       8            THE COURT:  Mr. Schmidt, you may resume your closing

       9   argument on behalf of the defendant El Hage.

      10            MR. SCHMIDT:  Thank you, your Honor.

      11            Good morning, ladies and gentlemen.

      12            THE JURY:  Good morning.

      13            MR. SCHMIDT:  I feel like I'm back at school.

      14            Now, this is going to be my final opportunity to

      15   speak with you.  Obviously it's just a continuation from last

      16   week.

      17            Because of the great burden that the government has

      18   on proving their case and every element beyond a reasonable

      19   doubt, they get the benefit of going not just only first, but

      20   also going last.  While that's a great benefit, as jurors, you

      21   have a very important job to do and I ask you to add a little

      22   bit to that.

      23            I have made some arguments to you based on reason and

      24   rationale -- facts, lack of facts, evidence, lack of

      25   evidence -- on Thursday, and I will continue to do it today so

                                                                    5691

       1   you will understand, hopefully, that my arguments hopefully

       2   have made it clear to you, so when the government raises any

       3   kind of point of evidence, any kind of argument, any kind of

       4   inference, any kind of assumption, you should be able to know

       5   what my response would have been if I had an opportunity to

       6   respond to the government.  And I ask you to raise that for

       7   me, to raise that for Mr. El Hage, because we don't have that

       8   opportunity.

       9            And I ask you to ask one additional question relating

      10   to the conspiracy charges against Mr. El Hage:  When the

      11   government raises another issue and they say that that proves

      12   he joined in a conspiracy to murder Americans, ask yourself,

      13   how does that really prove that?  Because that's why we're

      14   here, is because the government is asking you to make

      15   assumptions, asking you to make leaps, asking you to connect

      16   dots that they do not have.

      17            They have also said a number of things of what proves

      18   Mr. El Hage was a member of this global conspiracy to murder

      19   Americans, and they cited a few things.  One of them indicated

      20   to you -- and I tried to show you that the evidence does not

      21   show it's true -- that he was a payroll master of al Qaeda in

      22   the Sudan.  The government also has said to you that he was

      23   the leader of the cell in Kenya.  Therefore, he must have been

      24   involved in this worldwide conspiracy over nine years to kill

      25   Americans.

                                                                    5692

       1            Well, if you look at one of the government exhibits

       2   carefully, it's a tape recording that has been translated as

       3   GX208A-T, for the transcript, a call between what appears to

       4   be Saif al Islam and Harun.  In that, at the bottom of page 3,

       5   Saif al Islam says, "How is our brother Mustafa?" meaning also

       6   Abu Jihad.  Harun says, "He is good, and he is the one who is

       7   in charge after Mr. Karim was gone, may God have mercy on his

       8   soul."

       9            That means Karim is likely another name used by

      10   Mr. Al Banshiri, unknown, clearly, to Mr. El Hage.  No mention

      11   of it.  He is the only person that the government has alleged

      12   died during this period of time.  The government alleged that

      13   he was a leader in Kenya and Tanzania.

      14            Also, the important thing is this conversation takes

      15   place in 19 -- I believe it's 1997 and Mr. Al Banshiri died in

      16   1995, I believe it was.  That means two years have gone by

      17   with members of supposedly this worldwide conspiracy to murder

      18   Americans without even having that information.

      19            The government has alleged this worldwide conspiracy

      20   to kill Americans by putting a little information here, a

      21   little information here, and saying it's all tied up because

      22   of Usama Bin Laden.  And I'll get to that point, but what the

      23   government has done is made allegations, and while the

      24   government has the burden of proof, we have taken it upon

      25   ourselves to show you where their allegations in many ways

                                                                    5693

       1   just simply not only is not proven but is simply wrong.

       2            They made the allegation he was the payroll master.

       3   That's wrong.  They made the allegation that Mr. El Hage is

       4   the leader of the Kenyan cell.  That's wrong.  They have made

       5   the allegation that he was trying to bring Stinger Missiles

       6   into Sudan for Somalia.  We've shown the timing makes that

       7   wrong.  And if you recall even the testimony of Mr. Al Ridi

       8   concerning the timing of it, Mr. El Hage made the connection

       9   concerning the plane and he was done with it.  He informed

      10   Mr. Al Ridi that there were people going to be flying to Kenya

      11   and he was done with it.  He didn't have any more information.

      12   The government did not show any more information, which leads

      13   us up to the government claim that Mr. El Hage is setting up

      14   the base for al Qaeda in Nairobi and that that's his role --

      15   to be the facilitator.  Not to be the facilitator for lawful

      16   activity, for political activity, for helping Muslims, but for

      17   being the facilitator specifically in a conspiracy to murder

      18   Americans.

      19            The government uses that word "facilitator," and

      20   please be careful.  The judge is going to inform you of what's

      21   necessary is not facilitation, it's joining a conspiracy,

      22   knowingly, willingly, purposefully, joining in the aims of

      23   murdering Americans.

      24            But when you're involved, indeed, if this is a

      25   conspiracy at that time to murder Americans, we're talking

                                                                    5694

       1   about now at that time when Mr. El Hage is in Nairobi, not in

       2   1998 when Harun comes down and buys, rents the house, where he

       3   does it in a manner that is quieter, more secret; he doesn't

       4   let anybody in; he doesn't want Kherchtou, who is a member of

       5   al Qaeda, to come into his home, or this person Mustafa, who

       6   we have heard so little about who is supposedly the leader of

       7   the cell in Kenya.  We know so little about where he lives,

       8   what he does.

       9            Now that's what a person who maybe is doing something

      10   wrong is doing, keeping himself quiet, keeping himself hidden.

      11   And whether he's doing that because of a criminal purpose or

      12   non-criminal purpose, because he knows that if he's helping

      13   Islamic militants in Somalia, that he's going to get thrown

      14   out of jail in Kenya.  And we know that that's true based on

      15   Kherchtou's statement.

      16            If you recall, he mentioned Sheik Bailala, a Muslim

      17   opposition leader whose followers were devout Muslims who the

      18   government opposed.  And if you recall, there was a phone call

      19   to the apartment where Kherchtou was living in, one phone

      20   call.  And that's because apparently Khalid al Fawwaz knew

      21   Sheik Bailala from the time that Sheik Bailala was in Saudi

      22   Arabia going to school.  One phone call to that apartment, and

      23   the next day the apartment was raided and everybody in the

      24   apartment put in jail.

      25            Now, of course Mr. Kherchtou couldn't know for a fact

                                                                    5695

       1   that that was the result of it, but there was no other

       2   information concerning why that apartment was raided except

       3   for the next day, after a conversation with Sheik Bailala,

       4   everyone is in jail.

       5            And many many of the Kenyan authorities have to be

       6   paid off to take people out of jail, not because they

       7   committed crimes, because they associated with a Kenyan

       8   opposition leader.  Remember what I talked to you about the

       9   third world is not the United States.  Do not compare what

      10   goes on and the motivations of people in there as you would

      11   react in here, in the United States.

      12            But we don't have just simply a phone call to an

      13   opposition leader or from an opposition leader at Wadih El

      14   Hage's home, we have members of parliament calling him and him

      15   calling them.  Ministers, police officers, that's Mr. Salim

      16   Kheir, letters written to the commissioner of police, letters

      17   written to President Moi.

      18            Mohamed Ali Odeh, Oudeh, who is using the telephones,

      19   who is using the computer, who is using the fax machine.  The

      20   other people were doing business, the two guards Rashid and

      21   Ali, in and out of the home, using the telephone, using the

      22   fax machine for business.  We don't just simply have business

      23   activity and the non-governmental organizational activity on a

      24   level simply to provide a front that there is really nothing

      25   going on there, we have activity swirling all around.  And the

                                                                    5696

       1   concept of running a terrorist cell whose goals are to murder

       2   Americans and having all these people around, having them

       3   access to your computer just doesn't make sense.  Doesn't make

       4   sense at all.

       5            And if you compare the computer that is seized in

       6   Wadih El Hage's house, there was a hidden file prepared by

       7   Harun that Wadih El Hage obviously could never have seen

       8   because he wasn't in when it was prepared and seized, what has

       9   the government provided as evidence of a conspiracy to murder

      10   Americans out of Wadih El Hage's computer?  Nothing.  Nothing

      11   that they have shows any intent, any knowledge, any purpose to

      12   kill Americans.  But that doesn't mean others may have not had

      13   computers that may have military tactics, tactics that reflect

      14   the possibility of criminal activity.

      15            We have the computer found at Mr. Anas al Liby the

      16   government going to talk about, Ali Mohamed's computer, but we

      17   don't have it in Wadih El Hage.  Not because that's not his

      18   role, that's because there's no evidence to show that he ever

      19   joined, belonged, agreed, intended to be part of a conspiracy

      20   to murder Americans.

      21            And the fact that people would talk a little bit

      22   carefully on the telephone after the incident with Sheik

      23   Bailala and what's known in Kenya and that people might not

      24   tell the full truth about their activities, that's not

      25   unusual.  Mr. Al Ridi, who's a government witness, who had

                                                                    5697

       1   nothing to hide, he was scared of the Egyptian government, not

       2   testifying on behalf of Wadih El Hage but testifying on behalf

       3   of the United States Government, and he was still frightened.

       4            Sikander Juma's friends eliminated his name from the

       5   telephone book, not that he had to do with anything wrong, but

       6   to avoid any contact with the Kenyan and the American agents.

       7   I believe on one of the transfers of money to Mr. al-'Owhali,

       8   even that person who did nothing wrong whatsoever, whited out

       9   some information.

      10            So, please, don't view every single suspicious fact

      11   as evidence of being part of a conspiracy to murder his fellow

      12   Americans when you are in a place where it's important to

      13   avoid dealing with police and agents who may be corrupt, when

      14   you are doing something that their government may not like,

      15   when you are associated with people and have been associated

      16   with people who are on a disfavored list.

      17            But what has been done by Mr. El Hage doesn't show

      18   that he has a guilty conscience, that he is trying to hide the

      19   knowledge to the Americans that he's been trying to kill them

      20   for the last seven years.  It shows a consciousness of

      21   innocence, a consciousness of a pure heart, a heart that has

      22   done nothing wrong.

      23            When the government seized all of his material, he

      24   told them where to find it.  He told them it went to Ahmed

      25   Tawhil.  Obviously Ahmed Tawhil wasn't there anymore.  What

                                                                    5698

       1   effort did the Americans make to seek the material and locate

       2   the new office of Mercy International Relief Agency?  None.

       3   Because after the bombing when they wanted to locate this

       4   public-filed agency, like that (snaps fingers), they found it,

       5   just like they found Mr. Harun's home in the Comoros.  He

       6   helped them.  He tried to help them get his material back

       7   because he had no belief that there was anything in there to

       8   indicate he did any criminal activity.  Because he didn't.

       9            He made himself available to speak to the agents.

      10   The next day he went to the hotel.  Not only did he go to the

      11   hotel voluntarily, but without his mother-in-law.  He brought

      12   back Agent Coleman's notebook that he left at the house.  Now,

      13   that shows a person looking to work with the American

      14   government, not a person who has been trying to murder them.

      15            He kept the agents informed of his travel plans.  He

      16   went to the Grand Jury without an attorney.  He testified.  He

      17   went back to Texas.  He didn't run away.  He didn't seek to

      18   flee to Afghanistan or Brazil or any other place.  He stayed

      19   with his family in the place he felt his family had the best

      20   chance to grow up educated -- in the free United States.

      21            After the bombing he did not flee.  After the bombing

      22   he not only spoke with agents in his home, he went down to

      23   their office to speak with them.  He did everything that was

      24   consistent with not being part of a conspiracy to murder

      25   Americans.

                                                                    5699

       1            Now, one thing he has made it clear both in his

       2   testimony in the Grand Jury and the documents found on his

       3   telephone conversations that he is a devout Muslim, and one of

       4   the things that we have learned here is that Islam puts the

       5   responsibility of your acts on yourself.  You have the

       6   responsibility to make individual determinations and you must

       7   live by that responsibility.

       8            It's not a responsibility of who you associate with,

       9   the telephone numbers you have, who you allowed to speak on

      10   your telephone and use your telephone, to stay in your home,

      11   it's not whether or not you have helped people who have

      12   multiple goals, including helping Muslims that you share, it's

      13   individual responsibility.  And that's very similar to what

      14   his Honor is going to instruct you in this court.

      15            We're not here to determine the responsibility of

      16   Harun or Usama Bin Laden, but let's take a look a little bit,

      17   though, since the government has tried to make that

      18   assumption, that he is responsible for what Usama Bin Laden

      19   says or writes.

      20            And we know the concepts, a few of the concepts

      21   involved.  I will discuss it only briefly.  It's fatwah and

      22   bayat, two concepts other than the basic tenet of Islam, of

      23   personal responsibility and personal decision-making.  Again,

      24   the government relies on Mr. Al-Fadl for so much, and even

      25   Mr. Al-Fadl's descriptions of some of these things make no

                                                                    5700

       1   sense.  They differ from Mr. Kherchtou and they differ from

       2   the imam.

       3            He says that, in answer to a question, "If a person

       4   in al Qaeda gave you an order to do something that you knew to

       5   be haram or forbidden, would you have to do it?"

       6             "Yes, because the scholars in al Qaeda, the scholars

       7   in the group, they discuss that and they make a fatwah and

       8   they say it's okay."  And we know based on Mr. Kherchtou and

       9   the imam that that's hogwash.  That's not true.  Mr. Kherchtou

      10   says that not only is there the individual responsibility,

      11   that the religious committee in al Qaeda didn't even have the

      12   standing to issue fatwahs.

      13            Mr. Kherchtou says that while he was in Afghanistan,

      14   while he was in Nairobi and while he was in Sudan, before

      15   Mr. Bin Laden went to Afghanistan, he heard no fatwahs.  And

      16   he would have heard fatwahs because he knew of people while he

      17   was in Afghanistan and Nairobi who were going to Somalia.  He

      18   talked with them.  Certainly Mr. Harun had no problem of

      19   saying anything he wanted, but during that whole time, not a

      20   mention of a fatwah.

      21            Mr. Al-Fadl, if you accept what he says, there was a

      22   fatwah per week on all sorts of issues.  I ask you to reject

      23   Mr. Al-Fadl's statements about fatwahs because it's not only

      24   contradicted by Mr. Kherchtou, it's contradicted by common

      25   sense.

                                                                    5701

       1            And the government says that Mr. Kherchtou, well, he

       2   wouldn't have heard about it, he wasn't there very much.

       3   Remember this:  He was going back every couple of months for

       4   two weeks or four weeks and he went to check on the people and

       5   he went to the meetings.  So he went to, during that period of

       6   time in 1994 to 1993, dozens of meetings.  He went to meetings

       7   in Pakistan.

       8            He was unable to identify the photograph of Jamal

       9   Al-Fadl, and Jamal Al-Fadl told you he went there all the time

      10   because it was mandatory.  Kherchtou said it wasn't mandatory.

      11   Mr. Al-Fadl went to every single meeting he was supposed to

      12   because he said it was mandatory, and not once during that

      13   time did Mr. Kherchtou see that man or recognize his

      14   photograph.

      15            He also said, Mr. Kherchtou, that he never saw Wadih

      16   El Hage there during his time, that he went to the guesthouse,

      17   he went to the Soba farm and he knows Wadih El Hage, he knows

      18   him very well, and he never saw him at any of those meetings.

      19            We also know that most of the speeches against

      20   American policy really occurred in the public mosques because

      21   the American policy as to many, many Muslims around the world

      22   was wrong.  And that was no surprise and that was part of it,

      23   but as Mr. Kherchtou said, there's a difference between saying

      24   that America is your enemy because of their foreign policy and

      25   attacking them and trying to kill them.

                                                                    5702

       1            As to bayat, one, there's no proof whatsoever that

       2   Mr. El Hage ever took bayat.  He was an early person who

       3   volunteered to go to Afghanistan even before the Americans

       4   were involved.  He was highly respected because he dedicated

       5   part of his life on three different occasions to going there.

       6   It would be almost an insult to demand that he take bayat,

       7   having proved himself to be a trusted and caring Muslim.

       8            He also didn't take training like Mr. Kherchtou or

       9   Mr. Al-Fadl.  So when I talk about bayat, I don't talk about

      10   Mr. El Hage.  But even if a person who took bayat can say, no,

      11   that's not an Islam that is -- that is unIslamic, obviously a

      12   person who is there because he is trustworthy, is there

      13   because he has never taken a bayat or sworn allegiance clearly

      14   can say no.  And as Mr. Al-Fadhl again says that:

      15            "And is your responsibility the ultimate

      16   responsibility as a good Muslim to make that determination on

      17   your own, that this is a proper fatwah?

      18             "No.  No."

      19            And he goes on to that on page 942.

      20            It is clear from the testimony of the imam and

      21   Mr. Kherchtou that you must make that individual determination

      22   if something is said that doesn't sound right to you and, as

      23   Mr. Kherchtou said, that he would never agree if someone said

      24   to him we're going to go kill innocents, he would never agree

      25   to that, nor would most people in al Qaeda agree to that.  And

                                                                    5703

       1   if you ask him to do something wrong, "I would say no."

       2            Also importantly is that when he was told that he's

       3   taking bayat, he could belong to no other organizations.  Of

       4   course that makes sense.  If you are swearing allegiance to

       5   one person, how could you have allegiance to other people as

       6   well?  One organization.  If you belong to another one, you

       7   leave it to join al Qaeda.

       8            Mr. al-Fadl said everybody belonged to different

       9   organizations.  He mentioned all these people, but remember

      10   only three photographs came in, or four photographs came in

      11   under him.  He has his own agenda.  He says what he wants.

      12   Everybody is al Qaeda.  He tried to present this worldwide

      13   conspiracy that just simply did not exist, and he added what

      14   he wanted.  And fortunately Mr. Kherchtou was there and

      15   available to testify here to tell you especially what Al-Fadl

      16   said was not true.

      17            What he did tell you was that there were

      18   disagreements.  Not everybody accepted what Usama Bin Laden

      19   said as correct.  There were disagreements.  Some of them may

      20   have been over minor issues, but one of the things that

      21   Al-Fadl tried to do, he tried to paint this secret, hidden

      22   agenda of Usama Bin Laden, of being against what the Saudis

      23   were doing and the Americans and wanted to kill them.

      24            There was no secret agenda.  As we put in under

      25   stipulation WEHXS11, there are a series of six letters written

                                                                    5704

       1   by Mr. Bin Laden, to the Saudi royalty, to the clergy, to the

       2   army, asking, requesting, demanding that they reform, they not

       3   allow Americans to stay in there, they get the Americans out,

       4   they do what's right for Islam.

       5            Review these, please.  They are available to you.

       6   They are an exhibit and they will show you that the rhetoric

       7   that he has in those declarations, in those letters are

       8   somewhat similar to all of his writings.  But there is no

       9   violence in there, there is no demands for killing and death,

      10   there is no question that everybody knew that Usama Bin Laden

      11   is a Saudi citizen of prominence, lost his citizenship because

      12   the Saudis took it away, he was in the Sudan because he

      13   couldn't go back, that he opposed the Saudi government.  That

      14   was no surprise.  Everybody knew it.  And when he ranted or

      15   yelled or argued rationally about why the Saudis are wrong,

      16   everybody knew that that was his position.  But there was no

      17   position of going in and murdering Americans.

      18            These documents were seized, among others, at the

      19   home of Mr. Al Fawwaz, and what we know about that is that the

      20   government has put in a few of the 1998 documents from him,

      21   but they haven't put in the earlier ones.  The earlier ones

      22   show the ongoing, slow development of Mr. Bin Laden to become

      23   more and more anti-Saudi government.

      24            But even if he ends up against the Saudis, as his

      25   1996 proclamation did, it doesn't mean Wadih El Hage either

                                                                    5705

       1   knew about it, joined in it, assisted in it, had anything to

       2   do with it.  It was just his next demand.  And it was directed

       3   solely at Saudi Arabia and the protection of the holy places,

       4   and even though it affected the Americans because the American

       5   troops were there, it was directed similarly to the Saudi

       6   government.

       7            And in Nairobi, Mr. El Hage wasn't, couldn't, didn't

       8   do anything to help Mr. Bin Laden with his goals of getting

       9   the Americans out, and certainly nothing to do with anything

      10   about murdering Americans.

      11            And the only thing that he is alleged to have brought

      12   back are two documents:  A very political Taliban report about

      13   the Taliban.  That is a historical and political document that

      14   really has nothing to do with the United States, it has to do

      15   with how he started the Afghani people.  And it also has

      16   nothing -- the Somalia report has nothing to do with the

      17   Americans.  It's about Somalia.

      18            Is it something that the United States Government

      19   opposes, the training of Somali Islamists, militant Muslims?

      20   Of course they do.  Is it against the United States policy to

      21   support activist Muslims against more secular governments?

      22   Absolutely.  Is there a reason for Muslims who are helping

      23   Somalis, Somali Muslims try to form a more Islamic country to

      24   worry about Americans?  Absolutely.  To worry about Kenyans?

      25   Absolutely.  To worry about the Egyptian government?

                                                                    5706

       1   Absolutely.  To worry about the Saudi Arabian government?

       2   Absolutely.  But does that provide the evidence that the

       3   government wants you to convict a man for conspiring to murder

       4   Americans?  Absolutely not.

       5            The government makes assumptions that Wadih El Hage

       6   knew about it, that he agreed to it, that he participated in

       7   it, that he intentionally and purposefully and knowingly

       8   joined a conspiracy to kill Americans.  As Mr. Kherchtou said,

       9   well, that was wrong.  And as Mr. Kherchtou said, that

      10   especially in Afghanistan when he went back there, what he

      11   said was not necessarily supported by the people of al Qaeda,

      12   certainly not as non-members, and certain things changed.

      13            And the fact that Mr. El Hage went to Pakistan to

      14   visit and to sell stones, may have had some contact with some

      15   people doesn't make him part of a conspiracy to kill

      16   Americans.  Because there is certainly no evidence of that,

      17   not a single thing mentioned about Somalia during

      18   Mr. Kherchtou's six months with Mr. El Hage in a way that

      19   would cause one to believe that -- not about Somalia, not

      20   about Americans, not even about Saudi Arabia.

      21            Now, the government's case is built on assumptions, I

      22   submit not reasonable, rational inferences where you can draw

      23   a conclusion based on certain facts, as his Honor will

      24   explain, but assumptions that require a leap, a jump over a

      25   void of no evidence.  Assumptions, not proof, about the

                                                                    5707

       1   existence of a nine-year-old conspiracy.  Assumptions, not

       2   proof, about Somalia.  Assumptions and not proof about Harun

       3   being a reliable teller of what occurred, while Fadl being a

       4   reliable teller.  Assumptions based on the conduct and

       5   possibly intent of others, some of whom Mr. El Hage knew and

       6   some that he didn't know.

       7            They aren't giving you proof on what he did and what

       8   he said, but what others did and what others said with the

       9   assumption that he had to have agreed to do it.  That's not

      10   sufficient and, as the evidence has shown, that those

      11   assumptions are simply wrong.

      12            And I want to give you an example, one of the

      13   examples, sort of microcosms, sort of a condensed version of

      14   how the government presented its case, and that's presented in

      15   Agent Miranda's testimony.  The manner he testified on

      16   cross-examination was calculated to put the image of Wadih El

      17   Hage as a person of hatred against the United States because

      18   the Americans were in Saudi Arabia.  That's how he testified.

      19            And he testified that when he asked about Usama Bin

      20   Laden's hatred, that Mr. El Hage, in answering that question,

      21   he often switched using "he" for Bin Laden and "we" when

      22   describing the hatred of the United States.  That's how he

      23   tried to sell that to you.

      24            But what we found out is that, one, Mr. El Hage was

      25   open and honest about his disagreements with American foreign

                                                                    5708

       1   policy, with the treatment of Muslims and Palenstinians versus

       2   the Israelis, his feelings that the Americans should not have

       3   a presence there.  That was a person talking with a clear

       4   conscience a week or two weeks after the bombing, where there

       5   was evidence of Mr. Bin Laden being involved in it and people

       6   in Kenya being involved in it.  And he spoke about that as

       7   opposed to trying to hide his true feelings, not to make

       8   himself a target.

       9            We also learned that the "we" changes as on one

      10   occasion when he was describing about having the money to be

      11   able to live a life like a good Muslim, that Bin Laden had and

      12   "we," all the other people, did not.  We also learned that the

      13   word "hatred" wasn't Mr. El Hage's word, it was the word of

      14   Agent Miranda.

      15            We learned about the true believing Muslim.  Not only

      16   was "true believing Muslim" used to describe that any true

      17   believing Muslim believes that the U.S. should be driven out

      18   of the Saudi Peninsula because the Koran has reserved the

      19   Saudi Peninsula only for Muslims, he also used it, which Agent

      20   Miranda didn't talk about and it took a while to get out on

      21   cross-examination because he didn't remember the use of that

      22   word until he had to review his notes, that a true

      23   believing -- withdrawn.  He was asked by me, I asked Agent

      24   Miranda:  "You asked him," meaning Mr. El Hage, "would you

      25   support Bin Laden if you learned of his involvement in the

                                                                    5709

       1   bombing; isn't that right?"  And the answer, "Yes, sir," that

       2   he asked Mr. El Hage that question.  "Right."

       3            "And do you recall him telling you that, as a true

       4   believing Muslim, I follow the guidance of the Koran and not

       5   people; if Bin Laden was involved, it was mistake; that Bin

       6   Laden would be wrong in conducting such an act because there

       7   was no guidance for it in the Koran and I would not support

       8   him?"

       9            "That's correct, sir."  Agent Miranda said that

      10   indeed Mr. El Hage said that.  "He said that, yes, sir."

      11            He also indicated he would not support Mr. Bin Laden

      12   if he learned that he was involved, that he did not have the

      13   right to attack innocents.  He doesn't remember who used the

      14   word, if it was his word or not.

      15            But what we have here is a clear picture, and even

      16   Mr. Kherchtou said that killing innocents -- of course,

      17   notwithstanding how he got involved -- is really a no-brainer.

      18   There's no support about that in the Koran under these

      19   circumstances, no.  And Mr. El Hage made it clear he did not

      20   support the position.  And it wasn't in a manner that he was

      21   trying to hide his true feelings, it was in a manner that he

      22   expressed his true feelings, his opposition to American policy

      23   that is just everyone's right in our country to do so, and he

      24   did so as an American.

      25            And he answered the questions about his beliefs at a

                                                                    5710

       1   time when all of the United States, if not the world, was

       2   looking upon Muslims, especially ones who wanted the American

       3   troops out of Saudi Arabia, looking at them as possible

       4   terrorists.  And he didn't avoid it, he admitted it.  But he

       5   told him what his feelings were.  Yes, he wanted them out.

       6   Yes, the Saudi should get them out.  But you don't kill

       7   innocent people.  You don't do what Bin Laden did.

       8            Now, there's one other example that shows the

       9   assumptions made -- more than one example, but I want to

      10   finish with one example that shows the government in 1997 was

      11   making assumptions about Wadih El Hage.  In 1991 -- excuse me,

      12   in 2001 they're asking to you make the same assumption, and

      13   it's wrong.  I'm going to play a very short piece of tape, and

      14   I want you to listen to the voice of Mr. El Hage and the voice

      15   of the agent and how they're talking and see who

      16   misunderstands who.

      17            (Tape played)

      18            MR. SCHMIDT:  This agent is surprised that Mr. El

      19   Hage is telling him he's flying on El Al, the Israeli

      20   airlines, because they just simply make assumptions about

      21   Wadih El Hage, not because what they really know about Wadih

      22   El Hage, but because he worked for Bin Laden, that he has

      23   friends and associates who are Muslims who are helping the

      24   devout Muslims in Somalia fight the bandits and the warlords,

      25   that he wants to help the Muslims in Tajikistan and Bosnia,

                                                                    5711

       1   that he opposes the American support of Israel in the manner

       2   that they do and they don't treat the Palenstinians correctly.

       3            And because of that, to the agents, to the United

       4   States Government, he must be an Arab terrorist who wants to

       5   kill Americans.  And Bin Laden talks about Ismailis and Jews

       6   as well while they misunderstand him, because what he is is a

       7   caring, devout Muslim, who cares about his fellow Muslims but

       8   cares about his family and cares about himself and wants to go

       9   back to America and would prefer going on the Saudi airlines

      10   because he's not paying three times the price to fly American

      11   Airlines.  He'll go on El Al if he has to, and he doesn't even

      12   consider, until later, when he is informed that, you can have

      13   trouble because you're from Lebanon, you're from a Muslim

      14   country.

      15            Ladies and gentlemen, we're here because of

      16   assumptions about Wadih El Hage.  We're here because the

      17   government assumes he's the type of person who would murder

      18   Americans because Harun worked for him, he had communications

      19   and worked for Mr. Bin Laden, he supports much of what Mr. Bin

      20   Laden did, but he does not support the killing and murdering

      21   of innocent people and there is nothing in the evidence that

      22   should change your mind.

      23            I ask you, on this very difficult case, uphold the

      24   burden of proof beyond a reasonable doubt, beyond a reasonable

      25   doubt, before you can say that Mr. El Hage is a person who has

                                                                    5712

       1   agreed, conspired, intended to kill Americans.  I ask you to

       2   pause, I ask you to review what the government says proves

       3   that, and I ask you to come back with the verdict of not

       4   guilty.

       5            Thank you.

       6            THE COURT:  Thank you, Mr. Schmidt.

       7            We'll take a five-minute recess.

       8            (Recess)

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5713

       1            THE COURT:  Mr. Ricco, you asked for three and a half

       2   hours.

       3            MR. RICCO:  Your Honor, we have allotted that amount

       4   of time but I don't think it will be three and a half hours.

       5            THE COURT:  I never complain about brevity but I do

       6   like keeping people to the maximum they requested.

       7            (Jury present)

       8            THE COURT:  We will next hear from Mr. Ricco on

       9   behalf of the defendant Odeh.

      10            MR. RICCO:  Good morning, your Honor.  Ladies and

      11   gentlemen.  First, on behalf of Ms. Babcock, Mr. Herman, Mr.

      12   Wilford and even Mohamed Odeh, we would like to thank you all

      13   for paying attention to the case all the way through.  From

      14   time to time I would sort of look out the side of my eyes to

      15   get a sense of whether or not you were still paying attention,

      16   and most of you have been.

      17            Now I am going to talk for the next two days about

      18   Mohamed Odeh -- that's not going to happen.  Let me tell you

      19   this.  I have this big notebook full of notes, and we spent

      20   the whole weekend working on a computer disk so that we could

      21   show you, you know, where somebody said this in the record and

      22   show you this picture, and we were even up this morning, what,

      23   about 6:00, trying to get this thing to work, and guess what,

      24   it's not working.  So that's OK.  You know, I'm a true

      25   believer that everything happens for a reason.

                                                                    5714

       1            I'm sort of glad that we had an opportunity not to

       2   respond directly behind the fine summation that Mr. Karas

       3   gave, because I think we would have spent too much time saying

       4   to you, you know, Mr. Karas is a good lawyer, but he twisted a

       5   word here and he twisted a word there, and showing you charts

       6   where the witnesses didn't say this and didn't say that.  I'm

       7   not going to do that -- not that much.  Instead, I want to

       8   talk to you in my closing remarks about my collective thoughts

       9   about this case.  Those thoughts developed as the case

      10   proceeded and unfolded.

      11            I will tell you this, that my primary concern in this

      12   case was what your expressions would be after you saw the

      13   videotape.  So as the videotape was playing, I was sitting

      14   here watching, and I saw some of you react with your hands

      15   over your mouth.  Most of you reacted with revulsion and

      16   disgust at the horror that was depicted there.  Many of the

      17   people who are here today, seated in the audience, are victims

      18   or relatives of victims of that crime.  I was concerned

      19   whether or not as jurors you could survive watching that video

      20   and still keep an open mind.  My basis for that was a simple

      21   one:  It's hard for me or anybody else.  When confronted with

      22   that type of evidence, we all react viscerally to it.

      23            So I thought over the weekend what would I say to

      24   you.  Where would I start.  How would I find a place to talk

      25   to you about Mohamed Odeh.  I will tell you this.  The best

                                                                    5715

       1   place to start is where the government says its proof is.

       2   What I would like for you to do, rather than get involved in

       3   the minutia of who said this, where they said it, what page it

       4   was, how it contradicts this page and that page, I want you to

       5   stay with some themes in this case when you go back in the

       6   room to deliberate.  The themes will take you to the

       7   testimony, to the letters, to the documents, and you can see

       8   it for yourself.

       9            The government says that Mohamed Odeh was the

      10   technical adviser to the bombing.  Right?  That's what

      11   Mr. Karas told us, and the evidence of that, according to

      12   Mr. Karas, is Mr. Odeh's statement that he gave to Agent

      13   Anticev, who is also present today, seated in the back row,

      14   over the 13 days he was held in communicado in Kenya.  And

      15   what Mr. Karas says is that Mr. Odeh danced with the truth,

      16   danced around the truth.  There is no evidence in this case

      17   that Mr. Odeh even knows how to dance.  All the evidence in

      18   this case reveals that he is a man who speaks truthfully.  I

      19   don't say that as rhetoric.

      20            This is what I want you to do.  You take every

      21   letter, every document that was seized from his house.  Take

      22   it in the back and put it on the table and start going through

      23   that stuff.  Not only the stuff that the government put in but

      24   the stuff that we put in.  You start going through the letters

      25   to his family, the tapes and what not, and you see if that

                                                                    5716

       1   doesn't reflect the mind set of a man who dances or the mind

       2   set of a man who handles and can deal with the truth.

       3            I want you to remember something, and that is this:

       4   That Mr. Karas says his flight and being with others proves he

       5   is guilty, along with other evidence.  He slips that in the

       6   back.  The judge is going to instruct you on the law.  I am

       7   not going to say no words on the law.  But the judge will

       8   explain to you how you deal with the evidence of one's

       9   association, and I submit to you that the association does not

      10   establish guilt.  Physical evidence is what the government

      11   spoke about.  This was the trump card for the government.

      12   This was the piece that got everyone on the jury looking at

      13   Mohamed Odeh a little differently -- at least that was my

      14   impression.  What the government said was Mr. Odeh used a fake

      15   passport.  You using a fake passport, you know you doing

      16   something wrong, right?  And his clothing.  The clothing had

      17   PETN and TNT in it.  Very important.

      18            Mr. Karas also said that the tape letter and the

      19   diagram -- that diagram.  Where is it?  That diagram shows

      20   that Mr. Odeh is guilty.  We blew it up big.  This is the only

      21   thing that -- I am sorry, we enlarged it.

      22            (Laughter)

      23            MR. RICCO:  Excuse me, your Honor.  That diagram,

      24   that's it.  Got you.  That's what the government said, right?

      25   When you look at that diagram at first blush, you sit back and

                                                                    5717

       1   you say they got him, there it is.

       2            Mr. Wilford is going to handle a part of the

       3   summation.  Mr. Wilford is going to handle the forensic

       4   evidence and that document.  I am going to come back at the

       5   end and wrap things up.  I submit to you that one of the great

       6   aspects of this country is that everybody charged with a crime

       7   gets a lawyer.  Some get more than one.  But they are entitled

       8   to a lawyer.  And we get to ask questions about this document.

       9   Like, for example, where it came from, who wrote it, is it

      10   dated.  How does it compare with the other documents.

      11   Remember the ampersand and all the rest of it, that they can

      12   prove something from an ampersand.  Nobody stick this in the

      13   face of an expert, you know, we found some books in the house,

      14   why don't we compare that to that.  Mr. Wilford is going to

      15   handle that.  That's it from the government's case.  That's

      16   what they said proved their case.  What we are saying to you

      17   is that the evidence in the case, all of it, every single

      18   piece of it, down to the nanogram of TNT and PETN that was

      19   found on his clothes, Mr. Odeh's clothes, do not establish his

      20   guilt.

      21            I want to share with you a story.  There was a person

      22   who testified in this trial.  He was a young, nice-looking

      23   fellow.  He said he had delivered money for Al Qaeda secretly.

      24   He didn't know who it was, he took money around.  So he is

      25   associated with Al Qaeda, right?  He said I went and

                                                                    5718

       1   negotiated the contract for the house that was used to build

       2   the bomb.  OK.  He said he was present at the bomb factory the

       3   night before the bombing, but he was kept in the dark

       4   downstairs.  He didn't know what was going on.  He said he

       5   drove the family of Harun to the airport.  You know, Harun

       6   escaped, took his family with him.  He helped get the family

       7   out.  Very important role, I would think, right?  You going to

       8   blow up a building in a country and you going to sneak on off?

       9   I think it might be a good idea to take your wife and kids

      10   with you, right?  That's what he did, and this fellow helped

      11   him.  He said after Harun left he went and had the house

      12   cleaned up.  To try to get rid of what?  That PETN and TNT,

      13   whatever.  He said after that, he cleaned the truck up that

      14   was used to deliver the bomb supplies.  He also told you that

      15   he planted a piece of evidence in the house to divert the case

      16   to somebody else and away from himself.

      17            Remember that testimony?  You know who I'm talking

      18   about?  I'm not talking about Mohamed Odeh, the technician,

      19   right?  I'm not talking about the guy who is sitting here at

      20   this table this morning.  I'm talking about a guy came in

      21   through that door.  His name was Sikander Juma.

      22            He also told you something that was very important.

      23   He said that when he first started interviewing with agents he

      24   didn't tell them that he planted the evidence or had somebody

      25   plant it, whichever story you feel more comfortable.  He was

                                                                    5719

       1   dancing with the truth.  Right?  He was trying to make a scene

       2   like this book belonged to somebody else.  Remember that?  And

       3   when you look at the involvement of him and you say to

       4   yourself, well, wait a minute, how come he's not sitting at

       5   this table, well, the difference is, Mr. Odeh is a member of

       6   Al Qaeda, Mr. Sikander isn't.

       7            What's important, when I started this case I said to

       8   you it is very important, it's crucial that you make a

       9   distinction between inferences that are reasonable, they sound

      10   reasonable, and inferences that are accurate.  Again, looking

      11   at this chart, what does it accurately depict?  Not what does

      12   it reasonably depict -- a circle, some boxes and a road, bomb

      13   blast -- a term that Mr. Karas used, no bomb expert, he said

      14   bomb blast cone.  You say that sounds reasonable.  Then you

      15   start seeing pages ripped out.  What happened to that page?

      16   Whatever.  Mr. Wilford will deal with it.  The point is this,

      17   the inferences should be accurate, not just reasonable,

      18   because Mr. Sikander Juma testified to you that he had nothing

      19   to do with the bombing of the embassy and he did the thing

      20   with the book because he was afraid that his association with

      21   others would result in people believing that he was guilty.

      22   So given the world that we live in, where people prejudge and

      23   make associations, he decided to help himself by planting

      24   evidence and putting it somewhere else.

      25            I just wanted to share that story with you, that

                                                                    5720

       1   testimony with you about the case.  And I want to just take a

       2   couple of minutes and look at an overview.  But before that,

       3   remember when I started I told you about who Mr. Odeh was?

       4   Let's think back.  Let's go back to January.  I told you that

       5   Mr. Odeh was a young man who left his college studies to go

       6   fight jihad in Afghanistan.  He was an engineering student.  I

       7   told you that the money that his father sent him for school,

       8   he does what a lot of young people do with the money their

       9   parents send him.  He used it for what he wanted to do.  And

      10   he consulted with some scholars and he decided to go and

      11   follow his conscience to Afghanistan.  I told you that he was

      12   a person trained -- he's not denying it.  No problem.  You

      13   going to go to a war, you better be trained if you expect to

      14   come home.  He was trained in Afghanistan, trained in firearms

      15   and everything else a person needs to be trained with in a

      16   war.  He survived Afghanistan.  And when he decided to leave,

      17   when things changed, he thought long and hard about joining Al

      18   Qaeda.  He had a concern.  He said I don't want to join a

      19   group that would require me to follow orders blindly.

      20            Now, some men who go to war -- and women -- they

      21   don't care what the orders are.  Our history is replete with

      22   men and women who have gone to war and have committed

      23   tremendous acts of barbarism against people, right here in our

      24   own nation.  It was in the papers recently about something

      25   that happened.

                                                                    5721

       1            The concept that somebody who is Islamic would have

       2   those same moral scruples, is it foreign to you?  That's why

       3   we called Imam Siraj, because many of us don't know people in

       4   the Islamic world.  What Mr. Odeh said was, I believe in what

       5   I'm doing, I sacrificed my studies to do it.  But I can see

       6   what's going on here.  Got a lot of different kind of players

       7   here.  You saw some on the witness stand.  I'm going to try to

       8   find a group where I can fulfill my religious beliefs to do

       9   good for people who are Muslim all over the world.  That's

      10   where he started, and that's the trick that they used to get

      11   him out of Kenya at the end.  That's me saying it was a trick.

      12   That's my view of the evidence.

      13            Mr. Odeh took bayat, and I told you straight up he's

      14   a soldier.  And you look at him.  He looks like a soldier.  He

      15   watches everything.  He takes notes.  He's smiling sometimes,

      16   serious at others.  He is a person that I said few Americans

      17   get to meet.  You would meet him on a battlefield somewhere, a

      18   legitimate battlefield.  He has no shame in that.  But there

      19   are many men who fight wars who don't hate their enemies, who

      20   don't shoot people in the back.  Therefore many men who do

      21   tremendous acts of bravery in the battlefield.  They save

      22   their enemy.  They bring them to safe havens.  Many men.  And

      23   what is in them?  What is instilled in an individual that

      24   would do that?  It's your religious upbringing.  It's your

      25   moral values.  Right?

                                                                    5722

       1            Some people will see an older person like Miss Allen

       2   walking down the street.  And Miss Allen is hobbling with her

       3   cane, as usual.  And her bag drops.  And Miss Allen,

       4   struggling so much just to get from one point to the next, is

       5   not paying attention to the bag.  And there's a lot of people

       6   who will sit back and go, hm, opportunity.  There are other

       7   people would say, Miss, you dropped your bag.  Of course we

       8   are talking about someone more serious than someone dropping

       9   the bag.  But the state of mind is the same.  It's a righteous

      10   state of mind.  So the government is right.  Islam is not on

      11   trial.  What is Islamically correct is not on trial.

      12   Mr. Odeh's state of mind, his intentions is on trial.  And his

      13   records and his phone calls and his taped notes to his wife

      14   give you an insight into what?  His state of mind.

      15            He comes and he goes to Somalia and from Somalia he

      16   goes into Kenya.  The events lead him up to traveling to

      17   Pakistan and being arrested.  The government, if we go back

      18   and look at the overview, the statements, the physical

      19   evidence, the diagram, etc., the statement, according to the

      20   government, shows that Mr. Odeh was dancing with the truth.

      21   Government's Exhibit 6 is 34 pages, a single-spaced,

      22   typewritten account of what Mr. Odeh told Agent Anticev.  And

      23   we know that he told him more, because Agent Anticev told us

      24   that.  He said he kept notes and that he made that statement

      25   from the notes, and he told us that there were many things

                                                                    5723

       1   that were kind of left out and some things weren't included,

       2   and we talked about some of it during the trial.

       3            But you have to remember something.  The FBI decided

       4   not to tape these interviews.  It's the FBI policy.  OK.  All

       5   right.  They didn't videotape it.  That's their policy.

       6   That's OK too, because their techniques are not on trial

       7   either.  But the evidence is on trial.  So just because they

       8   say they didn't want to do it or didn't do it don't make it

       9   right.  So when a person comes in here and starts explaining

      10   to you the subtleties of what people are saying, oh, you need

      11   that tape.  Oh, yes, you need that video.  That stuff is

      12   helpful.  Kherchtou told you when he was being interviewed,

      13   that agency, whoever they were, from whatever country they

      14   were from, they had a tape on, to record what and how he was

      15   saying.  Because this typewritten document is a reflection

      16   back.  He prepared it on the 31st of August, six days after he

      17   left and 15 some odd days before the interview started.

      18            He also asked him hypothetical questions and showed

      19   him disturbing photographs.  For example, it's not FBI policy

      20   to take -- well, it's FBI policy not to use a tape, but it's

      21   good FBI policy to show a person a picture of bomb victims to

      22   get them to start talking.  That's the policy.  You have to

      23   ask yourself, what's the purpose of the hypothetical

      24   questions?  Agent Anticev said it was to get him to start

      25   talking.  If you check out the report, the hypothetical

                                                                    5724

       1   questions don't come till page 25.  So either the hypothetical

       2   questions should have been at the beginning to get him to

       3   start talking or he wasn't talking for the first 25 pages.

       4   But as you go through his document, you will see that he

       5   talked about the same stuff every day that he was there, in

       6   and out all over again.

       7            It is significant for everyone to realize that

       8   Mohamed Odeh was in communicado.  Let me break in communicado

       9   down.  Mohamed Odeh was kept without a lawyer, without being

      10   able to see his friends, without being able to see his family

      11   for 13 days.  Anybody got a problem with that?  No.  You know

      12   you don't.  Because you wouldn't care if Mr. Magoo caught the

      13   right people as long as they were caught.  Right?  Right?  He

      14   was kept 13 days in communicado, separated from his wife, his

      15   family and his friends, and he gave his consent.

      16            In addition to the 13 days he was kept in communicado

      17   in Kenya, he was kept seven days in communicado in Pakistan.

      18   Lovely place to be kept in communicado, for seven days there.

      19   Do you get disoriented?  What's the purpose of it?  Is it to

      20   extract statements?  And when it doesn't work you start asking

      21   hypothetical questions, well, if I can't get it this way, let

      22   me try this way?  Is that what the purpose is?  Ultimately it

      23   is for you to decide how reliable his statement is.

      24            I submit to you, when you go in the back don't do

      25   what the government did, let's focus on this paragraph and

                                                                    5725

       1   that -- take the whole statement and read it from front to

       2   back, and read it more than once.  Because I will tell you,

       3   each and every one of you, that every time you read that

       4   statement you find out something new about Mohamed Odeh.  You

       5   find out small facts about him.

       6            I submit to you that Mohamed Odeh gave a truthful

       7   account of his actions in detail.  I submit that to you

       8   because his statement is verified in every way.  Each piece of

       9   evidence in this case tells you that Mohamed Odeh was telling

      10   the truth.  Everything from his travel to Afghanistan, owing

      11   his father the money, where they later find the letter in Witu

      12   where he was talking to his dad about the money in school nine

      13   years ago -- that's a heck of a son to say dad, I'm going to

      14   pay you back the thousand dollars from nine years ago -- to

      15   his decision to make bayat with Al Qaeda.  It was all

      16   verified.

      17            And the government, I submit to you, is having it

      18   both ways.  Because, see, they look over in the corner at

      19   Mr. El Hage and they say you know what, El Hage is guilty,

      20   because El Hage had an opportunity to help the government

      21   investigate this case and he went in there and lied.  That's

      22   what they tell you.  And he lied and he slowed down the

      23   investigation, he's wrong, he's unAmerican I think somebody

      24   said, or something like that -- or somebody said that.  I

      25   don't know if the government said that.  I think somebody

                                                                    5726

       1   responded to the government -- excuse me, Mr. Karas.  What

       2   they said was that he had a choice between his allegiance to

       3   America and his allegiance to Al Qaeda, and he picked what?

       4   Al Qaeda, according to the government.

       5            Now let's look at Mohamed Odeh's 35-page statement.

       6   Mr. Odeh also was at the threshold.  He had to decide.  Agent

       7   Anticev told you, we gave him an opportunity to have a lawyer.

       8   We wanted to find out about it.  A pause was taken.  Mr. Odeh

       9   came up with a solution himself:  Can I talk to the Americans

      10   alone?  No, not really.  Go back over the testimony.  Mr. Odeh

      11   is coming up with, well, how can we work this out?  And Agent

      12   Anticev tells you that ultimately Mohamed Odeh decides to

      13   speak to the agents.

      14            When he was confronted at that crossroad between,

      15   quote/unquote, helping the investigation or his allegiance to

      16   Al Qaeda, what path did he choose?  Take a look at the

      17   evidence.  And if he's wrong for doing what he did, how can he

      18   be wrong for doing what he did?  Wrong means guilty.  The way

      19   you make it work is that you say he was dancing with the

      20   truth.  Take it in the back.  Go through it.  And tell me the

      21   name of this dance.  Because what you going to find is that

      22   this statement is verified by many, many small aspects of the

      23   case.

      24            I will tell you one.  In his statement Mr. Odeh says,

      25   well, I knew two Ubaidahs.  Agent Anticev showed him a

                                                                    5727

       1   photograph.  That's Banshiri.  He was the boss.  But when I

       2   was back in the camp, there was another Ubaidah.  He was a

       3   bomb instructor.  That's a little detail.  Who confirmed that?

       4   Kherchtou.  Kherchtou told you that when he went to the camp

       5   he had a guy that he ran with called -- I forgot his name

       6   right now.  But he ultimately became a bomb instructor, and

       7   his name was Ubaidah.  And Kherchtou told you that there were

       8   Ubaidahs, one who was an instructor who was his friend at the

       9   camps, and the Ubaidah Banshiri that he later found out.

      10   Mr. Mohamed told you the same thing.  He wasn't dancing on the

      11   truth about that.  Little small points.

      12            So his statement, I submit to you, we submit to you,

      13   is not evidence of his guilt in this case.  I don't care what

      14   you call it.  Go through it.

      15            Flight with others.  The evidence will show that

      16   Mr. Odeh's flight from Kenya was orchestrated by someone other

      17   than himself.  Nobody disputes that.  He wanted to stay.

      18   Nobody disputes that.  The evidence in this case shows that it

      19   was through a trick, telling him he had to go back and confer,

      20   that they got the guy who somebody had to have some prescient

      21   knowledge of.  You don't want Mohamed Odeh in Kenya.  Get him

      22   out.  Why?  And why do I say that?  Because the evidence shows

      23   that by 1998 you had a new breed of people in the mix.

      24   Remember the young hotheads?  Abu Jihad, son of jihad?  Harun?

      25   These guys are now moving.  He, Mr. Odeh, is a purist.  He's

                                                                    5728

       1   living in a mud hut in the middle of nowhere with his Koran

       2   and his wife and his child.  He's not living in a fancy villa,

       3   driving a car, cell phone, or satellite phones, fax, computers

       4   and all the rest of that.  By 1998 he's a problem.  He's a

       5   pain in the side.  They want him out and they take him out.

       6            He is a member, and he did associate with others who

       7   did travel.  He left with them, some of them.  But his flight

       8   doesn't establish guilt.  His association with them does not

       9   establish guilt.

      10            I want you to remember that he was a member of Al

      11   Qaeda, and this is important, because the government is kind

      12   of having it both ways.  They are kind of mixing the word Al

      13   Qaeda with the conspiracy in Count 1.  You got to be clear.

      14   The conspiracy in Count 1 is not an Al Qaeda conspiracy.  The

      15   conspiracy in Count 1 is a conspiracy to kill Americans

      16   wherever you find them.  That means in the jury box, as

      17   administrators, as judges, as lawyers.  Children on the

      18   street.  Wherever you can find 'em, kill them.  That's what

      19   Count 1 charges, anywhere in the world, kill 'em.  And what

      20   the government has to prove to you is not that Mohamed Odeh

      21   associated with Al Qaeda and Al Qaeda traveled out of Nairobi.

      22   The government has to prove to you that he agreed to kill them

      23   anywhere and everywhere that he can find them.  And he talked

      24   about that in his statement also.

      25            His religious beliefs brought him to Al Qaeda, but

                                                                    5729

       1   even Mr. Fadhl had to admit that Bin Laden twisted religious

       2   principles to justify acts of violence.  Let me say that

       3   again.  Fadhl testified that Bin Laden twisted religious

       4   principles to justify acts of violence.  Many members of Al

       5   Qaeda, including Mr. Odeh, opposed taking action that was not

       6   supported by the Koran, the Hadith and the principles of

       7   Islam.  What I submit to you is that his association with Al

       8   Qaeda is based on his religious beliefs, and he did not join

       9   Bin Laden in twisting religious principles to satisfy acts,

      10   justify acts of violence.  And all them fatwahs that came into

      11   evidence, and the CNN interview, in one of those interviews

      12   you heard Bin Laden himself saying that these acts are not

      13   from our religion but we're doing it because that's the only

      14   way that you listen, Americans, we giving you back your own

      15   medicine.  He doesn't say there is a religious basis for it.

      16   He says just the opposite.  Imam Siraj took the stand.  One

      17   question.  Is there any religious authority for the killing of

      18   innocent women and children?  People object, whatever.

      19   Answer, of course not.

      20            Physical evidence.  I told you that Mr. Wilford will

      21   go into that.  The tapes and other documents, I've said that.

      22   I've talked about Mohamed Odeh.  I am going to move on.  I

      23   just talked about the issue of membership and it's very

      24   important, because the government has to prove membership in

      25   this conspiracy.  They don't just get to stand up here and

                                                                    5730

       1   wave the flag, come on, we all Americans, we know what to do.

       2   Because the government stands up here on one side of their

       3   mouth and says I'm appealing to your common sense.  But

       4   they're really saying prove guilt by association.  And they

       5   say that in the absence of evidence.  And when the government

       6   comes up behind us, Mr. Fitzgerald comes up behind us and he

       7   is talking to you about Mohamed Odeh, think to yourself, point

       8   to the evidence, what evidence supports that.

       9            I want you to remember this also about the membership

      10   and association.  Ladies and gentlemen, forgive me for not

      11   flowing.  I would like to be able to talk to you much faster

      12   and a lot more comprehensively but it's a lot of stuff.  Quite

      13   frankly, I don't see how Ken Karas was able to do this for the

      14   time he was able to do it.  It is very difficult.  I want you

      15   to remember small parts, because I'm a great believer in the

      16   small things.  You know, remember Kherchtou -- when we talk

      17   about membership and association, remember Fadhil traveling to

      18   Kenya with his wife?  I know he was on the stand for a long

      19   time.  But one of the things Fadhl told you, and the purpose

      20   of me sharing this with you, I think it highlights this point

      21   about membership, and you can't infer knowledge because me and

      22   you happen to be together.  I want to go to the evidence.

      23   Remember Fadhil said there came a time when he got on a plane

      24   and flew into Kenya.  They took his wife.  They give him an

      25   envelope.  He said nobody told me what it was about, but he

                                                                    5731

       1   assumed that him and his wife were going to stay in Kenya.  He

       2   said he met a person at the airport -- it wasn't Mr. Odeh --

       3   and they drove him somewhere.  The person got out the car,

       4   came back and told him, go to Pakistan.  He took his wife,

       5   went back to the airport, got on the plane and went to

       6   Pakistan.

       7            Now, I'm smiling because most of us who are married

       8   know that would be a very difficult task to accomplish.  You

       9   moved your wife and family all the way to Kenya to tell them

      10   to go back to the airport to get on the plane to go to

      11   Pakistan?  And he says I didn't know what it was about, but I

      12   was a member, I did it.  Did you believe that?  I don't know

      13   if it's true or not.  Is it possible?  It's possible.  OK.

      14            So that highlights my point, because a lot of you

      15   will say, Mr. Odeh was at the hotel, come on, what do they

      16   talk about, what do Muslim people talk about when they get

      17   together other than blowing up buildings, things like this.

      18   They don't have all these conversations about their wife and

      19   kids and family circumstances and things like that.  Right?

      20   So I raise this point.

      21            The other point with Kherchtou took place Ali Amriki

      22   and Hamza Liby, and the other fellow.  He says that they were

      23   in his apartment and they had all of this equipment set up,

      24   and he said, you know, I assume that they were doing some kind

      25   of surveillance because they had a camera, you know, the

                                                                    5732

       1   developer -- very smart.  Right?  He was assuming.  And it was

       2   the surveillance instructor from the camps.  He says these

       3   guys are taking pictures, they doing something.  I don't know

       4   if it's a drill, I don't know if it's real, but I know they're

       5   doing something.  But you cannot take from that that

       6   Mr. Kherchtou joined them in what they were doing unless he

       7   shares the same intent.  He's got to know.  And if he knows

       8   and he does it, he's guilty.  But Mr. Kherchtou told you I

       9   didn't know that they were looking at the American Embassy.

      10   Do you believe him?  Do you?  Do you think he was lying to

      11   you?  Government witness.  Wasn't my witness.  He was either

      12   telling you the truth or he was lying.

      13            Sikander, I told you about him.  Traveling, moving

      14   around, getting a house, taking people to the country,

      15   cleaning up the scene.  He said he didn't know.  Do you see a

      16   pattern here?  Do you see a pattern here?  Kherchtou said that

      17   he was in Kenya in August of 1998, that he went out looking

      18   for his friend Harun, and he said he ultimately found Harun,

      19   and that they spent some time together.  These were within

      20   days of the bombing.  He said Harun has some guys around him

      21   that he never saw before.  That's what his testimony said.  I

      22   didn't know these guys that were around Harun.  So it wasn't

      23   Saleh, must have been some other guys.  Wasn't Mohamed Odeh,

      24   the bomb consultant, because he knows Mohamed Odeh.  He knows

      25   him as Marwan, a guy he believes was in Somalia.  You can

                                                                    5733

       1   point out over there and say I saw Mohamed Odeh running around

       2   with Saleh a couple of days of the bombing.  You can say to

       3   yourself was Kherchtou's associations, his travel, his contact

       4   with the people of Al Qaeda around the 5th and 6th of August,

       5   does that make him guilty?  If he shared the criminal intent

       6   it does.  But if he didn't, it does not.  Do you think that he

       7   was telling the truth when he said that he didn't have

       8   anything to do with the bombing?  Same thing for Sikander

       9   Juma.  Remember Tawhil he was afraid to be seen with Kherchtou

      10   after the bombing.  Remember he ran into him at the hotel?

      11   Tawhil was nervous, upset, he didn't want to be seen with or

      12   have anything to do with Al Qaeda.  The association is

      13   powerful.

      14            I want to skip through.  I want to skip through a

      15   lot.  I want you to bear with me.  I want to share a point

      16   with you and it might hurt somebody.  But you know how life

      17   is.  When I was making the point to you about the tape

      18   recorder or the videotape -- this is very important, because

      19   sometimes it's not what we say, it's how we say it.  That's a

      20   lesson that all of us learn from when we this big.  When those

      21   devices are on we capture that.  Mr. Karas pointed out to us

      22   how Fadhl answered questions certain ways and he used the term

      23   we.  He is focusing in on the subtleties of what a person

      24   says, not so much what but how they say it, how they

      25   expressing themselves.  Remember Agent Miranda?  Agent Miranda

                                                                    5734

       1   said that he interviewed El Hage and showed him a picture.

       2   And after the picture was shown to him there was a smirk.  You

       3   remember the testimony about that?  And I asked him, what kind

       4   of smirk was it?  Because there's a lot of different kind of

       5   smirks.  And he said the smirk was, he's a fool.

       6            Now, what I submit to you, I want you to keep that in

       7   mind as we go through these points.  The government says that

       8   Mohamed Odeh was the technical adviser to the bombing.  Let's

       9   start from the basic proposition.  One, what evidence is it

      10   that he agreed to participate in the bombing?  The government

      11   said he was a prominent member of Al Qaeda.  They used the

      12   word prominent.  They used the word prominent because they

      13   wanted to influence you, just like people of prominence do.

      14   Prominence means possessing or exercising influence, a person

      15   who has indirect power over others through wisdom, force or

      16   character.  That's what a person of prominence is.  A leader.

      17   Ask yourself -- the government used that term -- how did they

      18   prove his prominence?  Who did Mr. Odeh influence in this

      19   conspiracy?  Name a person.  Name one.  And in what way?

      20   Where?  And how?  Who did they prove he exercised prominent

      21   influence over?  Other than the government just saying it,

      22   what is the evidence to support that accusation?  Zip.  None.

      23            How did Mr. Odeh participate in the planning,

      24   assembly, execution or coverup of the bombing as an adviser?

      25   Let's look at the planning.  Ask yourself the following

                                                                    5735

       1   questions.  Who selected the target?  Who said we're going to

       2   bomb the embassy?  Who selected the date?  Were other targets

       3   considered?  When was this discussed?  What evidence is there

       4   that Mr. Odeh participated in those discussions?  None.  The

       5   government says that the date is significant, had something to

       6   do with President Bush sending troops into the Persian Gulf

       7   area.  Who made the decision to bomb the embassy on that

       8   particular date?  Was it Mr. Odeh?  I don't think so.  There

       9   is no evidence of that.  Who made the decision to bomb both

      10   the United States Embassy and Kenya and Tanzania?  And who is

      11   responsible for coordinating the execution of simultaneous

      12   bombings in two separate countries?  Who is that person?  And

      13   when and how did Mr. Odeh advise that?

      14            Let's look at what the government calls the bomb

      15   factories.  Who chose the type of house to build the bomb?

      16   What is the evidence before you?  That came from the lease

      17   agreement, the negotiations with the landlord, testimony from

      18   Sikander Juma in Nairobi.  Mr. Odeh is not even charged with

      19   anything in Tanzania, which is going to be very interesting

      20   when Mr. Wilford gets up.  But we will wait for that.  Who

      21   paid for the houses?  Who was present for those negotiations?

      22   It was Harun, Sikander Juma, and others.  There was no

      23   evidence whatsoever that Mr. Odeh participated in the planning

      24   and selection of the bomb houses, factories.

      25            The players.  Who selected the men to participate in

                                                                    5736

       1   this?  Who made the decision?  Did they just sprout up one

       2   day?  Where did they come from?  How were they recruited?  Who

       3   gave them their specific assignments?  What evidence is there

       4   that Mohamed Odeh participated in those discussions as the

       5   technical adviser?  What?  There is none.

       6            Travel.  Who supervised the travel arrangements for

       7   the players?  Look at the statements of the defendants.

       8   According to Odeh, his travel was coordinated by Saleh and

       9   Fahad, and that is verified by the documentary evidence that

      10   the government put in.  Is there any evidence in this case to

      11   contradict that statement?  No.  There is inferences to be

      12   drawn from the physical passports that were recovered in

      13   Tanzania.  Those are the passports of Al-'Owhali and Azzam

      14   that were found in Tanzania -- I am sorry, that were found in

      15   the Comoros, right?  They were found in the Comoros.  Mr. Odeh

      16   was a part of that?  Who coordinated the travel plans of these

      17   individuals into Kenya and Tanzania?  Who paid the advance

      18   money?  Who consulted with that?  The guy living in the shack

      19   up in Witu?

      20            Who coordinated the housing accommodations for the

      21   participants in the bombing upon arrival in Nairobi?  Look at

      22   the defendant's statements.  Again, look at Mr. Odeh's

      23   statement.  Look at the hotel registry.  Look at 43 Runda

      24   Estates.

      25            Who was responsible for obtaining the passports and

                                                                    5737

       1   other travel documents for the participants, and where did the

       2   passports come from?  The government argued in its summation

       3   that passports were the lifeblood of Al Qaeda, and that sounds

       4   good.  That sounds right.  Who was the prominent person

       5   responsible for and advising on where to obtain those travel

       6   documents for the participants?  Look at Odeh's statement.

       7            Remember the testimony of Kherchtou and Fadhl, that

       8   Al Qaeda had passport experts.  Did you believe them when they

       9   said that?  They said that Al Qaeda had passport experts.

      10   They had a bureau that was specifically set up, a department

      11   for the production of these items.  Remember, they said that

      12   the participants, many men, and Al Qaeda documents were taken

      13   from them and collected.

      14            Again, remember Mr. Odeh's reluctance to leave Kenya.

      15   Remember his testimony that he lost his Jordanian passport and

      16   how that is confirmed by the government putting into evidence

      17   a newspaper article where he advertises the lost passport.  Do

      18   you believe that the technical adviser for the bombing had to

      19   pay for his own passport?  The testimony is that he paid $400

      20   for a passport with somebody else's picture on it that was

      21   expired.  There is no evidence to contradict that.  The

      22   passport is in evidence.  And, significantly, that he did not

      23   make travel arrangements for his own family.

      24            I think Mr. Wilford is going to go into this a little

      25   later, but I want you to remember one thing, that all the

                                                                    5738

       1   people who participated in this case, in the bombing, they

       2   took care of their family.  Odeh's family and kids.  Saleh's

       3   family and kids, in Afghanistan.  Harun has Sikander get his

       4   family out.  The other man who is seated here, he is young, he

       5   don't have no family.  Azzam, he was destroyed in the bombing.

       6   He was from somewhere else.  The only person whose family,

       7   whose pregnant wife and child that was left behind in Kenya

       8   was the technical adviser to the bomb, according to the

       9   government.

      10            And what I submit to you is that the fact that his

      11   family was there and that he traveled with so little clothing

      12   is an inference that you can draw that supports his statement

      13   that his intentions was to confer and come back, unless he was

      14   a person who didn't really care about his wife or he was one

      15   of these guys in Al Qaeda who had four or fife wives and it

      16   didn't make no difference to him.  You can tell from the

      17   quality of his letters that he wrote to his wife about being

      18   separated from her and etc., etc., that he loved his wife and

      19   he missed her and that he would not have left her behind in

      20   Kenya had he known of this bombing.  He would have did what

      21   everybody else did, got her out of there.

      22            Let's look at the bombing itself.  Who were the

      23   technicians?  Who selected and purchased the trucks to be

      24   used?  Who decided what bombs to use?  Was it Mr. Odeh?  Any

      25   testimony of that?  Who supervised the conversion of the

                                                                    5739

       1   trucks for the delivery of the bomb?  Remember Mr. Karas told

       2   you that 3, that shows that the truck was three meters long.

       3   So I guess he was involved in the selection of the truck.  Any

       4   evidence of that?  Mr. Wilford is going to come back to that.

       5   It don't even represent that.  Who supervised that?  Who

       6   assembled the bomb and where was the bomb assembled?  Doesn't

       7   the technical adviser to the bomb have to look at the bomb and

       8   make sure it sets right, it's in its proper place?  Doesn't he

       9   or she?  There is not a nanogram of evidence, forensic

      10   evidence that Mr. Mohamed Odeh was at 43 Runda Estates.

      11            Mr. Wilford is going to address that, but keep in

      12   mind a point made by Mr. Karas in his remarks.  He said that

      13   the microscopic residue found on Mr. Odeh's clothes that were

      14   in his bag contained PETN and TNT, and since there was no PETN

      15   at 43 Runda Estates, according to the government, he did not

      16   get it on his clothes from anything that was contaminated at

      17   43 Runda Estates.  So Mr. Karas says it must have happened

      18   before then, because he's thought out his own logic, it didn't

      19   take him nowhere.  Mr. Wilford will explain to you where that

      20   evidence came from.  It came from somewhere else.  Mr. Odeh's

      21   statements indicate that there is no contact with Runda

      22   Estates, Mr. Sikander or anyone else who ever set foot inside

      23   of 43 Runda Estates.

      24            Who then were the bomb technicians who calculated the

      25   quantities of TNT to be used and the number of detonators

                                                                    5740

       1   necessary to destroy the building?  What does the credible

       2   evidence show?  Abdel Rahman, the master bomber, the bomb

       3   trainer from Afghanistan.  Do you think on a job like this --

       4   let's think about it.  These simultaneous bombings were going

       5   to attract international attention and response.  Do you think

       6   they sent their best bomb man to do it?  Or the fool?

       7            Fahad, who wanted to be a Jihad warrior, the guy

       8   looking for a fight, the guy whose name is son of jihad.

       9   Remember, he took the expert course in bombing.  He paid

      10   $6,000 out of his own pocket to go to a bombing course in a

      11   part of the world where the average worker makes $1,200 a

      12   year?  Wait a minute.  The average worker in that part of the

      13   world makes about $1,200 a year, if they got a job.  He spent

      14   $6,000 to go train on bombing?  You think maybe he was the

      15   technical adviser?  I don't know.  Could be.  What does the

      16   evidence show?

      17            Where is the credible evidence that says that Mohamed

      18   Odeh served as a technical adviser to Fahad, or to Abdel

      19   Rahman, his former trainer from Afghanistan?  It is important

      20   to keep in mind the internal dynamics of Al Qaeda.  At this

      21   point Al Qaeda is moving in a different direction.  Every

      22   witness told you that.  Different witnesses.  There were many

      23   young lions ready to move up to test out that $6,000 worth of

      24   training and to do something to make a name for themselves,

      25   who wasn't satisfied going to help people in Somalia and

                                                                    5741

       1   wanted to do something big.

       2            Remember that many members of Al Qaeda, at least one

       3   member of Al Qaeda or associate of Al Qaeda believed by this

       4   time that Mohamed Odeh was a fool.  There's a big difference

       5   between people -- it is a big difference when people think

       6   you're a fool and being a person who can be fooled.  When I

       7   was a kid growing up, I used to get up early in the morning,

       8   go to school, my book bag, the whole nine yards.  And I would

       9   cross people on the street and they would say Anthony Ricco,

      10   he's a fool, he ain't going nowhere, I don't know what he's

      11   wasting his time for, he will be right here with the rest of

      12   us.  When Mohatmas Ghandi gave up his law practice, traded his

      13   Brooks Brothers suits, fine clothes to take on the cloth of

      14   the poor people, to take on the injustice of the British

      15   empire, there were many people in his family who thought that

      16   he was a fool.  When Dr. King turned down a cushy place in the

      17   church hierarchy to lead a fledgling civil rights movement,

      18   his own father thought he was a fool.  It's in his Bible.

      19   When Nelson Mandela, the recently retired president of South

      20   Africa, gave up his title of only one of six black lawyers in

      21   the nation of South Africa to take on apartheid, there were

      22   many people who considered him a fool.  When Mohamed Ali --

      23   the boxer -- gave up his heavyweight championship and the

      24   millions that came with it because of his conscientious

      25   objection -- to what?  War -- there were many people who

                                                                    5742

       1   considered that African American to be a fool.

       2            And when you look back, who was the fool?  And who

       3   was not fooled?  Many times you have to look at the person who

       4   is using the label to get a full flavor of what that term

       5   means in any given situation.  The credible evidence in this

       6   case establishes that this bomb was consulted and built by

       7   Abdel Rahman, the master bomber from Afghanistan, and Fahad,

       8   the wanna-be Jihad warrior who was running back and forth

       9   between Nairobi and Tanzania making sure everything was right,

      10   and Harun, who had some training in bombing.  There was no

      11   room for him, and there is no evidence that he participated.

      12   There is no evidence whatsoever to support the government's

      13   accusation that Mohamed Odeh was an adviser for the assembly

      14   of the bomb.

      15            Let's talk about the execution.  There is no evidence

      16   that Mohamed Odeh was a technical adviser to those young men

      17   who executed the bomb in Nairobi.  First question, who

      18   debriefed the young men?  Any evidence that said Mohamed Odeh

      19   did?  Who synchronized the watches, made sure the watches were

      20   together?  Who gave the men their last minute pep talk, come

      21   on, let's go out and kill 2, 300 people?  Any evidence of

      22   that?  No.  Where did this pep talk take place?  Is there any

      23   evidence of it was Mohamed Odeh present?  I submit this was

      24   done by men like Fahad, Saleh and Harun, who were staying out

      25   all night.  If it was done by Mohamed Odeh, where is the

                                                                    5743

       1   evidence?  There was no evidence whatever that Mohamed Odeh

       2   was ever at 43 Runda Estates.  Who does the government claim

       3   drove the trucks?  What evidence is there that Mr. Odeh ever

       4   advised them?  Remember that Agent Anticev showed Al-'Owhali a

       5   photograph -- I am sorry.  Excuse me, your Honor.  Remember

       6   that Agent Anticev showed Mohamed Odeh a photograph of

       7   Al-'Owhali, and Mr. Odeh said I don't know him.  Ask yourself,

       8   what credible evidence is there in this case that says that he

       9   is a liar?  Where did they meet?  When and where?  What

      10   evidence is there?  Don't sit back there and say they met.

      11   Point to the evidence that says they met.  Look at his

      12   statement.  Look at the other evidence.

      13            And there was never any allegation -- they're telling

      14   me to move on.  There is never any allegation that Mr. Odeh

      15   was holding back anything.  Did Agent Anticev say that on the

      16   witness stand?  No, he did not.

      17            The bomb aftermath.  There is no evidence that

      18   Mr. Odeh consulted anybody on cleaning up the bombings and

      19   what not after it was done.  Nor did he even know Sikander

      20   Juma, who testified here.  There is no evidence that the two

      21   of them ever met each other.  So in this regard, what evidence

      22   is it then that Mohamed Odeh consulted with anyone on any

      23   subject, that is, the planning, the building, the bomb or the

      24   execution of the bomb in this case?  None.  So how then, how

      25   then does the government prove, not say -- because you can say

                                                                    5744

       1   anything -- how do they prove that he was the technical

       2   adviser?  They wave the flag, they say we Americans, he's not,

       3   convict him.  That's how it goes.

       4            I want you to keep in mind, the coordinating of this

       5   event must have been tremendous.  It involved the arrival --

       6   just the arrival and departure of the participants alone must

       7   have been a massive effort.  The government says that Al Qaeda

       8   was an army, an multinational corporation, and like all

       9   multinational corporations, Al Qaeda was headed up by a

      10   billionaire, Bin Laden, with assets in several countries.

      11            (Continued on next page)

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5745

       1            MR. RICCO:  (Continuing) They had the ability to

       2   purchase nuclear weapons.  They had sophisticated businesses,

       3   fax machines, computers, private jets.  They had eight $80,000

       4   cell phones.  Do you think that the planners of this event

       5   that was going to capture an international audience, do you

       6   think that the planners selected a technical advisor for this

       7   coordination who didn't even have a telephone?

       8            He's living in Witu without a telephone.  How is he

       9   technically advising?  How is he coordinating the people?  I

      10   submit to you that it did not happen.  That's why it didn't

      11   happen this way.  You can't make something exist that doesn't

      12   exist.  And when it doesn't exist, the response will be to

      13   say, well, let's dance around what there is.  And I must say

      14   to you that if there is evidence in this case that supports

      15   that Mohamed Odeh was involved, let's deal with it.

      16            Your Honor, this is a great place and Mr. Wilford

      17   will be coming on next.

      18            Thank you very much.

      19            THE COURT:  We'll take a brief recess.

      20            MR. COHN:  As soon as the jury is gone, your Honor.

      21            (Jury not present)

      22            MR. COHN:  Your Honor, at this time, based on part of

      23   Mr. Ricco's summation, I move for a mistrial as to

      24   Mr. al-'Owhali.

      25            Mr. Ricco found it incumbent on him, in commenting on

                                                                    5746

       1   people who had taken part in the bombing, taken care of their

       2   family, to then include my client, who has no family, and

       3   specifically inferred that my client was guilty, implied that

       4   my client -- more than implied, said almost in terms.

       5            I find that to be extraordinary from an experienced

       6   and able trial lawyer.  And nobody elected him the 13th juror,

       7   and I move for a mistrial at this point.

       8            THE COURT:  Anybody want to comment on that?  Nobody

       9   wants to comment on it.  All right, I'll comment on it.

      10            I don't think that's a fair inference to be drawn.

      11   The reference was to the government's allegations and what the

      12   role of other people are said to have been by the government,

      13   and obviously the government takes the position that

      14   Al-'Owhali was one of the executors.  And the fact that

      15   somebody who is said by the government to be in that position,

      16   is not identified by another person said to be in that

      17   position is a relevant comment and doesn't assume guilt or the

      18   role of a 13th juror.

      19            MR. COHN:  Your Honor, with due respect, reading his

      20   remarks would not show you that he's commenting on the

      21   government's theory of the case, but he said people who

      22   participated in the bombing, that -- and I respectfully

      23   disagree with the Court's analysis.

      24            THE COURT:  Is there any kind of instruction you want

      25   to the jury?

                                                                    5747

       1            MR. COHN:  I don't think that's going to particularly

       2   help.  I'll take care of it.  If you won't give me the

       3   mistrial, I'll take care of it.

       4            THE COURT:  We'll take a very brief recess.

       5            (Recess)

       6            (Jury present)

       7            MR. RICCO:  Excuse me, everyone.  I had promised you

       8   when we took the break that Mr. Wilford was going to be up,

       9   but they reminded me that I left a few things out.

      10            There is a great problem when you are involved in a

      11   case as jurors and as lawyers where there is as much evidence

      12   as there is here and there are so many different defendants.

      13   There is always so much that we want to say, but there is only

      14   really but so much of it that is really important, and lawyers

      15   have a bad way of not just like, this is what we're trying to

      16   say and be done with it.

      17            Now, Mr. Odeh gave a very detailed statement.  It was

      18   detailed.  He talked about people, their background, their

      19   wives, their kids, what countries they came from, where he

      20   thought they would be now.  He could remember who he met at a

      21   camp, what they talked about.

      22            When you look at his statement, I want you to really

      23   look at that statement very well and look at how Agent Anticev

      24   put that statement together for you to read one day in a

      25   courtroom, okay, and I want you to remember something.  I was

                                                                    5748

       1   picking at Ken Karas' use of the word "prominent," and it only

       2   struck me as odd that the prominent al Qaeda member was living

       3   in the conditions that Mr. Odeh was living in:  Rural, cut off

       4   from everyone else, no telephones, no electricity, no running

       5   water.  "Prominent" is not a word that I would use to describe

       6   that unless you are telling me he had some other influence,

       7   like he's a great guru living in the mountains that people go

       8   to for advice.  I don't get that impression.

       9            The impression that you got from one of his letters

      10   is that Harun checked in on his wife and he said, oh, I have

      11   good news about your wife.  That's in one of his letters.  And

      12   also his letters to his wife are written by guy like a

      13   country-type guy who misses a simpler life.  And so it's very

      14   important that you keep that in mind, because as we sit in

      15   front of you and talk at you for hours and hours about this,

      16   the most important thing is that you try to capture the

      17   essence of who it is and what it is we're talking about and

      18   not so much the minute details.

      19            The one point that I wanted to make to you is that

      20   the government put this up.  This is page 25, I think, from

      21   Mohamed's statement.  25, and what it says is, according to

      22   Agent Anticev's typewritten notes, is that he was angry and

      23   disappointed at the performance of al Qaeda's cell leader.

      24   Odeh stated that if they couldn't get the pickup truck into

      25   the garage of the embassy, then the occupants of the truck

                                                                    5749

       1   must die trying.  They should not have left the truck to

       2   explode and kill so many people, right?

       3            Odeh stated that nobody, even Bin Laden, could be

       4   happy with the results.  Odeh further stated that the position

       5   of the pickup truck was a mistake.  The back of the truck

       6   where the explosives were held should have been facing.  So,

       7   in other words, according to what Agent Anticev is telling

       8   you, the truck should have made a U-turn and then backed in

       9   all the way back down to the building or got under the

      10   building, according to Agent Anticev.

      11            Odeh stated that an errant shock wave hit the wrong

      12   building.  Remember what the experts told you how a bomb

      13   explodes?  You know errant shock waves.  Bombs go like this.

      14   And people who have been to war and trained around bombs know

      15   that they go like this, which is why they duck when the bombs

      16   go off.  A guy in war doesn't say, well, the back of that

      17   truck is not facing me so I don't have to get out of the way

      18   when it blows up.  When this thing goes up, he goes down,

      19   okay?

      20            Odeh said that he accepts responsibility for the bomb

      21   because he's a part of the group.  What group?  Al Qaeda?  Did

      22   he ask him?  The group that did this?  And it was a big

      23   mistake and Saleh blundered.  Odeh stated that the truck had

      24   to back into the building in order to prevent the cab from

      25   acting as a hindrance to the shock wave, therefore preventing

                                                                    5750

       1   the surrounding buildings from being affected.

       2            Then the government turns and shows you this, and

       3   they go, well, if you kind of turn it sideways and look at it

       4   like this, wow, that's the whole thing, isn't it?  He's

       5   guilty.

       6            There's a problem with this, and it's a simple one.

       7   Mr. Odeh is held incommunicado in Pakistan for seven days,

       8   right?  He's held incommunicado in Nairobi for 13 days.  When

       9   he's interviewed, he does not get to see family, friends,

      10   newspaper, nothing.  How does Mr. Odeh know that the truck

      11   didn't get into the building?  How?  How does he know?

      12            Now, some people will say, how does he know it was a

      13   truck unless he was involved?  But let's deal with it

      14   step-by-step.

      15            That truck was blown into a billion pieces, right?

      16   How does Mr. Odeh know that if they couldn't -- that they

      17   didn't get the truck into the garage?  Because that's the

      18   implication, right?  How does he know that somebody didn't die

      19   doing this?  Who told him that?

      20            Couldn't have been -- I can't say that.  Let's just

      21   say that there's no evidence that anybody said that to him.

      22   How does he know that?  How does he know that somebody

      23   survived that?  Where does he get that from?  Where?  How does

      24   he know that it was a mistake and the truck should have been

      25   backed up into the building?  How does he know, if he's a part

                                                                    5751

       1   of it, that that didn't happen?  How does he know that?

       2            And I submit -- listen to what I'm saying because I

       3   want to be clear.  According to the government, the truck went

       4   in face-first.  According to the government, somebody jumped

       5   off the truck.  That's the government's theory.  They got to

       6   prove this case.  That's what they said happened.  They said

       7   one of the guys ran, surviving those bomb blasts moving at 12,

       8   13,000 feet a second.  They got to prove that.

       9            And I have made reference to young Al-'Owhali

      10   earlier.  Let's be clear.  This is what the government says he

      11   did.  I don't know what he did.  I'm talking about what the

      12   government claims.

      13            How does Mr. Odeh know that an errant shock wave hit

      14   the wrong building, right?  And when the government comes back

      15   up, when we sit down, never to be heard from again, and

      16   they're explaining to you and they are showing you the letter

      17   to his wife and they are talking to you about Bin Laden and

      18   whatever he's involved with in his mind, ask yourself the

      19   question, who told Odeh that the wrong building got blown up?

      20   Maybe he wasn't held incommunicado.  Maybe the agent lied to

      21   us about that.

      22            How can you have it both ways?  Does everybody

      23   understand what "incommunicado" means?  "Incommunicado" means

      24   no wife, no friends, no newspaper, nothing.  You're a suspect.

      25   And if you want to talk about FBI policy, let me tell you

                                                                    5752

       1   something:  I submit to you that you never let one guy get

       2   together with the other guy.  They always separate the guys,

       3   because when you put them together, what do you get?  A story.

       4   Right?  They always separate them and keep them separated.

       5            And we asked Agent Anticev, well, were the Kenyans

       6   involved?  He said, well, sometimes I wasn't with him.  When

       7   he was alone, I don't know nothing about, let's blame the

       8   Kenyans.  Was he given this information by the Kenyan

       9   authorities?  Is there any evidence of that?  No.

      10            All right, so when Mr. Karas was pointing to this

      11   chart earlier -- and it looked powerful, didn't it?  No one

      12   sat here and said to themselves, how did Odeh know this if he

      13   was held in the way in which the government says he was held?

      14            Now, this part about responsibility, I asked Agent

      15   Anticev about that when he was on the witness stand, and what

      16   Agent Anticev explained to us was Mohamed Odeh felt morally

      17   responsible -- not criminally responsible, morally

      18   responsible -- because he was a part of al Qaeda, and he, like

      19   Kherchtou -- you know what Kherchtou said:  I seen this.  I

      20   seen that.  I started putting things together.

      21            Well, they were hitting Mohamed with the hypothetical

      22   questions.  And Bin Laden this.  He said it.  He said he was

      23   asking him the hypothetical questions.  Maybe, too, Mohamed

      24   Odeh has a brain and he started saying, damn it -- he wouldn't

      25   have said that, I would have said that -- I feel morally

                                                                    5753

       1   outraged at this.

       2            And one of the things that Agent Anticev did record

       3   is Mohamed Odeh's reasons for speaking to them, his moral

       4   outrage and the fact that he was pushed, pushed, pushed to get

       5   out of the country for this.  Huh-uh.  What do you want to

       6   know?  Harun?  He's from the Comoros.  Where did they find

       7   him?  In the Comoros.  Mustafa, he left with his wife and

       8   kids.  What did they find?  Wife and kids playing, records,

       9   etc., etc.

      10            Odeh said they said something about Eagle Travel.

      11   They went to Eagle Travel, what did they find?  The flight

      12   records.  Mohamed said, I stayed in the hotel room, etc., etc.

      13   What did they find?  His fingerprint right where he said it

      14   was.

      15            You want to know about Ubaidah?  I'll tell you about

      16   Ubaidah.  He was a secret guy, always running around.  How

      17   would you have reacted if you found out that a group that you

      18   were involved with, it was even alleged to have done something

      19   like that?  Would you have done the right thing or you would

      20   have said, I want my lawyer?

      21            He told them about Fawwaz.  You remember Fawwaz.

      22   He's in London.  That's what Mr. Odeh told them.  He told them

      23   about Tawfiq, also known as Mohamed Kampala.  It's right

      24   there.  He told them about Abu Ibrahim.  Told them about

      25   Tayyib.  He told them about Abu Hafs.  He told them about Abu

                                                                    5754

       1   Rahman, the trainer in explosives.  He told them about Ahmed

       2   the Egyptian, the Tanzanian, Saleh, Harun, Fahad, Tawhil,

       3   Nawawi.  He said that Nawawi was an Egyptian living in

       4   America.  You remember him, he's the guy that was in the plane

       5   with al Ridi when he crashed and he took off and fled the

       6   county.  He told about Atef.  Even that was confirmed to you.

       7            They put together a chronology and they take away the

       8   chronology to sell us.  Then they say, well, now he started

       9   testifying, now he started speaking consistent with the

      10   chronology.  There was no chronology until they talked to

      11   Mohamed Odeh.  Go back and look at the statement.  Compare it

      12   to the indictment.

      13            He told them about Sheikh -- I said this guys' name

      14   wrong every time -- Mohamed.  That was Swedan, the guy who

      15   bought the trucks.  He told them that he was in some kind of

      16   transporting business.  He told them about Mustafa and Ubaidah

      17   and many, many others.

      18            He told them about MIRA, right?  Mercy International

      19   Relief Agency.  And when they go there and find the records,

      20   what do they find?  Lo and behold, a letter from Mohamed Odeh

      21   talking about the lousy fishing business that he was in, that

      22   he was losing money in the fishing business and he wasn't any

      23   good at it.  That's his report to Bin Laden.  I can't sell

      24   fish and we got to sell off the boats and the rest of the

      25   stuff because we can't make any money doing this.

                                                                    5755

       1            And, no, I don't even think the government is taking

       2   the position that Bin Laden was doing some good things at

       3   times and that he ran businesses.  Those had to include

       4   people.  You think all the people that worked for this

       5   multinational corporation was, like, I'm going to kill an

       6   American next time I see one?  How can they work and function?

       7   How can they think?  How can they live?  How can they love?

       8   How can they have compassion?  How can you write about God in

       9   your life and the lives of your children's and your nephews

      10   what you see him doing?

      11            So this is very powerful, what the government

      12   presents to you.  They enlarged it, and they enlarged it for a

      13   reason, just like we enlarged this.  I'm not trying to put

      14   anything on the government that I wouldn't do myself.  I

      15   enlarged this for a reason, but this was enlarged because this

      16   is important to their case.  Because what they want to say to

      17   you is that's evidence of a bomb technician.

      18            And then the government says this, well, it might be

      19   kind of a hokey bombing, right?  You know, with the blast cone

      20   that no one ever testified.  No expert in this case testified

      21   to something called a blast cone, okay.  That came from

      22   Mr. Karas.

      23            All right, I want to take a few minutes to talk about

      24   Somalia.  Not a few minutes.  I really mean a few minutes.

      25   I've been sitting here a lot of months, and I haven't figured

                                                                    5756

       1   it out yet and you are going to have to do that.

       2            I will tell that you what we know from the evidence

       3   is that Somalia is a vast country filled with nomadic tribes

       4   and shifting allegiances.  And I will tell you this.  In 1993,

       5   when Mohamed Odeh went to Somalia, according to the testimony

       6   of witnesses, al Qaeda had been in Somalia already for a year

       7   before any Americans even got there.

       8            There's no evidence whatsoever that Mohamed Odeh went

       9   to Somalia to kill Americans.  He told Agent Anticev that if

      10   he wanted to kill Americans, he could have went right down to

      11   Malindi and shot people on the street if that's what he wanted

      12   to do, snuck right back up to Witu somewhere and nobody would

      13   have known the difference.

      14            When he went to Somalia in 1993, he went there to

      15   stop the carnage and starvation that was happening as a result

      16   of the fighting amongst the clans.  And Aideed was a major

      17   force in the disintegration and anarchy in that country and

      18   Mohamed went there to assist the tribes that were trying to

      19   follow Islam, to live in peace and to form a unified Muslim

      20   nation.

      21            Mohamed Odeh went to Somalia to do good.  You see,

      22   because for all Muslims having a unified nation doesn't mean I

      23   hate everybody else.  Just like in this country, it's taken us

      24   200 years for people to realize that the concept of

      25   integration is not negative.  It could be a good thing.  It

                                                                    5757

       1   could be a bad thing, too, but it could be a good thing.  And

       2   you have to be aware of the fact that many people, millions of

       3   Muslims in the world, some of them sitting in this room,

       4   believe in building a Muslim state without it meaning death

       5   and destruction to other people.

       6            Mr. Odeh went to Somalia not to join Aideed's forces.

       7   And what was Aideed doing, according to Dr. Samatar?  He was

       8   preventing people from getting food.  We're talking about

       9   starvation on a level that we can't even conceptualize as we

      10   sit here in this courtroom.  You don't even have a concept of

      11   what it means to be hungry.  Hungry means what time is lunch

      12   and I want it whether or not the judge orders sandwiches.

      13   Starvation means I know I'm going to die, I'm just wondering

      14   if my children are going to die, too.  And so Mohamed Odeh

      15   went to stop it.

      16            Now, me and you, we watch it on the 6:00 news.  It

      17   sounds terrible and we ask, baby, what times the Knicks coming

      18   on?  That's it.  Other people, motivated by higher goals get

      19   involved.  Some of them people, we often call them fools.  And

      20   he left his hut and went to help somebody else eat, and

      21   there's not a shred of evidence in this case to the contrary.

      22            I don't care what Bin Laden was saying in Sudan up

      23   there eating dates and drinking juice around the beautiful

      24   house with Fadl and the rest of them.  He wasn't down in the

      25   bush with Mohamed Odeh.  He's in the bush doing God's work,

                                                                    5758

       1   trying to help people live, and there's not one piece of

       2   evidence in this case to the contrary.  And you could take his

       3   letters that he wrote to his wife and compare them to

       4   statements that other people made that are totally out of

       5   context.  It doesn't work.

       6            Now, Mohamed Odeh went there.  The country was in

       7   chaos.  Samatar told us that everybody in that country was

       8   armed to the teeth.  Now, it's interesting.  He said that he

       9   trained on small arms and medicines and he took food.  And

      10   it's interesting for you to realize that Agent Anticev

      11   testified to something very important in this case, and it was

      12   going to be one of the things that we were going to put on the

      13   computers screens and show you, but it's not to be.

      14            But if you go back to his testimony, what we got

      15   Agent Anticev to reveal, though he didn't say it in his direct

      16   or his original cross, was that he left out that Mohamed Odeh

      17   told him that he went to Somalia to help the tribes that were

      18   against Aideed.  That fact was left out of that 35-page

      19   statement.  And what he told us was, well, now that I've had a

      20   chance to check my notes, I made a mistake, it should have

      21   been there.

      22            It's an important distinction.  It's an important

      23   distinction.  It is as important as telling the person who is

      24   reading this document that he was asked hypotheticals, because

      25   it tells you what his state of mind was when he was going.  He

                                                                    5759

       1   went there to help the people that were against the people who

       2   were causing starvation.

       3            Now, he also told you -- I think Kherchtou said he

       4   believed that Marwan was a guy who was in southeastern Somalia

       5   in the bush, not in Mogadishu.  And Mohamed Odeh at this time

       6   wasn't up in Sudan with Bin Laden like Fadl was, scheming on

       7   how to steal $100,000 or more any chance he could get.  He

       8   wasn't like Kherchtou in Nairobi, helping people with

       9   documents.  He was in the bush.  And there's no evidence in

      10   the record whatsoever that would even suggest, let alone

      11   support, that when he went to Somalia in 1993, that he went

      12   there for no other reason but to save people's lives.

      13            Now, if somebody sitting in a cabana somewhere wanted

      14   to use that for their own personal benefit and gain, then

      15   remember Fadl told you that Bin Laden was prepared to twist

      16   religious beliefs to satisfy his own agenda.  He says -- and

      17   I'll be through with Somalia in about two minutes, believe it

      18   or not, okay?  Three minutes.

      19            He says that when he was in Somalia, he ran into Abu

      20   Hafs.  But he didn't say he ran into Abu Hafs, he says that he

      21   was at a camp, that is, Mohamed was with the Um Rahan Tribe.

      22   I know I said it wrong:  Um Rahan.  And he's in the bush

      23   working with the people, and lo and behold, here comes Abu

      24   Hafs.  They had just met, according to these other witnesses,

      25   in Mogadishu.  Now they're coming back from Mogadishu.

                                                                    5760

       1            And remember, Abu Hafs went to Mogadishu disguised as

       2   a businessman to get the tribes together.  Al Qaeda was going

       3   to come in and help them, train them, like they needed

       4   training for all the killing and destruction they were going

       5   to do, but they were going to get together and now al Qaeda

       6   was going to back Aideed.  That's the story on it.

       7            Now, Mohamed Odeh doesn't know that Abu Hafs is going

       8   to that meeting.  Fadl told you in the testimony at page 283

       9   he was with Abu Hafs in the Sudan and he didn't know that Abu

      10   Hafs was going to be going to that meeting.  He only found out

      11   when he came back.  So here Abu Hafs is coming back from his

      12   meeting.  I guess it was successful.  I don't know what the

      13   evidence is.  He's coming back and he runs into Mohamed Odeh

      14   with the other side, right?  According to the government, Abu

      15   Hafs just cut a deal with the other people in Mogadishu, and

      16   when he runs into Mohamed Odeh, Mohamed Odeh is with the

      17   people who were being starved to death.

      18            How does he share Abu Hafs' intent?  They're

      19   contrary.  They clash.  They are not the same.  They are not

      20   in Somalia for the same reasons.  And I made this analogy

      21   before and I'll make it again:  Just because people go to

      22   bootcamp together, they may even serve in the same platoon

      23   together, they may even have the same sergeant, that doesn't

      24   mean that they share the same state of mind.

      25            A lot of people sign up for a lot of different

                                                                    5761

       1   reasons, some because they can't get a job somewhere else,

       2   some because they want to be GI Joe, and in other cultures

       3   people serve in the military for much more diverse reasons.

       4   He doesn't have the same reasons.

       5            And what Abu Hafs tells Mohamed Odeh is, according to

       6   his statement, is what Abu Hafs was going to do in Mogadishu.

       7   Going to do.  What the purpose of the meeting was to be, not

       8   him telling him, you know, I want to know what your opinion is

       9   before I go to this meeting so we can get this straight.  No

      10   shred of state of mind.

      11            Also, some other people told you that they were in

      12   Mogadishu, according to the evidence.  Harun and Saleh were

      13   supposed to have been in Mogadishu, and according to Harun's

      14   report, he makes the statement that "our young people hit the

      15   Americans in Somalia."  That's what he said.  That's in his

      16   report.  There's not a shred of evidence in this case to

      17   support that statement, that al Qaeda members hit Americans in

      18   Mogadishu.  There is no evidence in this record to support

      19   that at any time.

      20            It's, again, people capitalizing, people trying to

      21   take credit for, people pushing their own agenda.  Abu Hafs

      22   told Odeh that al Qaeda was going to change its policy in

      23   Somalia, not that it was changed.  That's an important

      24   distinction.

      25            Now, there's also some testimony that he ran into a

                                                                    5762

       1   guy name Daoud and Daoud had claimed to have been in a

       2   situation with U.N. troops.  During the testimony, I think Mr.

       3   Fitzgerald mistakenly asked him a question and he said U.N.

       4   and U.S. troops.  That's at page 1744.  But Mr. Dratel

       5   corrected it in his recross of Agent Anticev when he had the

       6   agent look at his notes and found out he left another little

       7   thing out, that it was only the U.N. troops.

       8            Now, this happened in '93.  We don't know what that

       9   situation was about.  We don't know what was the intent of

      10   Daoud, who he was with, or anything about that.  But we do

      11   know one thing.  He's also coming this way while Mohamed's in

      12   the bush helping people.

      13            Odeh subsequently went to train -- now, Mr. Karas

      14   mistakenly said that after this happened in November 1993,

      15   Mohamed Odeh left Somalia.  I think he misspoke, because the

      16   evidence shows that Mohamed Odeh stayed in Somalia and didn't

      17   leave until August of '94.  With all this talk about Somalia

      18   this and Somalia that, it is easy to make a mistake about some

      19   of these things, but it's clear that Mohamed Odeh is saying

      20   that he's there until August and that he went into the Ogaden

      21   region and it was there that he was with a group of people

      22   that got involved with a skirmish with U.N. troops, that he

      23   wasn't directly involved, but a troop ahead was directly

      24   involved.

      25            Now, the government uses that as evidence to say he

                                                                    5763

       1   was in Somalia with the intent to kill Americans, but there is

       2   no evidence that the government has presented that there were

       3   any American units in the Ogaden region or that there were any

       4   Americans in the U.N. unit that this event took place around

       5   or what the circumstances of it was.

       6            Don't you need to know that?  Wouldn't you like to

       7   know that?  I bet you would like to know it if you were

       8   sitting over here.  You would want somebody to prove that up.

       9   Were there any Americans with them?  What was it all about?

      10   You may not want to know it sitting over here, but if you are

      11   sitting over here, somebody's supposed to prove that up.  I

      12   can't just walk into a courtroom and make a statement and then

      13   say that's so.

      14            The U.N. is a multinational force.  I know we think

      15   it's ours, but it's not.  It was a multinational force.  And

      16   more importantly, the government hasn't produced any evidence

      17   in this case to show that Americans were in that unit and

      18   Americans were attacked that would support an inference that

      19   Mr. Odeh was there to kill Americans.

      20            Dr. Samatar told us about these conditions in their

      21   country, and we also learned that he returned to Somalia in

      22   1997.  And in 1997 he wrote to his family and he told his

      23   family, I'm going back to Somalia.  He said he was going to do

      24   something good.  I don't think he said he was going to

      25   Somalia.

                                                                    5764

       1            He also told Agent Anticev something interesting

       2   during the interview.  He told Agent Anticev, you know, I

       3   wrote to my parents and I told my friends that I was in

       4   Tanzania so they wouldn't know I'm in Somalia.  He said that

       5   during his interview.  And lo and behold, when they go to

       6   Mohamed Odeh's house what do they find?  Letters to his family

       7   saying that he's doing good.  A tape to his wife telling

       8   people to say I'm in Tanzania.  Another thing confirmed, a

       9   little tiny thing confirmed about what he said.

      10            But in 1997, he's back there to help the Somalians

      11   fight anarchy and Ethiopians.  Kherchtou, Fadl said nothing

      12   about the Ethiopians.  But there was no intent on the part of

      13   Mohamed Odeh, when he returned to Somalia in 1997, to kill any

      14   Americans.

      15            And the government put in an inventory chart that

      16   showed they were going to set up a camp, and they put in a

      17   report, I think it's 710-T, and that report talks about al

      18   Qaeda's efforts in Somalia.  But what the government does is

      19   use that on one hand and then, on the other hand, talk about

      20   somebody, Al-Fadl, being caught.

      21            And then the government says, Mohamed Odeh writes,

      22   our situation is bad here.  It's going to take thinking,

      23   planning and strategy and we're going to hit 20-fold, and the

      24   government says, remember Mohamed Odeh, patience, thinking,

      25   planning.  He's just waiting for the right opportunity to kill

                                                                    5765

       1   Americans.

       2            Wrong.  He was talking about a situation in Somalia,

       3   and I guarantee you, to turn around the devastation in that

       4   country it's going to take a lot more, but at least thinking,

       5   planning, patience and a willingness to put down the people

       6   with force, if you have to, that are willing to starve to

       7   death hundreds of thousands of people.

       8            MR. RICCO:  Your Honor, this is really where I was

       9   going to stop and Mr. Wilford was going to do the forensic

      10   aspect of the summation.

      11            THE COURT:  You want to start or wish to take a

      12   break?

      13            MR. WILFORD:  Prefer we take a break, your Honor.

      14            THE COURT:  All right, we'll take our break and

      15   resume at 2:15.

      16            (Jury not present)

      17            THE COURT:  Mr. Wilford, my records show that an hour

      18   and 40 minutes have been used.

      19            MR. WILFORD:  Yes, Judge.  I'm quite sure we will

      20   finish within that time period.  Thank you.  Thank you for

      21   reminding me.

      22            THE COURT:  That's good to hear.

      23            MR. COHN:  Your Honor, as long as we're on it, I

      24   don't know when they are going to finish, but I suspect if I

      25   start around 3, I would finish by 4:30.  And I would ask you

                                                                    5766

       1   if I start at 3:15, if they wouldn't mind taking the extra 15

       2   minutes rather than break mine up.  I may ask them to make

       3   that choice depending on -- of course, you can't predict

       4   precisely, but that's where I think we are.

       5            THE COURT:  You would like to finish today?

       6            MR. COHN:  I would like to if it doesn't

       7   inconvenience the jury and they don't look like they're antsy.

       8            THE COURT:  We're adjourned to 2:15.

       9            (Luncheon recess)

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5767

       1                         AFTERNOON SESSION

       2                             2:15 p.m.

       3            (In open court; jury present)

       4            THE COURT:  Good afternoon.  Mr. Wilford.

       5            MR. WILFORD:  Thank you, your Honor.  Good afternoon,

       6   ladies and gentlemen.

       7            JURORS:  Good afternoon.

       8            THE COURT:  How you doing?

       9            JURORS:  Fine.

      10            THE COURT:  You notice, I ask every witness that.  So

      11   you were expecting it.  It's a nice way to relax everybody and

      12   get everybody to focus that this is more than just getting up

      13   there and testifying.

      14            I want to start, before I even talk about the

      15   evidence there is one point I want to bring up with you, and

      16   it's real simple.  That point is that Mr. Mohamed Odeh is not

      17   guilty.  It's a simple point, real simple point.  But in order

      18   for you to arrive at that point, you don't have to just

      19   examine the evidence.  I am going to show you why the evidence

      20   that the government chiefly relies on does not point to proof

      21   beyond a reasonable doubt.  It doesn't rise to that level.  I

      22   am going to discuss that very shortly.  But it's going to take

      23   more than that.

      24            You know, we have sat in this courtroom since

      25   January, heard testimony since February.  It's a major case.

                                                                    5768

       1   There are over 230 people dead.  Thousands of people injured.

       2   And you, each and every one of you have to go home, talk to

       3   your wives, your children, your family, your neighbors, and

       4   answer them a question, because at the end of this case the

       5   only thing you can do is say that Mohamed Odeh is not guilty,

       6   because that's what the evidence tells you to do.  All of you

       7   will have to go home and answer that question.  And the

       8   question is going to be real simple:  How could you do that?

       9   How could you find the guy not guilty, there is 233 people

      10   dead.  They blew the embassies up.  How could you find them

      11   not guilty?  There is one word:  Courage.  Courage.  You have

      12   to be courageous enough to live up to the oath that

      13   Mr. Kenneally gave you when you sat in this box as jurors.

      14   All of you swore.  You didn't just say it, you swore that if

      15   the evidence that the government produces against Mohamed Odeh

      16   did not rise to the level of proof beyond a reasonable doubt,

      17   that you would say Mohamed Odeh is not guilty.  Courage.

      18            You also have to be courageous to sit here and listen

      19   to me and all the other lawyers that are going to be talking

      20   to you for a long time.  But the real courage, ladies and

      21   gentlemen, is going to come from within.  It will be your

      22   ability to live up to your oath and the world, the world.  Not

      23   just people in this courtroom, not just your family.  That

      24   when we as a country do something, we do it right.  Our

      25   justice system works, and if the government doesn't produce

                                                                    5769

       1   evidence that satisfies you and you and you and you and you

       2   and you and all of you beyond a reasonable doubt, then you

       3   will find Mr. Mohamed Odeh not guilty.

       4            Now, having said that, this case, for the government

       5   and for Mr. Odeh, comes down really, when you cut through all

       6   the everything, all the bayat, the Bin Laden proclamations, it

       7   comes down to simple physical evidence.  There is forensic

       8   evidence in this case.  There is things in this case that you

       9   can't change.  I can make an argument about anything.  I can

      10   try to convince you that it's snowing outside right now and I

      11   can put together all kinds of inferences to try to make you

      12   believe that.  But if you go outside and the snow doesn't hit

      13   you on the head, that's an irrefutable fact.  I can't change

      14   that.  As long as we are in a cocoon, I can argue to you and

      15   say anything.  But there is physical evidence in this case

      16   that can't be changed.

      17            For instance, there is fingerprint evidence.  The

      18   fingerprint evidence -- remember the agents that testified,

      19   Agent Hollars testified about fingerprint evidence, and he

      20   told you that everybody has ridges on their hands and their

      21   palms and everybody has oils, and when you touch something, it

      22   might not be able to be recovered but sometimes it is.  If you

      23   do, it means something particular happened.  It means that a

      24   person touched a particular object.  Mr. Mohamed Odeh's

      25   fingers touched several items.  The Teach Yourself Swahili

                                                                    5770

       1   book had 25 of his fingerprints.  We know for sure that

       2   Mohamed Odeh handled that book.  The hotel room, 107A, I

       3   believe it is, that Mr. Mohamed Odeh says in his statement was

       4   the room that Saleh was staying in, Mr. Odeh's fingerprint was

       5   found on the back of that door.  That doesn't mean that he

       6   rented the room, because the registry doesn't show it in his

       7   name.  As a matter of fact, the government in its summation

       8   showed you the piece of evidence which says that Mr. Mohamed

       9   Odeh rented it in room 102.  He registered in the room.

      10   That's a piece of evidence.  However, his fingerprint on the

      11   back of that door in 107 lets us know that whatever room he

      12   ventured in, he spent time in 107.

      13            Let's look at the Crown exercise book, Government's

      14   Exhibit 704.  This enlargement comes from that book.  It's a

      15   part of it.  That exhibit is a small notebook, and that

      16   notebook has Mr. Odeh's prints on it -- I am sorry, does not

      17   have his prints on it.  It was recovered from his home.  I

      18   just made a mistake.  It could be costly.  But I want to say

      19   it again.  This book -- let me put on my gloves first.  You

      20   can tell I'm not a doctor.

      21            704.  This book contains this item, according to the

      22   government's proof.  This book did not have 25 Mohamed Odeh

      23   fingerprints on it.  Didn't have 15, didn't have 10, didn't

      24   have any.  It had zero.  It had one fingerprint that the

      25   government was able to recover that the FBI found, and that

                                                                    5771

       1   was the fingerprint of Mustafa, not Mohamed Odeh, Mustafa.

       2   What does that tell you?  It was found in Mohamed Odeh's

       3   house, yes, OK.  Does it show you that he handled it?  No.

       4   That's not proof beyond a reasonable doubt.  It does show you,

       5   however, that Mustafa handled this book.  That's what the

       6   proof shows you.  Don't be confused.  You may be asked to make

       7   inferences that Mr. Odeh drew this.  The only proof we have in

       8   this case that shows that anybody handled this book is

       9   Mustafa.

      10            When you look at Government's Exhibit 702, which was

      11   an inventory -- this is Government's Exhibit 702, this

      12   inventory written in Arabic and translated into English.  This

      13   document found in Mohamed Odeh's house doesn't have Mohamed

      14   Odeh's fingerprints on it.  It has Mustafa's fingerprints on

      15   it.  Think about it now.  What does that tell us?  It tells us

      16   that Mustafa handled it.  It's written in Arabic.  Doesn't

      17   tell us that Mohamed Odeh wrote it, doesn't tell us that he

      18   handled it.  It's in his house.  We know that Mustafa has been

      19   to Mohamed's house because in his statement Mohamed Odeh said

      20   Mustafa spent the night at my house before.  So he had access

      21   to his home.  He's there.  It's not like some stranger.  This

      22   is a friend of his, somebody that he knows.  They spent time

      23   together.  It's not uncommon for somebody to spend time at

      24   your home.  If somebody came to your home and left a document

      25   there and it is something that he owned, their fingerprints

                                                                    5772

       1   would be on it.  The fingerprints show that it was not

       2   Mohamed's, it was in fact Mustafa's.

       3            There were other fingerprints recovered in this case.

       4   I am not going to detail them all.  But the fingerprints from

       5   Harun were recovered at 43 Runda Estates.  The fingerprints

       6   from Harun were recovered from the pickup truck.  Did anybody

       7   come in here and testify that Mohamed Odeh's fingerprints were

       8   found at 43 Runda Estates?  No.  Did anybody come in here and

       9   say that Mohamed Odeh's fingerprints were found in any

      10   vehicles involved in this case?  No.

      11            The fact that his fingerprint was, however, found at

      12   the Hilltop Hotel establishes that he was there.  Corroborates

      13   the statement.  Mohamed didn't say I wasn't at the hilltop.

      14   As a matter of fact, it corroborates it.  He said I spent the

      15   night in room 107.  Guess what is in the back of the door.

      16   His fingerprint.  That means he was there.  The government

      17   didn't take his fingerprint and put it on the door, they found

      18   it there.  It corroborates the statement.  It shows the

      19   truthfulness of the statement.

      20            One thing it doesn't do, however, is create his

      21   agreement to participate in a bombing anywhere in this world,

      22   or his agreement to participate in killing Americans anywhere

      23   in the world.  It doesn't create his agreement or his

      24   participation in any of the conspiracies charged against

      25   Mohamed Odeh.

                                                                    5773

       1            The court will instruct you that mere presence in a

       2   place or with people, even with knowledge, even with

       3   knowledge, is not sufficient for you to find Mr. Odeh guilty

       4   unless the prosecution can establish his agreement to

       5   participate in the conspiracy.  That's not here.  Don't get it

       6   confused.  There's a lot of evidence in this case, a lot of

       7   words going around, a lot of arguments being made.  But keep

       8   fast to the truth, keep fast to the evidence, and keep fast to

       9   the instructions this his Honor is going to give you, and it

      10   points one way:  Odeh is not guilty.

      11            The government spent a lot of time in this case with

      12   another piece of forensic evidence, and that piece of forensic

      13   evidence is the explosive residue, the explosive residue that

      14   was found on Mr. Odeh's clothes.  They were found on these

      15   pieces of clothing:  His pants that were found in this bag,

      16   the wrap-around sarong -- one of the things that we introduced

      17   into evidence was the box that the sarong was in.  I am not

      18   going to waste time with it, but you remember the box that I

      19   walked past all of you here -- and the T-shirt.  Three

      20   articles of clothing.  It's interesting.  Some things just

      21   don't jive.  Agent Whitworth says I examined these particular

      22   items because they appeared to be soiled and stained.  Wait a

      23   minute.  Whitworth is a collections expert.  He goes out and

      24   collects evidence.  For whatever reason, in his mind a stain

      25   on clothing -- there ain't no stain on the jeans, there is no

                                                                    5774

       1   stain on a T-shirt, there is a stain on the pants, but for

       2   whatever reason, that stain must be some residue.  Every other

       3   expert that testified in this case said we are talking about

       4   residue, we are talking about something microscopic.  We are

       5   talking about something that you cannot see with the naked

       6   eye.  For whatever reason, Agent Whitmore decided to testify

       7   about those particular articles.  It doesn't square with the

       8   fact that there was a stain on it.  We are talking about

       9   microscopic.  I don't care what side called an expert.  All of

      10   them got up there and said we are talking about particles.  As

      11   a matter of fact, one witness said if you took an aspirin

      12   tablet and broke it up, the millions and billions of particles

      13   would be what we are talking about, residue, little traces,

      14   tiny particles that they have to get a microscope.  Think

      15   about the tests that were done to see whether or not there was

      16   residue.  There's the EGIS test, microscopic analysis.

      17   They're going through all sorts of tests just to be able to

      18   say there is something there.  This is not something that you

      19   can say wait a minute, there's a stain on his clothes, must be

      20   TNT.  Remember, I asked Agent Mount, I said if you bumped into

      21   the embassy, oh, I got TNT on me.  No.  But Agent Whitmore

      22   comes and testifies that he has to test it because it got

      23   stains.  The government says yeah, yeah, we got proof, we knew

      24   there was, for whatever reason Agent Whitworth tested the

      25   clothes, he tested them.  I am not disputing the fact that

                                                                    5775

       1   residue of TNT was found on them.  When you look at that

       2   sarong, please use the gloves, and look at that stain.  My

       3   vision is horrible and I can see the stain, even without my

       4   glasses.  That's not microscopic residue.  But that's what he

       5   said.

       6            Remember, Dr. Lloyd said that a thimbleful, a

       7   thimbleful -- everybody knows what a thimble is.  I remember

       8   my grandmother used to sew with a thimble, by hand.  A

       9   thimbleful -- we are not talking about a big giant -- of

      10   explosive, of TNT could contaminate 10 to 20 million people.

      11   That's his testimony.  I didn't make that up.  The man's an

      12   expert.  The government didn't object, no.  Dr. Lloyd is not

      13   an expert.  He qualified as an expert in this courtroom.  He

      14   testified and that's what he told you.  That's a scientific

      15   fact.  So what we are really talking about is something very

      16   small.

      17            The FBI did not measure the amount of TNT, and that

      18   becomes significant, see, because if we are talking about

      19   these little tiny particles that could be on anybody --

      20   remember Dr. Lloyd's testimony.  He said as I sit here now,

      21   because I examined the clothing I'm probably contaminated, and

      22   if you put me through the EGIS I'd pop up positive for

      23   explosive residue, if you wanted to establish that there is

      24   TNT residue -- that sounds horrible.  When you first heard

      25   about it, wait a minute, they got the TNT residue on his

                                                                    5776

       1   clothes.  What are we talking about here?  But then when you

       2   stop and you get the scientific fact of how small and

       3   minuscule this is, it takes on a different tenor.

       4            The FBI, remember, I asked Agent Mount the first time

       5   she came to testify, I said, Agent Mount, can you quantify the

       6   amount of TNT that was recovered?  She said oh, no, can't be

       7   done.  She comes back.  I ask her again, can you quantify the

       8   amount of TNT?  Yes, you can, but we just didn't do it in this

       9   case.  OK, they didn't do it.  Maybe it's not significant.

      10   Dr. Lloyd got up there and testified.  Dr. Lloyd said to you

      11   that it is significant.  And he said the reason it is

      12   significant is because the more TNT that you find means that

      13   the person that was handling it more than just happened to

      14   accidentally come into contact with it or somehow become

      15   contaminated.  That's important.  Think about it.  If you're

      16   handling the TNT, you're going to have more of it on you.

      17            Now, you are looking for proof beyond a reasonable

      18   doubt.  Hold on to that courage that I talked to you about.

      19   You are looking at the scientific fact.  The government

      20   doesn't tell you we found TNT on Mohamed Odeh's clothes.  They

      21   just tell you we found TNT.  They don't tell you how much they

      22   found.  If you want to be accurate and fair, then you say,

      23   well, it might be a nanogram.  That's what Dr. Lloyd called

      24   it, a nanogram.  It might just be that nanogram.  It might be

      25   just a little tiny piece or speck, something so tiny, so tiny.

                                                                    5777

       1   That's what it might be.  But there's no proof that it's not.

       2   The government wants you to accept that because there is TNT

       3   residue, yes, that he had the ability to do it.  I am

       4   suggesting to you that when you come before a jury and you

       5   have a case of this sort, they don't have to use any

       6   investigative technique that I suggest.  I am just suggesting

       7   to you that as a quantum of proof you want more proof than

       8   that.  You want more than just to have to guess, to surmise,

       9   to try to understand what it is.  Put it in the lab, test it,

      10   OK, on his clothes we found X amount of TNT.  Large amount?

      11   We found a milligram of TNT.  Large amount?  What we really

      12   found was a nanogram.  What we really found was something that

      13   we don't have the capability of measuring, it was so small.

      14   But you'll never know.  They just want you to say TNT,

      15   conviction.  It doesn't work like that.  There is some

      16   question that has to be asked there.

      17            And by not quantifying it, it really maximizes the

      18   effect of that evidence.  Now you've got maximum return on a

      19   little bit of evidence.  We are talking about maybe a speck

      20   all the way to conviction, because we don't know how much it

      21   is.

      22            This is important, ladies and gentlemen.  It's really

      23   important because the evidence that connects Mohamed Odeh to

      24   these crimes that the government is relying on is not

      25   overwhelming, it's underwhelming, and if you pay close

                                                                    5778

       1   attention to it and analyze it, which you must, it makes a

       2   difference.

       3            You know, when you really look at this evidence, this

       4   TNT evidence, it turns from a damning piece of evidence into

       5   the microscopic speck that it really is.  And you ask

       6   yourselves, well, gee, you know, Mr. Karas stood up in his

       7   summation and said to you -- and I was really surprised by

       8   this because Judge Sand hasn't said anything, Mr. Ricco hasn't

       9   said anything.  But Mr. Karas said Mohamed Odeh's defense

      10   argues to you, says to you, they make the argument to you,

      11   they discuss the fact that the TNT got on Mr. Mohamed's

      12   clothing maybe by contamination in Kenya, right, when it was

      13   handled by the Kenyan authorities, maybe from being on a

      14   table, maybe from being on the lap of a Tyvex suit.  That's

      15   nice.  It's not our theory.  The first time I am suggesting

      16   any view of the evidence to you is now.  Yes, we did ask

      17   questions.  Yes, we did want to know what the chain of custody

      18   was.  It's important.  You need to know that in assessing and

      19   making a determination as to how much weight, how much value

      20   you decide to give to this evidence.

      21            The burden of proof is on the government.  Mr. Odeh

      22   has to prove nothing.  When you look at the evidence in this

      23   case, we know from Mr. Mohamed's statement -- and I am just

      24   suggesting it to you.  We will get to the point I will tell

      25   you where I think the evidence shows you these traces of TNT

                                                                    5779

       1   came from.  But Mr. Mohamed Odeh in his statement tells you

       2   that the bag and pair of paints were given to him by Saleh,

       3   and that Saleh and Harun stayed out all night on August 5.  At

       4   page 27 of the statement, he says probably at Harun's house,

       5   43 Runda Estates, the place that Harun rented, the place where

       6   there were significant traces of TNT recovered, aluminum,

       7   pieces of wire detonators, all evidence being significant with

       8   a place where a bomb was constructed.  Further, Harun's truck

       9   also had traces of TNT recovered from it.

      10            The chain of custody becomes important because the

      11   government is saying to you trust this evidence, the traces of

      12   TNT found on Mohamed's clothes, because it was preserved and

      13   tested in an uncontaminated state once it came into the

      14   possession of the FBI.  However, there are several problems

      15   with that.  Chain of custody, as is every chain, is only as

      16   strong as its weakest link.  Notwithstanding the FBI using

      17   Tyvex suits and gloves, vacuuming items recovered from the

      18   bag, signing items in and out, there are weak links in the

      19   chain.

      20            First, the items recovered from Mohamed were received

      21   by Kenyan CID officer named Mutunga when Mohamed was delivered

      22   from Pakistan to Kenya.  Agent Mutunga didn't wear a Tyvex

      23   suit or gloves, and he visited the bomb site.  That is a

      24   potential source of contamination.  All I am telling you is

      25   that this chain of custody is not as strong as it appears to

                                                                    5780

       1   be.  Mutunga took the items and placed them in his locker,

       2   somewhere other than CID headquarters.  He placed them on a

       3   table that was not protected with forensic paper, as it was

       4   when Agent Whitworth and Agent McLaughlin took pictures of the

       5   items, again a potential for contamination.  No one had

       6   anything on their feet or Tyvex suits on when the items were

       7   turned over in Ed Muchari's office from Kenyan CID to the FBI.

       8   Another possible source of potential contamination.  The

       9   integrity of the chain of custody is challenged by the

      10   disappearance, separation, whatever you want to call it, of

      11   Mohamed Odeh's money from his other personal belongings, the

      12   money, the watch and the eyeglasses.  Somehow they get

      13   separated.  Somehow, in 1999 the money is in a safe in Kenya

      14   and Mohamed Odeh is here in America, in custody.  Everything

      15   is together.  Remember the list we went through with Mr. Ricco

      16   on cross-examination of Mr. Mutunga, money, eyeglasses, watch.

      17   Somehow it gets separated.  It gets back together because

      18   Agent Doran makes a phone call and writes a letter.  Suddenly,

      19   oops, here's the money, the money comes back in.

      20            Agent Doran also puts a little chink in the chain of

      21   custody.  She signs the same letter.  Same evidence, same

      22   time, two different dates.  What happened?  Mistake.  OK, it

      23   was a mistake, fine.  Mistakes happen.  Even with the FBI

      24   mistakes happen.  I didn't do that to try to embarrass the

      25   agent.  I did it to show you mistakes happen.  And when

                                                                    5781

       1   mistakes happen, you don't have a reliable chain.  Remember,

       2   Mr. Ricco asked Mr. Mutunga, where did this jacket come from?

       3   It's a big green jacket.  I don't know how it was missed.

       4   Somehow this jacket was missed.  And Mr. Ricco asked him, was

       5   it a mistake?  And he said no.  How do you explain it?  I

       6   don't know.  But we do know that the list covering the

       7   transfer indicated that the jacket wasn't there.

       8            Another opportunity for unexplained contamination.

       9            This becomes important.  You know, when mistakes

      10   happen, OK, sometimes they don't mean that much.  But when

      11   we're talking about the potential for contamination from a

      12   microscopic particle, it is very important that we keep these

      13   situations contamination-free, that we don't allow that

      14   opportunity to happen.  Didn't happen here.

      15            But, you know, I suggest to you, I submit to you that

      16   the evidence in this case shows you where the traces of TNT

      17   and PETN found on those items of clothing came from.  The

      18   evidence in this case shows you that this exhibit right here

      19   was used to grind TNT and PETN and mix them together,

      20   whatever.  Traces of both of those were found.  And where was

      21   this recovered from?  Tanzania.  Whose fingerprint is on that

      22   grinder?  Fahad.  The man who has $6,000 to spend on an

      23   explosives training course, his fingerprint is found on that

      24   grinder.  OK, what does it mean?  It means the following.

      25   Amongst the items found in Mr. Mohamed Odeh's bag was a

                                                                    5782

       1   magazine called Humsafar.  On the Humsafar magazine was a

       2   fingerprint.  Whose fingerprint?  Fahad's, who was traveling

       3   on the same plane as Mr. Mohamed Odeh.  Where was the magazine

       4   found?  In the bag.  Where was the clothing found that had

       5   traces of TNT?  The bag.

       6            We asked the experts, if these items were in the bag

       7   and they came in contact with one another, was it possible,

       8   likely, that the contamination would go from the contaminated

       9   items to the uncontaminated?  Yes.  You can see the ridges on

      10   your hands and your palm.  We are talking about stuff that

      11   could fit inside the ridges that you still couldn't see that

      12   were on that magazine that was put in that bag and got on to

      13   Mr. Odeh's clothing.  The government sits there and tells you

      14   there wasn't any PETN in the Nairobi bombing.  Absolutely

      15   correct.  Absolutely correct.  But if the traces of PETN and

      16   TNT that were found on Mr. Odeh's clothing came from him

      17   traveling with Fahad and Fahad sticking that magazine in his

      18   bag, those microscopic particles of TNT and PETN, that's where

      19   it came from.  That's the argument that we are telling you

      20   about.  There is no discussion about maybe it came from Kenya.

      21   No.  Remember what I said?  You've got forensic evidence here.

      22   We are not trying to play a game.  This is where it came from.

      23   It's an accurate inference, not a reasonable inference.  We

      24   know Fahad was handling that TNT and the PETN.  We know Fahad

      25   handled that magazine.  We know that when you handle TNT and

                                                                    5783

       1   PETN, especially when you grind it, your hands get loaded.

       2   Remember I asked the experts?  Your hands get loaded.  He

       3   handled that magazine.  The more reasoned and accurate

       4   inference is that the TNT and PETN found on Mohamed's clothes

       5   came from Fahad.

       6            I want you to do the following, ladies and gentlemen.

       7   When Mr. Fitzgerald stands up in his rebuttal, ask him, why

       8   didn't the government tell you about Fahad's fingerprints on

       9   the grinder in Tanzania when they were doing its summation?

      10   Why didn't the government tell you about the PETN found in

      11   Tanzania when they were doing their summation?  Why didn't the

      12   government tell you about the Fahad fingerprint on the

      13   magazine when they were doing their summation?  Ask him, was

      14   it because it didn't fit your theory?  I submit to you that's

      15   why.  But ask him anyway.  Ask him.  Of course you can't ask

      16   the question, but have that in your mind.  Let him tell you

      17   how it got there and why they didn't tell you this.

      18            You know, an unknown microscopic amount, a nanogram

      19   of explosives the source of which could have been several

      20   different origins, clearly such evidence cannot provide a

      21   pillar upon which you, the judges of the facts, can rely upon

      22   to find Mohamed Odeh guilty beyond a reasonable doubt.

      23   Therefore, if the government is relying upon this evidence,

      24   which it is, the microscopic traces of TNT found on Mohamed's

      25   clothes, for any purpose, then I submit to you that you should

                                                                    5784

       1   reject that proof as insufficient.  You should reject that

       2   proof as not rising to proof beyond a reasonable doubt, and

       3   then you must find Mohamed Odeh not guilty.

       4            I am going to turn to one of the more interesting

       5   pieces of evidence in this case, this diagram, this book,

       6   Government's Exhibit 704.  You know, a lot, a lot, a lot has

       7   been said about this sketch, what it means, has to mean.  This

       8   was a sketch of the embassy, this is a sketch of the embassy,

       9   this is a sketch of, as Mr. Karas referred to it, a bomb

      10   blast.  That's what the government said.  The government seeks

      11   to argue by inference that Government's Exhibit 704,

      12   particularly these particular pages, somehow is a sketch of

      13   the embassy and a bomb blast which was created during

      14   surveillance of the U.S. Embassy in Nairobi and used to

      15   facilitate the bombing.  Otherwise it doesn't make any sense.

      16   That is what they have to argue for these little sketches to

      17   make any sense.  The sketch is inaccurate, both the so-called

      18   embassy portion and the bomb portion.

      19            Mr. Francisco, would you be kind enough to put up

      20   Government's Exhibit 805G.  If you look at 805G, in that

      21   circle you see a box.  Do you see the box?  Everybody see the

      22   box.  You look here on the enlargement, there's a box.

      23   Corroboration, embassy.  Drawing of the embassy.  One small

      24   point.  Remember when Ambassador Bushnell was testifying and I

      25   asked her the question, these tents and things that you see

                                                                    5785

       1   there, were they up before the blast?  Her answer was no.

       2   Nothing in that circle.  What does it mean then?  If you want

       3   to argue that this is the embassy, a drawing of the embassy,

       4   it's not accurate.  The box wasn't there.  There is no way,

       5   even if this was supposed to be a sketch of the embassy, that

       6   Mr. Odeh could possibly have known that they were going to put

       7   a tent up there.  No way.  Impossible.

       8            The bomb portion, the so-called bomb portion is

       9   inconsistent with Mohamed Odeh AA, and Mohamed Odeh AA was

      10   created by the government's expert, depicting the shock wave

      11   pattern of concentric circles going outward, not the snow cone

      12   shape depicted here.

      13            It is important when you compare this document -- we

      14   had it enlarged for a reason, two very important reasons.  You

      15   see, if you look right here, there is a 2 in a circle, a 3 in

      16   a circle, a 5 in circle.  Somebody numbered these pages.

      17   Somebody numbered the pages to make sure that they didn't get

      18   lost, and if they did get misplaced, you know that they came

      19   from this book.  They were shuffled around, they were tested.

      20   Now when you look at it you say OK, first thing I need to know

      21   is where is page 4, right?  The government argued that they

      22   were the next pages in their summation.  3, 5.  Somewhere I

      23   learned that 4 comes between 3 and 5.  So they are not the

      24   next pages, number 1.  OK.  When you look at this exhibit, and

      25   you will have the actual exhibit in the back, somebody

                                                                    5786

       1   numbered it and put the number 4 on one of these pages.  So

       2   you say OK, there's the number 4, what is Wilford all excited

       3   about?  What I am excited about is that when you compare the

       4   page that has 4 on it, it doesn't match, because this writing

       5   is not there.  It's not there.  It's not the page 4.  I don't

       6   know.  Maybe it's no big thing.  But I don't think it is

       7   enough to rely on to say somehow this is the next page, this

       8   is what it means.  There is a missing page.  Ask the

       9   government to tell you where that missing page is.

      10            This is a major case.  There is no evidence in this

      11   case that the handwriting in this book matched Mohamed Odeh's

      12   handwriting, none.  None whatsoever.  None whatsoever.  You

      13   heard a witness who was a handwriting expert come in and

      14   testify.  Mr. Osborn testified that as far as he knew the FBI

      15   had at least 21 document examiners.  He told you that they had

      16   the ability to do handwriting analysis based on Arabic

      17   writing.  Was there a comparison done in this case?  If there

      18   was, we don't know about it.  There is no evidence of it

      19   before you.  No evidence to say that this handwriting is

      20   Mr. Odeh's.  But wait a minute, did they have it in Mr. Odeh's

      21   handwriting?  Could we show that exhibit, please.  This item,

      22   Odeh 83 in evidence, was recovered from Mohamed Odeh's home.

      23   It has his handwriting on it.  He signed it.  The government

      24   could very easily have taken this document and this document,

      25   given it to a handwriting expert and said do these matches

                                                                    5787

       1   match?  Did they do it?  No.  But Mohamed Odeh, he's a

       2   technical adviser, found in his home.  Wait a minute.  A case

       3   of this magnitude, this importance, we are not going to say

       4   where is a handwriting match?  Mr. Fitzgerald had this guy

       5   write some stuff down and compare it from something that was

       6   supposed to be of Mr. El Hage right here in this courtroom,

       7   from things as small as an ampersand sign, and the expert was

       8   able to do it right here in the courtroom.  What about these

       9   21 experts?  Why didn't the government take one of those 21

      10   experts, give them the known sample of Mr. Odeh's and say

      11   look, we think this belongs to Mr. Odeh, it's his writing,

      12   tell us if it's right?  Did it happen?  No, didn't happen.

      13   But because we say it, because it's our theory, it works.

      14   Wait a minute.  We are talking about proof beyond a reasonable

      15   doubt here.  We are talking about being courageous here.  It's

      16   easy enough to do.  Mr. Fitzgerald did it in five minutes

      17   right in the courtroom.  You mean to tell me we got all this

      18   investigation going on and it can't be done?  It wasn't done,

      19   we know that.

      20            Or maybe they did one and it didn't match.  I don't

      21   know.

      22            MR. FITZGERALD:  Objection, your Honor.

      23            THE COURT:  Sustained, stricken.

      24            MR. WILFORD:  There is no evidence in this case to

      25   establish that the handwriting in that book with Mustafa's

                                                                    5788

       1   fingerprint on it is the handwriting on Mohamed Odeh.  None.

       2            You have the opportunity, not as experts but as human

       3   beings, to make the comparison, because we put in other

       4   evidence from Mohamed Odeh's home that has writing on it, that

       5   has numbers on it, that has 3's on it.  None of those 3's

       6   match what the government tells you is a 3.  Well, I don't

       7   know, let's turn it this way.  Or maybe let's turn it this

       8   way.  We can make it whatever we want it to be.  They tell you

       9   that's a 3.  I don't know what it is.  And then they argue

      10   that this is a 3 because it is the number of meters of the

      11   flatbed.  There is examples here.  We know this is Mohamed

      12   Odeh's handwriting.  It deals with the fish business.  There

      13   is fish and lobsters, a lot of examples of this, and a

      14   notebook that contains a lot of these particular items is G3.

      15   There is a series of them.  Compare the numbers.  When you

      16   look at A3, which is the first document I showed you, it has a

      17   signature on it, and there are measurements on that page.

      18   Maybe, I don't know.  The government wants this to be a 3.  If

      19   that's inches and feet that match with the drawing, how could

      20   that be meters?  You will see there is no mixing of metric and

      21   nonmetric in Mr. Odeh's work.  They want you to believe that

      22   because that's their theory.

      23            It is also logical that directional points on this

      24   drawing should match with the embassy.  They put 252, I

      25   believe, next to 704, the page numbered 5, and it matches the

                                                                    5789

       1   embassy.  And you put this one next and it's supposed to

       2   match.  You know, if it fits the theory, it matches.  But is

       3   that proof beyond a reasonable doubt that is going to satisfy

       4   you?  The only testimony in this case about anything about a

       5   truck, when a truck was purchased by Swedan.  He didn't ask

       6   how long was the truck going to be.  He asked how much could

       7   it hold.  Sheik Swedan asked how much can it hold.  He didn't

       8   say is it three feet long.  If this is supposed to be used as

       9   some sort of guide for people to blow up an embassy, don't you

      10   think there would have been a question about how long it was,

      11   if this is supposed to be a 3?

      12            And think about this.  You know, it's amazing.

      13   Mohamed Odeh is in Witu.  In his statement he tells you he had

      14   to go to Malindi to Mombasa, by bus from Mombasa to Nairobi.

      15   This is supposed to be the sketch.  We need this sketch so

      16   that we can know what the embassy looks like, so that we can

      17   say hey, you have to go down this road, make this left, put

      18   the truck here, boom.  What the heck is it doing in Witu when

      19   this is in Nairobi?  And the government says yes, this sketch,

      20   this is the bomb sketch.

      21            I ask you a real simple question.  If it is supposed

      22   to be used by the people who're going to blow up the bomb,

      23   there is no testimony that somebody asked can we see the

      24   sketch?  This sketch is found in a room in a book with

      25   Mustafa's fingerprint on it on August 25, 1998.  It is not

                                                                    5790

       1   found in the hotel, and it is not found in Mohamed Odeh's bag.

       2   But the government is still going to tell you yeah, it matches

       3   up, this is it, boom, we got it.  And this, this blast cone?

       4   I don't know if it's a snow cone, a fishing net hanging off

       5   the back of a boat to catch fish.  It can be whatever you want

       6   it to be.  But we are not talking about that.  We are talking

       7   about what the evidence proves in this case.

       8            You know, the government also argued that they

       9   couldn't even ask Mr. Odeh about the handwriting, about the

      10   book, the sketches in the book, because they didn't have it.

      11   Well, small problem with that.  They had it on August 25.

      12   Yes, it was still in custody in Kenya on August 25.  Mohamed

      13   Odeh.  Guess who was still being questioned on August 25.  And

      14   I suggest to you that it is not only reasonable and accurate

      15   to infer that he was still being questioned, because when he

      16   was asked to get on a plane to come to America, the testimony

      17   is that he was still being questioned.  Bomb sketch.  It's

      18   his.  Show it to him.  Hey, buddy, check this out.  He has

      19   told everything else, this is this, this is that, I know these

      20   people, I did this, I did that.  Ask him about this.  It

      21   wasn't done.  You don't have that?  We had it, just didn't ask

      22   him about it.

      23            They never even had an expert come in here and

      24   testify to you about what this means.  They had Agent Gorman

      25   come in and tell you by looking at the documents taken from

                                                                    5791

       1   Harun's house in the Comoros that this document had something

       2   to do with explosives.  Gee, Agent Gorman, take a look at

       3   this.  What does it mean?  Wasn't done.

       4            The government made a very interesting argument.

       5   They said on the one hand, Mohamed Odeh is an explosives

       6   expert.  On the other hand, he is so silly in his explosives

       7   knowledge that he thinks a bomb is going to blow up like this.

       8   Well you just can't have it both ways.  It's one way or the

       9   other.  I submit to you, ladies and gentlemen, the evidence

      10   doesn't support the interpretation that the government forces

      11   for that document.

      12            You know, clear example.  When the government

      13   introduced this document, they didn't have any expert come in

      14   here, say what they did with that trace evidence.  When they

      15   thought they had something that could be forensically

      16   supported, they promptly and prominently displayed it to you

      17   through an expert.  Not with that document.  What the

      18   government does, to coin a phrase, is tapdance, choreographs a

      19   dance around the document to make it what they want it to be,

      20   because there is no identification of the author of that

      21   document being Mohamed Odeh.  There is no connection with that

      22   document being of Mohamed Odeh, except for it being found in

      23   his house.

      24            You know, Arabic is read from right to left, but the

      25   government turned the sketch around.  I didn't hear anybody

                                                                    5792

       1   testify or say that you have to read Arabic upside down to

       2   make sure it works.  It's not there.  Talk about tapdance.

       3   That's what you do when you try to make a theory fit in the

       4   absence of solid forensic truth.

       5            When you ask the government these questions in

       6   relation to that -- I am going to repeat them but I want you

       7   to remember them.  Nothing at all was asked of Mohamed about

       8   these drawings.  Why?  Where is page 4?  I repeat, where is

       9   page 4?  Where is page 4?  Where is the page 4 that goes in

      10   this book, that fits between this 3 and this 5?  Not any page

      11   4, that page 4.

      12            Ask yourself, when Mr. Fitzgerald gets up in his

      13   rebuttal, why did they say the sketches were the next page

      14   when they're not?  Remember, Mr. Odeh didn't put those tiny

      15   numbers on that book.  I didn't.  Those numbers were put there

      16   by the FBI in order to keep track of what was going on.

      17   However, the government never brought those numbers to your

      18   attention.  They never said this is page 3 and this is page 4.

      19   They couldn't, because it's 3 and 5.  Never happened.

      20            I want to reiterate one thing.  Did you ever hear any

      21   expert talk about a blast cone, any expert?  The first time we

      22   heard anything about a blast cone was when Mr. Karas stood up

      23   and said this is a blast cone.  I never heard that expression

      24   before.  We had a lot of experts up here.  They could have

      25   called.  I submit you don't have to and you should not accept

                                                                    5793

       1   this proof.  Why didn't they ask Agent Gorman about it?

       2            You know, the government argues that Mohamed's

       3   statement reflects what is in this sketch, because it

       4   discusses in his statement that the truck was positioned

       5   incorrectly.  However, a close examination makes it crumble

       6   under the weight and the reality of the truth.  Remember,

       7   Mohamed Odeh was flying to Pakistan when the bomb exploded in

       8   Nairobi.  He was taken into custody immediately upon landing.

       9   He was taken from Pakistan to Nairobi.  He was held, and here

      10   is the word again, in communicado from that time on.  In other

      11   words, not only did he not speak to anybody other than law

      12   enforcement personnel, he didn't see any TV, he didn't hear

      13   any radio.  He didn't have any intimate access.  He had no

      14   knowledge what was going on in the outside world except what

      15   he was told.  He had no way of knowing the number of deaths,

      16   the number of injuries, whether the driver coordinated the

      17   blast, where the truck was kept prior to the blast, or

      18   anything else about the bombing unless it was provided to him

      19   by his interrogators.  How would he know?  How could he know?

      20   Many times in fact, the accurate inference is that Mohamed

      21   received this information from his interrogator, who had

      22   received this information during his interrogation of others

      23   and used during his questioning of Mohamed.

      24            Mohamed responded to the questions posed to him based

      25   on the information the government provided.  The government

                                                                    5794

       1   turns around and says because he gave us the answers he must

       2   be guilty.  Well, he got the information from you.  It's a

       3   circular argument and you'll miss it, because it's so

       4   seductive.  But it's the wrong conclusion.

       5            There is so much I got to say to you.  I could go on

       6   for days and days and days about this.  But Mr. Ricco has some

       7   things he wants to say to you and I just want to wind it up.

       8            The evidence, the forensic evidence doesn't stand for

       9   the proposition put forth by the government, and without that

      10   forensic evidence, there is no proof beyond a reasonable doubt

      11   that Mohamed Odeh is guilty.

      12            You know, the forensic evidence gives you the power,

      13   each and every one of you the power, armed with that evidence

      14   and your courage, to do what's right and to do what's proper

      15   and what's just, and that is to show the world, to show

      16   Mohamed Odeh, to show the country, to show yourselves, to show

      17   the government, to show everyone and everybody that our system

      18   of justice requires all people who come before our courts to

      19   be acquitted -- it's important -- all people who come before

      20   our courts to be acquitted unless the prosecution can

      21   establish their guilt beyond a reasonable doubt, so matter how

      22   horrible the crime, and Lord knows this was a horrible crime,

      23   no matter who the accused may be or where he may be from, the

      24   standard is always, always the same:  Proof beyond a

      25   reasonable doubt.  And in this case the forensic evidence put

                                                                    5795

       1   forth by the government as the proof beyond a reasonable doubt

       2   that Mohamed Odeh is guilty falls woefully short of that

       3   standard, and you, each and every one of you as the judges of

       4   the facts, abiding by your oath and analyzing this evidence

       5   dispassionately and courageously, must find Mohamed Odeh not

       6   guilty.  That's what the evidence requires.

       7            Now I am going to turn it over to Mr. Ricco for a

       8   final windup.  Thank you very much for your time and

       9   attention, ladies and gentlemen.  I really appreciate it.

      10            MR. RICCO:  OK, ladies and gentlemen.  We are really

      11   near our end, and I know it's been tough.  The reality is that

      12   you have been talked at for a week.  I don't like people

      13   talking at me for 15 minutes, and I know it's been tough.  But

      14   we really are wrapping this thing down.  We should be

      15   finishing in 15 minutes.

      16            Mr. Wilford is driving home a point.  You see this

      17   here?  You see this, this torn out page?  Do you see the

      18   writing on that torn out part?  When you go in the back and

      19   deliberate, take the book out.  You are going to find another

      20   torn out page on here that somebody put another 4 on the back

      21   of.  So you will find a 4.  But that number 4 does not match

      22   this, because the writing is not on the flip side of the tab.

      23   Does everybody understand?  No.  Let me just take a moment to

      24   show you.

      25            If you go in the back you are going to see this

                                                                    5796

       1   document, this page.  This page on the back, somebody wrote in

       2   a small number 4.  So you would think that when you take this,

       3   if you put it behind that and flip it around, this should

       4   match up.  What you are going to find, if I put it on the Elmo

       5   and hold down that tab, what you see is that the writing is

       6   not there.  It's gone.

       7            Some may argue that, well, maybe the writing went

       8   away when they did the test.  But look at the rest of the

       9   book.  There is all the writings, all of them except this.

      10            Sikander Juma told us about a page being torn out of

      11   a book, and I'm not getting spooky because I don't think this

      12   document reflects that case, but this document does not

      13   reflect what the government purports it to be.  They took a

      14   gamble on it.  Maybe it could go into evidence without an

      15   expert, maybe you wouldn't care to ask.  But it didn't add up.

      16            I am going to show you exactly how it played out.

      17   You remember Mr. Karas in his closing remarks when this was

      18   up, the other enlargement, when he was explaining, you know,

      19   the performance thing?  They connected them.  When he said

      20   was, Mohamed Odeh is not saying that he is not unhappy about

      21   how the Americans were killed, because things didn't work out

      22   according to the plan, and he put up evidence of the plan,

      23   because that's what this says.

      24            We are taking the position that that is an argument

      25   that is not supported.  What the government did is very

                                                                    5797

       1   subtle.  They said Mohamed Odeh is not happy about the

       2   Americans.  They put up this chart and everybody was taken

       3   aback by that, because that's the theory of the case.  He

       4   doesn't care about the Americans.  He says there is nowhere in

       5   this statement that he says anything about the Americans, he

       6   only cares about the Kenyans.  Do you read, the Americans,

       7   this information that he could not have had, that's the

       8   argument, and then they said later on we got the diagram and

       9   that put it all together.

      10            First of all, Mohamed Odeh testified that he was

      11   concerned about everybody that was killed, and at 1747 of the

      12   transcript, my question to Agent Anticev was -- I am sorry,

      13   this was Mr. Fitzgerald's question.

      14            My question then is, with regard to Mr. Odeh

      15   indicating his being upset and angry with the number of people

      16   who were killed, isn't it fair to say that Mr. Odeh did say

      17   that he was affected that the bombing had affected buildings

      18   around the embassy and killed many people?  Yes.  Question by

      19   Mr. Fitzgerald.  Did he ever indicate that he was concerned or

      20   upset by Americans in the embassy that had been killed?

      21   Answer, no.

      22            So it fits the theory.  Problem.  That's only part of

      23   it.  Mr. Ricco on recross.  Mr. Fitzgerald just asked you

      24   questions as to whether or not he expressed any concern that

      25   Americans were killed.  Isn't it a fact that Mohamed Odeh

                                                                    5798

       1   didn't make any distinction between Americans or Kenyans, he

       2   was upset that the people were killed; isn't that right?

       3   Answer, I don't know what he was thinking when he made that

       4   statement.  Made what statement?  Question, made what

       5   statement, that he was concerned that people were killed?

       6   Answer, I truly believe, truly believe that he was concerned

       7   that people were killed, innocent people were killed.  So my

       8   question was a simple question.  He never made a distinction

       9   to you that he was concerned because they were only Kenyans

      10   and not Americans, did he?  That was never said by him, was

      11   it?  No, he never specifically said that he broke it down, I'm

      12   upset, Kenyans are killed and Americans are not.

      13            That was his testimony, what the agent truly believed

      14   he was saying.  Now look at the argument that was made in

      15   support of that.  First it said, as that chart is in front of

      16   you as it is now, you will not see in there once a statement

      17   of remorse about the dead Americans.  That's not bothering

      18   Mr. Odeh.  That was Mr. Karas's remarks.  He went further.  It

      19   says he's not saying that he is unhappy about the Americans

      20   who were killed, what he is telling the FBI, what he is

      21   telling the FBI is that that was not the plan.  But the FBI

      22   doesn't have this diagram at the time.  Just like I said, when

      23   he gives the statement, the statement is partly true just as

      24   it sits there, and the complete truth comes when you compare

      25   the statement to this diagram.

                                                                    5799

       1            And the reason why this becomes important is because,

       2   number one, to say that Mohamed Odeh was not concerned that

       3   Americans die is a mischaracterization of his statement as

       4   testified to by Agent Anticev.  Two, to compare it to

       5   information that he could not have had unless he was there

       6   further distorts the evidence against Mr. Odeh.  It is very

       7   subtle, because what it means is this:  If he is held in

       8   communicado, then the only way he knows this information is if

       9   what?  He was a part of the plan.  Right?  If he was a part of

      10   the plan.  But the fact of the matter is, he could not have

      11   known where the truck was left, whether or not somebody died

      12   or not, from the plan.  But if you believe that he was held in

      13   communicado, it doesn't matter.

      14            So the setup is complete for you to turn towards

      15   Mr. Odeh, look at that diagram for whatever it's worth, even

      16   if that is a 3 -- if that's a 3, then what's that and what's

      17   this? -- and say gotcha.  That's how it works.  His testimony

      18   was different than the argument that was advanced, but you

      19   need it to change it to fit it together with the piece to make

      20   it work.

      21            Now let me say this.  Mr. Odeh never said Harun's

      22   house, 43 Runda Estates, right?  If you go to his report, his

      23   report says Harun's house.  So Mr. Wilford misspoke a little

      24   bit, and it becomes important.  He don't know 43 Runda Estates

      25   from 40 Runda Estates.  But he knows Harun lives in Mombasa

                                                                    5800

       1   because he knows that he was affiliated with MIRA -- Nairobi.

       2   Thank you, Mr. Wilford.  People misspeak all over.

       3            And it is important to note that the FBI did

       4   determine that the PETN was microscopic, microscopic, and

       5   that's very important.  Here, too, the book and the bag,

       6   contamination.  It's the only reasonable and accurate

       7   inference that can be drawn from the evidence in this case,

       8   because there is no PETN anywhere else other than where Fahad

       9   has been.

      10            (Continued on next page)

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5801

       1            MR. RICCO:  (Continuing) Now, there's been a lot of

       2   talk in the case about what Bin Laden said, and Mr. Odeh is

       3   charged by the government in the conspiracy with aiding and

       4   abetting others.

       5            Mr. Bin Laden has made some outrageous statements.

       6   He's made statements that have influenced many.  To ask a

       7   young man to get in a truck with a thousand pounds of TNT

       8   behind him is powerfully irresponsible, powerfully -- look at

       9   the results.  Look at the people that are here today.  You

      10   want to hurt the Americans?  Those people over there are

      11   Kenyans and Tanzanians and some Americans.  And I started this

      12   case talking to you about their great loss, our great loss,

      13   and I meant it then and I mean it now.

      14            This case calls for you to evaluate the evidence in a

      15   serious way.  Don't leave out the fingerprints from Tanzania.

      16   That's shading and pushing the evidence in a direction.  Don't

      17   miscategorize the testimony.  When you go in the back, I want

      18   you to remember it is Mr. Odeh's state of mind that you have

      19   to determine on the issue of his guilt.

      20            And the judge is going to instruct you on what

      21   evidence you may or may not consider in connection with that,

      22   and we remain confident that when you review that evidence you

      23   will find that Mr. Odeh is the man we told you he was -- no

      24   more, no less.  His state of mind and the evidence that points

      25   to his state of mind, the flight of everybody from Nairobi

                                                                    5802

       1   with their families, and his pregnant wife and child being

       2   left behind is powerful evidence that goes to his state of

       3   mind.  All of the organizers left, and they also wanted to

       4   take with them a guy who could tell them about the Comoros,

       5   London, Somalia and everything else, even if he was what some

       6   of them may have considered a fool.

       7            Now, Mr. Wilford said he was kept out of the loop,

       8   and as I explained to you earlier, he was kept out of the loop

       9   for the planning, the execution, the bomb and the cleanup.  He

      10   was also kept out of the loop, I forgot to say this morning,

      11   with the surveillance, because the government's theory is that

      12   the surveillance in this case took place when Amriki and the

      13   rest of the people came and they were staying with Kherchtou.

      14   Now, maybe they are implying that there was some other

      15   surveillance, and maybe there was, but there's no evidence of

      16   that.

      17            And so we come to a close with Mohamed Odeh, and it's

      18   important that you remember something that Mr. Wilford touched

      19   on:  That this is our nation.  And it is a broad nation.  It's

      20   present in this courtroom.  It's present in you, your faces,

      21   the faces of the defense, the prosecution, the court

      22   personnel, when you look around this courtroom, and when the

      23   people from overseas come over here and they see so much

      24   effort being put on behalf of people who are charged with

      25   doing something so terrible, they see what our fathers and

                                                                    5803

       1   some of us put their lives on the line for.

       2            Mr. Karas touched on a statement by Mr. Odeh saying

       3   "planning, thinking, patience," and I will submit to you what

       4   we have in our nation, what you see before you is the result

       5   of planning, thinking, patience, wisdom and a few wars thrown

       6   in.

       7            We also took a pledge, like the defendants, Mohamed

       8   Odeh, bayat.  When we were children, we took a pledge.  We

       9   pledged "allegiance to a flag, the United States of America,

      10   and to the republic for which it stood, one nation, under God,

      11   indivisible, with liberty and justice for all."  But that

      12   pledge does not mean, just like bayat, that we somehow turn

      13   into something that we're not because somebody points us to a

      14   village where there are innocent civilians, or somebody asks

      15   us to engage in activity that deprives us of our human

      16   dignity.  With the pledge, we still conduct ourselves in

      17   accordance with the laws of our nation and our belief in God,

      18   if we so choose.

      19            Now, here the term "justice" is applied, and justice,

      20   to me, is a meaningless term by itself.  Justice, as I stated

      21   to you when I started this case, has to be served by you

      22   day-in, day-out.  It's late in the day.  Still on your job.

      23   Day-in, day-out.  "Justice" is an empty word, but "justice" is

      24   a promising word.

      25            Justice assumes that there will be people like

                                                                    5804

       1   yourselves to see that it is done.  There have been many men

       2   like Mohamed Odeh in our nation's history and throughout the

       3   world.  He chose to fight against oppression and injustice in

       4   Somalia and Afghanistan, but he did so without losing his

       5   human dignity, his sense of what is good and evil, and with

       6   his willingness to serve Allah.  And there's not a single

       7   piece of evidence in this case to the contrary.

       8            Everything that you heard about Mohamed Odeh from his

       9   letters and his statements is that he's a righteous soldier, a

      10   loving husband, a beloved son and a brother and an uncle.  As

      11   I stated probably too many times, to some, he was a fool, but

      12   to the people in Somalia, when people like him showed up, when

      13   we were back home watching T.V., he was a blessing -- I'll say

      14   it again -- because he went to Somalia for the same reasons

      15   that the U.N. went, which is to save lives.

      16            Many young men decide to give up their studies and

      17   endure poverty and live a righteous life.  Today, Mohamed

      18   Odeh's fate, his immediate faith, is in your hands.  I remain

      19   confident that you will serve the ends of justice.  Whatever

      20   you decide is right.  That's not for me to take from you or

      21   anybody in this jury box.  It's your decision, your collective

      22   decision, that counts.

      23            What I suggest to you is to take every document, each

      24   clothing item, each letter, every fingerprint, take a look at

      25   all of the testimony in its entirety and in connection with

                                                                    5805

       1   each other.  Pay attention to the law as Judge Sand gives it.

       2   Shut out the wishes of defense counsel -- me, Mr. Wilford.  I

       3   suggest shut out the government's arguments.  The Judge is

       4   going to tell you that you can decide and take them for

       5   yourself if you want.

       6            Shut mine out.  Go back there with the evidence and

       7   come up with your own.  You then have to decide on your own

       8   whether or not the government has proven its case against

       9   Mohamed Odeh, beyond a reasonable doubt, that he conspired to

      10   kill Americans, men, women, children, anywhere in the world

      11   where they could be found.

      12            A long time ago Dr. King talked about justice and he

      13   talked about a notion called the royal arc of justice, and he

      14   said that it moves slowly, it turns slowly, slowly, slowly it

      15   turns towards the truth.  And so it does.  You will decide

      16   what the truth of this case is, what the evidence represents.

      17            You have heard a lot of testimony from Imam Siraj

      18   about religious beliefs, and I agree with Mr. Karas:  This

      19   case is not about Islam.  It's about his state of mind and

      20   whether or not it affected his actions or inactions, period.

      21   Because in the end, you will decide this case on the same

      22   principles of law that every person who walks in a courtroom

      23   in this country is entitled to.  And they're not foreign

      24   principles.

      25            He's entitled to them no matter how many innocent

                                                                    5806

       1   people lost their lives, how many dreams were taken, and how

       2   painful it is for the people who suffered through this.  The

       3   greatness of what we have here is our ability to keep you with

       4   an open mind until you decide.  And when you decide,

       5   everybody's got the backup.  And accept that.

       6            If we don't have that, if you are quick to convict,

       7   irresponsible to acquit, we will find ourselves mired in the

       8   same anarchy that existed in Somalia.  Remember Imam Siraj:

       9   "You can't have a society where everybody makes up their own

      10   mind about what's right and wrong."  Your collective wisdom

      11   will come into play in this case.

      12            I am finished.  And I will say to you in the end,

      13   what happened is about 200 years ago a man from Africa was

      14   brought into a court in the United States.  He was unable to

      15   speak the language and he represented a very unpopular cause.

      16   In fact, he was represented by a former president of the

      17   United States, John Quincy Adams, and he was involved in a

      18   cause that ultimately tore the nation apart.

      19            He couldn't speak the language, but he knew one

      20   thing.  He stood up in a courtroom, manacled, and in his own

      21   way said, "Give us free."  And what I'm asking you on behalf

      22   of Mohamed Odeh is to give him free.  Give Mr. Odeh his

      23   freedom and send him back, send him back to that mut hut in

      24   the middle of nowhere, in a village called Witu and a country

      25   called Kenya, because in the end that is the only thing that

                                                                    5807

       1   this evidence in this case shows with respect to him.

       2            I want to thank you all.  I want to thank you, Judge

       3   Sand.  I want to thank you for the patience and the

       4   opportunity for giving both sides, both the government and

       5   defense, an opportunity to present the evidence in this

       6   important case so that the jurors here can make a decision on

       7   an issue that is so important to so many people.

       8            Thank you very much on behalf of Mohamed Odeh, on

       9   behalf of Ms. Babcock, Mr. Herman, of course, Mr. Wilford.

      10            Thank you very much.

      11            THE COURT:  Thank you.

      12            Ladies and gentlemen, rather than start another

      13   closing statement, we'll call it a day and we'll resume

      14   tomorrow at 10 a.m.

      15            Have a good evening.

      16            (Jury not present)

      17            MR. COHN:  Thank you, your Honor.

      18            THE COURT:  Anything else?  We're adjourned until 10

      19   a.m. tomorrow.

      20            (Adjourned to 10:00 a.m. on May 8, 2001)

      21

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