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

This is the transcript of Day 42 of the trial, May 9, 2001.

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

                                                                    5978

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           May 9, 2001
                                                   9:50 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5979

       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        MICHAEL GARCIA
                Assistant United States Attorneys
       6

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

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

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

      15   DAVID STERN
           DAVID RUHNKE
      16        Attorneys for defendant Khalfan Khamis Mohamed

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5980

       1            (In open court)

       2            THE COURT:  I received nothing from defendants with

       3   respect to the issue concerning alternates.

       4            MR. RUHNKE:  Your Honor, just one quick thing on the

       5   alternates.  In the Johnson case, which was cited by the

       6   government, which is the 7th Circuit case I was thinking about

       7   yesterday, there's also a case the government doesn't cite out

       8   of the 5th Circuit, United States v. Webster.

       9            THE COURT:  United States v. Webster holds that it's

      10   harmless error at a time when the statute specifically

      11   mandated that the jurors be discharged.

      12            MR. RUHNKE:  Basically counsel messed up in both of

      13   those cases by not asking that the jurors be discharged.

      14            THE COURT:  Excuse me?

      15            MR. RUHNKE:  Essentially, counsel made a mistake in

      16   both of those cases by not asking that the jurors be

      17   discharged at the end of the guilt phase.

      18       I will tell you what our position is on behalf of Khalfan

      19   Khamis Mohamed:  While this is an unchartered area, if there

      20   is any tradeoff at all to be made on timing or the

      21   government's suggestion of combined penalty phasing, we're

      22   prepared to consent to your Honor keeping the alternates and

      23   substituting them in to penalty, if and when we come to that

      24   moment, consider substituting, depending what the

      25   circumstances are when we come do that.  Basically, we're not

                                                                    5981

       1   asking you to discharge the alternates.

       2            MR. BAUGH:  On behalf of defendant Al-'Owhali, your

       3   Honor, again, because of the bifurcation issue, if there is a

       4   tradeoff, we would agree with Mr. Ruhnke and join in his

       5   position.

       6            THE COURT:  Whatever your motivation for agreeing

       7   with it, I am not going to discharge the alternates.  As the

       8   commentary to the latest revision to Rule 24(c) makes clear,

       9   the matter is discretionary with the Court.  There are a

      10   number of reasons, many of which I cited yesterday, why that

      11   would be particularly inappropriate in this case.

      12       I will add to yesterday's list, one is that Mr. Rogers has

      13   been promoted and is now in White Plains.  I don't really

      14   relish the thought of going through a voir dire process anew

      15   without his very able assistance.

      16            The rule in the Second Circuit even prior to the

      17   revision was that it was harmless error and it's the only

      18   instance in my practice in which I have ever adopted something

      19   which was harmless error, and I adopted it for an entirely

      20   different reason and in fact never had occasion to utilize the

      21   alternates.

      22       But I don't believe I have a right under the First

      23   Amendment to instruct a discharged alternate not to talk to

      24   the press, and so there is at least the possibility that a

      25   discharged alternate will give an extensive interview to press

                                                                    5982

       1   less responsible than those that are presently in the

       2   courtroom, which gets published and is read by a

       3   non-sequestered jury.  And therefore, keeping alternates as

       4   members of the jury does empower the Court to say that.

       5       In any event, that's the practice that we'll follow here

       6   for many, many reasons.

       7            Let me have counsel for both Al-'Owhali and K.K.

       8   Mohamed, their statement of mitigating factors, requests to

       9   charge and special verdict form by May 17th.

      10            MR. RUHNKE:  Fine, your Honor.

      11            THE COURT:  Let's bring in the jury.

      12            MR. RUHNKE:  Your Honor, we're just sort of asking

      13   ourselves whether we have gotten your Honor's final charge,

      14   and I don't know whether we have or not.  No one seems to have

      15   gotten it.

      16            THE COURT:  Yes, you have.  The only changes that

      17   were made were the insertion of the stipulation numbers, a

      18   statement to the fact that the indictment contains background,

      19   that the background is the government's version and is not

      20   evidence.  I think those are the only changes.

      21            MR. RUHNKE:  I suppose the inquiry is, are we going

      22   to get it at some point in the form that is going to go to the

      23   jury?

      24            THE COURT:  Yes.

      25            MR. RUHNKE:  Okay.

                                                                    5983

       1            (Jury present)

       2            THE COURT:  Good morning.

       3            THE JURY:  Good morning.

       4            THE COURT:  We are in the midst of the government's

       5   rebuttal argument, and Mr. Fitzgerald, you may continue.

       6            MR. FITZGERALD:  Thank you, Judge.

       7            Good morning.

       8            THE JURY:  Good morning.

       9            MR. FITZGERALD:  I'll finish this morning.  I'm going

      10   to talk to you about four people.  I'm going to conclude the

      11   discussion, finish the discussion about the rebuttal to

      12   Mohamed Sadeek Odeh, then I'll discuss the case against

      13   Mohamed Rashid Al-'Owhali, then I'll discuss the case

      14   involving Khalfan Khamis Mohamed, and then I'll briefly talk

      15   to you about one person who you have heard precious little

      16   about.

      17       Let's start with defendant Mohamed Odeh.

      18            When Mr. Ricco and Mr. Wilford summed up to you,

      19   basically they invoked an image of sending him back to Witu

      20   and his mud hut, and there is something attractive about a mud

      21   hut.  It seems simple.  It seems peaceful, particularly if you

      22   forget the sketch that's in there that we'll talk about in a

      23   moment.  But I ask you to think of this.  August 7th, 1998,

      24   when those bombs went off, in Odeh's mind, in Odeh's physical

      25   presence, he was not in a mud hut, he was in Pakistan, hoping

                                                                    5984

       1   to get to Afghanistan, to get to a cave where Bin Laden was.

       2            You heard argument as to why it is that if Mohamed

       3   Odeh was guilty, he left his family behind if others traveled.

       4   I submit to you to think about three things:  First, he often

       5   left his family to go do Jihad.  He went for months.  That's

       6   why you have those tape letters to the wife:  I'm off.  I'm

       7   doing what I have to do.  I'm doing good deeds.  Sorry I'm not

       8   home, but I'll come back when I can.  He made the choice on

       9   August 7th, 1998 -- earlier than that -- to go to the Hilltop

      10   Hotel rather than with this family.

      11            And I also submit to you that you learned that his

      12   wife was pregnant.  If your wife was pregnant, do you want her

      13   to travel?  Do you want her to travel to give birth in

      14   Afghanistan, when you know that the navy, the U.S. Navy, is

      15   supposed to send planes to retaliate?  It makes sense.  You

      16   would leave her somewhere else.

      17       Let's talk about the concept of innocent civilians for a

      18   moment.  It's one of those things about wishful thinking.

      19   Nobody wants anyone to kill innocent civilians, but the point

      20   is, what do people think?  Who do they think are innocent

      21   civilians?

      22       The scary thing about terrorism is no one gets up in the

      23   morning and says I'm going to be a bad person that day.  They

      24   do things, they commit crimes that have been justified as

      25   being proper.  And what have we learned about al Qaeda and

                                                                    5985

       1   what al Qaeda thinks about people in the embassies?  Well,

       2   we've seen that al Qaeda thinks that if the U.S. forces are

       3   invited to Saudi Arabia and go there, that's blasphemy.  If

       4   U.S. forces go to Somalia to stop starvation, that's

       5   colonization.

       6       And what do we know from Kherchtou from the transcript at

       7   4741 to page 42, when he says some believe that embassies was

       8   a place for spying:

       9   "Q.  Were people told this in your presence?

      10   "A.  Yes.

      11   "Q.  Were people told that embassies were used to establish

      12   covert operations?

      13   "A.  Yes."

      14            What about the ABC speech, the speech or the

      15   interview by Bin Laden to John Miller from ABC in May of 1998

      16   where he talks about how, after the Khobar bombing, the

      17   embassies are used to gather information.  To al Qaeda,

      18   embassies are not innocent places.

      19            How about -- and we'll display Government Exhibit

      20   351, a document found in the home of that person Abu Mohamed

      21   al Amriki, the surveillance person.  If you look at Government

      22   Exhibit 351, page 1, section B, what does it talk about?  It's

      23   talking about a security system called Netaqat, the system of

      24   the Netaqat to serve, number 2, the Netaq is the term used in

      25   the security.

                                                                    5986

       1       For example, an embassy of a foreign country will have

       2   several Netaq.  The first Netaq will be inside the fence and

       3   the security from the foreign country will take care of it.

       4   The second Netaq is the police outside the gate.  The third

       5   Netaq might be a patrol car stationed about two blocks from

       6   the embassy.  The fourth Netaq might be a police unit

       7   responsible to protect some sensitive targets in the area.

       8       How about that other person who did surveillance, the

       9   person Anas al Liby, the person whose passport photograph was

      10   recovered in Wadih El Hage's files in the search of his home.

      11   We'll display Government Exhibit 1677T, the translation, page

      12   12.

      13       When his house is searched in Manchester, that Jihad

      14   manual, this is what you find.  Down at the bottom, "The other

      15   missions consist of the following:  Number 7.  Blasting and

      16   destroying the embassies and attacking vital economic

      17   centers."

      18            I submit to you that when you look at Odeh's

      19   statement, the one that says "Odeh stated that the errant

      20   shock wave hit the wrong building," the right building is the

      21   embassy.  The right building is where they believe that the

      22   people are not innocent, and that serves as an introduction to

      23   the sketch.

      24            Before I address that, Mr. Wilford said, in

      25   addressing the sketch and the explosives residue, that this

                                                                    5987

       1   case comes down to simple physical evidence.  I submit to you

       2   that it does not.  The physical evidence strongly

       3   corroborates, convincingly corroborates what is there.  But

       4   you have to look at everything in context, because what do you

       5   know aside from the sketches, aside from the residue?

       6            You know that this was a bombing carried out, in

       7   large part, by al Qaeda, and the al Qaeda people carrying out

       8   the bombing were in the Hilltop Hotel.  Who was Mohamed Odeh?

       9   An al Qaeda soldier.  Explosives training.  Architectural

      10   training.  And where is he?  At the Hilltop Hotel.  Under what

      11   name?  Abdel Basit Awad.  He's here.  He's heard about the

      12   fatwahs in '96 and '98.  He's still with the group.  He has

      13   heard from Mustafa Fadhil that there's discussions about

      14   whether or not an operation in Kenya is okay.

      15       And that's his version.  We'll see what it really means

      16   when you look at the sketch.  He's heard that it is urgent.

      17   Everyone has to leave town by August 6th.  You saw the way it

      18   operates.  Everyone gets out of town 24 hours beforehand,

      19   except those carrying out the bombing.

      20            He's got that tape in his house, the tape to his

      21   wife, September of 1997, when there's American activity in

      22   Kenya against the brothers where he says, "We will get them

      23   back 20 fold.  Time, thinking, and preparation."

      24            In that context, in that context, where he's told

      25   that the United States Navy is going to retaliate and the

                                                                    5988

       1   people back in Afghanistan have to move, then look at the

       2   sketch, because its context is the whole picture taken

       3   together, not one piece of the puzzle.

       4            All right, 704.  This is an enlargement of that

       5   sketch.  It's on the screen as well.  Let me remind you that

       6   when Mr. Wilford addressed you, he told you in a loud voice

       7   that, you know what, this book had Mustafa Fadhil's

       8   fingerprint on it and no one else's.  And I'll look to the

       9   transcript at 5295, 5296.

      10       What Mr. Wilford told you is:  It had one fingerprint that

      11   the government was able to recover that the FBI found, and

      12   that was a fingerprint of Mustafa.  Not Mohamed Odeh, Mustafa.

      13   What does that tell you?  It was found in Mohamed Odeh's

      14   house, yes, okay.  Does it show you that he handled it?  No.

      15   That's not proof beyond a reasonable doubt.  It does show you,

      16   however, that Mustafa handled this book.  That's what the

      17   proof shows you.  Don't be confused.  You may be asked to make

      18   inferences that Mr. Odeh drew this.  The only proof we have in

      19   this case that shows that anybody handled this book is

      20   Mustafa.

      21            There are several problems with that.  First of all,

      22   Mustafa Fadhil's fingerprint was not found on the book.  The

      23   evidence in this case, you can look at Mitch Hollars'

      24   testimony, this book has many pages.  This is page 3, and

      25   we'll talk about page 3, page 4 and page 5 in a moment.  This

                                                                    5989

       1   is page 3, this is page 4 -- what's left of it -- this is page

       2   5.

       3            The book has lots of writing in it.  In fact,

       4   Mr. Wilford said, "Elsewhere, you know when it's Odeh's

       5   handwriting and other things because of discussion of fish."

       6   You can look at this book.  You can get gloves, you can look

       7   through it in the jury room later on.  In the book there's

       8   discussion of king fish.

       9            What Hollars told you, with all the pages that have

      10   writing on it -- and there are more than a dozen pages of

      11   handwriting -- only one fingerprint could be recovered in the

      12   entire book.  It's on page 1.  Not on this page, not on that

      13   page.  And they compared the fingerprint on page 1 to Odeh and

      14   to Mustafa Fadhil and neither hit.  And as Mr. Wilford asked,

      15   Mr. Hollars:  You have no idea who that print belongs to; is

      16   that correct, sir?  And he said no.  You don't know who put

      17   that print on page 1?

      18       Well, one thing you do know is somebody handled the book.

      19   Somebody wrote on all those pages with writing, and the

      20   fingerprints -- there are no fingerprints recoverable from any

      21   of those pages, so you just don't know.

      22       You also heard that no one tested the writing.  Agreeable,

      23   no one tested the writing, neither the government, and the

      24   defense has no burden, but they didn't test the writing.  And

      25   I submit to you when Mr. Wilford implied to you that maybe the

                                                                    5990

       1   government tested it and didn't like the result and ditched

       2   it --

       3            MR. WILFORD:  Objection.

       4            THE COURT:  Well, I sustain the objection and that

       5   comment is stricken.

       6            MR. FITZGERALD:  I just submit to you the defense has

       7   no burden, but if you think that there's something in here

       8   that shows the handwriting is elsewhere --

       9            MR. WILFORD:  Objection.

      10            THE COURT:  Overruled.

      11            MR. FITZGERALD:  -- the defense could call an expert,

      12   like they did Dr. Lloyd, and look at it.

      13            Well, let's take a look at the handwriting, okay?

      14   And look, don't rely upon amateur handwriting experts,

      15   yourself or myself, but let's take a look.  And when you look

      16   at the handwriting, let's focus on another document taken from

      17   the Odeh house, Government Exhibit 702.  That's what was

      18   referred to by the Odeh team as an inventory.  The original is

      19   the same type of brown paper, looks more like a budget.

      20            I'll tell you right up front, 702, the budget, was

      21   found at Odeh's house and that one does have Mustafa Fadhil's

      22   fingerprint on it.  Now, you may say, well, it's Mustafa's

      23   fingerprints on it.  Maybe Mustafa Fadhil wrote it.  If it's

      24   in Odeh's house, maybe Odeh wrote it.

      25       You can take a look at what the contents of the document

                                                                    5991

       1   are, because you will see that this budget document is

       2   important because of what light it sheds on the sketch.  The

       3   budget document has a translation, Government Exhibit 702-T.

       4   We'll put up 702-T, page 1.

       5            And before you look at this page, I'll tell you what

       6   the significance is.  If you remember that spring 1997 report,

       7   that secret document that Wadih El Hage walked back from

       8   overseas from Bin Laden to Kenya, after that new policy came,

       9   you learned that four particular people got engaged in

      10   activity in Somalia:  The defendant Odeh, Marwan; Mustafa

      11   Fadhil, known as Khalid, and you have seen his picture a

      12   number of times; and this fella -- you heard about an Ahmed,

      13   Ahmed the Egyptian or Ahmed al Saghir; and you also heard

      14   about Harun.  And you have seen his picture often enough,

      15   Harun.

      16            When you look at 702-T, there's no year on it, but

      17   you can figure out it's not 1998.  It's got entries in it past

      18   August 7th, so when you see the references to weapons and

      19   artilleries, we're not claiming that's for August 7th, the

      20   bombing.  It makes more sense it's before, 1997, when the

      21   people are doing the work set forth in the policy.

      22            When you look at the budget, on the first page you

      23   will see in the lower right-hand corner and Ahmed al Saghir,

      24   and it says, "Ahmed al Saghir was sent to Mombasa to brother

      25   Khalid carrying a report to brother Khalid."

                                                                    5992

       1       That is a nine-page document.  You can go through it.  The

       2   point is this:  You will see references to an Ahmed, you will

       3   see references to a Khalid and you will see references to a

       4   Harun, all written in the third person.  There is no reference

       5   to Odeh, no reference to a Marwan.  I submit to you either

       6   Odeh wrote it; he's talking about the other three guys in the

       7   third person; or one of those people wrote it and wrote a

       8   budget using his own name as a third person.  This is

       9   important because it's about, quote, military work, getting

      10   explosives, getting artillery, getting training.

      11       Now let's go to the original, Government Exhibit 702-P,

      12   and we'll go to 702-P1.  And if we could go to 702-P1 and

      13   focus on the number 3 on the first page as it's written on the

      14   budget.  If we could then magnify it and enlarge it on the

      15   left.

      16       Now if we could go to the sketch, 704P-2, on the right and

      17   enlarge the number 3 and compare.  Now if we could look at a

      18   6.  Go to Government Exhibit 702, page 5.  Focus on the 6.

      19   Magnify it on the left.  Go back to the sketch on the right.

      20   Magnify the 6.  Very similar.

      21            Now, you can go through different 3's different

      22   times, the 6's seem to match.  I tell you right now, if you

      23   look at the 1's, the 1's are odd because the 1 here sometimes

      24   it's drawn like this.  You can see a little bit of a hook.

      25   There's more hooks on the 1's there.

                                                                    5993

       1       You know what, I submit to you that there could be more

       2   than one handwriting in this book or in that book, but it

       3   appears it's Mustafa Fadhil and Odeh and the group writing

       4   what's in the budget and drawing a sketch.  And that's the

       5   important piece, because if the people writing this budget,

       6   the budget about the military work, about explosives and

       7   artillery -- let's give them Mustafa Fadhil.  Mustafa Fadhil

       8   is drawing this and he's drawing this, this is not about a

       9   snow cone.  Mustafa Fadhil is not in the snow cone business.

      10   You don't go to Witu for a snow cone.

      11       And what did we hear from Odeh?  Talk about dancing with

      12   the truth.  I'll borrow a line from Fred Cohn:  "If you want

      13   to make up a lie, get one grounded in the truth."  Odeh tells

      14   you Mustafa Fadhil came to visit him in the spring of 1998,

      15   and he and Mustafa Fadhil were talking.  Mustafa Fadhil was

      16   talking about whether an operation in Kenya is something he's

      17   for or against, and Odeh says Mustafa Fadhil has the same

      18   mind-set.  He likes Kenyans.  But Saleh has a different

      19   mind-set.  He doesn't like Kenyans.

      20       And I submit to you this document, whether it's Odeh

      21   writing it down while he's discussing with Mustafa or Mustafa

      22   writing it down while he's discussing it with Odeh, shows you

      23   that they're not trying to decide whether an operation is a

      24   good thing or a bad thing, they're trying to get it right,

      25   point it at the right building, point it at the building that

                                                                    5994

       1   has the generators on the side.

       2            Page 4, let's focus on page 4.  A lot was made on,

       3   where is page 4?  Mr. Wilford basically said to you, to me,

       4   have him get up here and tell us where page 4 is.  Mr. Ricco

       5   went a bit further.  Mr. Ricco said, a quote from page 5320 to

       6   5321 about the mystery of page 4:

       7       "You see this here?  You see this?  This torn out page?

       8   Do you see the writing on that torn-out part?  When you go in

       9   the back and deliberate, take the book out.  This is the book.

      10   You are going to find another torn-out page on here, another

      11   torn-out page on here that somebody put another 4 on the back

      12   of.  So you will find a 4, but that number 4 does not match

      13   this because the writing is not on the flip side of the tab."

      14   He showed you this tab.  He said, "Look at the writing.  It's

      15   not on the flip side."

      16            And then he continued, page 5321:  "This page on the

      17   back, somebody wrote in a small number 4 so you would think

      18   that when you take this, if you put it behind that and flip it

      19   around, this should match up.  What you are going to find?  If

      20   I put it on the Elmo and hold down that tab, what you see is

      21   that the writing is not there.  It's gone."

      22            So now what you have, not only do you have a

      23   coincidence that he's got a sketch in his house that matches

      24   the description of what he thinks the physics works like, not

      25   only does he have al Qaeda conspiring against them, they're

                                                                    5995

       1   dragging him to the Hilltop Hotel, under a fake name, making

       2   him hang out with the bombers for days before he leaves under

       3   a fake name, 24 hours ahead of time.  Now the FBI lab is

       4   joining in.  When they frame people, they make little notes.

       5   They draw a 4 on the page, rip it out, and put a new one in.

       6       That's pretty desperate.  But let's take a look.  Let's

       7   take a look, and I invite you to take this in the back with

       8   you, to take some gloves and walk through it.

       9            We have some of it scanned on the screen so we can

      10   show you, but do not take my word for it.  Take it in the

      11   back, take your gloves, take your time.  You can all look.

      12   The staples are now removed from the book.  It was processed

      13   at the lab.  But move the pages around and see if the 3, the 4

      14   and the 5 don't fit.

      15       If you look on the screen -- and I'll take this down so

      16   it's not a distraction -- if you look at the screen on the

      17   top, there's a picture 704-P, which is stipulated to be the

      18   photograph taken of the exhibit before forensic analysis,

      19   before the lab did their work.  We'll come back to that.

      20       Look at the lower left corner, if we could, Gerard, the

      21   lower left corner on the top of the exhibit, and if we could

      22   magnify that.  And there you see the 3.

      23            Now if we could go on the right.  Look in the lower

      24   right corner of that page and magnify it, and you see there's

      25   a 5.  It looks like a K538, which, if you check out, looks

                                                                    5996

       1   like the lab number for that exhibit.

       2       Now let's look at the exhibit in the middle, down below

       3   from the original, which you can look at yourself and magnify

       4   that's on that little shred of paper.  What do you see?  A 4

       5   with K538 and some initials, which appear to be like the

       6   initials under the 5.

       7            Someone was careful enough to say, hey, this is a

       8   book, it's falling apart, number the pages, 3, 4 and 5.

       9            Okay.  We still got a problem, don't we?  We got a

      10   problem with what happened to the writing.  Well, I submit to

      11   you, you can take the book in there and you can flip the page

      12   over and we can display the page with the little shred turned

      13   over on the bottom.

      14       If we could magnify the other side of what's left of page

      15   4, if we could magnify the top, the picture from 704-P2, the

      16   photograph of the exhibit before the lab tested it, put them

      17   side by side, first look at the shape.  Those are the outline

      18   of what's in here.  And you can look at it for yourself and

      19   you can take -- there's an original exhibit that's smaller.

      20   Compare it.  They line up.  They line up with the size.

      21       What about the ink?  Well, I'll tell you two things.  Look

      22   at the book at the top.  Look at the book at the bottom.  You

      23   see those blue lines across the page?  They're gone.  They're

      24   gone from testing.  Remember that stipulation I told you?

      25   Government Exhibit 46 is a stipulation that the coloration of

                                                                    5997

       1   the exhibit changed during testing.  All those blue lines are

       2   gone.  The lab isn't going around stealing the blue lines out

       3   of the page, it's gone from testing.

       4       And if you look on the left and you can look at the

       5   original, you can see outlines, little bits of blue on that

       6   page.  That's what's left of page 4.  There's no mystery.  It

       7   wasn't stolen.  It wasn't fabricated.  It wasn't stolen,

       8   documented and put back.

       9            Now, we heard about the box in the circle.  If you

      10   look at the comparisons that we've done -- and you'll see them

      11   in a moment -- on the comparison we did, we never put the box

      12   in the circle.  No one ever contended that Odeh or Mustafa or

      13   whoever was there drawing during the discussion drew the tent

      14   afterward.

      15       What is this?  We don't know.  Could there ever have been

      16   something on that circle beforehand?  Could that be the car?

      17   Remember Harun drives the lead truck?  What is it?  What, I

      18   submit to you, is look at the entire picture.  This is the

      19   traffic circle.  This is the embassy, and the direction is

      20   correct.

      21       They talked a bit about turning the sketches around.

      22   Remember when you looked at that big model that was in the

      23   courtroom, when you were asked to look at the model, if you

      24   are looking at the embassy, if the embassy is here and the

      25   traffic circle is there, south is this way.  And there's a

                                                                    5998

       1   stipulation that this word written here is "south."  Another

       2   great coincidence.

       3       Look over here.  Look at this.  If this is a truck facing

       4   the embassy, lo and behold, right in the parking garage, where

       5   the truck is supposed to go, there's the generator, the round

       6   circles of the generator you can see in the screen.

       7            Now, you were told, why didn't they ask Mohamed Odeh

       8   about it?  They recovered it on August 25th.  He's on a plane

       9   on August 27th.  I submit to you, look at your common sense.

      10   There were searches going on all the over the place, the Mercy

      11   search, the search in Witu on the Khost of Kenya.  And when

      12   that search evidence came in, there were boxes piled up here,

      13   all different books.

      14       And you saw the defense put in, which is proper, some of

      15   the other books from that same bag.  And you saw that box and

      16   you saw things and papers and other things and other boxes and

      17   other things and searches happening in Tanzania and

      18   everywhere.

      19       Does that mean if an FBI agent in Witu grabs a box of

      20   papers, that he's suddenly read the back of this and knows

      21   there's a shred of paper and he studied everything, and

      22   everyone involved in the investigation in all the countries,

      23   including Agent Anticev who is in the interview, suddenly

      24   knows about every piece of paper from the Mercy search and the

      25   Witu search and the Ilala search and all those other searches

                                                                    5999

       1   at once?  No.

       2            The blast cone.  We were told that, where is the

       3   expert testimony on the blast cone?  That's Mr. Karas twisting

       4   it.  I submit to you the expert testimony on the blast cone is

       5   right back here.  The expert testimony on Odeh's state of mind

       6   is what Odeh said.  That's what he thought, that's how it

       7   worked.

       8            Don Sachtleben didn't think it worked that way.  He

       9   couldn't give expert testimony about the wrong physics.  But

      10   the wrong physics is what Odeh thought about.  That's his

      11   blast physics and that's on the sketch in his house.

      12            Finally, my favorite argument on the sketch which

      13   let's you know they're fighting way too hard:  Government

      14   Exhibit 253.  Mr. Wilford said, you know what?  They turned it

      15   around.  The government turned the sketch around, because,

      16   look, it's facing that way.  And look in the book, it's facing

      17   this way.  Wow.  Who did that?

      18       Well, let me tell you something.  This looks pretty darn

      19   incriminating, doesn't it?  Because you've got the sketch

      20   thing facing that way and it lines up with the generator.

      21   Watch this:  It's still incriminating.  It doesn't change the

      22   position.  This sketch is facing down that way.  The generator

      23   is there.  You look on the screen, it's the same thing.  This

      24   is the blast cone, the bomb, whatever you want to call it, the

      25   force of the bomb being directed at what Odeh thinks is the

                                                                    6000

       1   right building.  And these circles are the generators of the

       2   right building, the embassy.

       3            I submit to you that when you look at the case

       4   against Mohamed Sadeek Odeh, it is not a case where there's

       5   overwhelming evidence that he is there, that he's a member of

       6   the group and he knows everything, and it's compounded by a

       7   conspiracy by al Qaeda to drag him to the hotel and have him

       8   hang around and leave under a fake name, with a conspiracy by

       9   the lab and a conspiracy by the prosecutors to twist things,

      10   what I submit to you is at some point your common sense, your

      11   reason, your experience kicks in, it hits the evidence and it

      12   says, you know what?  He did it.

      13       He wanted to bomb that building.  He made a conscious

      14   decision to participate.  He sat and discussed with other al

      15   Qaeda members how to do it.  The Hilltop Hotel wasn't a

      16   layover on the travel to Pakistan to confer, it was place to

      17   go, a place to go where you can help.  It was a place to go

      18   where you could help under a fake name and get out of town,

      19   and the only thing wrong with what he did was he didn't make

      20   it all the way to Afghanistan, and now, after the fact, after

      21   putting those Kenyans at risk, he's upset that the plan didn't

      22   work, that it hit the right building, but it also hit the

      23   wrong building.

      24       And it's too late for sorry now.  He made that decision to

      25   participate.  He made a decision to put those Kenyans at risk.

                                                                    6001

       1   He made the decision to kill Americans.  And I submit to you,

       2   look at the evidence as a whole picture:  A person trained in

       3   architecture and engineering, a person trained in explosives,

       4   trained in intelligence, who went to the al Qaeda camps and

       5   belonged to the group since 1992.

       6       And remember, you learned from the Somalia proof the most

       7   important thing:  Al Qaeda is against America at least as

       8   early as 1993.  And he's with the group and he stays with the

       9   group, and he stays with the group past August 1996 when the

      10   war becomes public, not when it began.  When Bin Laden

      11   declares the public war, he doesn't drop out.  And he stays

      12   past February 1998 when the war is against American civilians

      13   and military.  He stays in.

      14            He stays in the war in 1997.  They're working on a

      15   budget -- not for integration in Somalia, but for artillery

      16   and explosives.  He stays with the group when he hears from

      17   Mustafa Fadhil that they're discussing whether an operation in

      18   Kenya is a good thing or a bad thing.  That sketch is in his

      19   house.  Mustafa Fadhil went there.  I submit to you they

      20   discussed it, they planned it, and that's why he went to

      21   Nairobi.

      22            He stayed in al Qaeda when he was angry in September

      23   1997.  And don't forget that tape they don't want you to

      24   remember, the tape from Witu where he tells his wife, after

      25   American activity in Kenya in August 1997, "They have won this

                                                                    6002

       1   time.  We will get them back 20-fold.  Time, thinking,

       2   preparation."

       3            He stays.  He makes a conscious decision to

       4   participate.  He helps plan where the bomb truck should go.

       5   He goes to Nairobi.  He knows, as a Kenyan with a Kenyan I.D.

       6   card, he doesn't want his name on that registry.  He checks

       7   into the hotel.  He admits he knows that he's told that it's

       8   urgent he leave, that an operation is coming, a big operation

       9   is coming, told to him by Mustafa Fadhil, the person he was

      10   talking to.  He even admits he knows the U.S. Navy is going to

      11   retaliate.

      12            He gets out, according to the plan, 24 hours

      13   beforehand.  He sees his bomb trainer/instructor in the hotel.

      14   He wasn't surprised.  He knew this was a bombing.  Maybe he

      15   didn't know which bomb maker would show up.  He even admits he

      16   walks out on Moi Avenue on the Wednesday but doesn't know

      17   where the embassy is.

      18       He sees Saleh and Harun going out for a small job, but

      19   says, "I know it wasn't shopping," and then he makes his

      20   decision to get out of town.  He flees.  He's caught with a

      21   fake passport and TNT and PETN.  You heard that PETN is used

      22   in detonators.  It's not from grinding.  You don't grind a

      23   detonator.  Detonators are to go pop.  It's not on that

      24   grinder in Dar es Salaam.

      25       I submit to you that the evidence taken together is of

                                                                    6003

       1   such a convincing character, it's proof beyond a reasonable

       2   doubt that he did it.

       3            Let's talk about Mr. al-'Owhali.  When we talk about

       4   Mr. al-'Owhali I want to focus on law, justice and morality.

       5   I submit to you we don't agree that you have to check one or

       6   the other.

       7       I'm going to focus on three types of arguments with regard

       8   to Mr. al-'Owhali:  The arguments Mr. Cohn made about the

       9   conspiracy, the arguments Mr. Cohn made about voluntariness,

      10   and the arguments he made about what other evidence in the

      11   case there is besides the statement.

      12            The conspiracy arguments:  Mr. Cohn says he wasn't

      13   part of that conspiracy in that indictment.  That is wrong.

      14   What did he know?  He was, I don't know how old, 16, 19,

      15   whatever that first date is.  The judge will tell you the time

      16   frame -- if you join the conspiracy, you don't have to join

      17   when the conspiracy starts.  If Bin Laden starts in '92, you

      18   can join in '94, '96, '97, '98, you can join on August 6th of

      19   1998 once you meet the requirements:  You agree you are going

      20   to participate in a plot to kill Americans.

      21            And in looking at whether he joined the conspiracy,

      22   remember, actions speak louder than words.  In this case, from

      23   Al-'Owhali you've got both.  You've got actions, you've got

      24   words.

      25            The action, simple:  He blew up the embassy.  The

                                                                    6004

       1   words:  He told you he did it and he told you why.  I don't

       2   think we should overlook how specifically he told us.

       3            I'm going to read from the transcript page 2020 with

       4   regard to Mr. al-'Owhali.  This is the examination of Agent

       5   Gaudin:

       6   "Q.  Did Saleh say anything about why the embassy in Nairobi

       7   was targeted?

       8   "A.  Al-'Owhali explained to me that there were several

       9   reasons for picking -- explained to him through Saleh there

      10   were several reasons why the embassy in Nairobi was picked.

      11       "First, there was a large American presence at the U.S.

      12   Embassy in Nairobi; that the ambassador of the U.S. Embassy

      13   was a female and if the bomb resulted in her being killed, it

      14   would further the publicity for the bombing.  Also, that there

      15   were embassy personnel in Nairobi who were responsible for

      16   work in the Country of Sudan.  There was also a number of

      17   Christian missionaries at the embassy in Nairobi; and, lastly,

      18   that it was what Al-'Owhali explained as ease of access to the

      19   embassy.  It was an easy target.

      20   "Q.  Did Mr. al-'Owhali discuss any other targets with Saleh

      21   at this time?

      22   "A.  Al-'Owhali explained to me, explained to me that there

      23   were -- there's a number of different targets.  He doesn't

      24   know where they all are, but they're in the planning stages.

      25       "Al-'Owhali discussed with Saleh when, you know, are there

                                                                    6005

       1   targets in the United States that we can attack?  Saleh had

       2   explained to him there are targets in the U.S. that we could

       3   hit, but things aren't ready yet.  We don't have everything

       4   prepared to do that yet.  First, we must -- Saleh explains to

       5   Al-'Owhali that we have to have many attacks outside the

       6   United States and this will weaken you, the U.S., and make way

       7   for our ability to strike within the United States."

       8       And listen to the next part when you think back to that

       9   indictment section he posed about, well, was he trying to kill

      10   soldiers?  Was he trying to kill people in the embassies?  On

      11   the bottom of 2021:

      12   "Q.  Did Mr. al-'Owhali tell you about anything that he

      13   learned about targets during his training camps in

      14   Afghanistan?

      15   "A.  Al-'Owhali explained to me during his training they

      16   emphasized priorities of attacks, three of those to be

      17   military bases, U.S. missions or diplomatic posts, and

      18   kidnapping ambassadors."

      19       And just skipping ahead, make sure you understand exactly

      20   what the scope of the conspiracy that Mr. al-'Owhali knew he

      21   wanted to be part of, 2023:

      22   "Q.  Agent Gaudin, you testified, I believe, as to certain

      23   information that Mr. al-'Owhali learned about targets while he

      24   was in the training camps in Afghanistan.  Did he tell you

      25   anything about why embassies are specifically targeted?

                                                                    6006

       1   "A.  In addition to telling me the types of targets, he also

       2   explained that hitting embassies achieves certain objectives

       3   that he was instructed or that he was taught at the camps.

       4   And by hitting an embassy, the objectives are that you would

       5   achieve -- would be you hit the ambassador by hitting the

       6   embassy.  You would also -- also, an objective would be the

       7   military attache, the press attache, and what Al-'Owhali

       8   described as, most importantly, the intelligence officers at

       9   the embassy."

      10       Mr. al-'Owhali is a bright man.  He went to those camps

      11   with a brain, well-educated, smart, fully capable of free

      12   choice, and he listened and he remembered, he understood and

      13   he agreed.  He understood this is war against America,

      14   military, civilian, embassies, whatever it takes, he's going

      15   to do.

      16       And remember, he wouldn't join al Qaeda because he wanted

      17   to have a military mission.  He didn't want to be the guy

      18   doing paperwork.  He wanted to kill.  And you know what else?

      19   His own statement told you that when he left Afghanistan to

      20   Africa, all he was told was that it was an American target.

      21   He didn't learn it was an embassy until he got to Africa.

      22   What better proof than his goal, his agreement is, okay, it's

      23   Americans, I'll kill them.

      24       Mr. Cohn described Al-'Owhali as a most minor participant.

      25   Those are the words, "most minor participant." This man over

                                                                    6007

       1   here, not only did he travel to Africa knowing that it was a

       2   U.S. target, that's all he needed to know.  Not only did he

       3   want to kill, but he walked -- imagine him walking two days

       4   before the bombing, he walks up to the embassy, broad

       5   daylight, for surveillance.

       6       What does he see in the building?  People, downtown

       7   Nairobi crowded.  Did that stop him?  No.  Then, this man

       8   right here is in a truck.  The truck drives down the street,

       9   up into the embassy.  He throws the flash bang grenades.  And

      10   what do they do?  They bring all those people to a window, a

      11   window that gets blown out.  The lucky are blinded.  The

      12   unlucky are dead.  And as he turned his back to the bomb so he

      13   can save himself, the Ufundi House is crumbled.

      14       That carnage lays at his feet.  That is not the most minor

      15   participant.

      16       Let's keep it simple:  Conspiracy to kill Americans is an

      17   agreement.  You agree to kill.  He agreed.  He killed.  End of

      18   story.

      19       Let's talk about the voluntariness of the statement taken

      20   by Agent Gaudin from Mr. al-'Owhali.  You've had it thrown out

      21   there he is in mortal fear of his life.  No evidence of that.

      22       We've heard about prison conditions.  We heard about the

      23   jail conditions of Kherchtou.  He wasn't in the jail with

      24   Al-'Owhali.  He wasn't with the Americans or with the FBI and

      25   didn't have Agent Gaudin coming by to see if he had milk.

                                                                    6008

       1   He's with some other people.

       2       Now, Kherchtou, you heard, all right, he had to pee in a

       3   bucket.  He wasn't washing.  What did you learn about

       4   Al-'Owhali?  Well, first of all, context.  Al-'Owhali's been

       5   training in Afghanistan, fighting the Taliban in the

       6   mountains, and he comes to Nairobi to kill and to die.  When

       7   he is there in Nairobi, he expected to be dead.  He walked

       8   into a bomb scene.  The bomb goes off.  He sees it.  He goes

       9   to the hospital along with his victims.

      10       I submit to you the evidence shows he didn't care.  Do you

      11   think if he didn't have a shower, that's going to overbear his

      12   will?  When he was with Agent Gaudin, Agent Gaudin told you he

      13   took him to the bathroom.  He took him to the bathroom so he

      14   could wash to pray.  And Agent Gaudin was alone with him.

      15       You know what else Agent Gaudin told you?  A couple of

      16   remarkable things.  Al-'Owhali never once complained.  He

      17   never said anyone was threatening me, anyone was ever hurting

      18   me.  You saw the pictures.  Those scratches aren't being from

      19   being beaten, those injuries, the only injuries he had, were

      20   from the bomb he set of.  Those cuts, that's from his running,

      21   running away from the bomb.  Let it kill someone else, not me.

      22   I'm scratched.

      23       Agent Gaudin told you another thing:  No complaints.  No

      24   handcuffs.  Can you imagine?  The whole time that Agent Gaudin

      25   was with him, that whole time, he never saw him in handcuffs

                                                                    6009

       1   until he left.  Those are the conditions that struck fear into

       2   Al-'Owhali's heart.

       3       Mr. Cohn wanted to take a shot at Agent Gaudin and said,

       4   you saw a picture, you saw a picture in a jail cell.  That was

       5   his trophy picture because he cracked the case.  A little

       6   problem with that:  You learned he gave a statement on August

       7   22nd, and the photo was taken the morning before.  Don't let

       8   that get in the way.  We'll come back to how Mr. Cohn would

       9   like to treat Agent Gaudin.

      10       You have heard about the Kenyan handmaidens.  What are

      11   they doing?  There ain't no bruises.  There were no complaints

      12   from Al-'Owhali.  Why didn't we call them?  Okay.  Hi, sir.

      13   Were you working in the jail?  Did you beat Al-'Owhali?  No.

      14   What Mr. Cohn would say, maybe it was someone else.

      15       What, do we call 350 people to say we didn't beat him?

      16   Mr. Cohn will do what he did with Agent Gaudin.  He lied.  Do

      17   what he did to Muwaka Mula.  He lied.  I submit to you the

      18   agent is sitting there, talking to him alone, and he never

      19   once says he's hurt.

      20       The translator.  You didn't hear from the translator.  I

      21   submit to you, you think about the statement.  How bad could

      22   the translator have been?  He got it right.  He's given him

      23   the phone number in Yemen.  I called 00578 in Yemen.  Lo and

      24   behold, checked the phone records, he's calling 00578 in

      25   Yemen.  Says he went to the M.P. Shah Hospital.  Yep, he got

                                                                    6010

       1   it.  Money transfer house.

       2       And you know what?  Look at the form.  Look at the form

       3   that Al-'Owhali signed.  You can look at it.  It's in

       4   evidence, Government Exhibit 557.  What does he say before he

       5   gives a statement?

       6       I'll back up a moment.  Why did he give a statement?

       7   Well, it's in evidence.  He gives a statement after he is

       8   picked out in the lineup by Muwaka Mula.  He walks up, "That's

       9   the guy."

      10       He knows he's been picked out.  He's shown the pictures of

      11   43 Runda Estates.  He now knows they got the bomb factory.

      12   That thing is going to light up like a Christmas tree.  And

      13   they got the phone records.  They showed him the phone

      14   records.  And what do the phone records from Runda show?  His

      15   name, or his fake name, Khalid Saleh.  Khalid Saleh calling

      16   that number in Yemen, 00578, the number in Yemen in touch with

      17   the satellite phone.  And you know what?  It's Khalid Saleh

      18   calling that number in Yemen an hour before the bombing,

      19   checking in before mass murder, 9:30 in the morning.

      20       So as he's sitting there in Nairobi, he says, well, I got

      21   my fake name calling up Yemen from the place, the bomb

      22   factory.  They got pictures of the bomb factory and I got

      23   picked out in the lineup.  And you know what?  When he signs

      24   the form, what does he want?  I don't know what word to use,

      25   but he's got the gall to -- stronger words we can't use --

                                                                    6011

       1   he's got the gall to make demands.

       2       Here it goes, after acknowledging that he was advised of

       3   his rights, 557:  "I understand that both Kenyan and American

       4   authorities are investigating the murder of the various

       5   American and Kenyan victims in and around the United States

       6   Embassy in Nairobi.  I have a strong preference to have my

       7   case tried in the United States court because America is my

       8   enemy and Kenya is not.

       9       "I would like my statements about what I have done and why

      10   I have done it to be aired in public in an American courtroom.

      11   I understand that the American authorities who are

      12   interviewing me want to know who committed the bombing of the

      13   embassy and how it was carried out."

      14       He wanted his day in the sun.  He wanted to be in an

      15   American courtroom with the media there to hear what he did,

      16   why he did it, before he talked.  He did, and he got it.

      17       And you know what?  This guy's fearing for his life and

      18   he's the one making the demands and now they're going to tell

      19   you, sit back and listen.  Basically, shut up, stupid.  I'm

      20   going to tell you what happened, and when I'm done, then you

      21   can ask me questions.

      22       And you know what?  The best proof of that is a defense

      23   exhibit.  Let's put up Defendant Al-'Owhali Exhibit C on the

      24   screen.  This is a man who just killed over 200 people, was in

      25   the hospital with the victims, saw the people he blew up.

                                                                    6012

       1       There's no Agent Gaudin here.  This is the one with the

       2   reporter.  He thinks he's a champ.  Is he in fear of his life

       3   or is he just, just brazen, arrogant, in your face, saying,

       4   "Hey, America, you're the enemy.  I'm going to fight you.  I'm

       5   going to meet you in court.  I want to tell my story."

       6       Is his story reliable?  It's completely corroborated.  He

       7   talks about the gun, the .9 millimeter gun he left in the

       8   truck, the slide, the slide for the .9 millimeter was found

       9   there with the pitting, very close to the bomb and the

      10   bullets, the bullets matched and were found in the hospital

      11   where he was.

      12       What else did he tell you?  He told you about the Dihab

      13   Shil money, and this checked out.  And he told you about the

      14   French Embassy.  Remember, he said down in Dar there's this

      15   other bombing and they had to move the truck around because

      16   they didn't want to hit the French Embassy.  And lo and

      17   behold, Ambassador Lange comes out and says after the bombing,

      18   I come out, I go across the courtyard, I shake hands with the

      19   French ambassador.

      20       Now, another thing about Al-'Owhali.  You would think they

      21   want you to think that the only evidence in the case is his

      22   confession.  I submit to you, very clearly, that there's more

      23   than enough evidence, more than enough evidence to convict

      24   Al-'Owhali beyond a reasonable doubt without the confession.

      25   Strong words, but true.

                                                                    6013

       1       Muwaka Mula.  Charles Muwaka Mula who came, the guy who

       2   had the stun grenade thrown at him.  How many times do you

       3   think that happened in his life?  Hopefully once.  You think

       4   he can remember the guy who threw it at him.  When he took the

       5   stand, you remember your recollection of what he did?  I

       6   submit to you, you may remember that he sat there and he

       7   looked when he was there, looked this way for a long time, and

       8   then he slowly started to turn around in his seat during the

       9   testimony, and then, when he was called upon, he identified

      10   him.

      11       And what does Mr. Cohn do?  Well, he calls it the worst

      12   I.D. witness in the history of the Western world, which fits

      13   if you make up that he cheated.  He said, well, there's only

      14   six bearded guys in the courtroom.  Okay.  Why would you have

      15   to assume that Al-'Owhali would have to be bearded in the

      16   courtroom?  He says, well, someone told him, implies someone

      17   told him where he sat.

      18       Let's look at the record, quote from 2155:

      19   "Q.  And they told you that the suspect would be in the

      20   lineup, yes, in the parade, right?

      21   "A.  No."

      22       2156:

      23   "Q.  Okay.  Well, since Friday, did anybody tell you where the

      24   person you identified would be sitting in this courtroom so

      25   that you could identify him?

                                                                    6014

       1   "A.  No."

       2       But in the ultimate cheap shot in the trial, he just

       3   implies it must be that guy Gaudin.  Or, it wasn't the people

       4   at the table.  Somebody told him who did it.  There are plenty

       5   of candidates, maybe someone we've talked a lot about.  Didn't

       6   even bring up his name, just implied that an FBI agent

       7   obstructed justice by telling a witness something that the

       8   witness lied about.

       9       I submit to you he has no burden, but if he thinks that,

      10   ask the man the question.  He's available.  He was on the

      11   witness stand.  Ask him about it.

      12       What is the other evidence in this case?  Besides Muwaka

      13   Mula, here's what you have.  You have TNT and PETN on

      14   Al-'Owhali's clothes.  You have a receipt in his pocket,

      15   Khalid Saleh, when he is arrested, the fake name, the receipt

      16   to the M.P. Shah Hospital where they find those bullets that

      17   match the gun.

      18       You have his name, Khalid Saleh, tied to the travel

      19   records coming in.  You have his name tied to the calls placed

      20   in the bomb factory, 43 Runda; the name tied to the call on

      21   August 7th, 1998 at 9:30 to Yemen.

      22       You have him picking up the money from the wire service,

      23   and you have not only Muwaka Mula putting him at the scene of

      24   the crime, but you also have Harun's briefcase in the Comoros

      25   Islands.  Remember when they searched the house of Harun, the

                                                                    6015

       1   guy who was all over the bombing?  His clothes test positive

       2   for TNT and PETN between his clothing and his shoes.

       3       They find Al-'Owhali's tickets under the fake name Khalid

       4   Saleh with Harun's stuff with Al-'Owhali's fingerprint on it.

       5   They find the passport for Al-'Owhali and for Azzam, who's

       6   dead, killed himself along with the others.

       7       I submit to you that Mr. Cohn would like you to think that

       8   maybe there's some other conspiracies we should also have

       9   charged.  The charges in the indictment have been proven.

      10   Mr. al-'Owhali had a brain, he had knowledge, he had an

      11   understanding of the scope of the agreement, the agreement to

      12   kill.  He agreed.  He killed.

      13       Let's turn to Khalfan Khamis Mohamed.  Mr. Ruhnke on

      14   behest of Mohamed also talked about the conspiracy.  I submit

      15   to you two things:  First, listen to the judge as to what he

      16   says about conspiracy, but one thing I submit he will tell you

      17   is that each member doesn't have to know every other member.

      18   Each member does not have to know every other detail.  Each

      19   member doesn't have to have joined at the same time.

      20       And I submit to you, one thing that should be crystal

      21   clear is that Khalfan Khamis Mohamed knew what the plan was,

      22   he knew the plan was to kill Americans, and he knew that the

      23   target was the embassy.  I'm going to walk through that in a

      24   moment when we get to the time line, because the timeline that

      25   Mr. Ruhnke went through yesterday, there are some things that,

                                                                    6016

       1   I submit, in your mind you should add that paint a fuller

       2   picture.

       3       First of all, Mr. Ruhnke referred several times to the

       4   manual labor, Khalfan Mohamed was doing manual labor, always

       5   under the supervision of someone else.  He just had the sense

       6   of a blue collar guy just showing up, doing his job, and

       7   somebody else is telling him what to do.

       8       Okay, what was the manual labor?  The manual labor was

       9   grinding TNT.  It was loading TNT and explosives, a bomb onto

      10   a truck.  It's not manual labor, it's making a bomb.

      11

      12            (Continued on next page)

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6017

       1            MR. FITZGERALD:  (Continuing) You also heard, and

       2   this is important, you heard Mr. Ruhnke say that they had to

       3   tell him that it was TNT.  Didn't that sound like a pathetic

       4   bomber, they had to tell him it was TNT?  I submit to you, if

       5   you look at the record, if you look at the report, which is in

       6   evidence, they had to tell him it was TNT, they told him it

       7   was TNT because the TNT came, as he said, in a closed bag that

       8   was stitched up.  It's inside a closed bag.  Not knowing

       9   what's in the bag doesn't mean you don't know what TNT is.  In

      10   fact, if you read the rest of the statement, Khalfan Khamis

      11   Mohamed says, he admits he went to Afghanistan and got

      12   explosives training.  He was trained in how to join wires and

      13   do detonators.  He knows what TNT is.  He just may not know

      14   from a closed, stitched, non-see-through bag that it is in the

      15   bag at the time.  And he certainly knew what TNT was when he

      16   grinded it through the grinder for the bomb and loaded it up.

      17            If there is any doubt that Khalfan Khamis Mohamed

      18   didn't know what was going on, I will show you a couple of

      19   sections.  Page 20 of his report, KKM stated that all the

      20   members of the group -- he is referring to the people in the

      21   Dar es Salaam bombing, he said he didn't know about Nairobi.

      22   KKM stated that all the members of the group were aware of the

      23   plan to bomb the American Embassy in Dar es Salaam.  KKM

      24   stated that no one in the group was fooled or tricked into

      25   being involved.  KKM stated that this bombing could not have

                                                                    6018

       1   been done without the entire group's knowledge.  He also said

       2   not only did he know the plan, he knew the target.

       3       I suggest if you put in your time line, five days before

       4   the bombing, August 7, KKM was told the target.  Take his word

       5   for that, not mine.

       6       Look at the report, page 10.  Quote, KKM stated that when

       7   he moved to the Ilala house -- the bottom paragraph -- he knew

       8   that a bomb was planned, not because of what he had been told

       9   at that point but because he had seen the TNT and other things

      10   associated with the bombing.  KKM stated that initially he did

      11   not know what was going to be bombed, where the bombing would

      12   take place or when the bombing would occur.  Before Hussein --

      13   this guy Hussein, Mustafa Fadhl -- before Hussein left to go

      14   to Kenya, approximately five days before the bombing, however,

      15   he told KKM that there was going to be a bomb at the American

      16   Embassy in Dar es Salaam, Tanzania.  Hussein told him at that

      17   time that the bombing was going to occur sometime over the

      18   weekend of August 7, 1998, but did not inform him of the

      19   specific time.  KKM stated that Ahmed the driver told him on

      20   Thursday, August 6, that the bombing would occur at 10 a.m. on

      21   Friday, August 7, 1998.  KKM stated that he did not know why

      22   10 a.m. was chosen as the time for the bombing to happen and

      23   he never asked why that time was chosen.  KKM stated that the

      24   time must have been important but he did not know the reason.

      25   KKM stated that Hussein often spoke with a person in Kenya for

                                                                    6019

       1   plans.  He stated that he really did not know anyone involved

       2   in the bombing other than those in the group around him.  Goes

       3   on to say that he knew nothing about the bombing in Nairobi

       4   until he saw it reported on television.  OK, he didn't know

       5   about the Nairobi bombing.  He is not charged with the Nairobi

       6   bombing.  But he says I knew, I was told, I was told five days

       7   before, he saw the TNT, he grinded it.  He did it.

       8            You know what's more important?  More important to

       9   put on the time line?  Later on you find out that when the

      10   bomb's going off he's praying.  He's praying and hoping things

      11   go well, and when he hears that the bombing happened, he's

      12   happy.

      13       And you know what else?  Put this in the time line for

      14   October 1999, because remember, when he is interviewed it's

      15   more than a year, more than a year after the bombing.  And

      16   what does he say?  Think about it.  Is he someone that says

      17   hey, what did I do, I killed 11 men, 11 people are dead

      18   because of what I did?  What do we hear?  Page 32 of his

      19   report, under KKM's motivation.  KKM stated that he was not

      20   sorry for the fact that Tanzanians were killed, and he

      21   described it as part of the business.  He goes on to say that

      22   KKM stated that Allah would take care of those Tanzanians who

      23   were killed.

      24       Below, skipping two sentences, KKM was asked whether he

      25   considered this bomb to be a successful operation, and he

                                                                    6020

       1   stated that it was successful because the bomb worked.  It

       2   sent a message to America and it kept Americans busy

       3   investigating it.  KKM stated he would rather kill only

       4   Americans.

       5            Next paragraph, KKM stated that if he had not been

       6   caught by the police he would have done it again.  KKM

       7   specifically stated that he would kill Americans and he would

       8   help with another bombing against Americans.  KKM also stated

       9   that if he was ever released from custody he would kill

      10   Americans and help with another bombing.  KKM stated that he

      11   hopes that others will carry on now that he is caught, and

      12   stated that he would still carry on if he could.

      13            Down below, scope of the conspiracy:  KKM stated he

      14   must do anything necessary to get the American soldiers out of

      15   Saudi Arabia and that it is his duty to kill these soldiers.

      16   KKM stated that because it was very difficult to get to the

      17   soldiers, his group targets and attacks the United States

      18   government to include American embassies and other United

      19   States government buildings.

      20            He's had a year to think.  Eleven people killed by

      21   him, 11 people he wasn't even targeting, and after a year he

      22   says I ain't sorry, I wish I had killed more Americans.  This

      23   is not someone who accidentally got involved in a bombing.  He

      24   made a conscious determination that he had agreed to kill

      25   Americans.  Bombing the embassy was a way to do it and he did

                                                                    6021

       1   it.  The key evidence, certainly the confession is important

       2   but I submit, without the confession you could still convict

       3   Khalfan Khamis Mohamed beyond a reasonable doubt.

       4            We heard about Mr. Ruhnke bringing up some problems

       5   about Agent Perkins' notes yesterday, some discrepancies.  I

       6   submit two things.  He has no burden to do anything but he had

       7   Agent Perkins on the stand.  He could have asked in front of

       8   you and saw what he said.  Remember when Mr. Stern implied the

       9   thing about killing Americans wasn't in her notes.

      10   Transcript, Stern:  You said in your report that Mr. Mohamed

      11   said if he hadn't been caught by the police he would have done

      12   it again, specifically stated that he would have killed

      13   Americans and would have helped with another bombing if ever

      14   released from custody.  Would kill Americans and help with

      15   another bombing.  Then he says where is it, OK, page 77, it

      16   says here, KK stated if released from custody or never caught

      17   would do it again, would kill Americans, would do bomb.  That,

      18   I submit to you, is why no further questions were asked of

      19   Agent Perkins.  It is in her report, it's in her notes.

      20            One other thing.  You also heard argument that one of

      21   the reasons there is evidence against K.K. Mohammed is that he

      22   talked, and without that there would be precious little to

      23   link him to the bombing.  Not true.  Go back to the

      24   cross-examination of Agent Perkins.  Mr. Sterns said you knew

      25   an awful lot of information when you talked to him, didn't

                                                                    6022

       1   you?  He went through different things K.K. Mohammed already

       2   said, you knew that, you had already.  Remember, they were

       3   there to arrest Mr. Mohamed.  They had done an investigation.

       4   He didn't roll down the street.

       5       What does the independent evidence show apart from his

       6   confession?  The evidence places him at 15 Amani Street.

       7   Passport photos there, passport application with his

       8   fingerprints on it.  Also, there is a detonator.  The other

       9   evidence places him, different witnesses place him at 22

      10   Kidugalo Street with Mustafa Fadhl, this guy he calls Hussein.

      11   The items in there, the carpet you saw, the reddish carpet and

      12   the foam, they test positive for explosives residue.  The

      13   evidence shows he bought the Suzuki with Fahad, a bomber, the

      14   person you saw fleeing on the plane from Nairobi with Mohamed

      15   Odeh.  The evidence shows, proves he rented the bomb factory

      16   from the broker, from his nephew, from the lease.  And the

      17   bomb factory is the bomb factory.  Explosives test, light to

      18   place them up like a Christmas tree.  In there is that

      19   blasting cap and the detonator, and the razor with the DNA of

      20   Ahmed the German, the suicide bomber from Dar es Salaam.

      21            The nephew tells you that he gave him that grinder,

      22   the grinder that tested positive for TNT, not PETN.  You grind

      23   TNT.  PETN you don't grind.  It's a detonator.  He gave it to

      24   him and said clean it, it's been used for unclean things.

      25            There is something Mr. Ruhnke said that I think we

                                                                    6023

       1   need to address.  It was a comment he made and I want to quote

       2   it accurately.  It was yesterday, at 5873.  Thanks.  I told

       3   Mr. Karas I'd lose it, bring an extra.  He said this:  As the

       4   world turns, as events go, if Khalfan Mohamed had left to go

       5   to London to start a new life, probably the embassy would have

       6   been bombed on August 7, 1998 anyway, and that would not have

       7   changed.  But everything would have changed for him and he

       8   would not be sitting here facing your judgment.  But that's

       9   not how the world turned.

      10            Two comments on that.  First, he assumes it would

      11   have happened anyway.  Let us not get to the point where we

      12   assume that if someone says I'm not participating in mass

      13   murder that there is just someone else there to do it.  Let us

      14   not be numb.  We talk about the 18th century, we talk about

      15   the 19th century, we talk about the 20th century.  In the 21st

      16   century, let's keep the fact in mind that you have a mind, you

      17   have a brain, you have choices, and you decide what you do.

      18   You are accountable for your actions.  As the world turns.

      19   This is not like the weather.  This wasn't an event that

      20   happened to him.  This was a bombing he did to others.

      21       I submit to you, the evidence is clear, the evidence is

      22   crystal clear that he knew the design was to kill Americans.

      23   He knew what the TNT was for.  He was told what the target

      24   was.  He did it.  He made a decision.  He didn't flee to

      25   London, he fled to South Africa.  He turned the world, the

                                                                    6024

       1   world didn't turn him.  And you know what, a year later he is

       2   not saying gee, if only I had gone to London.  He is saying

       3   yeah, I did it, I'm glad I did it, I'm glad, I wish more

       4   Americans had died, I don't care that Tanzanians died and I

       5   would do it again.  That shows you beyond a reasonable doubt

       6   that he is guilty.

       7       I told you at the beginning I would talk about El Hage,

       8   that I would talk to you about Odeh, I would talk to you about

       9   Al-'Owhali, I would talk about Khalfan Khamis Mohamed, and

      10   then I would talk to you about someone you have had heard

      11   precious little about.  That is Roselyn Wanjiku Mwangi.

      12   Roselyn Wanjiku Mwangi.  You may not remember that name.  She

      13   was not a witness.  She could not be a witness.  She is a

      14   victim in this case.

      15       This trial is about her murder.  The pathetic part is, so

      16   many people got killed, so much human carnage.  Roselyn

      17   Wanjiku Mwangi.  She is Count No. 123 in the indictment.  You

      18   have to get to page 45 of the indictment to see her name.  But

      19   she is not just a name.  She is not just a count.  It is not a

      20   name on a list.  It's a person.

      21       You heard a little bit about the person.  I want to talk

      22   about her as a symbol, as a symbol because there were a lot of

      23   people who were killed.  A lot of people were killed in

      24   Nairobi and in Dar es Salaam.  You heard about that man that

      25   Lizzie Slater talked about lying there, burned and dying, so

                                                                    6025

       1   bad she wished he would hurry up and die.  Rosie -- that's who

       2   Roselyn is -- Rosie you heard about from Sammy Nganga.  He was

       3   in Ufundi House, what Odeh calls the wrong building, next to

       4   the embassy, the right building.  Ufundi House that Sammy

       5   Nganga had his back to as Odeh sprinted away to save his life.

       6            MR. WILFORD:  Objection.

       7            MR. FITZGERALD:  I apologize.  Mohamed Al-'Owhali

       8   sprinted away from.  You know what, Sammy Nganga, when the

       9   bomb went off, was buried beneath the rubble.  He was the guy

      10   with the injured leg buried beneath the rubble, and he stayed

      11   there for two days.  He is in there in the darkness with the

      12   smell, with the sounds.  One of the sounds is Rosie's voice,

      13   because she is buried there too.  The searches come and they

      14   look for Rosie and look for Sammy.  They have a light and they

      15   are looking with the light to find them.  They save Sammy and

      16   he says they'll be back in two hours for you.  They don't make

      17   it back in time.

      18       Rosie dies.  She is Count 123, page 45.  Her life was

      19   lost.  Her life was taken from her.

      20            Now, I submit to you, this trial has been a search, a

      21   search through the rubble pile of the evidence, for truth and

      22   for justice, for those that did this, those that drove a truck

      23   or rode in a truck right into the embassy to bomb people,

      24   those who gave the advice as to where to place the bomb to hit

      25   the right building, those who helped set up the plot, the

                                                                    6026

       1   terror cell in East Africa so it could operate, so people

       2   could do their work and get out of town, and those who grind

       3   TNT and drive a truck into a different embassy moments later

       4   and kill, and have no regrets.

       5            I submit to you it's been a long journey.  It takes

       6   work to go through the rubble pile of evidence, because we

       7   have to.  We have to uphold justice.  We have to work through

       8   it.  We have to prove guilt beyond a reasonable doubt.  I

       9   submit to you, we have taken that journey, we have proved it,

      10   we are there.  Now it's time for light, light of the truth to

      11   shine through and give Rosie one thing:  Justice.  Thank you.

      12            THE COURT:  Thank you, Mr. Fitzgerald.  We will take

      13   a morning recess.

      14            (Jury excused)

      15            THE COURT:  We will place on every juror's seat three

      16   documents:  The indictment, the court's charge, and the

      17   special verdict form.  I received a note from a juror:  "Your

      18   Honor, I apologize in advance if my request is a major

      19   inconvenience.  Is it possible for us to adjourn at 3:30 on

      20   Friday?"  Then she goes on to detail a birthday and a surprise

      21   party which her husband has told her that her children are

      22   planning for her.

      23            (Laughter)

      24            THE COURT:  It gives some reflection of the impact on

      25   which jury service impacts on people's everyday lives.  Unless

                                                                    6027

       1   there is objection, we will adjourn early on Friday.

       2            MR. RICCO:  No objection.  Can we adjourn to the back

       3   to be heard on one brief matter?

       4            MR. COHN:  And I would like to be heard here.

       5            During Mr. Fitzgerald's rebuttal he mentioned for the

       6   second time during summations, the first time during

       7   Mr. Karas's summation, certain material that was shown to

       8   Mr. Al-'Owhali that caused him to confess, and I think what he

       9   said was pictures about Runda Estates and something about

      10   telephone numbers.  We searched the record both times and

      11   cannot find that.  If the government would favor us with a

      12   record reference, we won't make the motion that you instruct

      13   the jury that it never happened and that it be stricken.

      14            MR. FITZGERALD:  We will do that.

      15            THE COURT:  Very well.  There was some other record

      16   inference?

      17            MR. WILFORD:  Yes, your Honor, page 5934.

      18            THE COURT:  What does it say?

      19            MR. WILFORD:  The portion of the transcript.

      20            MR. BAUGH:  Excuse me.  We are advised the

      21   translators cannot hear.

      22            MR. WILFORD:  We will speak loudly.

      23            THE COURT:  You can do that?

      24            MR. WILFORD:  Only when I have the microphone.  Your

      25   Honor, it's a portion of the transcript where Mr. Fitzgerald

                                                                    6028

       1   is talking about an argument of Mr. Schmidt in terms of being

       2   a facilitator and what was needed to succeed as a facilitator.

       3   Then he goes on to say, particularly at line 12, Kherchtou

       4   explained it to you.  You don't have to shoot the gun if you

       5   are helping someone else you know is going to do it.  I think

       6   that is an oblique reference that Kherchtou pled guilty to the

       7   activities.

       8            THE COURT:  Overruled.

       9            MR. RICCO:  Your Honor, I might as well raise it

      10   since we are here.  I only have one point with respect to Mr.

      11   Fitzgerald's summation, and that was his explanation to the

      12   jury of what PETN is -- they can't hear?  My only objection is

      13   to what Mr. Fitzgerald said PETN is and how it was used in

      14   connection with this case.  He said it was only used in

      15   connection with detonator caps and explaining the role of

      16   Mohamed Odeh.  But the transcripts in the case said at page

      17   2483, the testimony of Kelly Mount, the question is, can you

      18   tell us whether or not PETN is a high explosive?  Answer, PETN

      19   is also a high explosive, yes.  Question, do you know what

      20   kind of use PETN is in connection with explosives?  Answer, it

      21   has several uses.  It may be found in blasting caps, it can be

      22   used in detonator coils, and it can be used as an explosive in

      23   and of itself.

      24       Maybe I misunderstood Mr. Fitzgerald.  Maybe he said it

      25   can be used for other purposes.  I didn't hear that and I

                                                                    6029

       1   would like to have an opportunity to look at the record.  If

       2   he did say to be used in other connections, fine.  But if he

       3   is making a representation to the jury that the only way PETN

       4   is used, it's not mixed with TNT, I heard him say that, and it

       5   is only used for detonator caps, that is a mischaracterization

       6   of the record that should be corrected.

       7            THE COURT:  Why don't I take a recess, during which

       8   time we will do the distributions, and having consulted with

       9   the record we will take up these matters before the jury comes

      10   back in.

      11            (Recess)

      12            THE COURT:  With respect to the issue raised by Mr.

      13   Cohn, I understand reference to the record has satisfied you

      14   and the objection is withdrawn.

      15            MR. COHN:  The record reflects that a question about

      16   telephone numbers and the photos of the house was asked.

      17            MR. FITZGERALD:  On the other matter, Judge, I think

      18   it was fair argument to point out that with regard to the

      19   grinder in Dar es Salaam, first Kelly Mount said it could be

      20   used for a detonator and Mr. Ricco correctly described her

      21   testimony that you could use it for a detonator or an

      22   explosive.  In this case in Dar es Salaam, the grinder was

      23   tested and it had TNT but not PETN.  I think it is a fair

      24   conclusion to say that the PETN is used as a detonator.  I

      25   didn't say it was only used as a detonator and I think it is

                                                                    6030

       1   fair argument on the evidence.

       2            MR. RICCO:  His statement on the record is that PETN

       3   is a detonator.  That's what he said.

       4            THE COURT:  I thought it was PETN is not ground.

       5   Isn't that the issue?

       6            MR. FITZGERALD:  I also said it is a detonator.  If I

       7   misspoke, it is in a detonator.

       8            THE COURT:  What would you have me do?

       9            MR. RICCO:  I would have the court instruct the jury

      10   that there was testimony in this case that PETN is also a high

      11   explosive.  It can be used in detonating coils, it can be used

      12   as an explosive in and of itself, which is the testimony in

      13   this case.

      14            THE COURT:  But that would only be part of the story.

      15   The other part of the story is that PETN was not found on the

      16   grinder.

      17            MR. RICCO:  That's right.  PETN was also found in the

      18   room where the grinder was.  That's beside the point.  I am

      19   not raising it, your Honor, to connect it to the grinder.

      20            THE COURT:  You want the jury to be told that the

      21   testimony indicates that PETN may be used --

      22            MR. RICCO:  Judge, the testimony was PETN is also a

      23   high explosive.  It may be found in blasting caps.  It can be

      24   used --

      25            THE COURT:  Let's keep it very short and very simple.

                                                                    6031

       1            MR. RICCO:  There was testimony that PETN is also a

       2   high explosive and it can be used in detonating --

       3            THE COURT:  Is a high explosive, it is also used in

       4   detonators, no PETN was found on the grinder.  Yes?  Is that

       5   all right?

       6            MR. FITZGERALD:  Judge, my argument is, I remember

       7   discussing that you don't grind the PETN, it's like a blasting

       8   cap.  The argument is that there is no PETN on the grinder.  I

       9   think that is a fair argument.  There is TNT, blasting caps

      10   and no PETN in the grinder.  Her testimony is that PETN was

      11   found in blasting caps.  I understand Mr. Ricco would like to

      12   argue it differently.

      13            MR. RICCO:  It is not that I would like to argue it

      14   differently.  Mr. Fitzgerald said in his remarks to this jury

      15   that PETN is not an explosive.  There was another reference in

      16   addition to the reference we just found in the record, and I

      17   just want the record correct.

      18            MR. FITZGERALD:  Your Honor, I don't believe I stated

      19   that PETN --

      20            THE COURT:  Does the record indicate that it is not

      21   ground?

      22            MR. FITZGERALD:  I argued that it was not ground

      23   because the grinder in this case tested negative.

      24            THE COURT:  PETN is sometimes used as a high

      25   explosive.  It is also used for detonators and blasting caps.

                                                                    6032

       1   No PETN was found on the grinder.  Is that all right?

       2            MR. FITZGERALD:  Fine.

       3            THE COURT:  When the verdict is returned, no one will

       4   leave the courtroom until the jury is outside the building.

       5            (Continued on next page)

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      16

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      18

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      25

                                                                    6033

       1            (Jury present)

       2            THE COURT:  Ladies and gentlemen, it is now going to

       3   be your great pleasure to listen to me for many hours.  If at

       4   any point anybody wants to take a break, just raise your hand

       5   and we will take a break.  We will take our usual breaks.

       6            Let me first tell you, with respect to PETN, you

       7   heard references to that in closing statements.  PETN is

       8   sometimes used as a high explosive.  It is also used for

       9   detonators and blasting caps.  And no PETN was found in the

      10   grinder in this case.

      11            Let me also answer some questions that you had about

      12   the logistics.  Just before the jury begins deliberating,

      13   which will probably be tomorrow afternoon, because we are not

      14   sitting tomorrow morning, just before that happens the

      15   alternates, that is, assuming everyone stays healthy the last

      16   four persons in the back row, will be excused temporarily.

      17   You will continue to be members of the jury.  You will be

      18   subject to all the instructions that I have previously given

      19   about not reading, listening to or talking with anybody about

      20   the case.  And you will be on telephone call.  The jury

      21   clerk's office has both your work and home telephone numbers.

      22   When it becomes appropriate and if it becomes appropriate for

      23   you to return, we will give you a telephone call and you will

      24   have as much notice as possible.  And if it will not be

      25   necessary for you to return you will also be given a telephone

                                                                    6034

       1   call to let you know that you are off the hook.

       2            I am sorry to say that you will not be paid when you

       3   do not come to the courthouse.  I looked into that rule and

       4   there is just nothing I can do about it.

       5            Tomorrow we start at 1:00.  On Friday we will adjourn

       6   at 3:30 to enable a juror to attend a happy event.

       7            There are three documents that you found on your

       8   seat.  One of them is the indictment, and I don't think I will

       9   be making too much reference to that where it is necessary

      10   that you look at the indictment yourself.  So that if you have

      11   difficulty juggling all the papers on your lap, the indictment

      12   is something that you can put on the floor.  The two other

      13   documents are the charge to the jury, sometimes referred to as

      14   the instructions, and the other is the verdict form, which we

      15   will go through during the course of my instructions to you,

      16   and that's the road map.  That tells you what it is that you

      17   will have to answer, and you will see that more clearly as we

      18   go through it.

      19            I am going to read the charge to you.  Sometimes the

      20   impulse to deviate from the printed text may be irresistible

      21   and I hope I will remember that, and to alert you and to alert

      22   the court reporter to the fact that I am doing that.  But

      23   otherwise I will follow the text.

      24            You may wonder why if I am going to do all this

      25   orally you have it in writing, and why if you are going to

                                                                    6035

       1   have it in writing I am going to do it orally.  The reason for

       2   that is, it is very important, and we are not simply going

       3   through a ritual.  We are going through a process which I hope

       4   you will understand.  Our own experience and the experts on

       5   learning and understanding tell us that some people absorb

       6   concepts better when they hear them, when they just listen,

       7   and some people absorb them better when they read, and some

       8   people prefer to read and listen at the same time.  What we

       9   are doing is, we are giving you the option.  If you would like

      10   to put the charge, the written charge on the floor or face

      11   down on your lap and just listen, that's fine.  If you would

      12   like to read along with me, that's fine.  If you would like to

      13   vary it from time to time, that's OK.  There is no right way,

      14   there is no wrong way.  It is whatever you think will be most

      15   useful to you in following and understanding the very

      16   important functions that you will soon be called upon to

      17   discharge.

      18            The charge begins with a table of contents, and that

      19   is just to assist you if during your deliberations you want to

      20   check a point, and then it begins on page 1, where I welcome

      21   back members of the jury.  And I join the parties in thanking

      22   you for your service thus far.

      23       I told you at the outset of the trial before you begin

      24   your deliberations I will instruct you on the law in greater

      25   detail, and that time has now come.

                                                                    6036

       1       It's been obvious to me and to everyone in this courtroom,

       2   you have faithfully discharged your duty to listen carefully

       3   and observe each witness who testified.  Your interest has

       4   never flagged and you have followed the testimony with close

       5   attention.  I ask that you give me the same careful attention

       6   as I instruct you on the law.

       7            The following instructions are rather extensive, so

       8   let me provide you with a brief overview of what to expect.  I

       9   will begin by instructing you on the rules generally

      10   applicable to all criminal trials.  Then I will proceed to

      11   review the counts which are charged in the indictment and

      12   instruct you on the specific rules of law that you will have

      13   to consider in deciding each count.  Finally, I will instruct

      14   you on the procedures you should follow while conducting your

      15   deliberations.

      16            Let me encourage you at the outset not to be dismayed

      17   or discouraged by the length of these instructions.  The

      18   instructions are extensive because you are being asked to

      19   resolve several different types of charges, and the various

      20   elements of each count must be explained separately.  I have

      21   tried to make these instructions as clear and concise as

      22   possible.  If you proceed step by step and count by count, you

      23   should have no difficulty applying these instructions to help

      24   you weigh the evidence and decide the case.

      25            For your convenience, there is a table of contents to

                                                                    6037

       1   assist you in locating any particular instructions you may

       2   wish to consult, although, as I will instruct you later, no

       3   part of the charge should be considered out of context, and

       4   the captions are simply a reference and have no other

       5   significance.

       6            You have now heard all of the evidence in the case as

       7   well as the final arguments of the lawyers for the parties.

       8   My duty at this point is to instruct you as to the law.  It is

       9   your duty to accept these instructions of law and apply them

      10   to the facts as you determine them, just as it has been my

      11   duty to preside over the trial and decide what testimony and

      12   evidence are relevant under the law for your consideration.

      13            On these legal matters, you must take the law as I

      14   give it to you.  If any attorney has stated a legal principle

      15   different from any that I state to you in my instructions, it

      16   is my instructions that you must follow.  Moreover, if you

      17   find a conflict between the language of my instructions and

      18   the indictment, you rely on my instructions.

      19            You should not single out any instruction as alone

      20   stating the law but you should consider my instructions as a

      21   whole when you retire to deliberate in the jury room.  You

      22   should not any of you be concerned about the wisdom of any

      23   rule that I state, regardless of any opinion that you may have

      24   as to what the law may be or ought to be.  It would violate

      25   your sworn duty to base a verdict upon any other view of the

                                                                    6038

       1   law than that which I give you.

       2            It is the role of the jury to pass upon and decide

       3   the fact issues that are in the case.  You the members of the

       4   jury are the sole and exclusive judges of the facts.  You pass

       5   upon the weight of the evidence, you determine the credibility

       6   of the witnesses, you resolve such conflicts as there may be

       7   in the testimony, and you draw whatever reasonable inferences

       8   you decide to draw from the facts as you have determined them.

       9            Before we proceed, let me explain to you what an

      10   inference is.  During the trial you have heard references by

      11   the attorneys to the term "inference" and in their arguments

      12   they have asked you to infer, on the basis of your reason,

      13   experience and common sense, from one or more established

      14   facts, the existence of some other fact.

      15       An inference is not a suspicion or a guess.  It is a

      16   reasoned, logical decision to conclude that a disputed fact

      17   exists on the basis of another fact which you know exists.  An

      18   inference is a deduction or conclusion which you, the jury,

      19   are permitted to draw -- but not required to draw -- from the

      20   facts which have been established by the evidence.

      21            In determining the facts, you must rely upon your own

      22   recollection of the evidence.  What the lawyers have said in

      23   their opening statements, in their closing arguments or in

      24   their questions or objections is not evidence.  In this

      25   connection, you should bear in mind that a question put to a

                                                                    6039

       1   witness is never evidence.  It is only the answer that is

       2   evidence.  However, please keep in mind, you are not to

       3   consider any answer that I directed you to disregard or that I

       4   have directed be stricken from the record.  Do not consider

       5   such an answer.

       6            Nor is anything that I have said during the trial or

       7   may say during these instructions about an issue of fact to be

       8   substituted for your own independent recollection.  What I say

       9   is not evidence.  Because you are the sole and exclusive

      10   judges of the facts, I do not mean to indicate any opinion as

      11   to the facts or what your verdict should be.  The rulings I

      12   have made during the trial are not any indication of my views

      13   of what your decision should be as to whether or not the guilt

      14   of any defendant has been proven beyond a reasonable doubt.

      15            I also ask you to draw no inference from the fact

      16   that on occasion -- and I interject, I believe on very rare

      17   occasion -- I asked questions of certain witnesses.  These

      18   questions were only intended for clarification or to expedite

      19   matters.  They were not intended to suggest any opinions on my

      20   part as to either the verdict you should render or whether any

      21   particular witness may have been more credible than any other

      22   witnesses.  You are to expressly understand, the court has no

      23   opinion as to the verdict you should render in this case.  If

      24   there is any difference or contradiction between what any

      25   lawyer has said and what you decide the evidence showed, or

                                                                    6040

       1   between anything I may have said or what you decide the

       2   evidence showed, it is your view of the evidence, not the

       3   lawyers' and not mine, that controls.

       4            I may refer to evidence during the course of this

       5   charge -- and, I interject, I do so, I think, very little if

       6   at all.  You have heard days and days of closing argument, and

       7   I see no point in reprising all that for you.  If I do make

       8   any reference to evidence, I will try to be as accurate as

       9   possible.  If I should make a mistake, it is your recollection

      10   and yours alone that governs.

      11            As to the facts, you, the members of the jury, are

      12   the exclusive judges.  I know that you will try the issues

      13   that have been presented to you according to the oath which

      14   you have taken as jurors in which you promised that you will

      15   well and truly try the issues joined in this case and a true

      16   verdict render.  If you follow your oath and try the issues

      17   without fear or prejudice or bias or sympathy, you will arrive

      18   at a true and just verdict.

      19            You should know that it is the duty of the attorneys

      20   on each side of the case to object when the other side offers

      21   testimony or other evidence that the attorney believes is not

      22   properly admissible.  Counsel also have the right and duty to

      23   ask the court to make rulings of law and to request

      24   conferences at the sidebar or in my robing room out of the

      25   hearing of the jury.  All such questions of law must be

                                                                    6041

       1   decided by me the court.  You should not show any prejudice

       2   against an attorney or against an attorney's client because

       3   the attorney objected to the admissibility of evidence or

       4   asked for a conference out of the hearing of the jury, or

       5   asked the court for a ruling on the law.

       6            On a related note, you have also noticed throughout

       7   the trial that counsel for various defendants have consulted

       8   with each other in an effort to facilitate their presentation

       9   and to avoid duplication.  The fact that defense counsel have

      10   consulted and cooperated with each other in the conduct of

      11   their defense is not to be considered by you as having any

      12   significance with respect to the issues in the case.  The

      13   issue of each defendant's guilt is personal, and you must make

      14   a separate determination as to whether or not each defendant's

      15   guilt has been proven beyond a reasonable doubt.

      16            In making that judgment, you are to disregard

      17   entirely the circumstance that counsel for various defendants

      18   have worked together during the trial.  Indeed, especially in

      19   a case of this length, it would be unusual and wasteful of

      20   time and effort if counsel did not share the burdens of the

      21   defense and cooperate with the government where possible.

      22            In weighing the evidence presented to you, your

      23   assessment should not be influenced by how much time the

      24   lawyers spent on certain topics or how emphatically or

      25   eloquently they spoke about particular issues.  Similarly, it

                                                                    6042

       1   is not who introduced an exhibit, or who read a stipulation,

       2   or who called a witness, or who did not question a witness

       3   that is important, but rather what the exhibit or stipulation

       4   or witness testimony proves.

       5            One of your principal tasks in deciding the weight

       6   and importance of the evidence you have heard is to separate

       7   the important from the unimportant.  Keep in mind that

       8   evidence that took five minutes to present may be as important

       9   or more than evidence that took an entire day to present.

      10   It's not how much time or effort the lawyers spent on

      11   particular evidence but what that evidence proves that is

      12   important.

      13            While I am on the subject of the lawyers, I imagine

      14   that over the last several months you have developed

      15   impressions of the lawyers in this case -- largely favorable,

      16   I hope.  Such impressions, whether positive, negative or

      17   mixed, are natural.  Please remember, though, it is not the

      18   lawyers who are on trial here.  Lawyers are here to help

      19   present evidence and to argue its significance, but it is the

      20   evidence or lack of evidence alone which must be the basis for

      21   your decision.  Your deliberations must be independent of your

      22   impressions of the attorneys and must be focused on the

      23   evidence which has been presented to you.  You are to perform

      24   the duty of finding the facts without bias or prejudice to any

      25   party.

                                                                    6043

       1       The case is important to the government, for the

       2   enforcement of criminal laws is a matter of prime concern to

       3   the community.  Equally, it is important to each of the

       4   defendants, who are charged with serious crimes.

       5       The fact that the prosecution is brought in the name of

       6   the United States of America entitles the government to no

       7   greater consideration than that accorded to any other party in

       8   this case.  By the same token, it is entitled to no less

       9   consideration.  All parties, whether government or individual,

      10   stand as equals at the bar of justice.

      11            Your verdict must be based solely upon the evidence

      12   developed at trial, or lack of evidence.  It would be improper

      13   for you to consider, in reaching your decision as to whether

      14   the government sustained its burden of proof, any personal

      15   feelings you may have about the race, religion, national

      16   origin, sex or age of the defendant you are considering.  All

      17   persons are equally entitled to the presumption of innocence,

      18   and, as I will explain to you in a moment, the government has

      19   the same burden of proof with respect to all defendants.

      20            It would be equally improper for you to allow any

      21   feelings you might have about the nature of the crimes charged

      22   to interfere with your decision-making process.

      23       Under your oath as jurors, you are not to be swayed by

      24   sympathy.  You are to be guided solely by the evidence in this

      25   case.  The crucial question that you must ask yourselves as

                                                                    6044

       1   you sift through the evidence is whether the government has

       2   proven the guilt of the defendant you are considering beyond a

       3   reasonable doubt.

       4       It is for you alone to decide whether the government has

       5   proven that the defendants are guilty of the crimes charged,

       6   solely on the basis of the evidence and subject to the law as

       7   I charge you.  I am sure you understand that once you let fear

       8   or prejudice, bias or sympathy interfere with your thinking,

       9   there is a risk that you will not arrive at a true and just

      10   verdict.

      11            If you have a reasonable doubt as to a defendant's

      12   guilt on a count, you must not hesitate for any reason to find

      13   a verdict of not guilty on the count you are considering.  On

      14   the other hand, if you should find that the government has met

      15   its burden of proving the defendant's guilt beyond a

      16   reasonable doubt, you should not hesitate because of sympathy

      17   or any other reason to render a verdict of guilty on the count

      18   you are considering against that defendant.

      19            The question of the possible punishment of any

      20   defendant is of no concern to you at this stage of the

      21   proceedings and should not in any sense enter into or

      22   influence your deliberations.  Your function now is to weigh

      23   the evidence in the case and determine whether the government

      24   has proven each defendant guilty beyond a reasonable doubt,

      25   solely on the basis of such evidence or the lack thereof.

                                                                    6045

       1   Under your oath as jurors, you cannot allow a consideration of

       2   the punishment which may be imposed upon the defendants, if

       3   they are convicted, to influence your verdict in any way or in

       4   any sense enter into your upcoming deliberations.

       5            You may not draw any inference, favorable or

       6   unfavorable, towards the government or the defendants on trial

       7   from the fact that any person in addition to the defendants

       8   was not named as a defendant in this case or, whether or not

       9   named as a defendant in the indictment, was not tried with the

      10   defendants.  Those matters are wholly outside of your concern

      11   and should play no part in your deliberation.

      12       You are about to be asked whether or not the government

      13   has proven beyond a reasonable doubt the guilt of these

      14   defendants.  You are not being asked whether any other person

      15   has been proven guilty.  Your verdict should be based solely

      16   upon the evidence or lack of evidence as to these defendants,

      17   according to my instructions and without regard to whether the

      18   guilt of other people has or has not been proven.

      19            With respect to publicity, let me reiterate my

      20   earlier admonitions.  During your deliberations you should

      21   avoid reading, watching or listening to any press coverage

      22   about the case.  I have been vigilant about these reminders

      23   because you are required as jurors to limit the information

      24   that you get about this case to what comes to you in the

      25   courtroom through the rules of evidence.

                                                                    6046

       1            Your verdict must be based solely on the evidence

       2   presented in this courtroom and in accordance with my

       3   instructions.  You must completely disregard any report which

       4   you have read in the press, heard on the radio or seen on

       5   television or elsewhere.  Indeed, it would be unfair to

       6   consider such reports since they are not evidence.  The

       7   parties have no opportunity to contradict their accuracy or

       8   otherwise explain them.  In short, it would be a violation of

       9   your oath as jurors to allow yourselves to be influenced in

      10   any manner by such publicity.

      11            Although the defendants have been indicted, you must

      12   remember that the indictment is only an accusation.  It is not

      13   evidence.  The defendants have each pled not guilty to the

      14   indictment.  As a result of the defendants' pleas of not

      15   guilty, the burden is on the government to prove guilt beyond

      16   a reasonable doubt.  This burden never shifts to any

      17   defendant, for the simple reason that the law never imposes

      18   upon a defendant in a criminal case the burden or duty of

      19   calling any witness or producing any evidence.

      20       The law presumes the defendants to be innocent of all the

      21   charges against them.  I therefore instruct you that the

      22   defendants are each presumed by you to be innocent throughout

      23   your deliberations until such time, if ever, you as a juror

      24   are satisfied that the government, with respect to the

      25   defendant you are considering and the count you are

                                                                    6047

       1   considering, has proven him guilty beyond a reasonable doubt.

       2       Each defendant begins the trial here with a clean slate.

       3   The presumption of innocence alone is sufficient to acquit a

       4   defendant unless you as jurors are unanimously convinced

       5   beyond a reasonable doubt of his guilt on the count you are

       6   considering, after careful and impartial consideration of all

       7   the evidence in this case.  If the government fails to sustain

       8   its burden as to a defendant on a particular count, you must

       9   find the defendant not guilty on that count.

      10       The presumption of innocence was with each defendant when

      11   the trial began and remains with him even now as I speak to

      12   you, and will continue with each defendant into your

      13   deliberation.  It is not removed with respect to a defendant

      14   and with respect to a particular count unless and until you

      15   are convinced the government has proven that defendant's guilt

      16   beyond a reasonable doubt on that count.

      17            The defendants did not testify in this case.  Under

      18   our Constitution, a defendant has no obligation to present any

      19   evidence, because it is the government's burden to prove each

      20   defendant guilty beyond a reasonable doubt.  That burden

      21   remains with the government throughout the entire trial and

      22   never shifts to the defendants.  A defendant is never required

      23   to prove that he is not guilty.

      24            You may not attach any significance to the fact that

      25   a defendant did not testify, nor should you speculate as to

                                                                    6048

       1   why that defendant did not testify.  No adverse inference

       2   against him may be drawn by you because he did not take the

       3   witness stand.  You may not consider this against any

       4   defendant in any way in your deliberations in the jury room.

       5            I have said that the government must prove each

       6   defendant guilty beyond a reasonable doubt.  The question

       7   naturally is, what is a reasonable doubt?  The words almost

       8   define themselves.  It is a doubt based upon reason and common

       9   sense.  It is a doubt that a reasonable person has after

      10   carefully weighing all the evidence.  It is a doubt that would

      11   cause a reasonable person to act in a matter of importance in

      12   his or her personal life.  Proof beyond a reasonable doubt

      13   must therefore be proof of such a convincing character that a

      14   reasonable person would not hesitate to rely and act upon it

      15   in the most important of his affairs.  A reasonable doubt is

      16   not a caprice or whim.  It is not a speculation or suspicion.

      17   It is not an excuse to avoid the performance of an unpleasant

      18   duty.  And it is not sympathy.

      19            In a criminal case, the burden is at all times upon

      20   the government to prove guilt beyond a reasonable doubt.  The

      21   law does not require the government to prove guilt beyond all

      22   possible doubt.  Proof beyond a reasonable doubt is sufficient

      23   to convict.  This burden never shifts to a defendant, which

      24   means that it is always the government's burden to prove each

      25   of the elements of the crimes charged beyond a reasonable

                                                                    6049

       1   doubt.

       2            If, after careful and impartial consideration of all

       3   of the evidence, or the lack of evidence, on a particular

       4   count, you have a reasonable doubt as to the defendant you are

       5   considering, it is your duty to find that defendant not guilty

       6   on that count.  On the other hand, if, after careful and

       7   impartial consideration of all the evidence on a particular

       8   count, you are satisfied of the guilt of the defendant you are

       9   considering beyond a reasonable doubt, you should find that

      10   defendant guilty on that count.

      11            The fact that one party called more witnesses and

      12   introduced more evidence than the other does not mean that you

      13   should necessarily find the facts in favor of the side

      14   offering the most witnesses.  By the same token, you do not

      15   have to accept the testimony of any witness who has not been

      16   contradicted or impeached if you find the witness not to be

      17   credible.  You have to decide which witnesses to believe and

      18   which facts are true.  To do this, you must look at all the

      19   evidence, drawing upon your own common sense and personal

      20   experience.

      21            In a moment I will discuss the criteria for

      22   evaluating credibility.  Let me say again, though, you should

      23   keep in mind that the burden of proof is always on the

      24   government.  The defendants are not required to call any

      25   witnesses or offer any evidence, since they are presumed to be

                                                                    6050

       1   innocent.

       2            You have heard reference in the arguments of counsel

       3   in this case to the fact that certain investigative techniques

       4   were used by the government and that certain others were not

       5   used.  You may consider these facts in deciding whether the

       6   government has met its burden of proof because, as I have told

       7   you, you should look to all the evidence or lack of evidence

       8   in deciding whether a defendant is guilty.  However, you

       9   should understand that there is no legal requirement that the

      10   government use any of these specific investigative techniques

      11   to prove its case.  Your concern is to determine whether or

      12   not, on the evidence or lack of evidence, the government has

      13   proved the guilt of each of the defendants beyond a reasonable

      14   doubt.

      15            There are two types of evidence which you may

      16   properly use in deciding whether a defendant is guilty or not

      17   guilty.  One type of evidence is called direct evidence.

      18   Direct evidence is where a witness testifies about something

      19   the witness knows by virtue of his own senses, something the

      20   witness has seen, felt, touched or heard.  Direct evidence may

      21   also be in the form of an exhibit, where the fact to be proved

      22   is its present existence or condition.

      23       The second type of evidence is circumstantial evidence,

      24   which tends to prove a disputed fact by proof of other facts.

      25   In other words, to say that something is circumstantial

                                                                    6051

       1   evidence merely means that one needs to use some kind of

       2   reasoning power to draw inferences from one fact to arrive at

       3   some conclusion.

       4            (Continued on next page)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6052

       1            THE COURT:  (Continuing) In case that sounded

       2   complicated, let me give you an example of circumstantial

       3   evidence that is often used in the courthouse.

       4       Assume, as is the case, that when you came into the

       5   courthouse this morning the sun was shining, it was a clear

       6   day.  Assume that the courtroom blinds were drawn, so you

       7   could not look outside.  Assume as you were sitting in the

       8   jury box, a man walked into the courtroom with an umbrella

       9   that was dripping wet, followed shortly by a woman wearing a

      10   raincoat, and the raincoat was wet.

      11       Now, under our assumptions you cannot look out of the

      12   courtroom and see whether it is raining, so you have no direct

      13   evidence of that fact.  But certainly on the combination of

      14   facts that I have asked you to assume, even though when you

      15   entered the building it was not raining outside, it would be

      16   reasonable and logical for you to conclude that it had been

      17   raining recently.

      18            You would arrive at this conclusion from

      19   circumstantial evidence.  In other words, you infer on the

      20   basis of reason and experience from one or more established

      21   facts -- in this example, the dripping umbrella and the wet

      22   raincoat -- the existence of some other fact.  That is all

      23   there is to circumstantial evidence.

      24            In this case, you have been asked to draw inferences

      25   from the evidence that you have seen and heard.  You are not

                                                                    6053

       1   required to draw any inference unless you believe that such an

       2   inference follows reasonably from the evidence.

       3            The law does not distinguish between direct and

       4   circumstantial evidence.  Circumstantial evidence is of no

       5   less value than direct evidence.  You may consider both.  The

       6   question in this case is whether based on all the evidence,

       7   both direct and circumstantial, you find that the government

       8   has proven its case against the defendant you are considering

       9   beyond a reasonable doubt.

      10            There are times when different inferences may be

      11   drawn by the facts, whether they are proved by direct or

      12   circumstantial evidence.  The government asks you to draw one

      13   set of inferences.  The defendants ask you to draw other

      14   inferences.  It is for you, and you alone, to decide which

      15   inferences you will draw.

      16            There has been evidence that some of the defendants

      17   made statements in which the government claims they admitted

      18   certain facts relevant to the charges in the indictment.

      19            In deciding what weight, if any, to give those

      20   statements, you should first examine with great care whether

      21   each statement was made and whether it was voluntarily and

      22   understandingly made.  I instruct you that you are to give the

      23   statements such weight as you feel they deserve in light of

      24   all the evidence.

      25       You are cautioned that, unless I explicitly instruct you

                                                                    6054

       1   otherwise, the evidence of one defendant's statement to the

       2   authorities after his arrest may not be considered or

       3   discussed by you in any way with respect to any defendant on

       4   trial other than the defendant who made the statement.

       5            You have heard evidence that one or more of the

       6   defendants made certain statements outside the courtroom to

       7   law enforcement officials in which they exonerated or

       8   exculpated themselves in connection with some aspect of the

       9   charges against them, and the government claims that these

      10   statements are false.

      11            If you find that a defendant gave a false statement

      12   to divert suspicion from himself, you may, but are not

      13   required to, infer that the defendant believed that a truthful

      14   answer would have placed him in jeopardy, legal or otherwise,

      15   or that he believed that he may be guilty of some crime.  You

      16   may not, however, infer on the basis of this alone that the

      17   defendant is, in fact, guilty of the crimes for which he is

      18   charged.  Nor can any such false exculpatory statements alone

      19   establish, or be sufficient for an inference to be drawn, that

      20   the defendant knew of and intentionally joined the

      21   conspiracies charged.

      22            Whether or not the evidence as to a defendant's

      23   statements shows that the defendant believed that he was

      24   guilty, and the significance, if any, to be attached to such

      25   evidence, are matters for you, the jury, to decide.

                                                                    6055

       1            You have had the opportunity to observe all the

       2   witnesses.  It is now your job to decide how believable each

       3   witness was in his or her testimony.  You are the sole judges

       4   of the credibility of each witness and of the importance of

       5   his or her testimony.

       6            It must be clear to you by now that you are being

       7   called upon to resolve various factual issues under the counts

       8   of the indictment, in the face of the very different pictures

       9   painted by the government and the defense, which cannot be

      10   reconciled.  You will now have to decide where the truth lies,

      11   and an important part of that decision will involve making

      12   judgments about the testimony of the witnesses you have

      13   listened to and observed.  In making those judgments, you

      14   should carefully study all of the testimony of each witness,

      15   the circumstances under which each witness testified, and any

      16   other matter in evidence which may help you to decide the

      17   truth and the importance of each witness's testimony.

      18            Your decision whether or not to believe a witness may

      19   depend on how that witness impressed you.  Was the witness

      20   candid, frank and forthright?  Or, did the witness seem as if

      21   he or she was hiding something, being evasive or suspect in

      22   some way?  How did the way the witness testified on direct

      23   examination compare with how the witness testified on

      24   cross-examination?  Was the witness's testimony consistent, or

      25   did he or she contradict himself?  Did the witness appear to

                                                                    6056

       1   know what he or she was talking about and did the witness

       2   strike you as someone who was trying to report his or her

       3   knowledge accurately?

       4            How much you choose to believe a witness may be

       5   influenced by the witness's bias.  Does the witness have a

       6   relationship with the government or the defendant which may

       7   affect how he or she testified?  Does the witness have some

       8   incentive, loyalty or motive that might cause him or her to

       9   shade the truth; or, does the witness have some bias,

      10   prejudice or hostility that may have caused the witness --

      11   consciously or not -- to give you something other than a

      12   completely accurate account of the facts he or she testified

      13   to?

      14            Even if the witness was impartial, you should

      15   consider whether the witness had an opportunity to observe the

      16   facts he or she testified about and you should also consider

      17   the witness's ability to express himself or herself.  Ask

      18   yourselves whether the witness's recollection of the facts

      19   stands up in light of his or her demeanor, the explanations

      20   given, and in the light of all the other evidence in the case.

      21   Approach the task of assessing credibility just as you would

      22   in any important matter when you are trying to decide if a

      23   person is truthful, straightforward, and accurate in his or

      24   her recollection.  In deciding the question of credibility,

      25   remember that you should use your common sense, your good

                                                                    6057

       1   judgment and your own life experience.

       2            In connection with your evaluation of the credibility

       3   of the witnesses, you should specifically consider evidence of

       4   resentment or anger on the part of any witness, if you find

       5   this to be the case.

       6            Evidence that a witness is biased, prejudiced, or

       7   hostile requires you to view that witness's testimony with

       8   caution, to weigh it with great care, and to subject it to

       9   close and searching scrutiny.

      10            In evaluating the credibility of the witnesses, you

      11   should further take into account any evidence that the witness

      12   who testified may believe that he or she will benefit in some

      13   way from the outcome of this case.  Such an interest in the

      14   outcome creates a motive to testify falsely and may sway the

      15   witness to testify in a way that advances his or her own

      16   interests.  Therefore, if you find that any witness whose

      17   testimony you are considering may have an interest in the

      18   outcome of this trial, then you should bear that factor in

      19   mind when evaluating the credibility of his or her testimony

      20   and accept it with great care.

      21            This is not to suggest that every witness who has an

      22   interest in the outcome of a case will testify falsely.  It is

      23   for you to decide to what extent, if at all, the witness's

      24   interest has affected or colored his or her testimony.

      25            You have heard witnesses who testified they were

                                                                    6058

       1   actually involved in some of the conspiracies charged in the

       2   indictment.  There has been a great deal said about these

       3   so-called accomplice witnesses in the summations of counsel

       4   regarding whether or not you should believe them.

       5            You have been presented with evidence that the

       6   government agreed not to further prosecute certain of these

       7   witnesses in exchange for those witnesses' agreement to plead

       8   guilty to various charges and testify at this trial against

       9   the defendants.  The government also promised to bring those

      10   witnesses' cooperation to the attention of the court that

      11   sentences them.  Some of these witnesses and their families

      12   have been placed in federal protective custody, and some have

      13   received money in connection with their protective custodial

      14   status.

      15            The government argues, as it is permitted to do, that

      16   it must take the witnesses as it finds them.  It argues that

      17   only people who themselves take part in criminal activity have

      18   the knowledge required to show criminal behavior by others,

      19   and that without such witnesses it would often be difficult or

      20   impossible to detect or prosecute wrongdoers.

      21            For those very reasons, the law allows the use of

      22   accomplice testimony, and such testimony is properly

      23   considered by you.  Indeed, it is the law in the federal

      24   courts that the testimony of accomplices may be enough in

      25   itself for conviction, if you find that the testimony

                                                                    6059

       1   establishes guilt beyond a reasonable doubt.  Like the

       2   testimony of any other witness, an accomplice's testimony

       3   should be given such weight as it deserves in light of all the

       4   facts and circumstances.

       5            However, as the defense argues, you should bear in

       6   mind that a witness who has entered into an agreement with the

       7   government has an interest in this case different than an

       8   ordinary witness.  A witness may have a motive to testify

       9   falsely if he realizes that he may be able to obtain his own

      10   freedom, gain federal protection for himself and his family,

      11   or receive a lighter sentence by giving testimony favorable to

      12   the prosecution.  Accomplice testimony is thus of such a

      13   nature that it must be scrutinized with great care and viewed

      14   with particular caution when you decide how much of that

      15   testimony to believe.

      16            You should ask yourselves whether the so-called

      17   accomplice would benefit more by lying, or by telling the

      18   truth.  Was his testimony made up in any way because he

      19   believed or hoped that he would somehow receive favorable

      20   treatment by testifying falsely?  Or did he believe that his

      21   interests would be best served by testifying truthfully?  If

      22   you believe that a particular witness was motivated by hopes

      23   of personal gain, was the motivation one which would cause him

      24   to lie, or was it one which would cause him to tell the truth?

      25   Did this motivation color his testimony?

                                                                    6060

       1            You should reject the testimony if you find it was

       2   false.  However, if, after a cautious and careful examination

       3   of the testimony and the witness's demeanor, you are satisfied

       4   that the testimony is true, you should accept it as credible

       5   and act on it accordingly.  As with any other witness, let me

       6   emphasize that the issue of credibility need not be decided on

       7   an all-or-nothing fashion.  Even if you find that a witness

       8   testified falsely on one part, you still may accept his or her

       9   testimony in other parts.  That is a determination entirely

      10   for you, the jury.

      11            In sum, you should look at all of the evidence in

      12   deciding what credence and what weight, if any, you should

      13   give to the testimony of an accomplice witness.

      14            On a related note, let me say a few words about the

      15   agreements between the government and certain of its witnesses

      16   other than alleged accomplices.  Some of these witnesses and

      17   their families have been placed in federal protective custody,

      18   and some have received money in connection with their

      19   protected custodial status.

      20       Again, you must examine the testimony of such a witness

      21   with caution.  Weigh it with great care.  If, after

      22   scrutinizing such testimony you decide to accept it, you may

      23   give it whatever weight, if any, you think it deserves.

      24            Some of the witnesses who testified for the

      25   government have pleaded guilty to charges arising out of

                                                                    6061

       1   circumstances relating to the facts of this case.  You are

       2   instructed that you are to draw no conclusions or inferences

       3   of any kind about the guilt of the defendants on trial here

       4   from the fact that a prosecution witness pleaded guilty to

       5   similar charges.  The decision of that witness to plead guilty

       6   was based on a personal decision of his concerning his own

       7   guilt, and in light of the benefits afforded by the government

       8   to a cooperating witness.  In short, a witness's decision to

       9   plead guilty may not be used by you in any way as evidence

      10   against or unfavorable to the four defendants on trial here.

      11            During the course of this trial you have heard

      12   testimony from what the law calls expert witnesses --

      13   interjecting:  Handwriting, chemists, witnesses of that sort.

      14   An expert is allowed to express his or her opinion on those

      15   matters about which he or she has special knowledge and

      16   training.  Expert testimony is presented to you on the theory

      17   that someone who is experienced in the field can assist you in

      18   understanding the evidence or in reaching an independent

      19   decision on the facts.

      20            In weighing an expert's testimony, you may consider

      21   the expert's qualifications, opinions, reasons for testifying,

      22   and all of the other considerations that ordinarily apply when

      23   you are deciding whether or not to believe a witness's

      24   testimony.  You may give expert testimony whatever weight, if

      25   any, you find it deserves in light of all the evidence in this

                                                                    6062

       1   case.  You should not, however, accept the testimony merely

       2   because the witness is an expert.  Nor should you substitute

       3   it for your own reason, judgment, and common sense.  The

       4   determination of the facts in this case rests solely with you.

       5            You have also heard testimony of government law

       6   enforcement officials.  The fact that a witness may be

       7   employed by the government as a law enforcement official does

       8   not mean that his or her testimony is necessarily deserving of

       9   more or less consideration or greater or lesser weight than

      10   that of an ordinary witness.

      11            At the same time, it's quite legitimate for defense

      12   counsel to try to attack the credibility of a law enforcement

      13   witness on the ground that his or her testimony may be colored

      14   by a personal or professional interest in the outcome of the

      15   case.

      16            It is your decision, after reviewing all the

      17   evidence, whether to accept the testimony of the law

      18   enforcement witnesses and to give that testimony whatever

      19   weight, if any, you find it deserves.

      20            You have heard argument about witnesses who have not

      21   been called to testify.  The defense has argued that the

      22   witnesses could have given material testimony in this case and

      23   that the government was in the best position to produce these

      24   witnesses.

      25            If you find that any uncalled witness could have been

                                                                    6063

       1   called by the government and could have given important new

       2   testimony, and that the government was in the best position to

       3   call him, but failed to do so, you are permitted, but are not

       4   required, to infer that the testimony of the uncalled witness

       5   would have been unfavorable to the government.

       6            In deciding to draw an inference that the uncalled

       7   witness would have testified unfavorably to the government,

       8   you may consider whether the witness's testimony would have

       9   merely repeated other testimony and evidence already before

      10   you.

      11            Now let me just say a few words about stipulations.

      12       And going beyond the text, I'm sure you realize that the

      13   fact that stipulations have been entered into is a reason why

      14   I'm instructing you now on the law in May rather than July.

      15            Numerous stipulations have been entered into by the

      16   parties and have been reported to you.  A stipulation is an

      17   agreement among the parties that a certain fact is true or

      18   that a certain witness, if called, would have given certain

      19   testimony.  Each of these stipulations is the equivalent for

      20   your purposes of the presentation of evidence or live

      21   testimony to the same effect.  You should regard such agreed

      22   facts as true, and accept that the witness would have given

      23   that testimony.  However, it is for you to determine the

      24   effect to be given those facts or that testimony.

      25            Exhibit GX7 contains a list and brief description by

                                                                    6064

       1   the government of all the stipulations which have been entered

       2   entered into this case and which were introduced during the

       3   government's case.  Exhibit WEHX-S14 contains a list and brief

       4   description of all the stipulations which have been entered

       5   into this case on behalf of defendant El Hage.

       6            Some of the witnesses testified with respect to

       7   various charts and summaries which were based on other

       8   evidence in this case.  The documents from which they were

       9   made are before you as evidence.  The charts and summaries

      10   were intended to make the other evidence more meaningful and

      11   to aid you in considering the evidence.  Charts and summaries

      12   which are not admitted into evidence are no better than the

      13   testimony or the documents upon which they are based, and are

      14   not independent evidence.  Therefore, you are to give no

      15   greater consideration to these charts and summaries than you

      16   would give to the underlying evidence.

      17            It is for you to decide whether the charts or

      18   summaries correctly present the information contained in the

      19   testimony and in the exhibits on which they are based.  In the

      20   event that a chart or summary differs from your recollection

      21   of the testimony or actual documents on which the chart or

      22   summary is based, you are to rely upon the actual testimony or

      23   document, not the chart or summary.  You are entitled to

      24   consider the charts and summaries if you find that they are of

      25   assistance to you in analyzing and understanding the evidence.

                                                                    6065

       1            The government and defendant El Hage have offered

       2   evidence in the form of tape recorded conversations with the

       3   defendants and the defendants' alleged coconspirators.  These

       4   conversations were obtained by the United States Government

       5   without the knowledge of the parties to the conversations.

       6   You are instructed that these intercepted conversations were

       7   lawfully obtained and the parties are entitled to use such

       8   evidence in this case.  You must, therefore, regardless of any

       9   personal opinions, give this evidence equal consideration

      10   along with all the evidence in the case in determining whether

      11   the government has proven a defendant's guilt beyond a

      12   reasonable doubt.  That is to say, you should give this

      13   evidence such weight as you believe it deserves in light of

      14   all the facts and circumstances.

      15            In connection with these tapes, the party presenting

      16   the evidence has been permitted to hand out or otherwise

      17   display typed documents which it prepared containing its

      18   interpretation of what appears on the tape recordings.

      19            With respect to those conversations which were

      20   conducted in English, any documents which were distributed to

      21   you are merely aids or guides to assist you in listening to

      22   the tapes and are not evidence.  You should make your own

      23   assessment of what appears on those tapes based on what you

      24   heard when the tapes were played.

      25            Some of the transcripts, however, are translations of

                                                                    6066

       1   the tapes because some of the conversations were in a foreign

       2   language.  Those transcripts are provided to you because that

       3   is the only way you can understand what was said during those

       4   conversations.  Those transcripts are in evidence in order to

       5   assist you to find out what the tapes say and you may rely on

       6   them during your deliberations.  If, however, during your

       7   deliberations you would like to hear any of the tapes, they

       8   will be made available to you.

       9            During the trial, different parties introduced

      10   exhibits which were marked for identification, but not

      11   admitted into evidence.  Also, at various times, witnesses

      12   were asked to refresh their recollection by consulting

      13   documents or other materials which were not admitted into

      14   evidence.  Exhibits marked for identification but not admitted

      15   are not evidence, nor are any materials brought forth only to

      16   refresh the recollection of any witness.  You cannot consider

      17   or speculate as to the content of any exhibit not received in

      18   evidence.

      19            With all of the aforementioned preliminary

      20   instructions in mind, let us now turn to the indictment.

      21       And I'm going to pause for a few minutes and stand and

      22   stretch, and if you would like to pause for a few minutes and

      23   stand and stretch, that's okay.  Your lunch is on order for

      24   1:00, and at 1:00, if I'm in the middle of a sentence, I'll

      25   stop.

                                                                    6067

       1       (Pause)

       2            THE COURT:  Returning, then, to the charge, and if

       3   you are all following me, I'm on page 27.

       4       The indictment, you have the indictment.  That's the

       5   document in the plastic cover.

       6       In a moment I will explain to you what the elements are of

       7   the various violations of the United States with which the

       8   defendants are charged.  I instruct you now, however, that

       9   unless the government proves beyond a reasonable doubt that

      10   the defendant you are considering committed each and every

      11   element of an offense with which he is charged, you must find

      12   him not guilty of that offense.

      13            The indictment in this case contains 302 individual

      14   counts, each charging a separate offense or crime.

      15       Let me interject.  I see some of you shaking your head.

      16   Understand that the vast majority of these counts relate to

      17   victims and the evidence with respect to the victims is

      18   evidence which relates to all of them.

      19            Some of the counts involve crimes allegedly committed

      20   by just one of the defendants, others involve allegedly some

      21   but not all of the defendants, and still others involve

      22   allegedly all four defendants.  You must, therefore, as a

      23   matter of law, consider each count of the indictment and each

      24   defendant's involvement in that count separately, and you must

      25   return a separate, unanimous verdict as to each defendant on

                                                                    6068

       1   each count in which he is charged.  You will be given a

       2   special verdict form that will ask you to mark a separate

       3   verdict for each count and for each defendant named in that

       4   count.  Your answer to each of these special verdicts will be

       5   "yes" or "no" or "guilty" or "not guilty" and must be

       6   unanimous.  Throughout these instructions, I will advise you

       7   that when there is a verdict or finding, I will advise you

       8   when there is a verdict or finding that you must indicate on

       9   the special verdict form.

      10            In reaching your verdict, you must bear in mind that

      11   guilt is personal and individual.  Your verdict of guilty or

      12   not guilty must be based solely upon the evidence about each

      13   defendant and you may only find a defendant guilty of a

      14   particular count if the government has proven each element

      15   beyond a reasonable doubt.  The case against each defendant on

      16   each count stands or falls upon the proof or lack of proof

      17   against that defendant alone, and your verdict as to any

      18   defendant on any count should not control your decision as to

      19   any other defendant or any other count.  No other

      20   considerations are proper.

      21            Let me also remind you that the indictment itself is

      22   not evidence.  It is nothing more than a set of accusations, a

      23   statement of what the government intends to prove by offering

      24   evidence at trial.  It gives the defendant notice of the

      25   charges against him and informs the court and the public of

                                                                    6069

       1   the nature of the accusation.  As such, you cannot find a

       2   defendant guilty of any crimes that are not charged in the

       3   indictment.

       4            Because the indictment merely describes the charges

       5   made against the defendants, it may not be considered by you

       6   as any evidence of the guilt of any defendant.  Only the

       7   evidence or the lack of evidence decides that issue.

       8            In the indictment, the conspiracy counts are preceded

       9   by a section captioned "Background."  The information

      10   contained in that section is the government's version of the

      11   origin and history of the conspiracies which are set forth in

      12   Counts One through Four.  Likewise, there is a "Background"

      13   section prefacing the perjury counts in which the government

      14   outlines its view of the relevant events which preceded the

      15   alleged Grand Jury perjury by defendant El Hage as set forth

      16   in Counts 285 through 302.  You should understand that these

      17   background sections, as with the rest of the indictment, are

      18   not evidence.

      19            The indictment makes reference to various dates.  It

      20   does not matter if the indictment charges that a specific act

      21   occurred on or about a certain date and the evidence indicates

      22   that, in fact, the act occurred on a different date.  The law

      23   requires only a substantial similarity between the dates

      24   alleged in the indictment and the dates established by the

      25   evidence.  It is for you to determine whether any such

                                                                    6070

       1   difference is material and, if you find it was material, then

       2   you must find the defendant you are considering not guilty on

       3   the counts for which you find the evidence to be materially

       4   different from the charges in the indictment.

       5            Before you begin your deliberations, you will of

       6   course be provided with a copy of the indictment containing

       7   these charges, and you already have that.  I will not read the

       8   entire indictment to you at this time.

       9       Rather, I will first group the offenses charged in the

      10   indictment into three general categories.  Then I will

      11   proceed, category by category, explaining in detail the

      12   elements of each alleged offense contained within each of the

      13   three general categories.  By the way, you should by no means

      14   draw any significance from the fact that I have grouped

      15   certain counts in the indictment together for purposes of my

      16   instructions to you; I do so simply for organizational

      17   clarity, not because of any legal import.

      18            The first category of charges includes Counts One

      19   through Four of the indictment.  These charges all allege

      20   conspiracies to violate certain laws of the United States.

      21   All four defendants face charges in this category.  However,

      22   while three of the alleged conspiracies charge all four

      23   defendants, one charges only three of defendants.

      24            The second category of charges includes Counts Five

      25   through 284 of the indictment.  These charges all allege

                                                                    6071

       1   substantive offenses arising out of the bombings of the United

       2   States embassies in Kenya and Tanzania.  Only defendants

       3   Mohamed Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali and

       4   Khalfan Khamis Mohamed face charges in this category.

       5   Defendants Odeh and Al-'Owhali are charged only in those

       6   substantive counts from Five through 284 that arise out of the

       7   Nairobi, Kenya bombing.  Likewise, defendant Khalfan Khamis

       8   Mohamed is charged only with those counts from Five through

       9   284 that arise out of the Dar es Salaam, Tanzania bombing.

      10            The third category of charges includes Counts 285 to

      11   302 of the indictment.  These charges all relate to alleged

      12   perjury by defendant Wadih El Hage -- the perjury count,

      13   alleged perjury, by defendant Wadih El Hage.

      14            The first portion of the indictment alleges four

      15   separate conspiracies to violate certain laws of the United

      16   States, and they may be summarized briefly as follows.

      17            Count One charges that all four defendants, while

      18   they were situated outside the United States, conspired to

      19   murder nationals of the United States.

      20            Count Two charges that all four defendants conspired

      21   to murder officers or employees of the United States, as well

      22   as internationally protected persons.

      23            Count Three -- which involves only defendants Mohamed

      24   Sadeek Odeh, Mohamed Rashid Daoud Al-'Owhali, and Khalfan

      25   Khamis Mohamed -- charges that these three defendants, without

                                                                    6072

       1   lawful authority, conspired to use weapons of mass

       2   destruction -- that is, bombs -- against United States

       3   nationals while such nationals were outside of the United

       4   States, and against property that is owned, leased or used by

       5   the United States.

       6            Count Four charges that all four defendants conspired

       7   to maliciously damage or destroy United States property, by

       8   means of an explosive.

       9            I reiterate that each of these four counts

      10   constitutes a separate alleged conspiracy and thus is a

      11   separate offense or crime.  Again, each of the four charged

      12   conspiracies must be considered separately by you, and you

      13   must return a separate, unanimous verdict as to each count and

      14   as to each defendant charged in the count.

      15            Before I instruct you in detail on the specific

      16   elements of each of the four conspiracies alleged in the

      17   indictment, I want to first instruct you on the law of

      18   conspiracy in general.  This is because there are certain

      19   requirements that the government must always satisfy whenever

      20   it seeks to prove any allegation of criminal conspiracy

      21   against any defendant.  Of course, there are some exceptions

      22   to the general rule and when those exceptions are relevant to

      23   this case, I will so instruct you.  But unless I say

      24   otherwise, whatever I tell you to be true of conspiracy law

      25   generally should be considered by you to be equally true of

                                                                    6073

       1   the four specific conspiracies alleged in the indictment.

       2   Remember, however, that each of the four alleged conspiracies

       3   is an independent crime and that, as to each charged

       4   defendant, each alleged conspiracy must independently be

       5   proven by the government beyond a reasonable doubt.

       6            As I have indicated, the indictment alleges four

       7   separate conspiracies.  A conspiracy is a kind of criminal

       8   partnership -- a combination or agreement of two or more

       9   persons to join together to accomplish some illegal objective

      10   in violation of the laws of the United States.

      11       Let me repeat that.  A conspiracy is a kind of criminal

      12   partnership -- a combination or agreement of two or more

      13   persons to join together to accomplish some illegal objective

      14   in violation of the laws of the United States.

      15       Although the government has presented evidence that some

      16   of the defendants and alleged coconspirators engaged in

      17   activities in foreign countries that may or may not have

      18   violated the laws of those foreign countries, the crime of

      19   conspiracy applies only to those illegal agreements that seek

      20   to violate United States law.  Of course, a given activity,

      21   even if it occurs abroad, may sometimes constitute a violation

      22   of both foreign and United States law.

      23            The crime of conspiracy to violate United States law

      24   is an independent offense.  It is separate and distinct from

      25   the actual violation of any specific laws, which the law

                                                                    6074

       1   refers to as "substantive crimes."

       2            Indeed, you may find a defendant guilty of the crime

       3   of conspiracy to commit an offense even though the substantive

       4   crime that was the object of the conspiracy was not actually

       5   committed.  Moreover, you may find a defendant guilty of

       6   conspiracy despite the fact that he himself was incapable of

       7   committing the substantive crime.

       8       Generally speaking, and unless I tell you otherwise, in

       9   order to sustain its burden of proof with respect to one

      10   allegation of conspiracy, the government must establish,

      11   beyond a reasonable doubt, each of the following four elements

      12   as to each defendant charged in that conspiracy.

      13            First, that there in fact existed the alleged

      14   conspiracy, the object of which was to violate United States

      15   law, as charged in the indictment;

      16            Second, that the defendant you are considering

      17   knowingly and willfully became a member of that conspiracy,

      18   with the intent to further its illegal purpose;

      19            Third, that one or more of the conspirators, not

      20   necessarily the defendant you are considering, knowingly

      21   committed at least one of the overt acts charged in the

      22   indictment, at or about the time alleged; and

      23            Fourth, that at least one overt act which you

      24   unanimously find to have been committed was knowingly and

      25   willfully committed to effect the object of the conspiracy.

                                                                    6075

       1            And after lunch we will separately consider these

       2   four elements.

       3       We'll break for lunch and resume at 2:15.

       4            (Luncheon recess)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6076

       1                         AFTERNOON SESSION

       2                             2:20 p.m.

       3            (Jury present)

       4            THE COURT:  There was an inquiry as to whether you

       5   may take material home with you and the answer is no.  It will

       6   be left in the jury room.

       7            You will recall, when we broke for lunch we were

       8   talking about the general principles of conspiracy law which

       9   apply to the first four counts, which are the conspiracy

      10   counts.  The other counts in the indictment are referred to as

      11   the substantive counts.  We are now going to proceed with a

      12   discussion in more detail of what the various elements are of

      13   the crime of conspiracy as it applies to the first four

      14   counts.  If you are following me, I am on page 33, and if you

      15   are not following me, I'm on page 33.

      16            The first element which the government must prove

      17   beyond a reasonable doubt to establish the offense of

      18   conspiracy is that two or more persons entered into the

      19   unlawful agreement charged in the indictment.  You must ask:

      20   Did the conspiracy alleged in the indictment exist?  Was there

      21   such a conspiracy?

      22            Since the indictment in this case charges four

      23   separate conspiracies on the part of the multiple defendants,

      24   you must independently determine as to each conspiracy count

      25   and as to each defendant charged in the count whether that

                                                                    6077

       1   conspiracy in fact existed and whether it was in fact directed

       2   at the unlawful purpose or purposes specifically alleged in

       3   the indictment.

       4            As I mentioned just a few moments ago, a conspiracy

       5   is a combination, an agreement or a mutual understanding of

       6   two or more persons to accomplish, by concerted action, a

       7   criminal or unlawful purpose.  The gist, the essence of the

       8   crime of conspiracy is the unlawful combination or agreement

       9   to violate the laws of the United States.  The success of the

      10   conspiracy or the actual commission of the criminal act which

      11   is the object of the conspiracy is not an essential element of

      12   the crime.  In other words, a conspiracy alleges an agreement

      13   to commit a crime and is an entirely distinct and separate

      14   offense from the actual commission of that crime.

      15            To show that a conspiracy existed, the government is

      16   not required to show that two or more people sat around a

      17   table and entered into a solemn pact, orally or in writing,

      18   stating that they had formed a conspiracy to violate the law

      19   and spelling out all the details.  It is sufficient if the

      20   evidence demonstrates that two or more persons, in some way or

      21   manner, formally or informally, impliedly or tacitly, came to

      22   a common understanding that they would violate the law and

      23   accomplish an unlawful plan.

      24            The proof that people simply met together from time

      25   to time and talked about similar conduct is not enough to

                                                                    6078

       1   establish a criminal agreement.  That is something that you

       2   may consider in deciding whether the government has proved an

       3   agreement.  Without more, that is not enough.

       4            You may, of course, find the existence of the

       5   agreement to disobey or disregard the law has been established

       6   by direct proof.  However, because conspiracy is by its very

       7   nature characterized by secrecy, you may also infer its

       8   existence from the circumstances of this case and the conduct

       9   of the parties involved.

      10            In a very real sense then, in the context of

      11   conspiracy cases, actions often speak louder than words.  In

      12   this regard you may, in determining whether an agreement

      13   existed, consider the actions and statements of all those

      14   persons you find to be participants as proof that a common

      15   design existed on the part of the persons charged to act

      16   together to accomplish an unlawful purpose.

      17            However, remember that if you choose to consider a

      18   defendant's postarrest statements made to law enforcement

      19   officials for purposes of determining the existence and scope

      20   of the alleged conspiracy, you may only consider those

      21   postarrest statements in connection with the specific

      22   defendant who made those postarrest statements.  In order for

      23   you to find that the existence and scope of the alleged

      24   conspiracy has been proven in connection with those defendants

      25   who did not make the postarrest statements at issue, you will

                                                                    6079

       1   have to rely on evidence other than the postarrest statements.

       2            To recap, it is sufficient to establish the existence

       3   of the conspiracy if, from the proof of all the relevant facts

       4   and circumstances, you find beyond a reasonable doubt that the

       5   minds of at least two alleged coconspirators met in an

       6   understanding way to accomplish, by the means alleged, the

       7   objective of the conspiracy.

       8            In finding the existence of the conspiracy, you must

       9   also conclude that the conspiracy in fact had the unlawful

      10   purpose specifically alleged in the indictment.  If you find

      11   beyond a reasonable doubt that the conspirators agreed to

      12   accomplish the illegal objective charged in the indictment,

      13   the illegal purpose element of the conspiracy offense will be

      14   satisfied.  And if the indictment alleges that a given

      15   conspiracy had more than one unlawful purpose, then you need

      16   only find that the conspirators agreed to accomplish any of

      17   those multiple unlawful objectives.  Although the finding of

      18   one unlawful objective is sufficient to satisfy the illegal

      19   purpose element, I instruct that you the jury must unanimously

      20   agree on which, if any, was the specific unlawful objective of

      21   the alleged conspiracy.

      22       On the special verdict form, if you find that the charged

      23   conspiracy existed, you must indicate unanimous agreement as

      24   to the conspiracy's specific unlawful objectives.

      25       If the government fails to prove beyond a reasonable doubt

                                                                    6080

       1   that at least one of the unlawful purposes alleged in the

       2   indictment was in fact an objective of the conspiracy named in

       3   a particular count, or if you cannot unanimously agree as to

       4   which of the unlawful purposes alleged in that count of the

       5   indictment have been proven beyond a reasonable doubt, then

       6   you must find the defendants named in the count not guilty as

       7   to that conspiracy charge.

       8       Moreover, if you conclude that an agreement existed but

       9   that its purpose, even if unlawful, was in fact not one of the

      10   specific unlawful purposes described in that count of the

      11   indictment, you must also find the defendants named in that

      12   count not guilty.

      13            Just a few more general points relating to this first

      14   element of the offense of conspiracy.

      15       First, while the indictment may allege that a given

      16   conspiracy existed on certain dates, it is not essential that

      17   the government prove that the conspiracy started and ended on

      18   those specific dates.  Instead, it is enough if you find that

      19   the conspiracy was formed and that it existed for some

      20   substantial time within the period set forth in the

      21   indictment.

      22            Second, a conspiracy, once formed, is presumed to

      23   have continued until its objectives are accomplished or there

      24   is an affirmative act of termination by its members or it is

      25   otherwise terminated.

                                                                    6081

       1            Third, you heard me repeatedly use the terms

       2   "unlawful purpose," "unlawful objective," "illegal purpose,"

       3   "illegal objective" in discussing the elements of the offense

       4   of conspiracy.  Understand that these terms are all synonymous

       5   and that they refer only to violations of United States law.

       6   As I said before, the crime of conspiracy applies only to

       7   those illegal agreements that seek to violate United States

       8   law.  An agreement to violate foreign law standing alone does

       9   not satisfy the illegal purpose element of the offense of

      10   conspiracy.

      11            One last word about the government's burden of

      12   proving the existence of a charged conspiracy.  In this case

      13   the indictment contains four different conspiracy counts.

      14   Each count alleges a single overall conspiracy the existence

      15   of which must be independently proved as to each charged

      16   defendant beyond a reasonable doubt.  Here, some of the

      17   defendants contend that the government's proof fails to show,

      18   under any of the four conspiracy counts, that there existed

      19   only one overall conspiracy.  Rather, they claim that as to

      20   each of the four conspiracy counts, to the extent the

      21   government has proven the existence of any conspiracy, there

      22   were actually several separate and independent conspiracies by

      23   various members of the group.

      24            By way of illustration and illustration only,

      25   consider Count 1 of the indictment.  It alleges a conspiracy

                                                                    6082

       1   on the part of all four defendants to murder United States

       2   nationals.  Whether under this count there existed a single

       3   unlawful agreement, or many such agreements, or indeed no

       4   agreement at all, is a question of fact for you the jury to

       5   determine in accordance with the instructions I am about to

       6   give you.

       7            When two or more people join together to further one

       8   common unlawful design or purpose, in violation of United

       9   States law, a single conspiracy exists.  In contrast, multiple

      10   conspiracies exist when there are several unlawful agreements

      11   to achieve distinct purposes.  Proof of several separate and

      12   independent conspiracies is not proof of the single overall

      13   conspiracy charged in Count 1 of the indictment unless one of

      14   the conspiracies proved happens to be the single conspiracy

      15   described in Count 1.

      16            You may find that there was a single conspiracy

      17   despite the fact that there were either changes in

      18   personnel -- by the termination, withdrawal or addition of new

      19   members -- by changes in activities, or both, so long as you

      20   find that some of the coconspirators continued to act for the

      21   entire duration of the conspiracy for the purposes charged in

      22   Count 1 of the indictment.  The fact that members of the

      23   conspiracy are not always identical does not necessarily imply

      24   that separate conspiracies exist.

      25            On the other hand, if you find that the conspiracy

                                                                    6083

       1   charged in Count 1 of the indictment did not exist, you cannot

       2   find any defendant guilty of the conspiracy charged in Count 1

       3   of the indictment.  This is so even if you find that some

       4   conspiracy other than that which is charged in Count 1 of the

       5   indictment existed, even though the purposes of both

       6   conspiracies may have been the same, and even though there may

       7   have been some overlap in membership.

       8            Similarly, if you find that a particular defendant

       9   was a member of another conspiracy but not the one charged in

      10   Count 1 of the indictment, then you must find the defendant

      11   not guilty of the conspiracy charged in Count 1.

      12            Therefore, what you must do is determine whether the

      13   conspiracy charged in Count 1 of the indictment existed.  If

      14   it did, you then must determine the nature of the conspiracy

      15   and who were its members.

      16       These principles concerning the distinction between the

      17   proof of a single, overall conspiracy and proof of multiple

      18   conspiracies apply not just to Count 1 of the indictment but

      19   to all four conspiracy counts.

      20            Let us move on now to the second element necessary to

      21   establish the offense of conspiracy.  The government must

      22   prove beyond a reasonable doubt that the defendant you are

      23   considering knowingly, willfully and voluntarily became a

      24   member of the charged conspiracy with the intent to further

      25   its illegal purpose.  Each time you are satisfied that one of

                                                                    6084

       1   the four conspiracies charged in the indictment existed, you

       2   must next ask yourself whether a defendant on trial was a

       3   member of that particular conspiracy.

       4            In deciding whether or not the government has proved

       5   beyond a reasonable doubt that the defendant you are

       6   considering was in fact a member of the charged conspiracy,

       7   you should consider whether that defendant knowingly and

       8   willfully joined the conspiracy.  Did he participate in it

       9   with knowledge of its specific unlawful purpose, and with a

      10   specific intent of furthering that illegal objective?

      11       An act is done knowingly and willfully if it is done

      12   purposefully and deliberately; that is, the defendant's act

      13   must have been the product of the defendant's conscious

      14   determination rather than the product of mistake or accident

      15   or mere negligence or some other innocent reason.

      16            "Unlawful" simply means contrary to United States

      17   law, as I have already told you.  The defendant you are

      18   considering need not have known that he was breaking any

      19   particular provision of law or any particular rule.  The

      20   defendant you are considering need only have been aware of the

      21   generally unlawful nature of his act.

      22            As I have mentioned, before the defendant you are

      23   considering can be found to have been a conspirator, you must

      24   find that he knowingly joined in the unlawful agreement or

      25   plan.  The key question is whether the defendant joined the

                                                                    6085

       1   conspiracy and did so with an awareness of at least some of

       2   the illegal aims and purposes of the unlawful agreement to

       3   violate the laws of the United States.

       4            It is important for you to note that each defendant's

       5   participation in the conspiracy must be established beyond a

       6   reasonable doubt, by independent evidence of his own acts or

       7   statements, as well as acts or statements of persons alleged

       8   to be coconspirators in the same conspiracy, and the

       9   reasonable inferences that may be drawn from them.

      10            Let me remind you of the rule regarding a defendant's

      11   postarrest statements to law enforcement authorities.  Such

      12   statements may be considered by you as evidence only as to the

      13   specific defendant who made those statements, including for

      14   the purpose of your determining whether or not that specific

      15   defendant was a member of the alleged conspiracy.

      16   Accordingly, the defendant's postarrest statements may not be

      17   considered by you in determining whether any of the other

      18   defendants charged in the same conspiracy were in fact also

      19   members of that conspiracy.

      20            A defendant's knowledge is a matter of inference from

      21   the facts proved.  Science has not yet devised a manner of

      22   looking into a person's mind and knowing what that person is

      23   thinking.  However, you do have before you evidence of certain

      24   acts and conversations alleged to have taken place with

      25   certain defendants or in their presence.  The government

                                                                    6086

       1   contends that these acts and conversations show beyond a

       2   reasonable doubt knowledge on the part of the defendant in

       3   question of the unlawful purpose of the charged conspiracies.

       4   On the other hand, each defendant denies that these acts and

       5   conversations showed that he had such knowledge.  It is for

       6   you to determine, with respect to each of the four conspiracy

       7   counts alleged in the indictment, whether the government has

       8   established beyond a reasonable doubt that such knowledge and

       9   intent on the part of the defendant you are considering

      10   existed.

      11            To become a member of the conspiracy, the defendant

      12   in question need not have known the identities of each and

      13   every other member, nor need he have been apprised of all

      14   their activities.  Moreover, the defendant need not have been

      15   fully informed as to all of the details or the scope of the

      16   conspiracy to justify an inference of knowledge on his part.

      17   Furthermore, the defendant need not have joined in all of the

      18   conspiracy's unlawful objectives.  Nor is it necessary that a

      19   defendant receive any monetary benefit from participating in

      20   the conspiracy.  All that is required is that the government

      21   prove beyond a reasonable doubt that the defendant you are

      22   considering participated in the conspiracy with knowledge of

      23   some of its unlawful purposes and with the intent of

      24   furthering those unlawful purposes.

      25            You heard during the trial about certain

                                                                    6087

       1   organizations, including Al Qaeda, Egyptian Islamic Jihad, and

       2   others.  All four of the conspiracies charged in the

       3   indictment are alleged to have been formed by members and

       4   nonmembers of these organizations.  You need not find that a

       5   particular defendant was a member of Al Qaeda or any other

       6   organization to find that the defendant was a member of the

       7   conspiracy in question.  Similarly, even if you find that a

       8   particular defendant was a member of Al Qaeda, that does not

       9   necessarily mean that the defendant was a member of the

      10   charged conspiracy you are considering.

      11            I caution you that individuals, including the

      12   defendants in this case, have the right under our Constitution

      13   to assemble and discuss even the most unpopular ideas,

      14   including discussion of unlawful acts.  Such assembly and

      15   discussion does not by itself necessarily establish an

      16   unlawful agreement unless, of course, you find that an

      17   unlawful agreement was reached during that conversation.

      18   Expressions of sympathy and support for those who commit

      19   unlawful acts do not, without more, constitute entry into an

      20   unlawful agreement.  Nor does vigorous criticism of the United

      21   States government.  One may belong to a group, knowing that

      22   some of its members commit illegal acts, without having

      23   entered into an agreement that those unlawful acts be

      24   committed.  A frank expression or exchange of political views,

      25   no matter how vehement, radical or unpopular, does not,

                                                                    6088

       1   without more, constitute an unlawful agreement.

       2            If you determine that a defendant became a member of

       3   the conspiracy, the extent of his participation in that

       4   conspiracy has no bearing on the issue of the defendant's

       5   guilt.  A defendant need not have joined the conspiracy at the

       6   outset.  A conspirator's liability is not measured by the

       7   extent or duration of his participation.  Indeed, each member

       8   of a conspiracy may perform separate and distinct acts and may

       9   perform them at different times.  Some conspirators may play

      10   major roles, while others play minor roles in a scheme.  An

      11   equal role is not what the law requires.  In fact, even a

      12   single act may be sufficient to draw the defendant within the

      13   ambit of the conspiracy, so long as the defendant has

      14   knowingly and willfully joined the conspiracy.

      15       I want to caution you, however, that the following

      16   factors, standing alone, do not make the defendant you are

      17   considering a member of the conspiracy:  (1) his mere presence

      18   at the scene of the alleged crime; (2) his mere presence at

      19   meetings with other conspirators; or (3) his mere residence in

      20   a particular country or neighborhood.

      21       Similarly, mere association with one or more members of

      22   the conspiracy does not automatically make that defendant a

      23   member, even coupled with knowledge that a conspiracy is

      24   taking place.  A person may know or be friendly with a

      25   criminal, or persons who are members of a conspiracy, without

                                                                    6089

       1   being a criminal or coconspirator himself.  Mere similarity of

       2   conduct or the fact that they may have assembled together or

       3   discussed common aims or interests does not necessarily

       4   establish proof of the existence of a conspiracy.

       5       I also want to caution you that mere knowledge or

       6   acquiescence, without participation, in the unlawful plan is

       7   not sufficient to satisfy the government's burden of proof.

       8   Moreover, the fact that the defendant you are considering,

       9   without knowledge of the conspiracy's illegal objectives,

      10   merely happens by his actions to further the purposes or

      11   objectives of the conspiracy does not make the defendant a

      12   member of the conspiracy.  More is required under the law.

      13   What is necessary is that the defendant in question must have

      14   participated in the conspiracy with knowledge of at least some

      15   of the illegal purposes or objectives of the charged

      16   conspiracy and with the intention of aiding in the

      17   accomplishment of those unlawful acts.

      18            Remember too that the unlawful objective which you

      19   find the defendant had knowledge of, and which he sought to

      20   further through his participation in the agreement, must have

      21   been an objective in violation of United States law and must

      22   have been an actual objective, as determined by you, of the

      23   specific conspiracy count you are considering.

      24            In sum, the defendant you are considering, having had

      25   an understanding of the unlawful character of the conspiracy,

                                                                    6090

       1   must have intentionally engaged, advised or assisted in it for

       2   the purpose of furthering the illegal undertaking.  The

       3   defendant thereby becomes a knowing and willing participant in

       4   the unlawful agreement -- that is to say, a coconspirator.

       5            A conspiracy, once formed, is presumed to continue

       6   until either of its objectives is accomplished or there is

       7   some affirmative act of termination by its members.  So, too,

       8   once a person is found to be a member of a conspiracy, that

       9   person is presumed to continue being a member in the venture

      10   until the venture is terminated, unless it is shown by some

      11   affirmative proof that that person withdrew and disassociated

      12   himself from it.

      13            One last issue.  The distinction I mentioned earlier

      14   between proof of a single, overall conspiracy versus proof of

      15   multiple or different conspiracies also arises with regard to

      16   the question of a defendant's membership in an alleged

      17   conspiracy.  As I have already stated, you may not find a

      18   defendant guilty of any conspiracy count in the indictment

      19   unless you find beyond a reasonable doubt that he joined the

      20   specific conspiracy alleged in this count.  In this regard, if

      21   the defendant joined a different or separate conspiracy --

      22   that is, if you find that he, one, joined a conspiracy other

      23   than the one charged in the particular count of the indictment

      24   which you are considering, but, two, did not also join the

      25   count you are in fact considering -- then you must find the

                                                                    6091

       1   defendant not guilty of the conspiracy charged in the count

       2   you are considering, even if the conspiracy he did join had a

       3   similar purpose.

       4       For example, let us assume that under the first element of

       5   the offense of conspiracy, you the jury unanimously find that

       6   conspiracy X existed and that such conspiracy was directed to

       7   unlawful purpose X, an unlawful purpose specifically charged

       8   in the indictment.  Let us also assume that you find that the

       9   defendant you are considering was aware only of unlawful

      10   purpose Y and intended to further only unlawful purpose Y.

      11   Under these circumstances, you the jury may not find that the

      12   defendant knowingly, willfully and voluntarily joined in

      13   conspiracy X, even if unlawful purpose Y and unlawful purpose

      14   X are substantially similar and even if unlawful purpose Y is

      15   alleged elsewhere in the indictment.  Because the second

      16   element of the offense has not been proven, you must find the

      17   defendant not guilty of conspiracy X.

      18            Of course, if you find that the conspiracy charged in

      19   any count of the indictment existed and the defendant

      20   knowingly, willfully and voluntarily joined in that conspiracy

      21   and its specific illegal objectives, then the first two

      22   elements of the offense of conspiracy are satisfied.

      23            Before moving on to the third element of the offense

      24   of conspiracy, I want to mention a word about coconspirator

      25   evidence.  You will recall that during the trial you heard

                                                                    6092

       1   evidence concerning the acts and statements of persons whom

       2   the government charges were coconspirators with the defendants

       3   on trial here.

       4       I instruct you that, in determining the factual issues

       5   before you, you the jury are permitted to consider

       6   coconspirator evidence against a defendant but only according

       7   to the conditions I now describe.

       8       The reason for allowing this type of evidence to be

       9   received against a defendant has to do with the nature of the

      10   crime of conspiracy.  Conspiracy has often been referred to as

      11   a partnership in crime.  Thus, as with other types of

      12   partnerships, when people enter into a conspiracy to

      13   accomplish an unlawful end, each and every member becomes an

      14   agent for the other conspirators in carrying out the

      15   conspiracy.

      16       Accordingly, the reasonably foreseeable acts,

      17   declarations, statements and admissions of any member of a

      18   conspiracy which are made in furtherance of the unlawful

      19   purpose of that conspiracy are deemed under the law to be the

      20   acts of all the members, and all of the members are

      21   responsible for such acts, declarations, statements and

      22   omissions.

      23       What does this mean?  It means that if you the jury find

      24   beyond a reasonable doubt that a conspiracy charged in the

      25   indictment existed and that the defendant you are considering

                                                                    6093

       1   was a member of that particular conspiracy -- in short, if you

       2   find that the first two elements of the offense of conspiracy

       3   have been met as to a conspiracy charged in the indictment and

       4   as to the defendant you are considering -- then any acts done

       5   or statements made during and in furtherance of that

       6   particular conspiracy, by persons also found by you to have

       7   been members of that conspiracy, may be considered as evidence

       8   against the defendant under consideration.  This is so even if

       9   such acts were done and statements were made in the

      10   defendant's absence and without his knowledge.

      11            However, before you may consider the statements and

      12   acts of a coconspirator in determining the factual issues

      13   before you, you must first determine that the acts and

      14   statements were made during the existence and in furtherance

      15   of the charged conspiracy.  If the acts were done or the

      16   statements made by someone whom you do not find to have been a

      17   member of the charged conspiracy, or if they were not done or

      18   said during and in furtherance of the charged conspiracy, they

      19   may be considered by you as evidence only against the person

      20   who did or said them.

      21       That is why on numerous prior occasions I have instructed

      22   you that a defendant's postarrest statements to law

      23   enforcement officials are to be considered by you only as to

      24   the particular defendant who made the statements and not ever

      25   as to any of his codefendants.  Such postarrest statements,

                                                                    6094

       1   under the law, are not statements made during the existence

       2   and furtherance of the conspiracy, and thus do not qualify as

       3   coconspirator evidence which a jury may properly consider.

       4            Let us now return to our discussion of the core

       5   elements of the offense of conspiracy.

       6            The third element that the government must prove

       7   beyond a reasonable doubt to establish the offense of

       8   conspiracy is that one or more of the conspirators in that

       9   conspiracy knowingly committed at least one of the overt acts

      10   charged in the relevant conspiracy count, at or about the time

      11   and place alleged.  The purpose of the overt act requirement

      12   is clear.  There must have been something more than mere

      13   agreement.  Some overt act, some overt step or action must

      14   have knowingly been taken by at least one of the conspirators

      15   in furtherance of the conspiracy.

      16            In order for the government to establish this

      17   element, it is not required that all of the overt acts alleged

      18   in the relevant conspiracy count have been proven.  All that

      19   is required is that you find beyond a reasonable doubt that at

      20   least one such act was knowingly committed by at least one of

      21   the coconspirators in that particular conspiracy.

      22       Although the finding of one overt act is sufficient to

      23   satisfy the overt act element, I instruct you that the jury

      24   must unanimously agree on which, if any, was the specific

      25   overt act committed.

                                                                    6095

       1            Similarly, you need not find that the defendant you

       2   are considering committed the overt act.  It is sufficient for

       3   the government to show that an individual whom you find beyond

       4   a reasonable doubt to be a conspirator knowingly committed an

       5   overt act in furtherance of the conspiracy.  This is because

       6   such an act becomes, in the eyes of the law, the act of all

       7   the members of the conspiracy.

       8            You are further instructed that the overt act need

       9   not have been committed at precisely the time alleged in the

      10   indictment.  It is sufficient if you are convinced beyond a

      11   reasonable doubt that it occurred at or about the time and

      12   place stated in the indictment.

      13            To be clear, in this case the indictment alleges four

      14   separate conspiracy counts.  As to each of these four counts,

      15   as to each defendant charged in the count, unless I inform you

      16   otherwise, you must independently determine whether the overt

      17   act element has been satisfied in the manner I have just

      18   explained.  Of course, a single act may satisfy the overt act

      19   requirement with respect to more than one conspiracy.  Indeed,

      20   as you will see from the indictment, many acts are alleged to

      21   have been in furtherance of a number of the alleged

      22   conspiracies.

      23            Each of the four conspiracy counts indicates which

      24   overt acts were allegedly taken in furtherance of the

      25   particular conspiracy charged in that count, which of the

                                                                    6096

       1   various conspirators allegedly committed those overt acts, and

       2   the approximate dates and locations those overt acts allegedly

       3   occurred.

       4            The fourth element that the government must prove

       5   beyond a reasonable doubt to establish the offense of

       6   conspiracy is that at least one of the overt acts which you

       7   unanimously find to have been committed was knowingly and

       8   willfully committed for the purpose of carrying out the

       9   unlawful agreement.  For the government to satisfy this

      10   element, it must prove beyond a reasonable doubt that at least

      11   one overt act was knowingly and willfully done by at least one

      12   conspirator in furtherance of what you determine to be the

      13   unlawful objective or purpose of the conspiracy.  In this

      14   context, "knowingly and willfully" means that the conspirator

      15   committed the overt act with knowledge of some of the illegal

      16   objectives of the conspiracy to violate United States law and

      17   with intent to further those illegal objectives.

      18            You should bear in mind that the overt act standing

      19   alone may be an innocent, lawful act.  Frequently, however, an

      20   apparently innocent act sheds its harmless character if it is

      21   a step in carrying out, promoting, aiding or assisting the

      22   conspiratorial scheme.  You are therefore instructed that the

      23   overt act does not have to be an act that, in and of itself,

      24   is criminal or constitutes an objective of the conspiracy.

      25            As was the case with respect to the three other

                                                                    6097

       1   elements of the offense of conspiracy, the government must

       2   independently prove this element beyond a reasonable doubt for

       3   each of the four conspiracy counts charged in the indictment

       4   and for each defendant charged in the count.  In other words,

       5   the fact that you have already found that an overt act was

       6   committed for the purpose of carrying out one of the other

       7   charged conspiracies does not relieve you of your obligation

       8   to find, unanimously and beyond a reasonable doubt, that it,

       9   or some other overt act, was committed in furtherance of the

      10   specific conspiracy that you are considering.

      11            I have now finished explaining to you the four core

      12   elements of the offense of conspiracy.  To recap, they are:

      13       First, that the alleged conspiracy, the object of which

      14   was to violate United States law, in fact existed as charged

      15   in the indictment;

      16       Second, that the defendant you are considering knowingly

      17   and willfully became a member of that conspiracy, with the

      18   intent to further its illegal purpose;

      19       Third, that one or more of the conspirators, not

      20   necessarily the defendant you are considering, knowingly at

      21   committed at least one of the overt acts charged in the

      22   relevant conspiracy count, at or about the time alleged; and

      23       Fourth, that at least one overt act which you unanimously

      24   find to have been committed was knowingly and willfully

      25   committed to effect the object of the conspiracy.

                                                                    6098

       1            In this case, as to each conspiracy charged in the

       2   indictment, that is, Counts 1 through 4, and as to each

       3   defendant charged in the count, the government must

       4   independently prove each of these four elements beyond a

       5   reasonable doubt, unless I instruct you otherwise.  I say

       6   "unless I instruct you otherwise" because there are some

       7   allegations of conspiracy in the indictment where the

       8   government's burden of proof will not require all of these

       9   four elements, or where its burden will require proof of

      10   additional elements other than those four, or both.

      11            Whenever such circumstances exist, I will of course

      12   inform you.  In the meantime, I instruct you that proof beyond

      13   a reasonable doubt as to all four core elements is necessary

      14   for the government to establish any allegation of criminal

      15   conspiracy as to any defendants.

      16            We are now ready to consider in detail, count by

      17   count, the specific elements of each of the four conspiracies

      18   alleged in the indictment.  I am going to break for a minute

      19   and stand and stretch, and if you want to break for a minute

      20   and stand and stretch, be my guest.  If you don't, that's OK

      21   too.

      22            (Pause)

      23            THE COURT:  So we are now, if you are following, on

      24   page 52, looking at the specific counts in the indictment.

      25   The first count in the indictment alleges that all four

                                                                    6099

       1   defendants, while they were situated outside the United

       2   States, engaged in a conspiracy to murder nationals of the

       3   United States.  Specifically, Count 1 charges, and I am now

       4   reading from paragraphs 10 and 11 of the indictment, that:

       5            From at least 1991 until the date of the filing of

       6   this indictment, which was May 8, 2000, in the Southern

       7   District of New York, in Afghanistan, the United Kingdom,

       8   Pakistan, the Sudan, Saudi Arabia, Yemen, Somalia, Kenya,

       9   Tanzania, Azerbaijan, and elsewhere out of the jurisdiction of

      10   any particular state or district, the defendants and others,

      11   at least one of whom was first brought to and arrested in the

      12   Southern District of New York, together with other members and

      13   associates of Al Qaeda, Egyptian Islamic Jihad, and others

      14   known and unknown to the grand jury, unlawfully, willfully and

      15   knowingly combined, conspired, confederated, and agreed to

      16   kill nationals of the United States.

      17            It was a part and object of said conspiracy that the

      18   defendants, and others known and unknown, would and did murder

      19   United States nationals.

      20            The federal statute that the defendants are charged

      21   with violating in Count 1 is a provision of the United States

      22   Code which provides in relevant part:

      23            Whoever outside the United States ... engages in a

      24   conspiracy to kill a national of the United States shall ...

      25   in the case of a conspiracy by two or more persons to commit a

                                                                    6100

       1   killing that is a murder ... if one or more of such persons do

       2   any overt act to effect the object of the conspiracy, is

       3   guilty of a crime.

       4            As to each of the four defendants charged, in order

       5   to satisfy its burden of proof as to Count 1, the government

       6   must establish each of the following five elements beyond a

       7   reasonable doubt:

       8            First, that two or more persons entered into an

       9   unlawful agreement, the object of which was to murder

      10   nationals of the United States as charged in Count 1 of the

      11   indictment;

      12       Second, that the defendant you are considering knowingly

      13   and willfully became a member of that conspiracy, with the

      14   intent to further its illegal purpose of murdering United

      15   States nationals;

      16            Third, that the defendant you are considering

      17   knowingly and willfully engaged in the conspiracy while

      18   outside of the United States;

      19            Fourth, that one or more of the conspirators, but not

      20   necessarily the defendant you are considering, knowingly

      21   committed at least one of the overt acts charged in Count 1 of

      22   the indictment, at or about the time alleged; and

      23            Fifth, that at least one overt act which you

      24   unanimously find to have been committed was knowingly and

      25   willfully committed to effect the object of the conspiracy.

                                                                    6101

       1            The first element of Count 1 that the government must

       2   prove beyond a reasonable doubt is that two or more persons

       3   entered into the unlawful agreement charged in Count 1 of the

       4   indictment.  I have already instructed you as to what a

       5   conspiracy is and how you should go about determining whether

       6   one exists or not.  However, you must keep in mind that each

       7   of the conspiracy counts in the indictment charges a different

       8   conspiracy, and you must make an independent determination on

       9   each count as to whether the government has proven beyond a

      10   reasonable doubt that the particular conspiracy existed.

      11            In Count 1, the alleged purpose of the conspiracy was

      12   to murder United States nationals.  If you unanimously find,

      13   beyond a reasonable doubt, that the conspirators agreed to

      14   accomplish this unlawful objective, then the illegal purpose

      15   element will have been satisfied.

      16            I instruct you that a murder is defined as the

      17   "unlawful killing of a human being with malice aforethought."

      18   A killing is done with malice aforethought if it is done

      19   consciously, with the intent to kill another person.  In order

      20   to establish this element, the government must prove that the

      21   defendant you are considering acted willfully, with a bad or

      22   evil purpose to break the law.  However, the government need

      23   not prove spite, malevolence, hatred or ill will.

      24            I further instruct you that a "national of the United

      25   States" is simply a citizen of the United States.

                                                                    6102

       1            The second element of Count 1 that the government

       2   must prove beyond a reasonable doubt is that the defendant you

       3   are considering knowingly, willfully and voluntarily became a

       4   member of the conspiracy, with the intent to further its

       5   unlawful purpose of murdering nationals of the United States.

       6            I have previously explained to you how you are to

       7   determine whether or not a person was a member of a charged

       8   conspiracy, and you should rely on those instructions here and

       9   in connection with the remaining counts.  I have also defined

      10   the terms "knowingly and willfully" and what sort of evidence

      11   may help you guide your assessment of a defendant's state of

      12   mind.  Please rely on those instructions as you consider Count

      13   1 and the other conspiracy counts.

      14            The third element of Count 1 that the government must

      15   prove beyond a reasonable doubt is that the defendant you are

      16   considering engaged in the charged conspiracy while outside

      17   the United States.

      18            Thus you must find that the conspirators' illegal

      19   agreement to murder United States nationals existed outside

      20   the United States, and that the defendant you are considering

      21   knowingly and willfully engaged in that conspiracy while

      22   outside the United States.  It does not matter if you find

      23   that he also engaged in that conspiracy while in the United

      24   States.

      25            The term "United States" is used in its territorial

                                                                    6103

       1   sense.  It includes all the states, territories and

       2   possessions of the United States and all places whether on the

       3   North American continent or on islands, and all waters subject

       4   to the jurisdiction of the United States.

       5       I instruct you that the following places, to name but a

       6   few, are all outside of the United States:  Afghanistan,

       7   Azerbaijan, Canada, Iran, Kenya, Pakistan, Saudi Arabia,

       8   Somalia, Sudan, Tanzania, the United Kingdom, and Yemen.

       9            The fourth element of Count 1 that the government

      10   must prove beyond a reasonable doubt is that one or more of

      11   the conspirators, but not necessarily any of the four

      12   defendants, knowingly committed at least one of the overt acts

      13   charged in Count 1 of the indictment, at or about the time and

      14   place alleged.  Count 1 alleges that various conspirators

      15   committed 65 overt acts, which appear in paragraphs 12A to

      16   12MMM of the indictment.  For the government to satisfy this

      17   element, you must find beyond a reasonable doubt that at least

      18   one of these overt acts was knowingly committed by at least

      19   one individual whom you find to be a coconspirator in Count 1,

      20   and you the jury must unanimously agree on which, if any, was

      21   the specific overt act committed.

      22            The fifth and final element of Count 1 that the

      23   government must prove beyond a reasonable doubt is that at

      24   least one of the overt acts which you unanimously find to have

      25   been committed was knowingly and willfully committed for the

                                                                    6104

       1   purpose of carrying out the unlawful agreement to murder

       2   nationals of the United States.

       3            I have already instructed you as to this element in

       4   my general remarks on conspiracy law, and you should rely on

       5   those instructions in evaluating this element of Count 1.

       6       When you reach a unanimous verdict as to each defendant

       7   charged in Count 1, you must enter that verdict in the

       8   appropriate space of the special verdict form.

       9            Now, let's just turn from this document to the

      10   document headed "Verdict Form".  It says on the cover:  Please

      11   note that as to each question on this form and as to all

      12   verdicts on this form, your vote as a jury must be unanimous.

      13       Then you see on page 1 it says:  Count 1 charges that

      14   defendants Wadih El Hage, Mohamed Sadeek Odeh, Mohamed Rashed

      15   Daoud Al-'Owhali, and Khalfan Khamis Mohamed, while they were

      16   situated outside the United States, engaged in a conspiracy to

      17   murder nationals of the United States.  Do you find that the

      18   defendant listed below is guilty or not guilty of this

      19   offense?  The four defendants are listed below and there is a

      20   place to check your verdict, guilty or not guilty.

      21            Going back to the on page 57, we turn to Count 2 of

      22   the indictment, charging all four defendants with conspiring

      23   to murder officers or employees of the United States while

      24   such officers or employees were engaged in or on account of

      25   the performance of official duties, and to murder

                                                                    6105

       1   internationally protected persons.  Specifically, Count 2

       2   charges, and I am now reading from paragraphs 14 and 15 of the

       3   indictment, that:

       4            From at least 1991 until the date of the filing of

       5   this indictment, May 8, 2000, in the Southern District of New

       6   York, in Afghanistan, the United Kingdom, Pakistan, the Sudan,

       7   Saudi Arabia, Yemen, Somalia, Kenya, Tanzania, Azerbaijan, the

       8   Philippines and elsewhere out of the jurisdiction of any

       9   particular state or district.... the defendants, at least one

      10   of whom was first brought to and arrested in the Southern

      11   District of New York, together with other members and

      12   associates of Al Qaeda, Egyptian Islamic Jihad, and others

      13   known and unknown to the grand jury, unlawfully, willfully,

      14   and knowingly combined, conspired, confederated and agreed

      15   unlawfully to kill individuals.

      16            It was a part and objective of said conspiracy that

      17   the defendants, and others known and unknown, would and did:

      18   (1) kill officers and employees of the United States and

      19   agencies and branches thereof while such employees were

      20   engaged in, and on account of, the performance of their

      21   official duties, and persons assisting such employees in the

      22   performance of their duties ... including members of the

      23   American military stationed in Saudi Arabia, Yemen, Somalia

      24   and elsewhere, and employees of the United States embassies in

      25   Nairobi, Kenya, and Dar es Salaam, Tanzania; and (2) kill

                                                                    6106

       1   internationally protected persons ...

       2            The statute which the defendants are charged with

       3   violating in Count 2 is a statute which provides in relevant

       4   part:

       5            If two or more persons conspire to violate section

       6   1114 or 1116 of this title and one or more of such persons do

       7   any overt act to effect the object of the conspiracy, each is

       8   guilty of a crime.

       9            Section 1114 makes it a crime to kill any officer or

      10   employee of the United States while such officer or employee

      11   is engaged in or on account of the performance of official

      12   duties, or any person assisting such officer or employee in

      13   the performance of such duties, or on account of that

      14   assistance.  Section 1116 makes it a crime to kill an

      15   internationally protected person.

      16            With respect to each of the four defendants charged,

      17   in order to satisfy its burden of proof as to Count 2, the

      18   government must establish each of the following four elements

      19   beyond a reasonable doubt:

      20            First, that two or more persons entered into a

      21   conspiracy, the objects of which were to murder officers or

      22   employees of the United States while such officers or

      23   employees were engaged in or on account of the performance of

      24   official duties, as well as to murder internationally

      25   protected persons, as charged in Count 2 of the indictment;

                                                                    6107

       1            Second, that the defendant you are considering

       2   knowingly and willfully became a member of that conspiracy,

       3   with the intent to further one or both of these two unlawful

       4   purposes;

       5            Third, that one or more of the conspirators, but not

       6   necessarily the defendant you are considering, knowingly

       7   committed at least one of the overt acts charged in Count 2 of

       8   the indictment at or about the time alleged; and

       9            Fourth; that at least one overt act which you

      10   unanimously find to have been committed was knowingly and

      11   willfully committed to effect the illegal objective of the

      12   conspiracy.

      13            The first element of Count 2 that the government must

      14   prove beyond a reasonable doubt is that two or more persons

      15   entered into the unlawful agreement charged in Count 2 of the

      16   indictment.  I have already instructed you as to what a

      17   conspiracy is and how you should go about determining whether

      18   one existed.

      19            In Count 2, the unlawful objectives alleged to be the

      20   objects of the conspiracy were:  (1) to kill, in a manner

      21   which constitutes murder, officers or employees of the United

      22   States, or agencies and branches thereof, while such officers

      23   or employees were engaged in, or on account of, the

      24   performance of their official duties, or persons assisting

      25   such employees in the performance of their duties, including

                                                                    6108

       1   members of the American military stationed in Saudi Arabia,

       2   Yemen, Somalia or elsewhere, or employees of the United States

       3   embassies in Nairobi, Kenya, or Dar es Salaam, Tanzania; and

       4   (2) kill, in a manner which constitutes murder,

       5   internationally protected persons.

       6       Recall that "murder" is defined as a killing which is done

       7   consciously, that is, with the intent to kill another person.

       8            If you find, beyond a reasonable doubt, that the

       9   conspirators agreed to accomplish one or both of these two

      10   unlawful objectives as charged in Count 2 of the indictment,

      11   then the illegal purpose element will be satisfied.  Although

      12   the finding of one unlawful objective is sufficient to satisfy

      13   the illegal purpose element, you the jury must unanimously

      14   agree on which, if any, were the specific unlawful objects of

      15   the alleged conspiracy.  You must indicate your unanimous

      16   finding on the special verdict form, and we will look at that

      17   in a moment.

      18            I instruct you that an individual performs an

      19   "official duty" when he acts within the scope of what he is

      20   employed to do.  To murder someone "on account of the

      21   performance of their official duties" is to murder someone

      22   because he or she performs that duty.

      23            The term "officers and employees of the United

      24   States" is self-explanatory.  It includes officers and

      25   employees of any agency in any branch of the United States

                                                                    6109

       1   government, including members of the uniformed services.

       2       The parties have stipulated that 41 persons were inside

       3   the United States Embassy in Nairobi, Kenya, on August 7,

       4   1998, and that they were officers and employees of the United

       5   States, and that two persons were inside the American Embassy

       6   in Dar es Salaam, Tanzania, on August 7, 1998, and they were

       7   officers and employees of the United States.

       8            An "internationally protected person" is a

       9   representative, officer, employee or agent of the United

      10   States government who at the time and place concerned was

      11   entitled, pursuant to international law, to special protection

      12   against attack upon his person, freedom or dignity.  The

      13   parties have also stipulated that two persons who were inside

      14   the American Embassy in Nairobi, Kenya, on August 7, 1998,

      15   fall under the definition of "internationally protected

      16   persons."

      17            The second element of Count 2 that the government

      18   must prove beyond a reasonable doubt is that the defendant you

      19   are considering knowingly, willfully and voluntarily became a

      20   member of the conspiracy, with intent to further its unlawful

      21   purpose.

      22            I have previously explained to you how you are to

      23   determine whether a person was a member of a charged

      24   conspiracy, and also the definition of the terms "knowingly"

      25   and "willfully," and you should rely on those instructions as

                                                                    6110

       1   you consider Count 2 and the other conspiracy Counts.

       2            The third element of Count 2 that the government must

       3   prove beyond a reasonable doubt is that one or more of the

       4   conspirators, but not necessarily the defendant you are

       5   considering, knowingly committed at least one of the overt

       6   acts charged in Count 2 of the indictment, at or about the

       7   time alleged.

       8            Count 2 alleges as overt acts the same 65 overt acts

       9   that are charged in Count 1, which are found in paragraphs 12A

      10   to 12MMM of the indictment.

      11            To satisfy this element of Count 2, you must find

      12   that at least one of these overt acts was committed by at

      13   least one individual whom you find to be a coconspirator in

      14   Count 2.  You the jury must unanimously agree on which, if

      15   any, was the specific overt act committed.

      16            Even if you may have already found one of these overt

      17   acts to have been knowingly committed in connection with the

      18   other conspiracy counts, you still must separately find beyond

      19   a reasonable doubt that one of these overt acts was knowingly

      20   committed with respect to Count 2.

      21            The fourth element of Count 2 that the government

      22   must prove beyond a reasonable doubt is that at least one

      23   overt act was knowingly and willfully committed for the

      24   purpose of carrying out the unlawful agreement.  I have

      25   already instructed you as to the same element in connection

                                                                    6111

       1   with my general remarks on the law of conspiracy, and you

       2   should rely on those instructions in evaluating this element

       3   of Count 2.

       4            Here too, the fact that you have already found that

       5   an overt act was knowingly and willfully committed for the

       6   purpose of carrying out some other conspiracy charged in the

       7   indictment does not relieve you of your obligation to find,

       8   beyond a reasonable doubt, that it, or some other overt act,

       9   was knowingly and willfully committed in order to fulfill the

      10   unlawful purposes of the conspiracy charged in Count 2.

      11       For each of the defendants charged in Count 2, once you

      12   have reached a unanimous verdict, you must indicate that

      13   verdict on the special verdict form.  Let's turn again to the

      14   special verdict form on Count 2, which is on page 2 of the

      15   special verdict form.  It reads:

      16       Count 2 charges Wadih El Hage, Mohamed Sadeek Odeh,

      17   Mohamed Rashed Daoud Al-'Owhali and Khalfan Khamis Mohamed

      18   with conspiring to murder officers or employees of the United

      19   States while such officers or employees were engaged in or on

      20   account of the performance of official duties, and to murder

      21   internationally protected persons.

      22       Do you find that the defendant listed below is guilty or

      23   not guilty of this offense?

      24       And then there are the names and the box for guilty or not

      25   guilty.

                                                                    6112

       1            (Continued on next page)

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       3

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6113

       1            THE COURT:  (Continuing) But Count Two goes on, as

       2   Count One did not, because the conspiracy alleged in Count Two

       3   has two separate objectives.  Count One has only one

       4   objective:  To kill nationals of the United States.  Count Two

       5   has two objectives.  For that reason, we ask you in the middle

       6   of that page, "If you find at least one defendant guilty of

       7   Count Two, answer part A below.  If you find all four

       8   defendants not guilty of Count Two, skip part A below."

       9            And what part A below asks is:  Did the conspiracy

      10   charged in Count Two include one or both of the following

      11   objectives?  And we ask you to check "yes" or "no" as to the

      12   objective alleged in the indictment as an objective of this

      13   conspiracy.  If you found both, then you check "yes" as to

      14   both.  If you found neither, then you check "no" as to both

      15   and your verdict would be not guilty.  If you found "yes" as

      16   to one and "no" as to the other, the object of the conspiracy

      17   requirement would be satisfied.

      18            And that takes us to Three.  You get to reserve as

      19   you go along because you see there's a pattern and there's a

      20   repetition here, although it is important that you follow

      21   carefully these instructions and the language of the

      22   indictment.

      23            We'll turn to Count Three after we take our mid

      24   afternoon recess.

      25            (Recess)

                                                                    6114

       1            THE COURT:  Turning then to Count Three and page 62

       2   of the court's instructions, if you are reading along with me,

       3   Count Three of the indictment charges only defendants Mohamed

       4   Sadeek Odeh, Mohamed Rashed Daoud Al-'Owhali, and Khalfan

       5   Khamis Mohamed with conspiring to use weapons of mass

       6   destruction -- to wit, bombs -- against United States

       7   nationals while such nationals were outside the United States,

       8   and against property owned, leased, or used by the United

       9   States.

      10       Defendant Wadih El Hage is not named as a defendant in

      11   this Count.

      12            Count Three charges, and I am now reading from

      13   paragraphs 18 and 19 of the indictment, that:

      14            From at least 1991 until the date of the filing of

      15   this indictment [May 8, 2000], in the Southern District of New

      16   York, and in those other countries, those three defendants,

      17   that is, all of the defendants except the defendant Wadih El

      18   Hage, at least one of whom was first brought to and arrested

      19   in the Southern District of New York, together with other

      20   members and associates of al Qaeda, Egyptian Islamic Jihad,

      21   and others known and unknown to the Grand Jury, unlawfully,

      22   willfully, and knowingly combined, conspired, confederated,

      23   and agreed unlawfully to use weapons of mass destruction, to

      24   wit, bombs, against nationals of the United States while such

      25   nationals would be outside the United States and against

                                                                    6115

       1   property that is owned, leased, and used by the United States

       2   or by departments and agencies of the United States.

       3            It was a part and an object of said conspiracy that

       4   the defendants, and others known and unknown, would and did:

       5   (i) bomb the American embassies in Nairobi, Kenya, and Dar es

       6   Salaam, Tanzania, and employees of the American government

       7   stationed at those embassies, and (ii) attack American

       8   military facilities in the Gulf region and the Horn of Africa,

       9   and members of the American military stationed in Saudi

      10   Arabia, Yemen, Somalia, and elsewhere with bombs.

      11            The statute that defendants Odeh, Al-'Owhali and

      12   Mohamed are charged with violating in Count Three is a section

      13   of the criminal code which provides, in relevant part, that:

      14            A person who, without lawful authority ... conspires

      15   to use a weapon of mass destruction ... against a national of

      16   the United States while such national is outside of the United

      17   States ... or against any property that is owned, leased or

      18   used by the United States or by any department or agency of

      19   the United States, whether the property is within or outside

      20   of the United States, [is guilty of a crime].

      21            With respect to each of the three defendants charged,

      22   in order to satisfy its burden of proof as to Count Three, the

      23   government must establish each of the following three elements

      24   beyond a reasonable doubt:

      25            First, that two or more persons entered into an

                                                                    6116

       1   unlawful agreement to use weapons of mass destruction against

       2   nationals of the United States while such nationals were

       3   outside of the United States, and against any property owned,

       4   leased, or used by the United States or any department or

       5   agency of the United States;

       6            Second, that the defendant you are considering

       7   knowingly and willfully became a member of that conspiracy,

       8   with the intent to further one or both of these two illegal

       9   purposes; and

      10            Third, that the conspiracy existed on or after

      11   September 13, 1994, and that the defendant you are considering

      12   was a knowing and willful member of that conspiracy on or

      13   after that date.

      14            The first element of Count Three that the government

      15   must prove beyond a reasonable doubt is that two or more

      16   persons entered into the unlawful agreement to use weapons of

      17   mass destruction against United States nationals while such

      18   nationals were outside the United States, and against any

      19   property owned, leased, or used by the United States.  Again,

      20   the principles of conspiracy that I have already explained to

      21   you apply here as well.

      22            You need to understand the definition of certain

      23   terms used in the count.  A "weapon of mass destruction" is

      24   defined to include, among other things, any explosive or

      25   incendiary bomb or similar device.  As I instructed you

                                                                    6117

       1   earlier, a "national of the United States" is simply a citizen

       2   of the United States.  Finally, the term "outside the United

       3   States" depends on the territorial definition of "United

       4   States" that I gave you earlier.

       5            In Count Three, the unlawful objectives alleged to be

       6   the objects of the conspiracy were:  (i) to bomb the American

       7   Embassy in Nairobi, Kenya, or Dar es Salaam, Tanzania, or

       8   employees of the American government stationed at those

       9   embassies; and (ii) attack American military facilities in the

      10   Gulf region or the Horn of Africa, or members of the American

      11   military stationed in Saudi Arabia, Yemen, Somalia, or

      12   elsewhere with bombs.

      13            If you find, beyond a reasonable doubt, that the

      14   conspirators agreed to accomplish one or both of these two

      15   unlawful objectives, as charged in Count Three of the

      16   indictment, then the illegal purpose element will be

      17   satisfied.  Although the finding of one unlawful objective is

      18   sufficient to satisfy the illegal purpose element, you, the

      19   jury, must unanimously agree on which, if any, were the

      20   specific unlawful objects of the alleged conspiracy.  Your

      21   unanimous finding must be indicated on the special verdict

      22   form.

      23            The second element of Count Three that the government

      24   must prove beyond a reasonable doubt is that the defendant you

      25   are considering knowingly, willfully, and voluntarily became a

                                                                    6118

       1   member of the conspiracy, with the intent to further its

       2   illegal purpose.

       3            You should rely on my previous instructions

       4   concerning how you are to determine whether a person was a

       5   member of a charged conspiracy, and also regarding the

       6   definitions of "knowingly" and "willfully."

       7       The third and final element of Count Three that the

       8   defendant must prove beyond a reasonable doubt that the

       9   conspiracy charged in Count Three existed at some point on or

      10   after September 13, 1994, and that the defendant you are

      11   considering was a knowing and willful member of the conspiracy

      12   on or after that date.

      13            Now, this requirement is necessary because, although

      14   Count Three alleges that the conspiracy existed "from at least

      15   1991 until the date of the filing of this indictment [May 8,

      16   2000]" the statute under which Count Three is charged was not

      17   enacted until September 13, 1994.

      18            That's the first time you have heard that day and

      19   that's the reason for it.

      20            You may be wondering why I have not mentioned the

      21   overt act elements of conspiracy in connection with Count

      22   Three.  That's because, unlike the conspiracies charged in

      23   Count One and Count Two, which require you to find at least

      24   one overt act was committed by one of the conspirators in

      25   furtherance of the conspiracy, the conspiracy charged in Count

                                                                    6119

       1   Three has no overt act requirement under the terms of the

       2   relevant statute.  Thus, you may find that the elements of

       3   Count Three are satisfied without finding that an overt act

       4   was committed.

       5            And when you reach a unanimous verdict as to each

       6   defendant charged in Count Three, you must enter that verdict

       7   on the special verdict form.  And let's look at the special

       8   verdict form for Count Three, which is on Count Three.

       9            And it says, Count Three charges the defendants Odeh,

      10   Al-'Owhali and Mohamed, with conspiring to use weapons of mass

      11   destruction -- to wit, bombs -- against the United States

      12   nationals while such nationals were outside the United States,

      13   and against property owned, leased, or used by the United

      14   States.

      15            And then it asks you to indicate your finding as to

      16   the guilt or not guilt.

      17            And then, because there are two objects of the

      18   conspiracy, we ask that if you find at least one defendant

      19   guilty of Count Three, answer part A below.  If you find all

      20   three defendants not guilty, skip part A.

      21       Part A says:  Did the conspiracy charged in Count Three

      22   include one or more of the following objectives?

      23       1.  To bomb the American embassies in Nairobi, Kenya, or

      24   Dar es Salaam, Tanzania, or employees of the American

      25   government stationed at those embassies?  Yes/No.

                                                                    6120

       1            2.  To attack military facilities in the Gulf region

       2   or the Horn of Africa, or members of the American military

       3   stationed in Saudi Arabia, Yemen, Somalia, or elsewhere with

       4   bombs?  Yes/No.

       5            If you unanimously find both, then you check "yes"

       6   for both.  If you unanimously find "no" as to each, then you

       7   check "no" as to each, in which case you must find the

       8   defendants not guilty.  If you find "yes" as to one and "no"

       9   as to the other, so indicate.  And as long as you unanimously

      10   find one of the objectives to be satisfied, that requirement

      11   of the government's burden of proof will be satisfied.

      12            Then we turn to the last of the conspiracy Counts,

      13   Count Four.  Count Four of the indictment charges all four

      14   defendants with conspiring to maliciously damage or destroy

      15   United States property by means of an explosive.

      16   Specifically, Count Four charges, and I am now reading

      17   paragraphs 22 and 23 of the indictment, and then the beginning

      18   of that is the same as the previous one, and the allegation

      19   is:

      20       Unlawfully, willfully and knowingly, combined, conspired,

      21   confederated and agreed unlawfully to maliciously damage and

      22   destroy, by means of fire and explosives, buildings, vehicles

      23   and other personal and real property in whole or in part owned

      24   and possessed by, and leased to, the United States and

      25   departments and agencies thereof ...

                                                                    6121

       1            It was a part and an objective of said conspiracy

       2   that the defendants would and did:  (i) bomb American

       3   facilities anywhere in the world, including the American

       4   embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania;

       5   [and] (ii) attack military installations and members of the

       6   American military stationed at such military installations in

       7   Saudi Arabia, Yemen, Somalia, and elsewhere with bombs ...

       8            The statute that the defendants are charged with

       9   violating in Count Four reads in pertinent part:

      10            [A] person who conspires to [maliciously damage or

      11   destroy ... by means of an explosive ... any building, vehicle

      12   or other personal or real property in whole or in part owned

      13   or possessed by, or leased to the, the United States, or any

      14   department or agency thereof] shall be [guilty of a crime].

      15            With respect to each of the four defendants charged,

      16   in order to satisfy its burden of proof as to Count Four, the

      17   government must establish each of the following three elements

      18   beyond a reasonable doubt:

      19       First, that two or more persons entered into an unlawful

      20   agreement with one another, the object of which was to

      21   maliciously damage or destroy United States property, by means

      22   of an explosive, as charged in Count Four;

      23            Second, that the defendant you are considering

      24   knowingly and willfully became a member of that conspiracy,

      25   with the intent to further its unlawful purpose of maliciously

                                                                    6122

       1   damaging or destroying United States property by means of an

       2   explosive; and

       3            Third, that the conspiracy existed on or after April

       4   24, 1996, and that the defendant you are considering was a

       5   knowing and willful member of that conspiracy on or after that

       6   date.

       7            The first element that the government must prove

       8   beyond a reasonable doubt is that two or more persons entered

       9   into the unlawful agreement charged in Count Four of the

      10   indictment.  I have already instructed you as to what a

      11   conspiracy is, and how you should go about determining whether

      12   one existed.  And you should rely on those instructions in

      13   considering this element of Count Four.

      14            In Count Four, the alleged unlawful purpose of the

      15   conspiracy was to maliciously damage or destroy United States

      16   property, by means of an explosive.  Specifically, Count Four

      17   charges that the illegal objectives of the conspiracy were to:

      18   (i) to bomb American facilities anywhere in the world,

      19   including the American embassies in Nairobi or Dar es Salaam;

      20   and (ii) attack military installations or members of the

      21   American military at such military installations in Saudi

      22   Arabia, Yemen, Somalia or elsewhere with bombs.

      23            I instruct you that to act "maliciously" means to act

      24   intentionally or with willful disregard of the likelihood that

      25   damage or injury would result from one's acts.

                                                                    6123

       1            The statute defines "explosives" as "gunpowders,

       2   powders used for blasting, all forms of high explosives,

       3   blasting materials, fuses (other than electric circuit

       4   breakers), detonators, and other detonating agents, smokeless

       5   powders ... and any chemical compounds, mechanical mixture, or

       6   device that contains any oxidizing and combustible units, or

       7   other ingredients, in such proportions, quantities, or packing

       8   that ignition by fire, by friction, by concussion, by

       9   percussion, or by detonation of the compound, mixture, or

      10   device or any part thereof may cause an explosion."  The

      11   statute also includes within its definition of "explosives

      12   "dynamite and all other forms of high explosives, any

      13   explosive bomb, grenade, missile, or similar device, including

      14   any incendiary bomb or grenade, fire bomb, or similar device,

      15   including any device which consists of or includes a breakable

      16   container including a flammable liquid or compound, and a wick

      17   composed of any material which, when ignited, is capable of

      18   igniting such flammable liquid or compound, and can be carried

      19   or thrown by one individual acting alone."

      20            If you find, beyond a reasonable doubt, that the

      21   conspirators agreed to accomplish one or both of these two

      22   unlawful objectives, as charged in Count Four of the

      23   indictment, then the illegal purpose will be satisfied.

      24   Although the finding of one unlawful objective is sufficient

      25   to satisfy the illegal purpose element, you, the jury, must

                                                                    6124

       1   unanimously agree on which, if any, were the specific unlawful

       2   objects of the alleged conspiracy.  Your unanimous finding

       3   must be indicated on the special verdict form.

       4            The second element of Count Four that the government

       5   must prove beyond a reasonable doubt is that the defendant you

       6   are considering knowingly, willfully, and voluntarily became a

       7   member of the conspiracy, with the intent to further its

       8   illegal purpose of maliciously damaging or destroying United

       9   States property by means of an explosive.

      10            I have previously explained to you how you determine

      11   whether a person was a member of a charged conspiracy, and you

      12   should rely on those instructions here.  I have also defined

      13   the terms "knowingly" and "willfully," and what sort of

      14   evidence may help you guide your assessment of a defendant's

      15   state of mind.  Please rely on those instructions as you

      16   consider this element of Count Four.

      17            The third and final element of Count Four that the

      18   government must prove beyond a reasonable doubt is that the

      19   conspiracy charged in Count Four existed at some point on or

      20   after April 24, 1996, and that the defendant you are

      21   considering was a knowing and willful member of that

      22   conspiracy on or after that date.

      23            Here too, this element is needed because, although

      24   Count Four alleges that the conspiracy existed "from at least

      25   1991 until the date of the filing of this indictment [May 8,

                                                                    6125

       1   2000]," the statute under which Count Four is charged was not

       2   enacted until April 24, 1996.

       3            As with the conspiracy charged in Count Three, the

       4   conspiracy charged in Count Four has no overt act element.

       5   Thus, you may find that the elements of Counts four are

       6   satisfied without finding that an overt act was committed.

       7            Now, if, but only if, you find that the government

       8   has proven, beyond a reasonable doubt, all of the elements of

       9   Count Four as to defendants Odeh, Al-'Owhali or K.K. Mohamed,

      10   then you must consider an additional question as to those

      11   three defendants.

      12            You must determine whether the unlawful conduct

      13   committed by the defendant you are considering in Count Four

      14   directly or proximately caused the death of at least one

      15   person other than a conspirator.

      16            "Directly caused" means that the conduct of the

      17   defendant you are considering directly resulted in the death

      18   in question.

      19            "Proximately caused" means that there was a

      20   sufficient causal connection between the act of the defendant

      21   under consideration and the death of any victim.  An act is a

      22   proximate cause if it was a substantial factor in bringing

      23   about or actually causing death, that is, if the death was a

      24   reasonably foreseeable consequence of that defendant's act.

      25   If a death was a direct result or a reasonably probable

                                                                    6126

       1   consequence of that defendant's act, it was proximately caused

       2   by such act.  In other words, if that defendant's act had such

       3   an effect in producing the death that reasonable persons would

       4   regard it as being a cause of the death, then the act is a

       5   proximate cause.

       6            A proximate cause need not always be the nearest

       7   cause either in time or in space.  In addition, there may be

       8   more than one proximate cause of a death.  Many factors or the

       9   conduct of two or more people may operate at the same time,

      10   either independently or together, to cause a death.

      11            A defendant's act is not a proximate cause of a death

      12   if the death was caused by a new or independent source that

      13   intervened between the defendant's act and the death, and that

      14   produced a result that was not reasonably foreseeable by the

      15   defendant you are considering.

      16            For purposes of this narrow inquiry only, it is not

      17   relevant whether or not the defendant being considered

      18   intended for his unlawful conduct to cause death.  The simple

      19   question being asked of you here is, having already found

      20   beyond a reasonable doubt that a defendant committed the

      21   offense alleged in Count Four of the indictment, do you

      22   additionally find that his unlawful conduct directly or

      23   proximately caused death to a person other than a conspirator?

      24   Your unanimous answer to this question, with respect to the

      25   particular defendant you are considering, must be marked in

                                                                    6127

       1   the appropriate place on the special verdict form.

       2            When you reach an unanimous verdict as to each

       3   defendant charged in Count Four, you must enter that verdict

       4   on the special verdict form.

       5       And let's turn to page 4 in Count Four of the indictment.

       6   And it says there, Count Four charges that ther are four

       7   defendants charged with conspiring to maliciously damage or

       8   destroy United States property, by means of an explosive.  Do

       9   you find the defendant listed below is guilty or not guilty of

      10   this offense, and then the four defendants are listed.

      11            And then other questions follow.

      12       If you find at least one defendant guilty of Count Four,

      13   answer parts A through D below.  If you find all four

      14   defendants not guilty of Count Four, skip parts A through D

      15   below.

      16            And A asks, as was the case with Counts Two and

      17   Three, with respect to the objectives:  Do you unanimously

      18   find that objective one was considered or that objective two

      19   was considered.  If you find them both, you answer them both

      20   "yes."  If you find them both "no," then you have to find the

      21   defendants not guilty.  If you find one "yes" and one "no,"

      22   then the requirement of proving the object of the conspiracy

      23   will have been satisfied.

      24            Then it goes on, and it says:  If and only if you

      25   find defendant Mohamed Sadeek Odeh guilty as to Count Four,

                                                                    6128

       1   answer the following question.  If you find Mohamed Sadeek not

       2   guilty as to Count Four, skip the following question and

       3   proceed to part C below.

       4            And question B is:  Do you find beyond a reasonable

       5   doubt that defendant Mohamed Sadeek Odeh's crime of conspiracy

       6   in Count Four directly or proximately caused the death of at

       7   least one person other than a conspirator?  Yes or no.

       8            And C asks the same question as to Al-'Owhali and D

       9   asks the same question as to K.K. Mohamed.

      10            So you see that all the things that you are called

      11   upon by my instructions to decide are indicated in the special

      12   verdict form, which is why I say it's a road map.

      13            That finishes the conspiracy counts and I come now,

      14   ladies and gentlemen, to the substantive counts of the

      15   indictment arising out of the bombings of the United States

      16   embassies in Kenya and Tanzania, and these are numbered as

      17   Counts Five through 284 in this indictment.

      18            All these substantive counts allege violations of

      19   United States law which are also alleged to have been some of

      20   the objects of the conspiracy charged in Counts One through

      21   Four of the indictment.

      22            Conspiracy, as you will recall, is a crime separate

      23   from the actual violations of the United States law that forms

      24   its objective.  Accordingly, because the government contends

      25   that the substantive violations I will now instruct you on

                                                                    6129

       1   actually occurred, some of the defendants are charged in the

       2   indictment with committing the substantive offenses in

       3   addition to conspiring to commit them.

       4            Now, Counts Five and Six may be considered together.

       5   Count Five charges defendants Odeh and Al-'Owhali with

       6   explosive damage or destruction of federal property, that is,

       7   the American Embassy in Nairobi, Kenya.  Specifically, Count

       8   Five charges:

       9            On or about August 7, 1998, in Nairobi, Kenya, and

      10   outside the jurisdiction of any particular state or

      11   district, ... Mohamed Sadeek Odeh ... and Mohamed Rashid Daoud

      12   Al-'Owhali, the defendants, at least one whom was first

      13   brought to and arrested in the Southern District of New York,

      14   and others known and unknown, unlawfully, willfully and

      15   knowingly did maliciously damage and destroy, by means of fire

      16   and an explosive, buildings, vehicles and other personal and

      17   real property in whole and in part owned or possessed by, and

      18   leased to, the United States, to wit, the defendants, together

      19   with other members and associates of al Qaeda and the Egyptian

      20   Islamic Jihad, detonated an explosive device that damaged and

      21   destroyed the United States Embassy in Nairobi, Kenya, and as

      22   a result of such conduct directly and proximately caused the

      23   deaths of at least 213 persons, including Kenyan and American

      24   citizens, as listed in Counts Nine to 221.

      25            Count Six of the indictment charges K.K. Mohamed with

                                                                    6130

       1   explosive damage or destruction of the United States Embassy

       2   in Dar es Salaam, Tanzania.  It follows the same language as

       3   Count Five, except that it says, "and as a result of such

       4   conduct, directly and proximately caused the deaths of at

       5   least 11 persons, including Tanzanian citizens, as listed in

       6   Counts 222 to 232."

       7            Both Counts Five and Six charge a violation of the

       8   statute which provides:  "Whoever maliciously damages or

       9   destroys, or attempts to damage or destroy, by means of fire

      10   or an explosive, any building, vehicle, or other personal or

      11   real property in whole or in part owned or possessed by, or

      12   leased to, the United States, or any department or agency

      13   thereof is guilty of a crime.

      14            Before I explain these elements of the offenses, let

      15   me pause to remind you of something I emphasized earlier.

      16   Although, to expedite matters, I may in these instructions

      17   occasionally refer to separate counts in pairs or in a group,

      18   you, the jury, are required, as a matter of law, to consider

      19   each count of the indictment and each defendant's involvement

      20   in that count separately.

      21            To satisfy its burden of proof as to Counts Five and

      22   Six, the government must prove each of the following elements

      23   beyond a reasonable doubt:

      24            First, that the defendant you are considering used an

      25   explosive to damage or destroy a building or other property;

                                                                    6131

       1            Second, that the building or other property which was

       2   damaged or destroyed was federal property; and

       3            Third, that the defendant acted unlawfully,

       4   willfully, knowingly, and maliciously.

       5            The first element of Counts Five and Six that the

       6   government must prove beyond a reasonable doubt is that the

       7   defendant you are considering, by means of fire or explosive,

       8   damaged or destroyed property.

       9            The terms "damage" and "destroy" have their ordinary

      10   meaning.

      11            When I explained the elements of the conspiracy

      12   alleged in Count Four, I provided you with the statutory

      13   definition of "explosives."  You should apply that definition

      14   here, as well.

      15            If you find the defendant you are considering did

      16   damage or destroy the United States Embassy in Nairobi, Kenya,

      17   (in the case of Count Five), or the United States Embassy in

      18   Dar es Salaam, Tanzania (in the case of Count Six), by means

      19   of an explosive device, the first element of the offense is

      20   satisfied for the count you are considering.

      21            To satisfy this element, it is also sufficient if you

      22   conclude that the defendant aided and abetted another person

      23   in placing the explosive.

      24       And interjecting:  That's a concept we have not dealt with

      25   before.

                                                                    6132

       1            And I will define this other type of criminal

       2   responsibility -- "aiding and abetting" the commission of an

       3   offense -- in a few moments and you should apply that

       4   definition here.  It is important for you to note that, with

       5   respect to Count Five and each of the following counts through

       6   Count 284 in which he is charged, defendant Odeh is only

       7   accused by the government of aiding and abetting the

       8   commission of the offenses charged.  The government does not

       9   contend that he physically committed the crimes charged in

      10   those counts.

      11            Let me say now that if you find that the government

      12   has proven beyond a reasonable doubt that the defendant you

      13   are considering aided and abetted the commission of the

      14   offense, only this first element of Counts Five and Six is

      15   established.  To satisfy its burden of proof as to Counts Five

      16   and Six, the government must prove beyond a reasonable doubt

      17   each of the three of the elements that I listed a moment ago.

      18   And I will now describe the second and third required elements

      19   in greater detail.

      20       The second element of Counts Five and Six that the

      21   government must prove beyond a reasonable doubt is that the

      22   property which was damaged or destroyed was federal property.

      23            Federal property is defined in the statute as any

      24   building, vehicle, or other real or personal property in whole

      25   or in part owned, possessed, or used by the United States

                                                                    6133

       1   Government, or any institution or organization receiving

       2   federal financial assistance.

       3            The third and final element as to Counts Five and Six

       4   the government must prove beyond a reasonable doubt is that

       5   the defendant you are considering acted unlawfully, knowingly,

       6   willfully, and maliciously.  Earlier, when discussing

       7   conspiracies in general and, in particular the elements of

       8   Count Four, I defined all of those terms for you, but now I

       9   will explain more about what it means to act "maliciously."

      10   To act with malicious intent means to act either intentionally

      11   or with willful disregard of the likelihood that damage will

      12   result, and not mistakenly or carelessly.  To find the

      13   defendant you are considering guilty, you must find that the

      14   defendant used the explosive, or aided and abetted the use of

      15   the explosive, with the intent to cause damage, or that he did

      16   so recklessly and without regard to the likelihood that damage

      17   would result.

      18            If, but only if, you find that the government has

      19   proven beyond a reasonable doubt each of the elements of

      20   Counts Five and Six as to the defendant you are considering,

      21   then, as with Count Four, you must consider an additional

      22   question as to that defendant.

      23            First, you must determine whether the conduct

      24   committed by the defendant you are considering in Count Five

      25   or Six directly or proximately caused the death of at least

                                                                    6134

       1   one person other than a conspirator.  I defined "directly

       2   caused" and "proximately caused" for you earlier when I

       3   explained the elements of Count Four and you should apply

       4   those definitions here.

       5            The government is not required to prove that the

       6   defendant you are considering intended to kill any person.  It

       7   is enough that the crime directly or proximately caused a

       8   person's death, and the person would not have died except for

       9   the crime.

      10            With respect to each of the defendants that you are

      11   considering, you must indicate your unanimous finding as to

      12   this question on the special verdict form.

      13            With respect to Counts Five and Six and each of the

      14   following counts through Count 284, the indictment also

      15   charges the defendants named in those counts with violating 18

      16   U.S.C. Section 2, in addition to other sections.  Section

      17   2(a), which is the one we're dealing with here, is called the

      18   aiding and abetting statute, and it provides that "[w]hoever

      19   commits an offense against the United States or aides, abets,

      20   counsels, commands, induces or procures its commission, is

      21   punishable as a principal."  In other words, a defendant may

      22   be held criminally responsible for certain conduct or actions

      23   even if the evidence does not show the defendant personally

      24   committed these acts.

      25            Under this statute it is not necessary for the

                                                                    6135

       1   government to show that the defendant himself committed the

       2   crime with which he is charged in order for you to find him

       3   guilty.  A person who aids and abets another to commit an

       4   offense is just as guilty of that offense as if he committed

       5   it himself.  Accordingly, you may find the defendant guilty if

       6   you find beyond a reasonable doubt that the government has

       7   proven that another person actually committed the offense and

       8   that the defendant aided and abetted that person in the

       9   commission of the offense.

      10            Please remember that this instruction applies only to

      11   Counts Five through 284, which is why we include it at this

      12   point in our instructions.  The legal principles outlined in

      13   this instruction are distinct from those described in Counts

      14   One through Four, all of which dealt with the crime of

      15   conspiracy.  You are not to consider this instruction when

      16   deliberating whether the government has proven the elements of

      17   conspiracy beyond a reasonable doubt with regard to a

      18   particular defendant.

      19            As you can see, the first requirement is that you

      20   find that another person has committed the crime charged.

      21   Obviously, no one can be convicted of aiding and abetting the

      22   criminal acts of another if no crime was committed by the

      23   other person in the first place.  But if you do find that a

      24   crime was committed, then you must consider whether the

      25   defendant you are considering aided and abetted the commission

                                                                    6136

       1   of the crime.  On a related note, let me say here that if you

       2   are finding the defendant you are considering himself

       3   committed the crime charged, you need not consider whether he

       4   also aided and abetted another person's commission of the

       5   crime.  That is to say, if you find that the defendant you are

       6   considering acted as a principal -- interjecting:  by acting

       7   as a principal, we mean somebody who himself did it.  If you

       8   find the defendant you are considering acted as a principal

       9   and personally committed the offense, then you do not need to

      10   evaluate whether he might also have acted as an aider and

      11   abettor with another person.

      12            To aid and abet another to commit a crime, it is

      13   necessary that the defendant willfully and knowingly associate

      14   himself in some way with the crime, and that he willfully and

      15   knowingly seek by some act to help make the crime succeed.

      16   When I explained the elements of a conspiracy, I gave you the

      17   definitions of the terms "willfully" and "knowingly" which you

      18   should apply here.

      19            The mere presence of a defendant where a crime is

      20   being committed, even coupled with knowledge that a crime is

      21   occurring, or the mere acquiescence by the defendant in the

      22   criminal conduct of others, even with guilty knowledge, is not

      23   sufficient to establish aiding and abetting.  An aider and

      24   abettor must participate in the crime charged as something he

      25   wished to bring about.

                                                                    6137

       1            In other words, you may not find the defendant you

       2   are considering guilty unless you find beyond a reasonable

       3   doubt that every element of the offense as defined in these

       4   instructions was committed by some person or persons, and that

       5   the defendant willfully and knowingly participated in the

       6   commission of the crime.

       7            To determine whether the defendant you are

       8   considering aided and abetted the commission of the crime with

       9   which he is charged, ask yourself these questions:

      10            Did he participate in the crime charged as something

      11   he wished to bring about?

      12            Did he associate himself with the criminal venture

      13   knowingly and willfully?

      14            Did he seek by his actions to make the criminal

      15   venture succeed?

      16            If he did, then the defendant is an aider and

      17   abettor, and therefore guilty of the offense.  If, on the

      18   other hand, your answers to these questions is "no," then the

      19   defendant is not an aider and abettor, and you must find him

      20   not guilty.

      21            Before I move on, let me explain that for each count

      22   where the government has alleged that defendants have aided

      23   and abetted the commission of an offense -- that is, Counts

      24   Five through 284 -- if you determine that the government has

      25   proven that the defendant you are considering is guilty of the

                                                                    6138

       1   offense charged, you will be asked to indicate, on the special

       2   verdict form, whether the defendant personally committed the

       3   offense in question or whether he aided and abetted another

       4   person to commit the offense.  Only one of these options may

       5   be marked and your decision must be unanimous.

       6            However, as I have already mentioned to you, in those

       7   counts between Count Five and 284 in which he is named as a

       8   defendant -- that is, Counts Five, Seven, Nine through 221,

       9   233 through 273, 274, 278, 279, 280, 282 and 283 -- defendant

      10   Mohamed Sadeek Odeh is only charged by the government to have

      11   aided and abetted the commission of the crimes charged.  When

      12   you are evaluating defendant Odeh's culpability under each of

      13   those counts, you must assess whether he aided and abetted

      14   another to commit the offense; you do not need to consider

      15   whether he personally committed the crimes charged.

      16            And when you reach a unanimous verdict as to the

      17   defendant you are considering in Counts Five and Six, you must

      18   enter your unanimous verdict in the appropriate place on the

      19   special verdict form.

      20       And if you look at Count Five, Count Five charges

      21   defendants Mohamed Sadeek Odeh and Mohamed Rashed Daoud

      22   Al-'Owhali with explosive damage or destruction of the United

      23   States Embassy in Nairobi, Kenya.  You must answer parts A

      24   through C below.

      25            Do you find that the defendant listed below is guilty

                                                                    6139

       1   or not guilty of explosive damage or destruction of the United

       2   States Embassy in Nairobi, Kenya?

       3       And it lists Odeh and it reminds you that Odeh is charged

       4   with aiding and abetting only.  And then Al-'Owhali.

       5            Then with respect to Odeh, if and only if you find

       6   Odeh guilty of aiding and abetting the explosive damage or

       7   destruction of the Nairobi Embassy under Count Five, consider

       8   the following question.  If you find him not guilty, then

       9   don't consider it.  Go on to C.

      10       And that asks:  Do you find beyond a reasonable doubt that

      11   defendant Mohamed Odeh's crime of aiding and abetting the

      12   explosive damage or destruction of the Nairobi Embassy in

      13   Count Five directly or proximately caused the death of at

      14   least one person other than a conspirator?  And it calls for a

      15   "yes" or a "no."

      16            Then with respect to Al-'Owhali, the questions are

      17   different because as to Al-'Owhali he may be found guilty

      18   either as a principal, as someone who did it himself, or as an

      19   aider and abettor.

      20       And so question C as to Al-'Owhali asks:  If you found him

      21   guilty:  1.  Please specify whether unanimously you find that

      22   defendant Al-'Owhali himself used an explosive to damage or

      23   destroy the Nairobi Embassy, or whether you find that he aided

      24   and abetted the use of an explosive to damage or destroy the

      25   embassy.  You are to put an "X" next to only one of the

                                                                    6140

       1   following choices.

       2       And that's because, as we repeat in the footnote, if you

       3   unanimously find the defendant you are considering himself

       4   committed the offense charged, you need not consider whether

       5   he also aided and abetted in the commission of that same

       6   offense.

       7       And this principle applies everywhere in this verdict form

       8   in which you are required to indicate whether unanimously you

       9   find the defendant you are considering himself committed the

      10   offense or that he aided and abetted in the commission of the

      11   offense.  You only look to aiding and abetting if you have

      12   concluded that the defendant did not personally commit the

      13   offense.

      14

      15            (Continued on next page)

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    6141

       1            THE COURT:  (Continuing) Then in 2 it asks:  Do you

       2   find beyond a reasonable doubt that defendant Mohamed Rasheed

       3   Al-'Owhali's crime of explosive damage or destruction of the

       4   Nairobi embassy in Count 5 directly or proximately caused the

       5   death of at least one person other than a coconspirator?  A

       6   yes or no.

       7            Count 6 is parallel to Count 5, relating to K.K.

       8   Mohammed and the Dar es Salaam embassy, and asks the same

       9   question with respect to K.K. Mohammed and Dar es Salaam.

      10            If we may, we will continue until 5:00.  You are such

      11   good sports, really.

      12            Count 7 charges defendants Odeh and Al-'Owhali with

      13   the use of a weapon of mass destruction for bombing the

      14   American Embassy in Nairobi, Kenya, and alleges that on or

      15   about August 7, 1998, in Nairobi, Kenya, and outside the

      16   jurisdiction of any particular state or district, Odeh and

      17   Al-'Owhali -- and then the jurisdictional allegations which we

      18   have previously seen -- unlawfully, willfully and knowingly,

      19   and without lawful authority, did use a weapon of mass

      20   destruction against nationals of the United States while such

      21   nationals were outside the United States, and against property

      22   that was owned, leased and used by the United States and by an

      23   agency of the United States, to wit, the defendants attacked

      24   the American Embassy in Nairobi, Kenya, and employees of the

      25   American government stationed at this embassy with a bomb,

                                                                    6142

       1   which use of such weapon of mass destruction resulted in

       2   death.

       3            So you see what is happening is, the substantive

       4   counts are following the conspiracy counts, have the same

       5   pattern.  The conspiracy counts allege these were the unlawful

       6   objects of the conspiracy, the substantive counts allege that

       7   they in fact did what the conspiracy counts allege they

       8   conspired to do.

       9            Count 8 follows the language of Count 7 except that

      10   it relates to K.K. Mohammed and the American Embassy in Dar es

      11   Salaam.

      12            The statute that the defendants are charged with

      13   violating in Counts 7 and 8 provides:

      14       A person who, without lawful authority, uses... a weapon

      15   of mass destruction... against a national of the United States

      16   while such national is outside of the United States... or

      17   against any property that is owned, leased or used by the

      18   United States or by any department or agency of the United

      19   States, whether the property is within or outside the United

      20   States, is guilty of a crime.

      21            To satisfy its burden of proof as to Count Counts 7

      22   and 8, the government must establish each of the following

      23   elements beyond a reasonable doubt:

      24            First, that without lawful authority the defendant

      25   you are considering knowingly and willfully used, or aided and

                                                                    6143

       1   abetted the use of, a weapon of mass destruction; and

       2            Second, that the weapon of mass destruction was used

       3   against a national of the United States while such national

       4   was outside of the United States, or against any property that

       5   was owned, leased, or used by the United States or by any

       6   department or agency of the United States.

       7            The first element of Counts 7 and 8 that the

       8   government must prove beyond a reasonable doubt is that,

       9   without lawful authority, the defendant you are considering

      10   knowingly and willfully used, or aided and abetted the use of,

      11   a weapon of mass destruction.  I have previously defined the

      12   terms "knowingly" and "willfully," and you should rely on

      13   those definitions here.  I instruct you that to act "without

      14   lawful authority" is to act illegally and with a criminal

      15   purpose.  Lastly, I remind you that, as I explained when

      16   reviewing the elements of Count 7, a "weapon of mass

      17   destruction" is defined to include an explosive or incendiary

      18   bomb.

      19            In discussing Counts 5 and 6 I explained the concept

      20   of "aiding and abetting," and you should rely on those

      21   instructions when considering this first element of these

      22   counts.  Recall that with respect to Count 7 and defendant

      23   Odeh, the government's theory is that he aided and abetted the

      24   commission of the offense.  The government does not allege

      25   that defendant Odeh physically carried out the crime charged

                                                                    6144

       1   in Count 7.

       2            To find the defendant you are considering guilty of

       3   Counts 7 and 8, you must find that the government has

       4   established beyond a reasonable doubt both elements of the

       5   crime.

       6            The second element of Counts 7 and 8 that the

       7   government must prove beyond a reasonable doubt is that the

       8   weapon of mass destruction was used against a national of the

       9   United States while such national was outside the United

      10   States and against any property that was owned, leased or used

      11   by the United States or by any department or agency of the

      12   United States.

      13            I defined the terms "national of the United States"

      14   and "United States" when I explained the elements of Count 3,

      15   and you should rely on those definitions in considering these

      16   counts.

      17            Keep in mind that the government may prove Counts 7

      18   and 8 by proving either that a weapon of mass destruction was

      19   used against a national of the United States while that

      20   national was outside the United States, or that a weapon of

      21   mass destruction was used against property owned, leased or

      22   used by the United States or by any department or agency of

      23   the United States.  The government is not required to prove

      24   both, although you may find that both have been proven.  All

      25   that is required is that the government prove either

                                                                    6145

       1   allegation beyond a reasonable doubt with respect to the

       2   defendant and count you are considering and that you be

       3   unanimous as to the allegation proven.

       4            Please remember that you must indicate your unanimous

       5   verdict as to Counts 7 and 8 for each of the defendants you

       6   are considering on the special verdict form.

       7            If, but only if, you find the government has proven

       8   beyond a reasonable doubt that the defendant you are

       9   considering committed the offense charged in Counts 7 and 8,

      10   you must then determine whether the conduct of that defendant

      11   resulted in the death of any person other than a conspirator.

      12            A death resulted from the defendant's conduct if the

      13   defendant's conduct was a direct or proximate cause of the

      14   death.  The definitions of "direct" and "proximate cause"

      15   provided in Counts 4, 5 and 6 apply here as well.  Recall that

      16   a defendant's conduct is a proximate cause of death if it is a

      17   "substantial factor" in causing the death.  In other words, to

      18   find that the defendant's conduct is a proximate cause of

      19   death, you must find that the person would not have died then,

      20   except for the defendant's conduct.  The defendant's conduct

      21   is a "substantial factor" in causing a death if it has such an

      22   effect in producing a death as to lead a reasonable person to

      23   regard such conduct as a cause of the death.  An event such as

      24   the death of a person may have more than one cause.  The

      25   government need not prove that the defendant's conduct was the

                                                                    6146

       1   only cause of death; it need only prove that the defendant's

       2   conduct was a substantial factor in causing the death.

       3   Further, the government is not required to prove that the

       4   defendant in question intended to kill any person.  It is

       5   enough that the crime caused a person's death and the person

       6   would have died then except for the crime.

       7       You must indicate your unanimous finding as to this

       8   question and for each defendant you are considering on the

       9   special verdict form.

      10       (Pause)

      11            THE COURT:  I am told I left out a "not."  What I

      12   intended to say, page 35:  Further, the government is not

      13   required to prove that the defendant in question intended to

      14   kill any person.  It is enough that the crime caused a

      15   person's death and the person would not have died except for

      16   the crime.

      17            If you look then at Count 7, it asks whether you find

      18   the defendants Odeh and Al-'Owhali guilty or not guilty of the

      19   crime alleged in Count 7.  I remind you that as to Odeh you

      20   may find him guilty only on a theory of aiding and abetting.

      21   It asks you in B as to Odeh whether you find that the crime of

      22   aiding and abetting the use of a weapon of mass destruction

      23   for bombing the Nairobi embassy in Count 7 directly or

      24   proximately caused the death of at least one person other than

      25   a conspirator.

                                                                    6147

       1            With respect to Al-'Owhali, it asks in C whether you

       2   find that Al-'Owhali himself used a weapon of destruction or

       3   whether he aided and abetted the use of a weapon of mass

       4   destruction.

       5       Bear in mind what I tell you earlier in a footnote, that

       6   if you find that somebody himself did it then you need not

       7   consider aiding and abetting.  So that you only answer one of

       8   those.  And 2 asks whether you find that Al-'Owhali's crime of

       9   the use of a weapon of mass destruction directly or

      10   proximately caused the death of at least one person other than

      11   a conspirator.

      12       Count 8 asks the same questions with respect to the

      13   defendant K.K. Mohammed and the use of a weapon of mass

      14   destruction in Dar es Salaam, Tanzania.

      15       Then we turn to Counts 9 to 232, so we will have gone

      16   through Count 232, rather than just through 8.

      17            Counts 9 through 221 of the indictment charge

      18   defendants Odeh and Al-'Owhali with the murders of 213 persons

      19   in the course of an attack with a dangerous weapon on the

      20   American Embassy in Nairobi, Kenya.  Each count corresponds to

      21   a person killed in the explosion at that embassy on August 7,

      22   1998.  Specifically, Counts 9 through 221 charge:

      23            On or about August 7, 1998, in Nairobi, Kenya, and

      24   outside the jurisdiction of any particular state or

      25   district... Mohamed Sadeek Odeh:  And Mohamed Rashed Daoud

                                                                    6148

       1   Al-'Owhali ... the defendants, at least one of whom was first

       2   brought to and arrested in the Southern District of New York,

       3   and others known and unknown, unlawfully, willfully,

       4   deliberately and maliciously and with malice aforethought and

       5   with premeditation, did kill the persons listed below during

       6   the course of an attack on a federal facility involving the

       7   use of a dangerous weapon, to wit, the defendants detonated an

       8   explosive device that damaged and destroyed the United States

       9   Embassy in Nairobi, Kenya, and as a result of such conduct

      10   directly and proximately caused the deaths of the persons

      11   listed in those counts.

      12            Counts 222 through 232 charge defendant Khalfan

      13   Khamis Mohamed with the murders of 11 persons in the course of

      14   an attack with a dangerous weapon on the American Embassy in

      15   Dar es Salaam, Tanzania.  Each count corresponds to a person

      16   killed in the explosion at that embassy on August 7, 1998.

      17   Specifically, Counts 222 through 232 charge:

      18            On or about August 7, 1998, in Dar es Salaam,

      19   Tanzania, and outside the jurisdiction of any particular state

      20   or district ... Khalfan Khamis Mohamed ... who was first

      21   brought to and arrested in the Southern District of New York,

      22   and others known and unknown, unlawfully, willfully,

      23   deliberately and maliciously, and with malice aforethought and

      24   with premeditation, did kill the persons listed below during

      25   the course of an attack on a federal facility involving the

                                                                    6149

       1   use of a dangerous weapon, to wit, the defendant detonated an

       2   explosive device that damaged and destroyed the United States

       3   Embassy in Dar es Salaam, Tanzania, and as a result of such

       4   conduct directly and proximately caused the deaths of the

       5   persons listed in those counts.

       6            The statute the defendants are charged with violating

       7   in these Counts is section 930 of Title 18, and the statute

       8   provides in relevant part that a person who kills ... any

       9   person ... in the course of an attack on a federal facility

      10   involving the use of a firearm or other dangerous weapon is

      11   guilty of a crime.

      12            In these counts, the government further alleges that

      13   the defendants committed the killings with malice aforethought

      14   and with premeditation.

      15            To satisfy its burden of proof as to Counts 9 through

      16   232, the government must establish each of the following

      17   elements beyond a reasonable doubt:

      18            First, that the defendant you are considering killed,

      19   or aided and abetted the killing of, the victim as charged;

      20            Second, that the killing occurred in the course of an

      21   attack on a federal facility;

      22            Third, that the defendant knowingly used a firearm or

      23   other dangerous weapon in the attack;

      24            Fourth, that the defendant acted unlawfully;

      25            Fifth, that the defendant acted with malice

                                                                    6150

       1   aforethought; and

       2            Sixth, that the defendant acted with premeditation.

       3            The first element the government must prove beyond a

       4   reasonable doubt is that the defendant you are considering

       5   killed, or aided and abetted the killing of the victim as

       6   charged in the indictment.

       7            In this regard, it is the government's burden to

       8   prove that the conduct of the defendant you are considering

       9   was the direct cause of the victim's death.  That means

      10   simply, the government must prove that the defendant inflicted

      11   an injury or injuries upon the victim from which the victim

      12   died, or that the defendant aided and abetted another person

      13   to do so.

      14            The definition of "aiding and abetting" that was

      15   provided to you earlier in Counts 5 and 6 is also applicable

      16   to the element of these counts.

      17       Recall with respect to Counts 9 through 221 and defendant

      18   Odeh, the government's theory is that he aided and abetted the

      19   commission of the offenses.  The government does not allege

      20   that defendant Odeh physically carried out the crimes charged

      21   in those counts.

      22            As I have already explained to you, to satisfy their

      23   burden as to these counts, the government must establish

      24   beyond a reasonable doubt each of the six elements that I am

      25   now explaining to you.

                                                                    6151

       1            The second element that the government must prove

       2   beyond a reasonable doubt is that the killing occurred in the

       3   course of an attack on a federal facility.  The term "federal

       4   facility" means a building or part thereof owned or leased by

       5   the federal government, where federal employees are regularly

       6   present for the purpose of performing their official duties.

       7            The third element that the government must prove

       8   beyond a reasonable doubt is that in the course of an attack

       9   on a federal facility, if you should find that one occurred,

      10   the defendant you are considering knowingly used a firearm or

      11   other dangerous weapon.

      12            To use a firearm or other dangerous weapon in an

      13   attack means to use it in such a way that it was an integral

      14   part of the attack.

      15            The term "firearm" includes, among other things, any

      16   destructive device.  A "destructive device" is defined to

      17   include an explosive, incendiary or poison gas bomb; an

      18   explosive, incendiary or poison gas grenade; an explosive,

      19   incendiary or poison gas rocket; an explosive, incendiary or

      20   poison gas mine; or any similar device.

      21            The term "dangerous weapon" means a weapon, device,

      22   instrument, material or substance, animate or inanimate, that

      23   is used for or is readily capable of causing death or bodily

      24   injury.

      25            To satisfy this element, you must find that the

                                                                    6152

       1   defendant you are considering knowingly used the firearm or

       2   other dangerous weapon.  This means that the defendant used a

       3   firearm or other dangerous device purposely and voluntarily

       4   and not by accident or mistake.

       5       This element may also be satisfied if you find that the

       6   defendant you are considering aided and abetted another person

       7   to use the firearm or dangerous weapon.  You should apply the

       8   same definition of "aiding and abetting" that was provided

       9   previously.

      10            The fourth element that the government must prove

      11   beyond a reasonable doubt is that the defendant you are

      12   considering acted unlawfully.  An act is done unlawfully if it

      13   was done without valid justification or excuse.  While the

      14   taking of human life is a most serious matter, not all

      15   killing, even when intentional, is unlawful.  In the context

      16   of Counts 9 through 232, the law forbids killing done without

      17   valid justification or excuse.  If you find that the defendant

      18   you are considering committed a killing without valid

      19   justification or excuse, this element is satisfied.

      20            The fifth element that the government must prove

      21   beyond a reasonable doubt is that the defendant you are

      22   considering acted with malice aforethought.  Malice is a state

      23   of mind that would cause a person to act without regard to the

      24   life of another.  To satisfy this element, the defendant --

      25            Let me begin with "malice aforethought."  Apparently

                                                                    6153

       1   I misspoke.

       2            The fifth element that the government must prove

       3   beyond a reasonable doubt is that the defendant you are

       4   considering acted with malice aforethought.  Malice is a state

       5   of mind that would cause a person to act without regard to the

       6   life of another.  To satisfy this element, the defendant must

       7   have acted consciously, with the intent to kill another

       8   person.

       9            In order to establish this element, the government

      10   must prove that the defendant acted willfully, with a bad or

      11   evil purpose to break the law.  However, the government need

      12   not prove spite, malevolence, hatred or ill will to the

      13   victim.

      14            The sixth and final element that the government must

      15   prove beyond a reasonable doubt is that the defendant you are

      16   considering acted with premeditation.  An act is done with

      17   premeditation if it is done upon deliberation.  To show

      18   premeditation, the government must prove the defendant killed

      19   the victim only after thinking the matter over, deliberating

      20   whether to act before committing the crime.  There is no

      21   requirement that the government prove that the defendant

      22   deliberated for any particular period of time.  It is

      23   sufficient to satisfy this element if you find that before he

      24   acted, the defendant had a period of time to become fully

      25   aware of what he intended to do and to think it over.

                                                                    6154

       1            If you find the defendant killed a victim, or aided

       2   and abetted the killing of a victim, as a result of a

       3   premeditated design to effect the death of a different person,

       4   then the requirement of premeditation as to the victim you are

       5   considering is satisfied.

       6            With respect to each of the defendants you are

       7   considering, you must indicate your unanimous verdict as to

       8   each of Counts 9 through 232 on the special verdict form.

       9            Let's look at that special verdict form with respect

      10   to those counts, and then we will call it a night.  I am on

      11   page 12 of the special verdict form, and it says:

      12       Counts 9 through 221 charge defendants Odeh and Al-'Owhali

      13   with the murder of 213 persons in the course of an attack with

      14   a dangerous weapon on the United States Embassy in Nairobi,

      15   Kenya.  For each of the counts between 9 and 221, if you find

      16   the defendant listed below is guilty as to that count you are

      17   considering, put an X in the guilty box next to that count.

      18   If you find the defendant listed below is not guilty as to the

      19   count you are considering, put an X in the not guilty box next

      20   to that count.

      21            You may not find Odeh guilty as to any of Counts 9

      22   through 221 unless you unanimously find that he aided and

      23   abetted the commission of the offense.

      24            Additionally, and solely with respect to the

      25   defendant Al-'Owhali, if and only if you find that he is

                                                                    6155

       1   guilty as to a count between Counts 9 and 221 that you are

       2   considering, please specify whether unanimously you find that

       3   he himself killed the victim in that count or whether you find

       4   that he aided and abetted the killing of the victim in that

       5   count.  You are to put an X in only one of the two boxes

       6   marked himself killed or aided and abetted next to the count

       7   you are considering as to Mohamed Rashed Al-'Owhali.

       8            Then you will see, if you look at Count 9, with

       9   respect to Odeh, the boxes are guilty or not guilty.  But

      10   since Odeh can be found guilty only if you unanimously find

      11   that he aided and abetted, the other choices are blacked out.

      12   You are not to complete that.  With respect to Al-'Owhali,

      13   however, if you find him guilty, you should also indicate

      14   whether he himself killed, or whether you find that he aided

      15   and abetted, and that is why with respect to Al-'Owhali there

      16   are four boxes of which you are to check two, guilty or not

      17   guilty, and himself killed or aided and abetted, whereas as to

      18   Odeh there are only two, and that applies to all of those

      19   counts, through this chart.

      20            We will call it a day, but I have some very important

      21   things to say to you.  I said earlier that my charge is to be

      22   regarded as a whole, and that you are not to take any

      23   particular part of it as alone stating the instructions but

      24   you are to consider it as a whole.  Therefore, understand that

      25   what I have said today is no more nor less important than what

                                                                    6156

       1   I will tell you tomorrow.  It is just a happenstance that some

       2   things are today and some things are tomorrow.

       3            Please understand also that when you arrive tomorrow

       4   you will not have heard all the court's instruction, so I

       5   would ask that you please not start to discuss, not start to

       6   deliberate, until you have heard all the court's instructions.

       7            Thank you for your patience and cooperation.

       8   Tomorrow we start at 1:00.  Please have lunch before you come

       9   to the courthouse, and have a good evening.

      10            (Jury excused)

      11            THE COURT:  Anyone who is aware of any inadvertent

      12   errors, please call them to my attention.

      13            MR. DRATEL:  Yes, your Honor.  On page 21, the

      14   instruction about not considering the witness's guilty plea, I

      15   believe you said it benefits, the court said defendants.

      16            THE COURT:  Page 2, all right, I will correct that

      17   tomorrow.  Anything else?  All right, then we are adjourned

      18   until 1:00 tomorrow.

      19            (Proceedings adjourned until 1:00 p.m., Thursday, May

      20   10, 2001)

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