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

This is the transcript of Day 72 of the trial, July 2, 2001.

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

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

       4   UNITED STATES OF AMERICA

       5              v.                           S(7) 98 Cr. 1023

       6   USAMA BIN LADEN, et al.,

       7                  Defendants.

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

       9
                                                   New York,
      10     N.Y.
                                                   July 2, 2001
      11                                           9:00 a.m.

      12

      13
           Before:
      14
                         HON. LEONARD B. SAND,
      15
                                                   District Judge
      16
                              APPEARANCES
      17
           MARY JO WHITE
      18        United States Attorney for the
                Southern District of New York
      19   BY:  PATRICK FITZGERALD
                MICHAEL GARCIA
      20        Assistant United States Attorneys

      21

      22   FREDRICK H. COHN
           DAVID P. BAUGH
      23        Attorneys for defendant Mohamed Rashed Daoud
             Al-'Owhali
      24
           DAVID RUHNKE
      25   DAVID STERN
                Attorneys for defendant Khalfan Khamis

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       2     Mohamed

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       2               (Pages 8508 through 8523 filed under

       3     seal)

       4            (In open court)

       5               (Jury present)

       6               THE COURT:  Good morning.

       7               THE JURY:  Good morning.

       8               MR. RUHNKE:  Your Honor, what we

       9     propose to do at this point is to read to the

      10     jury a number of stipulations that have not

      11     previously been read to the jury.

      12               What I intend to do is not repeat the

      13     boilerplate language and introduce all of them.

      14     I will give the stipulation number before I

      15     read it and repeat it after it is read it so

      16     the record will be clear what those numbers

      17     are.

      18               The first is stipulation number 1,

      19     K.K.M. stip 1.

      20               Stipulated and agreed as follows:

      21               If called as a witness, a person

      22     expert in the Arabic language would testify

      23     that the Arabic-language documents seized from

      24     Cell No. 6 on the 10 South Unit of the

      25     Metropolitan Correctional Center on November 1,

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       2     2000, were prepared by a person or persons

       3     displaying a fluent command of the Arabic

       4     language and a level consistent with a native

       5     speaker of Arabic.

       6               And it's agreed that this stipulation

       7     may be received in evidence and that is

       8     stipulation number 1.

       9               (Defendant's Exhibit K.K.M. 1

      10     received in evidence)

      11               MR. RUHNKE:  Stipulation number 6.

      12     Stipulated and agreed as follows:

      13               Mamdouh Mahmud Salim, a/k/a Abu Hajer

      14     al Iraqui, was charged in Indictment (S4) 98

      15     Criminal 1023 with conspiracy to kill United

      16     States nationals, but not with bombings of the

      17     United States embassies in Kenya and Tanzania.

      18     Salim was arrested on September 16, 1998 in

      19     Germany.  Based on the charges filed against

      20     Salim, he did not face the death penalty.

      21     Nonetheless, German authorities would not

      22     extradite Salim to the United States unless

      23     they were assured that Salim would not face the

      24     death penalty.  The United States Government

      25     assured the German government in writing that

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       2     it would not seek the death penalty for the

       3     offenses for which Salim was extradited.  Salim

       4     was extradited from Germany to the United

       5     States on December 20, 1998.

       6               2.  Khalid al-Fawwaz, Ibrahim

       7     Eidarous and Adel Abdel Bary were charged in

       8     Indictment (S7) 98 Criminal 1023.  Fawwaz was

       9     charged with conspiracy to kill United States

      10     nationals and conspiracy to murder (Counts One

      11     and Two), but not charged with the bombings of

      12     the United States embassies in Kenya and

      13     Tanzania.  Fawwaz had been arrested on or about

      14     September 27, 1998 in the United Kingdom.

      15     Based on the charges filed against Fawwaz, he

      16     does not face the death penalty.

      17               3.  Ibrahim Eidarous and Abdel Bary

      18     are charged in Indictment (S7) 98 Criminal 1023

      19     with various conspiracy charges, including

      20     conspiracy to kill United States nationals,

      21     Count One, as well as with the various

      22     substantive counts arising out of the bombings

      23     of the United States embassies in Kenya and

      24     Tanzania.  Eidarous and Abdel Bary had been

      25     arrested on July 12, 1999 in the United

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       2     Kingdom.  The bombing charges filed against

       3     Eidarous and Abdel Bary are capital offenses,

       4     but to seek the death penalty the government

       5     would have to prove sufficient participation

       6     that the action to justify the "gateway

       7     factors" for the death penalty.  Without

       8     resolving whether that can be done, it is

       9     assumed (for purposes of this trial) based on

      10     past experience that, as part of the ongoing

      11     extradition proceedings, British authorities

      12     will insist on commitment from the United

      13     States that it will not seek the death penalty

      14     against Eidarous and Abdel Bary (as well as

      15     Fawwaz) before extraditing any of them to the

      16     United States.  It is further assumed that at

      17     the time such a demand is made, the United

      18     States will provide such assurance to the

      19     United Kingdom.

      20               That was stipulation number 6.

      21               (Defendant's Exhibit K.K.M. 6

      22     received in evidence)

      23               MR. RUHNKE:  Stipulation number 8.

      24     It is stipulated and agreed:

      25               1.  Usama Bin Laden; Ayman al

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       2     Zawahiri; Mohamed Atef, a/k/a Abu Hafs; Saif al

       3     Abdel; Abdullah Ahmed Abdullah, a/k/a Saleh;

       4     Mushin Musa Matwalli Atwan, a/k/a Abdel Rahman;

       5     Mustafa Fadhil, a/k/a Khalid, a/k/a Hussein;

       6     Fazul Abdullah Mohammed, a/k/a Harun; Fahid

       7     Msalam; Ahmed Mohamed Hamed Ali, a/k/a Ahmed

       8     the Egptian; Anas al Liby; Ahmed Khalfan

       9     Ghailani, and Sheik Ahmed Salim Swedan, a/k/a

      10     Sheik Bahamad, are currently fugitives in

      11     Indictment (S7) 98 Criminal 1023, or its

      12     successor indictments.

      13               Usama Bin Laden; Ayman al Zawahiri;

      14     Mohamed Atef, a/k/a Mohamed Hafs; Mustafa

      15     Fadhil, a/k/a Khalid, a/k/a Hussein, a/k/a --

      16     obviously, also known as -- Fazul Abdullah

      17     Mohammed, a/k/a Harun; Fahid Msalam; Ahmed

      18     Khalfan Ghailani; and Sheik Ahmed Salim Swedan,

      19     a/k/a Sheikh Bahamad, are all fugitives charged

      20     specifically with both the Nairobi, Kenya and

      21     Dar es Salaam, Tanzania bombings and thus in

      22     capital counts.

      23               3.  Although Abdullah Ahmed Abdullah,

      24     a/k/a Saleh, clearly participated in the

      25     Nairobi and Dar es Salaam bombings, he is not

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       2     charged in either bombing at this time.  It

       3     remains a possibility that Abdullah Ahmed

       4     Abdullah, a/k/a Saleh, may be charged at a

       5     later time.

       6               And that was stipulation number 8.

       7               (Defendant's Exhibit K.K.M. 8

       8     received in evidence)

       9               MR. RUHNKE:  This is stipulation

      10     number 9.  Stipulated and agreed:

      11               The documents appended hereto are

      12     true and accurate copies of the summaries of

      13     information supplied to Dr. Cunningham by the

      14     Bureau of Prisons and upon which he relied, in

      15     part, in preparing to testify.

      16               And those documents will be offered

      17     in evidence pursuant to this stipulation as

      18     K.K.M. Exhibit 29.

      19               (Defendant's Exhibit K.K.M. 9

      20     received in evidence)

      21               MR. RUHNKE:  Stipulation number 10.

      22     It is stipulated and agreed:  Between August

      23     12, 1998 and August 21, 1998, Mohamed Rashed

      24     Dauod Al-'Owhali was interviewed six times by

      25     agents of the Federal Bureau of Investigation.

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       2     The FBI reports related to those interviews are

       3     contained in defense Exhibits K.K.M. 32A to D.

       4     For legal reasons, these statements were not

       5     admitted at the trial of Al-'Owhali.

       6               And that was stipulation number 10.

       7               (Defendant's Exhibit K.K.M. 10

       8     received in evidence)

       9               MR. RUHNKE:  Stipulation number 11.

      10     It is stipulated and agreed:  1.  Exhibits

      11     K.K.M.-PH-103 and K.K.M.-PH-104 were taken at a

      12     prison hospital facility on November 6, 2000,

      13     and the stipulation, stipulation 11, also

      14     allows for the underlying photographs to be

      15     admitted into evidence, which are photographs

      16     103 and 104.  That was stipulation 11.

      17               (Defendant's Exhibits K.K.M. 11,

      18     K.K.M.-PH-103 and K.K.M.-PH-104 received in

      19     evidence)

      20               MR. RUHNKE:  Stipulation 12:  It is

      21     stipulated and agreed:

      22               1.  Khalfan Khamis Mohamed traveled

      23     to South Africa in August 1998.  Tanzania has

      24     the death penalty, South Africa does not.  When

      25     he was arrested in South Africa in October

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       2     1999, Khalfan Khamis Mohamed was surrendered to

       3     U.S. authorities.  A South African authority

       4     did not seek or obtain assurances that the U.S.

       5     would not seek the death penalty.  In May 2001,

       6     the highest court for the Republic of South

       7     Africa, overruling a lower court decision, held

       8     that Khalfan Khamis Mohamed should not have

       9     been released to the American authorities by

      10     South African immigration officials without

      11     obtaining an agreement from the United States

      12     that he would not face the death penalty in the

      13     United States.  In its decision, the court is

      14     not critical of the action of any American

      15     officials.  And this is stipulation number 12.

      16               (Defendant's Exhibit K.K.M. 12

      17     received in evidence)

      18               MR. RUHNKE:  Stipulation number 14.

      19     Stipulated and agreed:  Prior to October 25,

      20     2000, Khalfan Khamis Mohamed had never shared a

      21     cell with Mamdouh Mahmud Salim.  And that's

      22     stipulation number 14.

      23               (Defendant's Exhibit K.K.M. 14

      24     received in evidence)

      25               MR. RUHNKE:  Stipulation number 15:

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       2     Khalfan Khamis Mohamed has no prior history of

       3     criminal conduct.  And that's stipulation

       4     number 15.

       5               (Defendant's Exhibit K.K.M. 15

       6     received in evidence)

       7               MR. RUHNKE:  Stipulation number 16.

       8     It is stipulated and agreed:  Throughout his

       9     incarceration by the Bureau of Prisons, Mamdouh

      10     Mahmud Salim was treated for asthma.  A sample

      11     of those records is appended as Exhibit K.K.M.

      12     27.  There is no record of Khalfan Khamis

      13     Mohamed ever being treated for asthma.  That's

      14     stipulation number 16.

      15               (Defendant's Exhibit K.K.M. 16

      16     received in evidence)

      17               MR. RUHNKE:  Stipulation number 17.

      18     Stipulated and agreed:  In the audio portion of

      19     the videotape depicting the drive from 213

      20     Ilala to the former American Embassy on Laibon

      21     Road, Dar es Salaam, the left turn described by

      22     the narrator at Uhuru Road accurately reflects

      23     the information provided to the FBI by Khalfan

      24     Mohamed.  And that's stipulation number 17.

      25               (Defendant's Exhibit K.K.M. 17

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       2     received in evidence)

       3               MR. RUHNKE:  Stipulation number 18.

       4     Stipulated and agreed:

       5               1.  K.K.M. 35A is an accurate copy of

       6     two pages from the Daily Activity Log

       7     maintained on the 10 South Unit of the

       8     Metropolitan Correctional Center.  The dates

       9     reflected in the documents are October 25, 2000

      10     and October 31, 2000.

      11               2.  K.K.M. 35B is an accurate copy of

      12     one page from the Attorney Visitation Log

      13     maintained at the sallyport (entranceway) to

      14     the 10 South Unit at the Metropolitan

      15     Correctional Center.  The dates reflected on

      16     K.K.M. 35B are October 25 through a portion of

      17     October 28, 2000.  That's stipulation number

      18     18.

      19               (Defendant's Exhibit 18 received in

      20     evidence)

      21               MR. RUHNKE:  This is stipulation 19:

      22     Exhibits K.K.M. 14A and B are true and accurate

      23     copies of medical records documenting injuries

      24     sustained by Khalfan Khamis Mohamed on November

      25     1, 2000.  The name on the record identifies

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       2     K.K.M. 14B, Harry Walters, was chosen for

       3     security reasons when Mr. Mohamed was admitted

       4     to the hospital in question.  That's K.K.M.

       5     stip 19.

       6               (Defendant's Exhibits 19, 14A and 14B

       7     received in evidence)

       8               MR. RUHNKE:  K.K.M. stip 21.

       9     Stipulated and agreed:  On October 9, 1998,

      10     Special Agent Daniel Coleman of the Federal

      11     Bureau of Investigation swore to an affidavit

      12     in support of a request for extradition of

      13     Mamdouh Mahmud Salim from Germany before the

      14     Honorable Sharon E. Grubin, United States

      15     Magistrate Judge for the Southern District of

      16     New York.  In that affidavit Agent Coleman

      17     described the role played in this case by

      18     Mamdouh Mahmud Salim, Mohamed Sadeek Odeh, and

      19     Mohamed Rashed Dauod Al-'Owhali.  That

      20     affidavit is received into evidence as K.K.M.

      21     36.  That was K.K.M. stip 21 I just read.

      22               (Defendant's Exhibits K.K.M. 21 and

      23     36 received in evidence)

      24               MR. RUHNKE:  K.K.M. stip 22.

      25     Stipulated and agreed:  At some time within the

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       2     past five years, a member of al Qaeda -- not

       3     either of the two cooperating witnesses who

       4     testified in this case -- has entered into a

       5     cooperation agreement with the United States.

       6     This individual has entered a plea of guilty to

       7     a conspiracy to kill Americans anywhere in the

       8     world.  It does not include as an overt act the

       9     bombings of the American embassies in Dar es

      10     Salaam and Nairobi, and the government has no

      11     evidence that the individual was involved in

      12     either of the bombings or any other murder or

      13     murders.  By the terms of the plea agreement,

      14     this individual faces a sentence of

      15     imprisonment from zero to life, depending on

      16     the sentencing judge's evaluation of all the

      17     circumstances, and does not face the death

      18     penalty.

      19               That was stipulation number 22.

      20               (Defendant's Exhibit K.K.M. 22

      21     received in evidence)

      22               MR. RUHNKE:  Stipulation 26:  K.K.M.

      23     33 consists of accurate copies of commissary

      24     receipts for Khalfan Khamis Mohamed for the

      25     period October 7, 1999 through October 26,

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       2     2000.  That was stipulation number 26.

       3               (Defendant's Exhibit K.K.M. 26

       4     received in evidence)

       5               MR. RUHNKE:  Stipulation number 27:

       6     Consistent with Bureau of Prisons policy,

       7     Khalfan Khamis Mohamed was seen by a Bureau of

       8     Prisons psychologist at approximately 30-day

       9     intervals in order to assess (1) mental status,

      10     (2) adjustment, (3) threat to self, and (4)

      11     threat to others.

      12               K.K.M. 41 contains true and accurate

      13     copies of such reports current through March

      14     16, 2001.  And that was stipulation 27.

      15               (Defendant's Exhibit K.K.M. 27

      16     received in evidence)

      17               MR. RUHNKE:  Stipulation 28:  The

      18     documents contained in the folder marked K.K.M.

      19     42 are true and accurate copies of the records

      20     supplied by the Bureau of Prisons and comply

      21     with subpoenas served on behalf of Khalfan

      22     Khamis Mohamed.

      23               The documents grouped as K.K.M. 42A

      24     are special administrative measures imposed

      25     upon Ramzi Ahmed Yusufu and Sheik Omar Abdel

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       2     Rahman.  The documents grouped as K.K.M. 42B

       3     are the available sentence computation

       4     documents for the inmates whose records were

       5     subpoenaed.  The documents grouped as K.K.M.

       6     42C are the available chronological

       7     disciplinary records for the inmate whose

       8     records were subpoenaed.  And that's

       9     stipulation number 28.

      10               (Defendant's Exhibits K.K.M. 28, 42A,

      11     42B and 42C received in evidence)

      12               MR. RUHNKE:  Stipulation 25A.

      13     Stipulated and agreed:

      14               In a separate criminal proceeding

      15     before another judge of this court arising out

      16     of the assault of Officer Pepe, Mamdouh Mahmud

      17     Salim is seeking to assert a defense claim that

      18     his mental state at the time of the incident

      19     was such that he lacked the requisite intent to

      20     commit the crimes alleged.  In connection with

      21     these proceedings, Salim was interviewed by a

      22     government-designated psychiatrist and

      23     psychologist.  The nature of the proceedings

      24     therefor was in Salim's interest to maximize

      25     the extent of his alleged mental disorders.

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       2     The issue as to the validity of Salim's claims

       3     has yet to be resolved.

       4               2.  One condition of these

       5     examinations by the government experts was that

       6     no statement made by the defendant in the

       7     course of any examination by the government's

       8     expert, no testimony by the expert based upon

       9     statements by the defendant, and no other

      10     fruits of the statement, i.e., no other

      11     evidence learned as a result of the statements

      12     that were made, could be admitted in evidence

      13     against Mr. Salim in any criminal proceeding

      14     except on an issue respecting mental condition

      15     about which the defendant first introduces his

      16     testimony.

      17               3. On May 29, 2001, and June 22,

      18     2001, Mr. Salim was examined by Stewart B.

      19     Kleinman, M.D., a board-certified forensic

      20     psychiatrist retained by the government, and

      21     those sessions lasted a total of approximately

      22     12 hours, 45 minutes.  The report summarizing

      23     the forensic evaluation was submitted on June

      24     25, 2001.

      25               4.  The following information is

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       2     reflected in Dr. Kleinman's June 25, 2001

       3     forensic psychiatric report:

       4               A.  Mr. Salim stated "that he had

       5     only limited interactions with Khalfan Khamis

       6     Mohamed because Mr. Mohamed speaks only limited

       7     English and Arabic."

       8               B.  Mr. Salim was asked to describe

       9     his emotional/psychological/mental state during

      10     the period prior to November 1, 2000.  Among

      11     other responses, Mr. Salim gave the following:

      12               His weight dropped from approximately

      13     185 pounds in 1998 to 165 pounds in 1999 to 160

      14     pounds in mid 2000 to 155 pounds in November

      15     2000; he progressively lost muscle tone;

      16     increasingly feeling hateful, angry and

      17     humiliated because of prison experience;

      18     reporting that he was particularly enraged by

      19     strip searches; he felt "sad all day"; he no

      20     longer was a "very cheerful person";  he

      21     constantly worried about his family; he lost

      22     his ability to freely forgive others for

      23     transgressions and he felt extremely lonely and

      24     he thought about ending his life but never made

      25     any effort toward doing so because Islam

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       2     forbids such action.

       3               C.  Mr. Salim claimed that

       4     "previously he had been battling for control of

       5     himself with a part of himself which wants to

       6     violate his 'principles,' including to act

       7     violently."

       8               D.  When asked on June 22 to describe

       9     his mental/emotional state on November 1, 2000,

      10     Salim replied, "Hopeless, grieving, angry"; "no

      11     control over myself"; "doing things against my

      12     will"; "anything I did that day I was not the

      13     same person; maybe it was my body."  When asked

      14     on June 22, 2001 how his mental state had

      15     changed since November 1, 2000, Salim stated

      16     that he previously often daydreamed about "how

      17     to stop this persecution" and how to escape if

      18     he could not, and that currently he adheres to

      19     his "principles" and does not actively resist

      20     "aggression, insults" against him.

      21               E.  When asked about the events of

      22     November 1, 2000, Salim stated that "I took the

      23     keys [from Officer Pepe's belt] to escape from

      24     the door" and explained that "I took it [the

      25     keys] from him" and "I took it from his belt."

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       2     When asked how he managed to do so, he

       3     repeated, "I took the keys."  He thereupon

       4     refused to provide any further details of the

       5     offense stating, "Because this is legal matter,

       6     has nothing to do with psychiatrists," adding,

       7     "It's legal, confidential."

       8               F.  When asked to explain his

       9     actions, Salim stated, "I wanted to escape this

      10     ridiculous condition."  "Since I did nothing, I

      11     have the right to be with my family."  He

      12     stated around November 1, 2000, he believed

      13     there was a "chance" that an escape attempt

      14     would succeed and that such an effort would be

      15     "difficult but not impossible."  He declined to

      16     provide further details.  He also stated that

      17     he returned to his cell when officers

      18     approached because he understood "it's

      19     finished" and that since he "was outside the

      20     cell, this is against the rule" and related

      21     that he feared he would be severely assaulted

      22     if he remained outside his cell.

      23               When asked when he first thought of

      24     escaping in the manner he attempted on November

      25     1, 2000, Salim replied, "There is a difference

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       2     between thinking about it and deciding to do

       3     it."  When subsequently asked when he first

       4     thought about escaping as he attempted on

       5     November 1, 2000, he responded that he was not

       6     sure, but added, "for sure not months."  When

       7     further asked when he decided to escape as he

       8     intended and attempted, he replied that he

       9     would not answer this question.

      10               Salim declined to answer the

      11     following question:  Whether he made the

      12     sharpened comb weapon used to stab Officer

      13     Pepe; whether he fashioned the sharpened

      14     hairbrush found around the site of the instant

      15     offense; whether he sprayed hot sauce into

      16     anyone's eyes on November 1, 2000; whether he

      17     stored hot sauce in honey containers; whether

      18     he had stored the sharpened comb or hairbrush

      19     sometime prior to November 1, 2000; whether he

      20     had covered the camera in his cell or stored

      21     paper for that purpose prior to November 1,

      22     2000; whether he made any effort to interfere

      23     with the MCC's electricity; whether he

      24     handcuffed Officer Pepe; whether he tried to

      25     open the inner door to his housing area with

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       2     Officer Pepe's keys; whether others helped him

       3     in the offense; whether he knew who assaulted

       4     Officer Pepe with a comb weapon; whether he

       5     stabbed Officer Pepe in the eye; whether anyone

       6     else physically restrained Officer Pepe during

       7     the offense and what he planned to do if he

       8     managed to open the inner door to 10 South."

       9     That stipulation is stipulation 25A.

      10               (Defendant's Exhibit K.K.M. 25A

      11     received in evidence)

      12               MR. RUHNKE:  The final stipulation is

      13     stipulation 25B.  Stipulated and agreed:  Barry

      14     Rosenfeld, Ph.D., a clinical psychologist

      15     retained by the government, examined Mamdouh

      16     Mahmud Salim on June 26, 2001.  Dr. Rosenfeld

      17     concluded that "several factors limit the

      18     conclusiveness of the evaluation, including

      19     Mr. Salim's apparent lack of candor in both

      20     reporting his psychological symptoms (i.e.,

      21     apparently exaggerating his psychological

      22     problems) and refusing to discuss many aspects

      23     of the instant offense."

      24               Dr. Rosenfeld concluded that, "While

      25     the possibility of a more pervasive or severe

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       2     psychiatric disorder cannot be limited and

       3     Mr. Salim claimed to suffer from psychotic

       4     symptoms, (e.g., hallucinations) both at the

       5     time of the offense as well as at present, his

       6     reported symptoms appear likely to be either

       7     exaggerated or, in the case of the reported

       8     hallucinations, fabricated."

       9               During the interview conducted by

      10     Dr. Rosenfeld, Mr. Salim noted his

      11     dissatisfaction with the attorneys who had

      12     represented him prior to November 1, 2000.  He

      13     also noted "increased anger and irritability,

      14     particularly during the period leading up to

      15     the alleged instant offense," and that he

      16     "frequently argued with his cellmate during the

      17     period in which they were housed together

      18     (prior to the alleged instant offense)."

      19               3.  According to Dr. Rosenfeld's

      20     report, Salim claimed the presence of

      21     persistent auditory hallucination, which Salim

      22     described as "a creature suggesting things to

      23     me, sometimes ordering me.  I don't see him,

      24     but I feel him inside me."  Salim stated, "I

      25     hear him a long time ago, before I was

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       2     arrested, but I never paid attention to him

       3     because he can come once in two months or once

       4     a year."  Salim further stated that the

       5     "creature" had "ordered him to break or destroy

       6     things or steal objects" and that he was

       7     convinced the "creature is real, although

       8     living inside his own body."

       9               Dr. Rosenfeld concluded that "Salim's

      10     report of auditory hallucinations which predate

      11     his incarceration but have worsened

      12     considerably since is highly suspect for a

      13     number of reasons."  Dr. Rosenfeld reported

      14     that although it was "possible" Salim suffered

      15     from such hallucinations, he concluded that

      16     "much more likely is the possibility that

      17     Mr. Salim fabricated this symptom in an effort

      18     to explain the instant offense as due to the

      19     stress of his confinement, i.e., malingering."

      20               4.  Dr. Rosenfeld said Salim

      21     described "unusual beliefs" such as "thinking

      22     that he could shrink himself and escape the MCC

      23     by crawling under the door."

      24               5.  In assessing Salim's mental state

      25     at the time of the offense, Dr. Rosenfeld noted

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       2     that Salim was unwilling to discuss his actions

       3     with regard to the instant offense.

       4     Dr. Rosenfeld noted that, "A complete

       5     understanding of Mr. Salim's mental state at

       6     the time of the instant offense is limited by

       7     both his refusal to discuss this incident in

       8     detail as well as the questionable accuracy of

       9     the information he did provide."

      10               With respect to the November 1, 2000

      11     incident, Salim, according to Dr. Rosenfeld's

      12     report, "acknowledged that he had taken -- I'm

      13     sorry.  I'll read it again -- "acknowledged

      14     that he had been taken by Officer Pepe to his

      15     cell unhandcuffed, and once in his cell 'I took

      16     the keys away from him.  I wanted to runaway

      17     (escape).'"  Salim said that the plan to escape

      18     by taking the keys from a corrections officer

      19     had occurred to him well in advance of the

      20     actual incident:  "It came to my head many

      21     times before -- a week or so -- maybe ten

      22     days."  Salim also stated that, "Moments before

      23     I took the keys, I was in a conflict with the

      24     creature -- I was talking to it in an audible

      25     volume -- the guard took me out of here and I

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       2     was talking to the creature -- it was telling

       3     me, 'now, now is the day you take the key --

       4     it's a chance -- if you miss it today, you'll

       5     regret it.'"

       6               And that is stipulation number 25B.

       7               (Defendant's Exhibit K.K.M. 25B

       8     received in evidence)

       9               MR. RUHNKE:  In addition to

      10     stipulations, we are now going to move into

      11     evidence the following documents:  K.K.M. 2,

      12     which is a transcript at a hearing involving

      13     Mr. Salim conducted before a magistrate judge

      14     on October 26, 2000.

      15               MR. FITZGERALD:  No objection.

      16               MR. RUHNKE:  K.K.M. 13 is the initial

      17     complaint filed with regard to Ali Mohamed when

      18     he was arrested.

      19               MR. FITZGERALD:  No objection.

      20               MR. RUHNKE:  K.K.M. 25 are the

      21     documents and slides that were computer shown

      22     to you by Dr. Cunningham during his testimony.

      23               MR. FITZGERALD:  No objection.

      24               THE COURT:  Yes.  Those three

      25     exhibits are all received.

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       2               (Defendant's Exhibits 2, 13 and 25

       3     received in evidence)

       4               MR. RUHNKE:  Yes.

       5               K.K.M. 27 are Salim's, a sample of

       6     Salim's medical records referred to earlier

       7     involving Asma.

       8               MR. FITZGERALD:  No objection.

       9               THE COURT:  Received.

      10               (Defendant's Exhibit K.K.M. 27

      11     received in evidence)

      12               MR. RUHNKE:  K.K.M. 29 are the

      13     documents referred to earlier which have been

      14     supplied to Dr. Cunningham for his testimony.

      15               MR. FITZGERALD:  No objection.

      16               THE COURT:  Received.

      17               (Defendant's Exhibit K.K.M. 29

      18     received in evidence)

      19               MR. RUHNKE:  K.K.M. 32 and 32A

      20     through D are the statements of Rashid Daoud

      21     Al-'Owhali that you had not previously heard

      22     during this trial.

      23               MR. FITZGERALD:  No objection.

      24               THE COURT:  Received.

      25               (Defendant's Exhibits K.K.M. 32 and

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       2     32A through 32D received in evidence)

       3               MR. RUHNKE:  K.K.M. 34 is the MCC

       4     medical record regarding the injury report

       5     prepared with regard to Officer Pepe.

       6               MR. FITZGERALD:  No objection.

       7               THE COURT:  Received.

       8               (Defendant's Exhibit K.K.M. 34

       9     received in evidence)

      10               MR. RUHNKE:  K.K.M. 35A and B are

      11     excerpts from the MCC Daily Activity Log and

      12     Attorney Visitation Log which were referred to

      13     in the stipulation.

      14               MR. FITZGERALD:  No objection.

      15               THE COURT:  Received.

      16               (Defendant's Exhibits K.K.M. 35A and

      17     35B received in evidence)

      18               MR. RUHNKE:  K.K.M. 36 is is the

      19     affidavit of Agent Daniel Coleman regarding the

      20     extradition of Mamdouh Mahmud Salim from

      21     Germany.

      22               MR. FITZGERALD:  No objection.

      23               THE COURT:  Received.

      24               (Defendant's Exhibit K.K.M. 36

      25     received in evidence)

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       2               MR. RUHNKE:  K.K.M. 38 is an incident

       3     report involving Mamdouh Mahmud Salim.  I will

       4     not read it into evidence at this point, but it

       5     involves a response to being required to

       6     undergo a strip search and refusing a direct

       7     order by Mr. Salim.

       8               MR. FITZGERALD:  No objection.

       9               THE COURT:  Received.

      10               (Defendant's Exhibit K.K.M. 38

      11     received in evidence)

      12               MR. RUHNKE:  K.K.M. 39 is a summary

      13     chart, which I will just hold up to you so you

      14     can see what it looks like.

      15               This is K.K.M. 39, and what it does

      16     is, as its heading says, it's a summary chart

      17     of Khalfan Khamis Mohamed's commissary orders

      18     of certain items based on a review of the

      19     underlying MCC records, and it points out that

      20     the records themselves are in evidence as

      21     K.K.M. 33.

      22               MR. FITZGERALD:  No objection.

      23               THE COURT:  Received.

      24               (Defendant's Exhibit K.K.M. 39

      25     received in evidence)

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       2               MR. RUHNKE:  K.K.M. 40 is the

       3     original complaint seeking the arrest and

       4     charging Mamdouh Mahmud Salim.

       5               MR. FITZGERALD:  No objection.

       6               THE COURT:  Received.

       7               (Defendant's Exhibit K.K.M. 40

       8     received in evidence)

       9               MR. RUHNKE:  K.K.M. 41 are periodic

      10     assessment, psychological assessments

      11     undertaken with regard to Khalfan Khamis

      12     Mohamed which is referred to in the earlier

      13     stipulation.  Again, that's K.K.M. 41.

      14               MR. FITZGERALD:  No objection.

      15               THE COURT:  Received.

      16               (Defendant's Exhibit K.K.M. 41

      17     received in evidence)

      18               MR. RUHNKE:  K.K.M. 42 is a

      19     collection of Special Administration Measures,

      20     sentence computations and disciplinary reports

      21     provided by the Bureau of Prisons to

      22     Dr. Cunningham in response to a stipulation

      23     served on the Bureau of Prisons.

      24               MR. FITZGERALD:  No objection.

      25               THE COURT:  Received.

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       2               (Defendant's Exhibit K.K.M 42

       3     received in evidence)

       4               MR. RUHNKE:  Finally, your Honor --

       5     I'm sorry.  Also in this list of exhibits are

       6     summaries of the allegations regarding several

       7     individuals taken from the indictments

       8     regarding those individuals.  I'll specify:

       9               K.K.M. 43 is excerpts of the charges

      10     against Mamdouh Mahmud Salim.  K.K.M. 44 is not

      11     so much a summary as it is taking out of the

      12     indictment the actual allegations regarding Ali

      13     Mohamed.  K.K.M. 45 is a similar document with

      14     regard to al-Fawwaz.  46 is a similar document

      15     with regard to Abdel Bary.  47 is a similar

      16     documents with regard to Ibrahim Eidarous.

      17               MR. FITZGERALD:  No objection.

      18               THE COURT:  Received.

      19               (Defendant's Exhibits K.K.M. 43

      20     through 47 received in evidence)

      21               MR. RUHNKE:  Finally, we move the

      22     following photographs, all designated K.K.M. PH

      23     followed by a number.  And we offer K.K.M. 12,

      24     28, 15, 31, 32, 5, 8, 19, 22, 11, 9, 3, and I

      25     note with regard to 11 and 3 that there may be

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       2     a confusion about the designation.  They are

       3     either 51 or 11 or 43 or 3.  We'll straighten

       4     that out.  Photo 38, photo 39, photo 72, photo

       5     20 from CD number 2, photo 11 from CD number 2,

       6     photo 9 from CD number 2, photo 21 from CD

       7     number --

       8               I'm sorry.  Am I misstating the

       9     photograph numbers?

      10               Let me start again.  Start with

      11     number 51.  I misstated some of these.

      12     Starting with number 51 it's photo 9, photo 43,

      13     photo 38, photo 68, photo 72, photo 93, photo

      14     83, photo 102, photo 94.

      15               And your Honor, we formally rest our

      16     penalty phase at this point.

      17               (Defendant's Exhibits K.K.M.-PH-12,

      18     PH-28, PH-15, PH-31, PH-34, PH-5, PH-8, PH-19,

      19     PH-22, PH-11, PH-9, PH-3, PH-38, PH-39, PH-72,

      20     PH-20, PH-2, PH-51, PH-43, PH-68, PH-93, PH-83,

      21     PH-102 and PH-94 received in evidence)

      22               THE COURT:  K.K. Mohamed rests.

      23               MR. FITZGERALD:  Your Honor, the

      24     government will offer some stipulations.

      25               THE COURT:  Yes.

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       2               MR. FITZGERALD:  Government Exhibit

       3     4306.  It is hereby stipulated and agreed by

       4     the parties:

       5               1.  On or about November 8, 2000,

       6     Paul McAllister and Charles Adler were relieved

       7     as counsel for Mamdouh Salim because they were

       8     now in the position of being factual witnesses

       9     against Salim.  Accordingly, Salim could not

      10     proceed to trial with his codefendants in

      11     January 2001.

      12               The government advised the court that

      13     a separate trial of Salim, who was charged in

      14     Indictment (S7) 98 CR 1023 with conspiracy

      15     offenses, which carried the maximum penalty of

      16     life imprisonment, but not with the embassy

      17     bombings, would involve recalling many of the

      18     same witnesses who would testify at the trial

      19     scheduled for January which was projected to

      20     last nine to twelve months.

      21               The government also advised the court

      22     that a trial of Salim for the effort to take

      23     hostages on November 1, 2000 in the attempted

      24     murder of Officer Pepe could be conducted in

      25     far less time and would provide the same

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       2     maximum penalty of life imprisonment.  The

       3     government thus advised the court that it

       4     intended to proceed to try Salim for the

       5     November 1, 2000 crimes and that if Salim were

       6     convicted of the November 1, 2000 crimes, it

       7     might no longer be necessary to expend the

       8     resources to try Salim for the conspiracy

       9     charged in (S7) 98 CR 1023.

      10               Trial of Salim for the charges

      11     arising out of November 1, 2000 is scheduled

      12     for September 2001.  Trial on the other

      13     conspiracy charges has been postponed without

      14     date.

      15               After November 1, 2000, Salim and

      16     Khalfan Mohamed were transferred to another

      17     Bureau of Prisons facility.  However, they were

      18     both returned to the MCC 10 South Unit on

      19     January 2, 2001, as Khalfan Mohamed needed to

      20     be at the MCC for purposes of trial and Salim

      21     needed to be present for preparation for his

      22     case.

      23               Before Khalfan Mohamed and Salim were

      24     returned to the 10 South Unit, the warden made

      25     arrangements to bring in lieutenants from

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       2     institutions other than the MCC on a rotating

       3     basis to supervise the 10 South Unit.

       4               And that's signed, dated, and that's

       5     Government Exhibit 4306.

       6               THE COURT:  Received.

       7               (Government Exhibit 4306 received in

       8     evidence)

       9               MR. FITZGERALD:  A second stipulation

      10     is Government Exhibit 4305, which says:  It is

      11     hereby stipulated and agreed, by and between

      12     the parties, as follows:

      13               1.  Government Exhibit 4329 are

      14     medical records for Mamdouh Mahmud Salim

      15     maintained by the Metropolitan Correctional

      16     Center.  It is further stipulated and agreed

      17     that this stipulation may be received in

      18     evidence as a Government Exhibit.  We would

      19     offer 4305 and the underlying record, 4329.

      20               (Government Exhibits 4305 and 4329

      21     received in evidence)

      22               THE COURT:  Received.

      23               MR. FITZGERALD:  And just reading

      24     entries from 4329, it says:  Inmate screening,

      25     Mamdouh Salim, December 20, 1998.  Next to the

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       2     box, "Do you wear a brace or back support?"

       3     The box "yes" is checked.  Next to the box,

       4     "Have you ever had or have you now shortness of

       5     breath?"  The box "yes" is checked.  And

       6     there's an entry on the second page,

       7     handwriting, "History of LBP after carrying

       8     heavy objects, occasionally have pain."

       9               Government Exhibit 4309.  It is

      10     hereby stipulated and agreed by and between the

      11     parties that:  Consistent with Bureau of

      12     prisons policy, Mamdouh Salim was seen by a

      13     Bureau of Prisons psychologist at approximately

      14     30-day intervals in order to assess:  One,

      15     mental status; two, adjustment; three, threat

      16     to self; four, threat the others.

      17               Government Exhibit 4308 contains true

      18     and accurate copies of such reports current

      19     through October 26, 2000.

      20               We would offer 4309 and the

      21     underlying records, 4308.

      22               (Government Exhibits 4308 and 4309

      23     received in evidence)

      24               THE COURT:  Received.

      25               MR. FITZGERALD:  Your Honor, at this

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       2     time we would offer in evidence Government

       3     Exhibit 4324, page 1 and 2, through lines 22,

       4     which is a transcript of a proceeding involving

       5     defendant Khalfan Mohamed on October 8, 1999.

       6               MR. RUHNKE:  No objection.

       7               THE COURT:  Received.

       8               (Government Exhibit 4324 received in

       9     evidence)

      10               MR. FITZGERALD:  And I would just

      11     read lines 2 through 22 of that transcript:

      12               "The Court (addressing attorney):

      13     Does your client require an interpreter?"

      14               The attorney for Khalfan responds:

      15     "He speaks English, but his primary language is

      16     Swahili.  We have an Arabic interpreter.

      17     Apparently his Arabic is better than his

      18     English.  I think he understands what he and I

      19     discussed in English and he is prepared to go

      20     forward today.  In the future, if we can, we

      21     would like to have a Swahili interpreter."

      22               And then a prosecutor:  "We will make

      23     sure that gets arranged, your Honor.

      24               "The Court:  Mr. Mohamed, are you

      25     able to understand me?

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       2               "The Defendant:  Yes.

       3               "The Court:  If at any time anything

       4     is said which you want interpreted or which you

       5     don't understand, will you please raise your

       6     hand?

       7               "The Defendant:  Yes.

       8               "The Court:  Would you answer in

       9     words?  You are nodding your head.  Would you

      10     answer in words?  Will you raise your hand if

      11     there is anything that you don't understand?

      12               "The Defendant:  Okay.  Yes."

      13               Your Honor, we would also offer

      14     Government Exhibit 4331, which is a transcript

      15     of a hearing involving Mamdouh Salim on October

      16     20, 2000.

      17               THE COURT:  Yes.

      18               (Government Exhibit 4331 received in

      19     evidence)

      20               MR. FITZGERALD:  And then I would

      21     just read from page 357 of the transcript,

      22     questioning by Salim's counsel of Salim, and:

      23   "Q.  Now, let me ask you, when you -- at that

      24     time, which is almost two years ago, how was

      25     your understanding of the English language in

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       2     relation to now?

       3   "A.  I may speak in English now to expedite

       4     matters to reduce the time, but I wish to have

       5     the interpreter stand next to me in case I need

       6     any assistance.

       7   "Q.  Well, how is your English, was it good or

       8     bad?  How was your English, your knowledge of

       9     the English language when you were examined?"

      10               Answer by Salim in English:  "I

      11     already studied the electrical engineering in

      12     university for four years, and this was up to

      13     1980, which is 20 years ago, and my language at

      14     that time until now, or at least until the day

      15     that they arrested me, it was technical

      16     language.  I can speak with an engineer for

      17     hours, but with a lawyer it's very difficult

      18     for me to speak for minutes.  But after I'd

      19     been arrested and then, unfortunately,

      20     extradited here, I decided to improve my

      21     language because I think this will assist me to

      22     defend myself, hoping that I can win the case,

      23     because I am innocent."

      24               And we have one more stipulation,

      25     your Honor.  Strike that.  Two more.

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       2     Government Exhibit 4332:

       3               It is hereby stipulated and agreed by

       4     and between the parties that Government Exhibit

       5     4326 is a copy of the subpoena provided to the

       6     Bureau of Prisons requesting information

       7     concerning 20 designated inmates.  Government

       8     Exhibit 4331A to 4331Q are copies of the

       9     computerized disciplinary records of 19

      10     inmates.  The 20th name requested, Abdel Rahman

      11     Yasin, is a person who was a fugitive who has

      12     never been in custody and for whom there are,

      13     thus, no records.

      14               Government Exhibit 4315 is a copy of

      15     the computerized disciplinary record of Abdel

      16     Hakim Murad convicted with Ramzi Yousef and

      17     Wali Khan Amin Shah of conspiring to bomb

      18     airliners in the Philippines after being

      19     extradited to the United States in 1995.

      20               The computerized disciplinary records

      21     referred to above are distinct from the

      22     incident reports provided to Dr. Mark

      23     Cunningham concerning the administrative

      24     maximum prison at Florence, Colorado.  The

      25     complete set of incident reports pertaining to

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       2     the prison at Florence provided to

       3     Dr. Cunningham consist of thousands of pages

       4     and was thus not offered as an exhibit.

       5               And we would offer Government Exhibit

       6     4332 and the exhibits referred to therein,

       7     Government Exhibits 4326, 4331A to 4331Q and

       8     4315.

       9               THE COURT:  Received.

      10               (Government Exhibits 4332, 4326,

      11     4331A through 4331Q and 4315 received in

      12     evidence)

      13               MR. FITZGERALD:  And I'm corrected

      14     that it is 4331A to S, so we would offer 4331R

      15     and S at this time also.

      16               Finally, your Honor, Government

      17     Exhibit --

      18               THE COURT:  Received.

      19               (Government Exhibits 4331R and S

      20     received in evidence)

      21               MR. FITZGERALD:  4307 is a

      22     stipulation.  It is hereby stipulated and

      23     agreed, by and between the parties, that:

      24               Government Exhibit 3050 is a copy of

      25     a portion of a videotape that aired on the

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       2     Al-Jazeira channel (an Arabic-language

       3     broadcasting service in the Middle East) on or

       4     about September 20th, 2000.  In addition to the

       5     broadcaster, the speakers in the entire

       6     videotape were Usama Bin Laden, Ayman al

       7     Zawahiri, Refai Ahmed Taha Musa and Sheik

       8     Asadallah, the son of Sheik Omar Abdel Rahman.

       9     Government Exhibit 3050 is the portion of the

      10     videotape which includes Usama Bin Laden's

      11     statements.

      12               Government Exhibit 3050T is a fair

      13     and accurate translation from Arabic into

      14     English of Government Exhibit 3050.  The

      15     persons referred to by Usama Bin Laden include

      16     Sheik Omar Abdel Rahman, el Sayyid Nosair,

      17     Mohamed Rashid Dauod Al-'Owhali and Osama

      18     Mullah Haydar (an alias of Wali Khan Amin

      19     Shah).

      20               The date the videotape was made is

      21     not known.  However, it is believed to have

      22     been made at some time in the year 2000, when

      23     defendants Mamdouh Salim, Wadih El Hage,

      24     Mohamed Sadeek Odeh, Mohamed Rashed Dauod

      25     Al-'Owhali and Khalfan Khamis Mohamed were in

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       2     American custody.

       3

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       2

       3               It is further stipulated that Sheik

       4     Omar Abdul Rahman was arrested in August 1993

       5     in the Metropolitan New York area and later

       6     charged with various crimes, including the

       7     crime of seditious conspiracy, in essence, the

       8     crime of conspiring to make war against the

       9     United States from within the United States,

      10     which conspiracy included among its overt acts

      11     the bombing of the World Trade Center and

      12     efforts to bomb various locations in New York

      13     City, the Holland Tunnel, the Lincoln Tunnel,

      14     the FBI building at 26 Federal Plaza, and the

      15     United Nations building.

      16               However, Abdul Rachman was noted

      17     charge with the crime of bombing the World

      18     Trade Center.  Abdul Rachman was convicted of

      19     seditious conspiracy after a trial in the

      20     Southern District of New York in 1995, and was

      21     also convicted at that time of conspiracy to

      22     murder Egyptian President Murabak in

      23     retaliation for the arrest of Mahmoud

      24     Aboulahima separately convicted for the

      25     February 1993 World Trade Center bombing.

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       2               It is further stipulated that El

       3     Sayed Nosair was convicted at the same 1995

       4     trial in the Southern District of New York with

       5     Abdul Rahman and others participating in the

       6     same seditious conspiracy.  In addition, Nosair

       7     was convicted of the November 5, 1990 murder of

       8     Rabbi Mayer Kahane in New York.

       9               It is further stipulated that Wadi

      10     Khan Amin Sha, a/k/a Marhedra, a/k/a Asmiri was

      11     convicted in the 1996 trial in the Southern

      12     District of New York of conspiracy to bomb

      13     approximately 12 commercial airliners

      14     registered to American carriers based upon

      15     conduct in the Philippines and elsewhere in

      16     late 1994 and early 1995, and of attempted

      17     escape while awaiting trial in the Southern

      18     District of New York.

      19               We would offer Government Exhibit

      20     4307, the stipulation, Government Exhibit 3050,

      21     the video, and a transcript Government Exhibit

      22     3050-T.

      23               THE COURT:  Received.

      24               (Government's Exhibits 4307, 3050,

      25     and 3050-T received in evidence)

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       2               MR. FITZGERALD:  At this time, your

       3     Honor, I'd like to just hand out the single

       4     page transcript, 3050T, and play the exhibit.

       5               THE COURT:  Yes.

       6               (Government Exhibit 3050 played)

       7               MR. FITZGERALD:  The government

       8     rests.

       9               THE COURT:  The government rests.

      10     We'll take a very brief recess.

      11               (Continued on next page)

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       2               (Jury not present)

       3               THE COURT:  What is the status of the

       4     instruction to the jury with respect to

       5     consideration of matters introduced during the

       6     Al-'Owahli penalty phase?

       7               MR. RUHNKE:  Your Honor, the status

       8     is that we decided to offer nothing.

       9               THE COURT:  Nothing.  So that the

      10     instruction to the jury ignores any reference,

      11     they are to consider only what happened at the

      12     liability phase and this phase.  Is that

      13     correct?

      14               MR. FITZGERALD:  Yes, Judge.

      15               THE COURT:  All right.  We'll take a

      16     very brief recess.

      17               (Recess)

      18               (Continued on next page)

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       2               (In open court; jury present)

       3               THE COURT:  As you have heard both

       4     sides have rested and so we're now at the stage

       5     where attorneys make their closing arguments.

       6               Mr. Fitzgerald.

       7               MR. FITZGERALD:  Thank you, Judge.

       8               Good morning.  This morning I rise to

       9     speak to you for the last time in this case, as

      10     you consider the most serious questions a jury

      11     could ever decide, whether the defendant Khamis

      12     Mohamed should be punished by life imprisonment

      13     or by the death penalty.

      14               But I begin by reminding you of one

      15     thing, why it is here, why you are here to

      16     decide that.  You are here to decide that

      17     because of him, because he chose to kill and to

      18     murder on August 7, 1998; because he chose to

      19     participate with Salim in an attack on November

      20     1, 2000.  And I tell you that because some of

      21     the evidence you have heard, some of the things

      22     that have been said, some of the things

      23     presented to you particularly quite recently,

      24     might make you forget that.

      25               You've heard about a year in South

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                         Summation - Fitzgerald

       2     Africa at Burger World where he was a model

       3     employee and a model guest.  Well, recognize

       4     that he's here today because he made choices.

       5     Things didn't happen to him.  There is an

       6     impression created at times that we're here

       7     because things happened, bombings happened and

       8     assaults happened.  No, he did them.  He

       9     murdered people.  He assaulted them.

      10               Counsel for Khamis Mohamed in the

      11     opening had told you candidly, did it, when he

      12     spoke to the FBI he had no remorse, and they're

      13     not running from the facts.  But since that

      14     time there has been some quiet role marking.

      15     At the end of the guilt phase, counsel for

      16     Khamis Mohamed made it sound like the weather,

      17     and I remember quote as the world turns, as

      18     events go.  If Khamis Mohamed had left to go to

      19     London to start a new life probably the embassy

      20     would have been bombed on August 7, 1998

      21     anyway, and that would not have changed, but

      22     everything would have changed for him, and he

      23     would not be sitting here facing your judgment,

      24     but that's not how the world turned, as if the

      25     bombing was something that happened to Khamis.

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       2               In the beginning of the penalty

       3     opening it was stated that it was to Khamis'

       4     everlasting bad fortune that he sat in a cell

       5     with Mandouh Salim, but that's not what

       6     happened.  It was to Officer Pepe's everlasting

       7     bad fortune that the two of them got together

       8     in a cell and tried to take him hostage and

       9     savagely assaulted him.

      10               During the testimony of Ms. Miller a

      11     question was asked of her:  Now, there came a

      12     time when Mr. Mohamed became involved with a

      13     group of people in Dar es Salam and at the end

      14     of that process the American Embassy was

      15     bombed.  It wasn't a process.  It was a choice.

      16     It was an act.  It was murder and we have to

      17     remember that.  This man decided on August 7,

      18     1998 that people could die in an embassy with a

      19     bomb he helped build, lined it with TNT and

      20     made sure the truck got there.  He thought that

      21     he would die and he could run away, he would

      22     abandon his family, lie to them, where he went

      23     to South Africa and pretend to be a nice guy.

      24     He Didn't give a damn about the people he

      25     killed.  He didn't give a damn about the people

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       2     he left behind and when he was caught he said:

       3     I did it, not because he was sorry, he

       4     threatened to do it again.

       5               On November 1, 2000 he and Salim

       6     struck again.  This is not the weather.  It's a

       7     person who killed in cold blood and will do it

       8     again if given the chance.

       9               Let's review the facts.  Review the

      10     facts about the bombing and the assault, and

      11     remember who he is, what he has done, why he is

      12     here, and why you are asked to make this

      13     judgment.

      14               You may forget that when he went to

      15     Afghanistan remember how far away Afghanistan

      16     is from Tanzania, how little people can leave

      17     that island.  He made a choice to go.  He made

      18     a choice to go.  He paid his own way.  He went

      19     to Afghanistan and what did he do in

      20     Afghanistan?  He received training.  How much

      21     training did he receive?  I bet you just about

      22     everyone in the room has forgotten.

      23               We heard about that little year in

      24     South Africa where he was making burgers and

      25     making broiled chicken.  He really was trained

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       2     for a little less than a year, and of fantan,

       3     check the reports, check Agent Perkin's FBI

       4     report.  He admitted he was trained for nine to

       5     ten months.  And he told you Khamis Mohamed

       6     told you through Agent Perkin's that he was

       7     trained in light weapons, handguns and rifles.

       8     He was trained in surface to air missiles and

       9     rocket launchers.  That's what he was doing in

      10     Afghanistan.  He wasn't running to get fanta.

      11     He was getting trained on how to kill people.

      12               Then he received advanced training.

      13     He went for advanced training in how to wire a

      14     bomb, advanced training in detonators.  He was

      15     not trained in how to make the bomb.  So when

      16     he had this image of Khamis Mohamed sitting

      17     there in Dar es Salaam he knew how to kill, he

      18     knew weapons, he knew how bombs worked.  And

      19     what did he do after nine to ten months of

      20     training in Afghanistan?  You heard he later

      21     went to Somalia.  This is long after the

      22     Americans are gone.  This is 1997.

      23               He went to Mombasa.  He went to

      24     Somalia and he went through Mombasa and

      25     Somalia.  That's when he met the Hussein

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       2     fellow, Ustafa Fadl told you heard about at the

       3     guilt phase.  That's when you heard about

       4     Mohammed Odeh.  What did he admit to Agent

       5     Perkins he did there?  I was a trainer.  He

       6     wasn't getting trained in Somalia.  He was

       7     training other people.  He said it was possibly

       8     with Al Quaeda the group you heard about at the

       9     guilt phrase.  He sold guns.  He sold rifles.

      10     He sold rocket launchers.  He sold surface to

      11     air missiles.  That's Khamis Mohamed.  He's not

      12     on the island of Pemba.  He's in Afghanistan

      13     and in Somalia being trained and training.

      14               Let's talk about the bombing.  What

      15     happened with the bombing?  He made a choice,

      16     Hussein, the Hussein we hear about was a

      17     phantom.  Hussein came to him and asked him to

      18     do a jihad job, and it was not asked because he

      19     said if you don't do it you have to keep it a

      20     secret that I asked you.  He gave him a choice.

      21     He had free will.  He could decide to do the

      22     jihad job or not.  He's not brainwashed.  But

      23     he didn't equivocate.  No moral struggle.  He

      24     did it.  And what did he do as part of the

      25     plot?  He did a variety of things.  He rented a

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                         Summation - Fitzgerald

       2     house, the second house let's talk about, and

       3     he brought the Suzuki, the Suzuki that was used

       4     to transport things.

       5               Well, we heard a lot about, well, you

       6     know, he rented a house in his true name.  How

       7     much of a jihad guy is he?  That was his role.

       8     He was the local guy.  He knew the people in

       9     Tanzania.  He can't walk up and say, let me

      10     rent this house an let me use the name John

      11     Smith.  That would be suspicious.  Let me buy

      12     the Suzuki and use a fake name.  That would be

      13     suspicious.

      14               What he's got to do is he's a local

      15     guy to make sure things get done, to get things

      16     rented, to get things bought and then the smart

      17     jihad guy has to get them documents and get out

      18     of town, which is exactly what he did.  Besides

      19     renting the house, besides getting the Suzuki,

      20     he ground the TNT.

      21               Now, let's talk about that.  First of

      22     all, you'll hear, sure, it's low-level work

      23     that also important people did Abu Rahman the

      24     guy who wired the bomb in Nairobi, the guy who

      25     wired the bomb in Dar es Salam, Abdul Rahman,

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       2     and that defendant were grinding the TNT.  You

       3     could almost forget because in abstract reality

       4     in the courtroom sometimes because you're not

       5     there watching what that means.  You saw the

       6     grinder.  The TNT is in clumps.  Somebody

       7     sitting there grinding, grinding a bomb.  He

       8     knows it's to kill people.  That's what a bomb

       9     is for.  And he's grinding and grinding away.

      10     Abdel Rahman and Khamis Mohamed grinding away a

      11     mixture of death.

      12               What did he tell you?  He told you

      13     through Agent Perkin's that he knew what the

      14     target was.  Five days before the bombing he's

      15     told the target is the American Embassy in

      16     Tanzania.  No moral struggle, no hesitation.

      17     He continues.  He knows they're bombing a

      18     building an American building in Tanzania and

      19     people will die.

      20               He told you no one was fooled.  He

      21     knew what is going on.  He was in the camps.

      22     He's trained in wiring bombs.  He watched them.

      23     He described how the truck was loaded, cylinder

      24     bomb parts, cylinder bomb part, this is to hold

      25     the cylinders.  He watches it get wired right

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                         Summation - Fitzgerald

       2     up to the dashboard so Ahmed can press the

       3     button.  He does what he can.  He stays behind

       4     because he is the local guy who can get things

       5     done.

       6               They leave.  They need a bomber and

       7     they supplied someone to make sure the truck

       8     gets to the embassy, and he does that.  When

       9     the truck is stuck in the sand and they get it

      10     out of the sand, they're still worried, well,

      11     we can't have people get stuck in the sand

      12     again.  He arranges to have a tow truck driver

      13     on Uhuru Road in case there is a problem.

      14               And then after the truck goes on its

      15     mission of death to where it's going to kill

      16     eleven people and injure dozens of others, what

      17     does he do?  He goes back home and he prays,

      18     and he's listening for the sounds of the bomb.

      19               It is unlike what he told Dr. Post

      20     five weeks back, he knew it wasn't a bomb in

      21     Somalia which he wouldn't hear.  He knew it was

      22     a bomb in Tanzania, and he waited for the

      23     sound.  When he heard the sound, the explosion

      24     he couldn't hear it, he turned on the TV and

      25     saw the building had been bombed.

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       2               Let me display Government Exhibit

       3     3,000.  That's the fellow countrymen, a hard

       4     working Tanzania man, working to put food on

       5     the table to support his family, being carried

       6     out to die.  And when he hears from the TV that

       7     the bomb went off and people are dead, he's

       8     happy.  Then he turns to bring his own nephew

       9     uses his own nephew to get rid of things and

      10     sends a grinder off to the islands, buries the

      11     rest of the stuff in the pit in the backyard.

      12               We hear a lot about, gee, that proves

      13     he's a nice guy that he brought his nephew in

      14     to get rid of the some of the bomb stuff from

      15     the bomb factory, and he sent his family, first

      16     he cleaned, and he told him to clean the bottom

      17     line in that grinder in the family home in

      18     Zanzibar in the island is not going to get him

      19     caught.

      20               To get there you have to figure out

      21     where the bomb is in that house at 213 Ilala,

      22     who did it.  By the time they get to their

      23     family's house they have long figured out, what

      24     he did was he lied to his family and told them

      25     he was going somewhere else.

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       2               He took the identity card and went to

       3     South Africa.  He went to South Africa and

       4     claimed political asylum, lied to the South

       5     Africans that he's got to be protected from

       6     other people.  Certainly didn't tell them, I

       7     just murdered eleven people in cold blood and

       8     didn't care about them.  Instead, went down

       9     there seeking their protection.

      10               You know what else?  Before he left,

      11     before the others left they gave Khamis Mohamed

      12     three telephone numbers.  Two were in Yemen,

      13     and one was in Pakistan.  We heard a lot about

      14     Khamis Mohamed supposed to be expendable.  But

      15     remember, Al-'Owahli was expendable.  He was

      16     supposed to die, but did not.  Azzam was

      17     expendable.  He did die, the driver of the

      18     truck in Nairobi.  Ahmed the German was

      19     expendable.  He did die in the truck in

      20     Tanzania.

      21               But they left numbers for him.  They

      22     gave him the same thousand dollars Odeh got.

      23     He got his own passport like Odeh did, and they

      24     gave him these numbers.

      25               But did they care about him, they

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                         Summation - Fitzgerald

       2     gave him three numbers he couldn't check.

       3     Maybe they were to a toll booth on the Jersey

       4     Turnpike.  Well, you know in fact that the

       5     numbers were real.  One of the numbers in Yemen

       6     was the number 415923.  If you look up Yemen,

       7     the phone number 4159123, and you want to

       8     figure out, gee, is that a jihad number?  Is

       9     that a real contact?  Look at Bin Laden

      10     satellite telephone number.  Remember that

      11     number we used to hold up on the board?

      12               Look at the bill for Bin Laden's

      13     satellite phone called that number thirty-four

      14     times in the phone records.  There is another

      15     record, another number he was given in Yemen

      16     219036 for Abu Rahman that shows up was in

      17     London.  Yemen 219036, you can see at the third

      18     entry Abu Rahman Ben Mohammed Alyafad.  219036.

      19     It shows up in Wadih El Hage's pop up phone

      20     book.  That same number, 219036 in Yemen.

      21               They gave him contacts.  He admitted

      22     he used it and called once in Yemen and spoke

      23     to Abu Rahman, but his phone card ran out so he

      24     didn't have a longer conversation.  I submit to

      25     you he was given contacts and money and told to

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       2     escape to live to fight another day.  Sadly he

       3     did, because he fought another day and Officer

       4     Pepe will pay for that the rest of his life.

       5               He also took those numbers and he

       6     wrote them backwards in a piece of paper not to

       7     preserve them, but to hide them.  Writing the

       8     digits backwards.  That's Khamis.

       9               You heard how sad he was when someone

      10     maybe asked him to go get a fanta, but that's

      11     not what this case is about.  He made a choice.

      12     He chose to go to Afghanistan and train.  He

      13     chose to go to Somalia to train.  It was he who

      14     wanted to do a jihad job or not, and he was not

      15     brain washed.  The difference between Khamis

      16     and a lot of others is Khamis does not have

      17     fire in his eyes.  What he has is ice in his

      18     veins, and that's what makes him more dangerous

      19     because he coldly coolly decides I'll kill, I

      20     won't look back, I'll go, be nice to people in

      21     South Africa and I'll come to America.  When

      22     the chance is given to attack Officer Pepe,

      23     he's in there.

      24               Cold, cool, zero remorse.  And where

      25     do you see that?  In October of 1999 in South

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       2     Africa.  There he is in South Africa and he is

       3     finally caught.  We hear from other people that

       4     October 1999 how he wouldn't hurt an ant, but

       5     when he's caught, what does he tell the FBI?

       6     Yeah, I did it.  Not because he's sorry, not

       7     because he cares that eleven countrymen, his

       8     own countrymen are killed, fellow Tanzanians,

       9     fellow Muslims, not because he cares about

      10     their family, okay, and recognize it.  He's

      11     putting his family through a lot, but those are

      12     his choices.  His choice on August 7th, his

      13     choice on October 1999, his choice in November

      14     2000.  He didn't give a damn about the people

      15     he killed or their families.  And he told the

      16     FBI on these days after having a year to

      17     reflect that he read very little about the

      18     bombing.  He wanted to know what happened.

      19               Can you imagine anyone murdering

      20     eleven people and not bothering to look what

      21     happened?  And what he said was:  He wanted to

      22     kill Americans.  The soldiers were such a hard

      23     target, so they went after embassies.  The

      24     bombings were a success because they tied up

      25     investigators.  He was not sorry that

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       2     Tanzanians were killed.  You saw those victims.

       3     Hard working people, guards, just trying to put

       4     food on the table and he didn't care.  He said

       5     if he hadn't been caught he would have

       6     continued to kill Americans and hope that

       7     others would carry on and he would carry on if

       8     he could.

       9               That brings us to the assault.

      10     Remember one thing in this case that if there

      11     is one person you heard about in this trial, in

      12     fact, there is only one person on this entire

      13     planet who participated both in the bombings of

      14     August 7, 1998 is Khamis did in Tanzania, and

      15     in that assault in November 1, 2000 on Officer

      16     Pepe.  Here is the man who's caught for one

      17     terrorist act and engages in another while

      18     awaiting a trial while awaiting a chance for

      19     justice.  Let's talk about the assault.

      20               When you look at the assault I ask

      21     you to focus on five different areas.  First,

      22     focus on the preparation, the chronology, the

      23     days before the attack.  Second, focus on the

      24     location where the attack, the maiming, took

      25     place.  Third, focus on the conduct of fighting

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                         Summation - Fitzgerald

       2     the officers when they respond to the attack

       3     because it tells you several things we'll go

       4     through.  Fourth, focus on what Officer Pepe

       5     told you through three different witnesses

       6     about the fact that it wasn't a them who he was

       7     fighting.  Finally, look at the forensics with

       8     the blood, what the evidence, what the DNA

       9     shows you.

      10               Make no mistake about it.  Salim was

      11     a prime mover in the attack.  Salim was angry.

      12     He was upset.  Now he's playing crazy.  He's

      13     pulling a Klinger saying, how he's nuts, he

      14     wasn't responsible.  He's a prime mover.  But

      15     make no mistake about it, this man was in it

      16     with him.  And we'll walk through the proof.

      17               Let's start with the ten days prior

      18     to the assault.  You know some things happened.

      19     You heard about Salim complaining about his

      20     attorneys.  You heard about him trying to get a

      21     severance.  He wasn't charged in the bombing,

      22     didn't like the result.  There are things going

      23     on.  You've also heard a lot about Ali Mohammed

      24     which you may recall last week when you heard

      25     him, plead guilty, and you have the transcript,

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       1   1721BIN2
                         Summation - Fitzgerald

       2     he pled guilty to all the charges naming him.

       3     It was in open court, when he walked in and

       4     said:  I'm guilty in a straightforward way.

       5     When he pled guilty the date was October 20,

       6     2000, ten days before the attack.  Six people

       7     awaiting trial, this trial in this courtroom.

       8     Ali Mohammed pleads guilty.  Don't you think

       9     that hit the other five hard?  Don't you think

      10     they'd be talking about that in the period

      11     October 20th to November 1st.  Move forward

      12     five days.

      13               October 25th, cell rotation.  Salim

      14     is brought from another cell to cell number 6

      15     then October 25th.  Khamis Mohamed is brought

      16     to another cell, to cell number 6 on October

      17     25th.  The people in cell 6 are moved out.

      18     Their belongings are taken away.  Salim and

      19     Khamis Mohamed are brought in.  No shanks.  The

      20     Afro comb turned into a bayonet stuck into

      21     Pepe's eye and brain.  The hair brush turned

      22     into a jabbing knife.  You can feel it through

      23     the plastic.  It still has a sharp edge.  Those

      24     were made.  You can't bring a shank with you to

      25     the new cell.  Those shanks were made between

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       2     October 25th and November 1st.  And you know

       3     what?  Look at the picture, look at the

       4     picture, Government Exhibit 4039 which is a

       5     picture of what's underneath that concrete desk

       6     in the 10 South unit and remember one of the

       7     things you'll see is the construction up in the

       8     ten south unit, a lot of it is awful light,

       9     that supersecure prison you heard about in

      10     Florida, stainless steel showers, concrete

      11     desks, things like that.

      12               Agent Hatton told you Government

      13     Exhibit 3049 is the markings of something going

      14     back and forth underneath the concrete desk.

      15     It's Salim and Khamis Mohamed at work making

      16     weapons on October 25th and November 1st.

      17               You'll hear about the cell rotation

      18     the log, the activity log in the period of

      19     October 25 and November 1, and you'll see that

      20     sometimes Salim was out of his cell, sometimes

      21     Khamis Mohamed was out of his cell.  And I'll

      22     do some rough math and you can check it

      23     yourself, but it's 168 hours between the

      24     morning of October 25th and the morning of

      25     November 1st, Khamis Mohamed was out of his

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       2     cell about seven hours in that time.  Salim was

       3     out of his cell about nine and a half, roughly

       4     nine and a half ten hours during that time.

       5     They were out at the same time in different

       6     rooms for about two and a half hours.  So they

       7     were apart for about 14 hours.  They're

       8     together for 154 hours.

       9               And think about Mr. Ruhnke's opening

      10     about being stuck in a Holiday Inn room with

      11     nothing to do for the rest of your life.  Well,

      12     think about being stuck in a smaller Holiday

      13     Inn room with a cellmate.  Think about being

      14     stuck in that room when you're angry, and Salim

      15     didn't hesitate to share his feelings with

      16     anyone, about how he was feeling.

      17               Think about being stuck in a room

      18     when someone just plead guilty, and think about

      19     Khamis being stuck in the room with someone who

      20     is an authority figure an educated religious

      21     person, and from what we've heard that's what

      22     Khamis listens to, if you're educated and

      23     you're religious, he follows you.  That's the

      24     two of them, October 25th to November 1st,

      25     spending their time in a cell together, shanks

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       2     being made.

       3               Something you haven't seen yet.  If

       4     you look at Government Exhibit 4020 which is a

       5     photograph, there is a stipulation you heard

       6     that Khamis Mohamed had glasses.  Those are his

       7     glasses.  That is his bed.  That is bed number

       8     one.  On this big chart here you saw that bed

       9     number one is here.  Bed number two is on the

      10     wall.  Khamis' glasses are in bed number one.

      11     Why is that important?  Because you later heard

      12     that there is a brush by bed number two.

      13     Government Exhibit 4036.  4036 is a picture of

      14     the brush in Salim's bed.  Why is that

      15     important?

      16               Well, in the year 2000 the defendant

      17     Khamis Mohamed brought two brushes, I believe

      18     the record shows April and May, and Salim

      19     brought a brush in August of 2000.  That's

      20     Salim's brush.  The agents who searched ten

      21     south and cell 6 say that's the only brush they

      22     found other than this one.  This is Khamis

      23     Mohamed's brush turned into a weapon.  This is

      24     Khamis Mohamed's brush.  And we'll show you

      25     later it was stuck in Pepe's head, because

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       2     there is blood on it.  There was blood on it.

       3     There was a picture of it and the blood is

       4     determined by the DNA person to be Officer

       5     Pepe's blood.

       6               There are two weapons that attacked

       7     Officer Pepe, one Afro comb to be clear is

       8     bought by Salim; the brush we submit to your

       9     common sense tells you was Khamis, unless of

      10     course we think Salim was secretly making a

      11     weapon hiding it from Khamis Mohamed, using

      12     Khamis' own brush.  He uses his brush everyday.

      13     Khamis had longer hair back then.  You probably

      14     saw the Otisville video.  He had longer hair.

      15               There was a saran wrap rope hidden

      16     underneath the prayer rug on Khamis Mohamed's

      17     bed number one, and you saw a picture of how

      18     the saran wrap was used around the shoes, but I

      19     submit to you the ones that were hidden around

      20     the shoes were short ones, and we'll show the

      21     picture later.

      22               The rope in his bed was different.

      23     It was an area there is to put something in,

      24     and there is a long string.  This is not to tie

      25     your shoes together.  You can take this rope.

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       2     It is strong.  There were sheets, strips of

       3     sheets, nine stips of sheets found in that

       4     cell, cell number 6, ripped into strips of

       5     cloth.  And you saw, and let's just put this up

       6     for a moment, you saw when they searched it

       7     later, two of those strips had blood on them,

       8     Officer Pepe's blood.

       9               These items, 4082, Pepe's blood was

      10     found on those strips.  Mr. Ruhnke told you

      11     that it was to Khamis' everlasting bad fortune

      12     they were put together.  I submit to you it was

      13     to Officer Pepe's.  The preparation notes, and

      14     we'll agree, assume Salim wrote the preparation

      15     notes.  There are prints on the document

      16     reference to asthma.  There is some

      17     handwriting.  The point is what is he doing

      18     with his cellmate?  It says here:  Preparation

      19     notes indicate observation that the TV may not

      20     be working.  They're aware that the tapes may

      21     not work, but to be careful.  There is

      22     indications about the 46 door which is what

      23     Officer Jacobs told you was the first door when

      24     you come up to the sally port to get to 10

      25     South.  There is talk about tying one hand to

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       2     the door, obviously, tying the hand of Officer

       3     Pepe to the door.  Talk of dividing the work of

       4     the preparation, the hunting and attack, and

       5     you know that's what Salim would do, divide the

       6     work with preparations the hunting and attack

       7     was Khamis.

       8               There is talk about keeping an eye on

       9     the back.  What does that mean?  I should have

      10     left this up.  If you look the stairs that's

      11     always used is over here.  That's where people

      12     come in.  But there's a back stairs and they

      13     are going to take hostages up there.  You don't

      14     want to be surprised from behind.  You don't

      15     want to run out front to be exposed from

      16     behind.  Where is Khamis when they come up?

      17     He's back by the electrical room also by that

      18     box that's been tampered with.

      19               There has been some indication from

      20     the psychiatric report by Salim that he had

      21     trouble talking to his cellmate.  Well, what

      22     you now know from the transcripts is Khamis

      23     talks well enough to understand the proceedings

      24     in English.  When he was first brought here,

      25     Khamis indicated his Arabic was better, and the

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       2     entire statement given to Agent Perkins in

       3     South Africa was in English.  It wasn't through

       4     an interpreter.  You can see a thirty page

       5     report single-spaced that makes sense.  He

       6     speaks English.  Salim, Salim learned

       7     electronic engineering in English.  He's

       8     explaining in English how well he knows English

       9     in that other proceeding.  They both speak

      10     English.  They both speak Arabic better.  There

      11     is no problem with them communicating.

      12               Now, let's talk about the location.

      13     What you've seen from the chronology is there

      14     is a plea on October 20th.  They are put

      15     together on October 25th.  The shanks are made

      16     in the cell.  Khamis doesn't have a brush when

      17     they search the cell later that he bought two

      18     that's clear and Salim brought the Afro comb.

      19               Mr. Ruhnke said in his opening that

      20     Mr. Garcia was playing fast and loose and what

      21     he said is, on the day in question when I talk

      22     about Mr. Garcia playing fast and loose with

      23     the facts, this is what I mean:  He told you

      24     that Officer Pepe went back to the cell, the

      25     door was opened and he was attacked.  He

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       2     doesn't know that to be true.  And no one knows

       3     that to be true.  In fact, the responding

       4     officers believe that Officer Pepe was attacked

       5     as he was escorting Salim back to his cell.

       6     Close quote.

       7               So he accused Mr. Garcia of playing

       8     fast and loose with the facts and led you to

       9     believe the assault occurred outside cell 6.  I

      10     submit to you the overwhelming evidence is that

      11     Officer Pepe was savagely attacked inside cell

      12     6.

      13               Why don't we show Government Exhibit

      14     4019.  These are Officer Pepe's keys.  Now, the

      15     keys, there are other keys to the cell door

      16     which he later heard Salim had in his hands and

      17     when he was apprehended that keys of Officer

      18     Pepe which he was trying to use with him when

      19     he's apprehended.  The balance of his keys

      20     which have the chits which show Officer Pepe's

      21     name that's by the blue box in cell number 6.

      22     His keys taken off in cell number 6.  To the

      23     right is an identity badge the badge being on

      24     the chest of his shirt.  Officer Pepe's badge

      25     found in cell 6.

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       2               Show 4018, 4021, for something that

       3     after hearing Mr. Adler's testimony mean more

       4     to you.  Mr. Adler told you that after he was

       5     meeting with Salim and Salim wanted to go back

       6     to his cell and Adler and McAllister in the one

       7     room Salim took a Redwell his files and put a

       8     jump suit on top, and was holding them a

       9     Redwell and a jump suit when he left the cell

      10     uncuffed, escorted by Officer Pepe.

      11               And he walked and talk over by the

      12     other cell near where Dratel and Schmidt were

      13     meeting with El Hage and that's the last he saw

      14     of him.  But there's Salim going back to his

      15     cell with a Redwell and orange jump suit.  The

      16     Redwell, look at 4018 and look at 4021 got all

      17     the way back to Salim's bed.  The jump suit,

      18     you can see the jump suit in the picture that,

      19     the jump suit in pictures covered with blood,

      20     Officer Pepe's blood on the jump suit is back

      21     right here in cell number 6.

      22               No one is going to tell anyone that

      23     Salim, who by the way is 42 years old, has a

      24     bad back, has asthma, is short of breath,

      25     that's what we know about his condition.  His

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       2     picture we'll put up Government Exhibit 4121.

       3     This is his picture that was taken in December

       4     of 1998.

       5               Now, Mr. Ruhnke had told you in his

       6     opening that there is one thing you didn't know

       7     about Salim, and I'll get it correct.  I want

       8     to quote it correctly.  Quote:  Something you

       9     don't know about Salim is that he's a very

      10     physically powerful man, a tall and strong man.

      11     Well, here's Hercules in December of 1998;

      12     asthma, bad back, shortness of breath and that

      13     stipulation you heard about says he lost thirty

      14     pounds since that photograph, and lost muscle

      15     tone.

      16               So on November 1, 2000, this man

      17     after losing thirty pounds and muscle tone with

      18     a bad back and asthma was taking on Officer

      19     Pepe, an officer who weighed 250 to 260 pounds

      20     and is trained in disturbance response.  He

      21     didn't take him on in the cell, and at the same

      22     time carry back his Redwell, place it on his

      23     bed and bring the jump suit in there.

      24               How about the hot sauce stains,

      25     government Exhibits 4016 and Government Exhibit

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       1   1721BIN2
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       2     4032?  Look at those stains on the wall.  There

       3     are some are yellow, some are blood red.  And

       4     look at 4032 you can see the yellow on the side

       5     of the shower, yellow on the floor of the

       6     shower, and, obviously, you have Officer Pepe's

       7     tie and his tie clasp in the shower.  It looks

       8     like someone came at Officer Pepe with this hot

       9     sauce, sprayed it in his eyes, sprayed it in

      10     his eyes trying to distract him so someone else

      11     can attack him, and someone else came from him

      12     at the side in cell 6.  There is hot sauce in

      13     the shower.  The tie is in the shower.  The ID

      14     is just around the corner.  The keys are in the

      15     corner and the jump suit and the Redwell place

      16     Salim at the back of the cell for a while;

      17     awful lot like someone coming from the side,

      18     the way Khamis Mohamed did when the officers

      19     responded.  But, certainly, Officer Pepe was

      20     attacked in cell 6.

      21               Look at 4023 and 4034.  Look at the

      22     blood, 4023, sorry, 4034.  But, again, that

      23     shows you some of those strips that had

      24     Officers Pepe's blood found in cell 6.  Look at

      25     the blood in 4023.  Look at the blood on the

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       2     floor that large piece of the jump suit, the

       3     rest of the strips and you see a bit of Saran

       4     wrap rope lying on the floor.

       5               That blood, you can blow up 4023 by

       6     itself, that blood is Officer Pepe's blood,

       7     4023.  That blood, look at the pile of blood

       8     there.  That's Officer Pepe bleeding profusely

       9     from the attack in cell 6.  Of course you have

      10     a camera.  The camera in the cell was blocked

      11     and of course the most obvious fact, where do

      12     you find Officer Pepe?  Where do you find

      13     Officer Pepe with a shank, a bayonet sticking

      14     through his eye deep into his brain?  Cell 6.

      15               And what does Officer Pepe tell

      16     people, three different people:  I fought them.

      17     They were in cell 6.  I submit to you when Mr.

      18     Garcia told you that the attack happened in

      19     cell 6, that's exactly what the evidence

      20     proved.  And Mr. Ruhnke told you it happened

      21     outside, that was wishful thinking, because

      22     when you find out that the attack happened in

      23     the cell with Salim and the man who looks up to

      24     him as a religious and educated figure, your

      25     common sense tels you he was part of it.

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       2               What happened on November 1st?  Well,

       3     Mr. Ruhnke opened to you and said, quote:  The

       4     evidence will be that Khamis Mohamed was seated

       5     on the floor outside of cell number 6 and never

       6     left that spot after Salim attacked Officer

       7     Pepe.  Close quote.

       8               He has no burden to prove anything.

       9     But I tell you if you stand up here and say

      10     something, it's not borne out.  Where is the

      11     evidence that he sat on the floor and did

      12     nothing?  The attack happened in cell 6, and

      13     you know what?  His shirt has Officer Pepe's

      14     blood on it.  His sweat pants have Officer

      15     Pepe's blood on it and the tops of his shoe has

      16     Officer Pepe's blood on it.  You don't get that

      17     sitting outside doing nothing.

      18               Now we know from Adler and McAllister

      19     what happened in the morning of November 1st,

      20     but think about the chronology.  McAllister

      21     shows up first.  Adler comes later.  They talk

      22     to Officer Pepe.  Everyone concedes world's

      23     nicest guy, and he says, let me go find out if

      24     Salim, your client, will see you.  And he comes

      25     back and tells McAllister, he's thinking about

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       2     it.  What does that tell you?  Salim's got this

       3     plan in mind to escape, to attack, to work

       4     together to divide the hunt, the preparation

       5     the attack, while Officer Pepe is talking to

       6     Paul McAllister Salim and Khamis Mohamed are

       7     back in cell 6.  And what do you think they're

       8     talking about?

       9               And when Adler arrives, he goes back

      10     to check on Salim, and sees Salim is praying,

      11     and you can see the prayer rug is right down

      12     there in the middle of the blood spot and he

      13     says:  I'll give him another ten minutes.  I

      14     don't want to interrupt his prayer.  So Officer

      15     Pepe showing kindness, trying to help a

      16     defendant prepare for this trial, leaves him to

      17     pray for ten minutes, goes back and talks to

      18     McAllister and Salim.

      19               Who's alone with Salim, Salim the man

      20     who wants to prepare the attack, divide the

      21     hunt, prepare the preparations, Khamis Mohamed.

      22     Then he comes back and says:  Salim wants to

      23     use the computer.  So he takes Adler and

      24     McAllister and locks them in that room, and

      25     while he's doing that, Khamis and Salim are

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       2     together.  You think he talked to the other guy

       3     who filed the hair brush into a shank?  You

       4     think the guy who turned the Afro comb into the

       5     shank, the guy with the hair brush sat and

       6     talked?  Of course they did.

       7               Now, let's talk about the first

       8     response.  After this happened 15 minutes are

       9     going by and they finally get the keys, Officer

      10     Jenkins, Maiden, Carrino and others come

      11     running down the hall.  When they turn the

      12     corner, they see Salim with a key, opening the

      13     door to cell 6, and running into cell 6 where

      14     they did not know at the time Officer Pepe was

      15     there bleeding.

      16               Where was Khamis?  When Officer

      17     Jenkins the first guy on the scene grabs what

      18     has been called a shield, but it's not a

      19     shield, it's a sound shield.  It wasn't meant

      20     as a weapon or protection.  It's to cover

      21     sound.  Grabs that shield and runs along.

      22     Khamis jumps out on the side, tries to squirt

      23     hot sauce on him.

      24               Stop there a moment, focusing.  Where

      25     is the hot sauce?  Here we have to understand

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       2     Khamis.  We have to understand Khamis, because

       3     he went to a mosque, he didn't get to Bosnia,

       4     all the things, the fanta praying on his mind,

       5     and we put on our microscope.  Officers knowing

       6     they're in deep trouble, they know Officer Pepe

       7     is unaccounted for 15 minutes.  They see blood.

       8     He doesn't answer the phone, and they see

       9     inmates on the loose.  They are running through

      10     that room.  You saw the ADX video watching some

      11     guys fight.  You wouldn't want to be the one to

      12     have to go out and break up that fight, and

      13     that was nothing compared to the scene of

      14     horrors of 10 South.  They're running through,

      15     and we're expecting them to remember that the

      16     hot sauce on the shield, the hot sauce in this

      17     way and which way it broke, and which way did

      18     it go.  Seconds it happened.  What's more

      19     important?

      20               First of all, what's Khamis doing

      21     outside the cell?  Salim's got depo all his

      22     prey locked up.  Officer Pepe's locked in cell

      23     6.  He's the enemy.  He's the hostage.  Adler

      24     and McAllister cleverly are locked in the other

      25     room.

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       2               You want the people who are against

       3     you locked up.  Khamis's on the loose.  The two

       4     people allowed to be on the loose are Salim and

       5     Khamis.  And what's Khamis doing with hot

       6     sauce?  They are not part of the attack.  You

       7     don't run a let me escape the cell, grab the

       8     hot sauce.  What's the hot sauce for?  The hot

       9     sauce was part of the plan.  The hot sauce is

      10     how they first attacked Pepe to distract him to

      11     try to blind him and jump him, and then he's

      12     getting ready to do exactly what he did, when

      13     the next people come, grab the hot sauce spray

      14     it in their eyes, try and distract them.

      15               What's he doing with hot sauce?  What

      16     innocent reason?  There is none.  Would you

      17     ever in the middle a blood bath reach over,

      18     reach over in there, grab the hot sauce and run

      19     out of the cell unless you're part of it?

      20     Remember the hot sauce stains on Pepe's pants?

      21     Officer Pepe's pants, and on the clothes of

      22     Jenkins and Maiden and the other fellows?

      23     That's the key.

      24               Meanwhile, Khamis Mohamed, he

      25     struggles with the various people and there is

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       2     confusion about who pushed the shield, who

       3     lunges at the shield, which way it breaks.

       4     Okay.  He's fighting with them.  They conceded

       5     that in the opening.  They said we agree we

       6     fought back against the officers.  He struggled

       7     with the officer, and they are trying to put a

       8     cuff on him, and think about this, aren't we

       9     lucky that no one else got stabbed in that

      10     process?

      11               Aren't we lucky that Khamis wrestling

      12     around with three officers, that Salim's coming

      13     back out of the cell, he could have grabbed the

      14     other shank to kill someone else?  That's the

      15     whole point.

      16               People are dangerous just from the

      17     fact that in the middle of a melee where people

      18     are trying to be killed you jump in and attack

      19     the officers, but don't think it's limited to

      20     that.  On August 7, 1998 he made a choice to

      21     murder people in cold blood.  In October of 199

      22     he says, I'll do it again.

      23               And the first time someone, from an

      24     officer who can still testify, who still has

      25     their brain, sees him, he's attacking someone.

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       2     Do you think he was peaceful in between?  Do

       3     you think that shank got built in the cell

       4     without him?  He was part of that assault.

       5               And there is no way anyone can do the

       6     damage to Officer Pepe on their own.  Officer

       7     Pepe came out and he had one cuff on his arm.

       8     The camera got blocked.  His tie came off.  The

       9     ID came off.  Salim took the keys.  That's what

      10     he told you.  Then he had the keys.  Later the

      11     sheets on the floor, saran wrap, two shanks,

      12     and we'll talk about the other shank with Dr.

      13     Koslow.  The electrical box is tampered with

      14     and you have to watch the back.  It is not one

      15     person acting on their own, and let me tell you

      16     this.

      17               You have to visualize for a reason

      18     the force it took to stick that knife into

      19     Officer Pepe's brain.  Imagine a 250 to 260

      20     pound trained officer, trained in disturbance

      21     response.  How do you take an Afro comb shaped

      22     into a knife and take that and drive a piece of

      23     hard plastic through the eye destroying the eye

      24     and orbit, striking the bone at the back and

      25     plunging it eight centimeters, two and a half

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       2     inches into his brain?

       3               Look at picture Government Exhibit

       4     4110.  That's how far in that knife got stuck

       5     in Officer Pepe's brain.  250, 260 against

       6     someone.  If it's Salim, Salim is 155 pounds,

       7     thirty pounds lighter than that.  Note, lost

       8     muscle tone.  How much force does it take to

       9     stick a bayonet through someone's eye like

      10     that?  Unless someone else is helping unless

      11     someone's holding unless you have them pinned

      12     on the ground.  One man can't do it.

      13               Now, let's talk about Pepe's

      14     statements because you know what?  We heard

      15     that, gee, but for the camera we would know

      16     what happened and how unfortunate for Khamis.

      17     Well, the camera didn't record in fact the

      18     notes show that when Salim wrote the note he

      19     knew the camera wasn't recording, but had left

      20     nothing to chance because if it did record you

      21     would have seen the other side of the piece of

      22     toilet paper but you know what, there was a man

      23     in cell 6 who saw what happened.  There was a

      24     man in cell 6 who lived and almost died what

      25     happened.  There was a man in cell 6 who knew

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       2     who assaulted him.  Right now he can't talk.

       3     But on November 1, 2000, he did.  He did.  He

       4     told witnesses and through those witnesses told

       5     you that was they who attacked him.  He didn't

       6     say him.  They.  Let's talk about those

       7     witnesses.

       8               Carrino, he told you from his

       9     testimony that Officer Pepe said quote Lieu --

      10     Lieu is probably short for lieutenant -- I gave

      11     them a fight.  I fought back and you know what?

      12     That's true.  Officer Pepe's a hero.  He was 15

      13     minutes up there for Officer Pepe to fight them

      14     off, we're lucky there wasn't a lot more

      15     damage.  And he's in there fighting.  You can

      16     see the blood in cell number 6.  And he was

      17     remarkably strong to be able to walk off that

      18     floor with that bayonet sticking in his eye and

      19     walk down the stairs to the hospital.  And he

      20     told Lieutenant Carrino.  I gave them a fight.

      21               And what do we hear in

      22     cross-examination?  Previously he said the

      23     words, I got them, I gave them a fight.  The

      24     report he said, they slipped the cuffs but I

      25     gave them a fight.  And in the statement to the

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       2     FBI he said, they slipped the cuffs and I

       3     fought back.  The bottom line, it's always

       4     they.  It's always them.

       5               There is only two people who could

       6     have been them, Salim and Khamis Mohamed.  I

       7     submit to you through lieutenant Carrino,

       8     Officer Pepe told you that this was not Salim

       9     acting alone.  This was not Hercules acting

      10     alone sticking the bayonet into Officer Pepe's

      11     eye.

      12               Patel, the physician's assistant, he

      13     wasn't part of the response team.  He wasn't

      14     part of the response team.  He went up to 10

      15     South.  He saw Officer Pepe and then he took

      16     him downstairs and what did Mr. Patel tell you?

      17     Officer Pepe told him, I gave them a good

      18     fight.

      19               What was the cross-examination?  You

      20     were told it wasn't put in his medical injury

      21     report.  Now the injury report's in evidence

      22     and when the physician assistant is writing

      23     down the medical things he doesn't write, I

      24     gave them a good fight.  And what did he say on

      25     cross-examination when he was asked that?  Did

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       2     you make any note of it at the time it was

       3     said?  Display Government Exhibit 4074.  And

       4     his answer was:  It was around the time when he

       5     was on the gurney.  We were trying to start an

       6     IV on him.  He's in there, the physician's

       7     assistant to save Officer Pepe's life.  And

       8     look at that picture.  What you have to

       9     appreciate is look at Officer Pepe's nose and

      10     mouth.  Get a sense of the distance there.  The

      11     shot where the difference between his nose and

      12     his mouth is very short.  Look at that gauze

      13     and look at the bayonet still sticking out of

      14     his eye.  Remember they wrapped the gauze

      15     around it to keep the bayonet still?

      16               Look at that weapon sticking into his

      17     eye and to his brain, and we're going to say,

      18     Patel, you're making it up?  Sure, you told the

      19     FBI the first time you're asked in the report,

      20     but you didn't stop saving his life to write it

      21     down?  Mr. Patel's testimony is devastating

      22     because he told you it was them.  It was they.

      23               Elise Santilli.  Take the picture

      24     down.  She was an officer employee at the MCC

      25     out getting mail out, getting mail for inmates

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       2     at the MCC.  She comes back and doesn't know

       3     what, she's not up on 10 south, but when she

       4     gets back she finds out Officer Pepe is hurt

       5     badly hurt, and has to go to the hospital and

       6     she rides in that ambulance with Officer Pepe.

       7     And what does she tell you?

       8               Officer Pepe is remarkable because he

       9     has this thing sticking in his brain where

      10     Dr. Koslow tells us is the injury is cascading,

      11     there is more and more damage to the brain over

      12     time.  So at that time that moment his brain

      13     remarkably is still functioning, and how do you

      14     know it's still functioning?  Because he's

      15     getting rushed to Bellevue and what she tells

      16     us is as they are driving along, Officer Pepe's

      17     saying:  Where are we?  Where are we?  What

      18     street are we at?  Tell me the name of the

      19     street.  He knows he's in trouble.  He's got

      20     this thing sticking out of his eye.  He wants

      21     to know when is he getting there.

      22               And then the paramedic says:  What's

      23     your date of birth?  And he remembers it.  He

      24     knows enough to know the way to Bellevue.  He

      25     knows enough to ask about the streets.  He

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       2     knows enough in his brain at that time to know

       3     his date of birth.

       4               What does he say?  I got them.  Now

       5     you heard when she spoke to the FBI agent as

       6     she's sitting in a hospital with everything

       7     going on, she doesn't mention that statement

       8     that day while he's in a room having a bayonet

       9     taken out of his eye while he's bleeding, while

      10     doing x-rays.

      11               I submit to you those three witnesses

      12     are the last words Officer Pepe will say that

      13     make sense.  And they tell you, they tell you

      14     that on November 1, 2000 the people who took

      15     Officer Pepe's life for what it was, was them,

      16     Salim and Khamis Mohamed.  You can't forget

      17     that.

      18               You know from the crime scene that

      19     one more thing you heard from the testimony of

      20     Adler and McAllister that after the assault

      21     when Salim was being taken away, that Adler and

      22     McAllister both saw an officer take what looked

      23     like a key and punch Salim near the eye.  And I

      24     submit to you Adler and McAllister both told

      25     you about it.  It happened.  You can see from

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       2     the forensics there is blood of Salim there.

       3     It must have happened.  Adler and McAllister

       4     are telling you the truth.

       5               I submit to you under the stress of

       6     the situation it wasn't as bad an injury as

       7     they thought because they both saw the next few

       8     days they saw him and Adler even wondered

       9     whether that was the guy who had been punched,

      10     because they saw the record.  There was a

      11     laceration in his head.  No excuse for it.

      12     None.  Should not happen.

      13               But I want to talk about a different

      14     cut you haven't heard much about and the cut

      15     you haven't heard much about is the other cut

      16     on Officer Pepe's head.  I'm going to jump

      17     ahead to Dr. Koslow.  Dr. Koslow told you that

      18     sure there was this bayonet sticking in the

      19     eye.  And the eye was destroyed and the orbit

      20     and damaging to the brain, but he also told you

      21     about another cut, a cut that went into Officer

      22     Pepe's head and inch deep to the bone.  That

      23     was up here.

      24               So whatever that bayonet did, got a

      25     bayonet in the eye there is another cut inch

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       2     deep to the bone and in fact they used that cut

       3     to start the surgery when they had to do all

       4     sorts of things to pull Officer Pepe's head to

       5     reconstruct it after they took if apart to take

       6     the knife out.

       7               And I submit to you if you look at

       8     Government Exhibit 4042, let's look at it the

       9     way it was found on the floor, Government

      10     Exhibit 4029, after the assault.  This is after

      11     the lab got it.  Look at 4029.  Look at that

      12     brush.  Look at the blood and the hole and the

      13     bristles.  You don't get blood soaked in the

      14     holes of the bristles from dropping it on the

      15     floor.  That was used on Officer Pepe.  That is

      16     how the DNA expert told you that shank, that

      17     comb had Officer Pepe's blood on it.

      18               Now, we don't know who plunged it

      19     into Officer Pepe.  There is some evidence that

      20     at some point Salim may have wielded it later

      21     against someone.  There are shanks in there.

      22     There are weapons, there is hot sauce, a lot of

      23     weapons, a lot of different tactics being used.

      24               I submit to you when you look at the

      25     forensic evidence and you look at the brush

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       2     which has Pepe's blood on it, and the bayonet,

       3     when you look at the sheet strips in the cell

       4     with Pepe's blood on it, when you look at both

       5     Khamis Mohamed's clothes and Salim's clothes,

       6     both shirts have Pepe's blood on it both sweat

       7     pants Pepe's blood on it, Khamis Mohamed's

       8     shoes has Pepe's blood on it on the top.  He

       9     didn't get that sitting outside the cell.

      10               Let me take you back to Mr. Ruhnke's

      11     opening and talking to you about Khamis Mohamed

      12     and how it is that he might have to spend the

      13     rest of his life in the Holiday Inn, what's

      14     like a Holiday Inn hotel room, except maybe

      15     it's more like a hotel bathroom.

      16               Maybe the first day it's okay, but to

      17     spend the rest of your life there how horrible

      18     would that be?  Let's look at the danger that

      19     Khamis Mohamed and Salim pose to everyone they

      20     come into contact with, not just correction

      21     officers, but staff, psychologists, people who

      22     come to visit.

      23               Let's compare even if Khamis Mohamed

      24     were sentenced to the conditions for the worst

      25     of the worst of the worst to what Officer Pepe

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       2     has.  Don't you think Officer Pepe if he could

       3     would get down on his knees and pray for what

       4     Khamis has?  Khamis with access to a law

       5     library.  Pepe, what would he do with a law

       6     library?  One of his eyes is missing.  A field

       7     of the sight removed from the other.  He

       8     can't --

       9               MR. RUHNKE:  Objection.

      10               THE COURT:  Overruled.

      11               MR. FITZGERALD:  Khamis Mohamed will

      12     have a TV.  What will Officer Pepe do with a

      13     TV?  Khamis Mohamed will have exercise an hour

      14     a day.  Officer Pepe wishes he could exercise

      15     and hour a day.  Khamis Mohamed if he goes to

      16     penitentiary will be unescorted.  If he goes to

      17     the worst of the worst of the worst, they may

      18     give him a three-man escort to try to make sure

      19     he doesn't kill or maim again.

      20               Officer Pepe will have an escort

      21     because he's partially paralyzed.  Khamis

      22     Mohamed is allowed visits.  Officer Pepe

      23     doesn't recognize the people who visit.  You

      24     heard about Khamis Mohamed's loss of human

      25     contact, Officer Pepe lost his humanity.  He

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       2     didn't lose his humanity, lost his human

       3     dignity, stolen from him by Salim and Khamis

       4     Mohamed.

       5               That's how they treated someone who

       6     is there to help them.  Sure, he's an officer

       7     guardian, but he was helping them.  He would go

       8     to Salim and let him pray and make a decision

       9     make sure he had the material to come to court

      10     to get justice.  And in a cold calculated

      11     deceitful way they led him to believe they were

      12     nice guys.

      13               They led him to believe that they

      14     were like the Nasser who worked down in Burger

      15     World.  And when he turned his back, when he

      16     trusted too much, when he made the human

      17     mistake of being human, they committed a savage

      18     act on him, tried to take him hostage, tried to

      19     take Salim's attorneys hostage.  He's paying

      20     the price, Officer Pepe, ever since.

      21               Having said that, I submit to you

      22     that what you now know about Khamis Mohamed

      23     that he made a cold choice, a free choice and

      24     unhesitating choice to murder people on August

      25     7, 1998.  He was honest in October 1999 when he

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       2     said, I did it and I'll do it again.

       3               In November 1, 2000 to the

       4     everlasting misfortune of Officer Pepe he and

       5     Salim struck again, and what's dangerous about

       6     Khamis Mohamed is that he does not have the

       7     fire in the eyes.  He has the ice in the veins,

       8     and he can play Mr. nice guy, but he sits there

       9     waiting to kill again.

      10               Now, in determining what sentence

      11     Khamis Mohamed should receive, in determining

      12     what sentence he should receive for the brutal

      13     murder, callous murder of eleven of his

      14     countrymen on August 7th, you should bear in

      15     mind that you cannot afford to give Khamis

      16     Mohamed mercy or extra justice.  He's sentenced

      17     everyone else he comes in contact with for the

      18     next fifty years to all the dangers that he

      19     presents as a trained killer who kills in cold

      20     blood with no remorse.

      21               Now in looking at the factors when

      22     you analyze the factors set forth in this case

      23     I'll talk briefly about the gateway factors.

      24               The gateway factors we can display

      25     them on the screen, there are four of them.

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       2               That the defendant intentionally

       3     killed the victim or victims of a particular

       4     capital offense charged in a respective count

       5     in the indictment.  2.  The defendant

       6     intentionally inflicted serous bodily injury as

       7     a result resulting in death of the victim the

       8     particular count you're considering.  3.  That

       9     he intentionally participated in an act

      10     contemplating that a life would be taken and

      11     the victim or the victims basically died as a

      12     result.  4.  That he intentionally participated

      13     in an act creating a grave risk of death that

      14     people would be killed and the victim died as a

      15     result.

      16               I submit to you that all four have

      17     been easily proven the same reasons you found

      18     the defendant guilty, the same reasons you

      19     found the defendant himself killed those eleven

      20     people.  He chose to do a jihad job.  He rented

      21     the premise.  He bought the vehicle.  He helped

      22     grind the TNT.  He did what it took to get the

      23     truck out of the sand and to get it to a Uhuru

      24     Road on its mission of death and he agreed to

      25     clean up afterward and get out of town.  He

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       2     killed people.  I submit to you that the

       3     gateway factors should be easily found.

       4               Let's talk more importantly about the

       5     statutory aggravating factors, because remember

       6     the gateway factors once you find one of them

       7     you do not weigh the gateway factors in making

       8     the ultimate decision.  The statutory

       9     aggravating factors are weighed in that

      10     process.  And, in fact, any one statutory

      11     aggravating factor alone could, if you found,

      12     justify a death sentence in itself.

      13               (Continued on next page)

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

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       2               MR. FITZGERALD:  (Continuing) Let's

       3     talk about the four statutory aggravating

       4     factors.

       5               The first is that the deaths and

       6     injuries resulting in death occurred during the

       7     commission or attempted commission of another

       8     offense; that is, for each of the counts you

       9     are looking at, when Khalfan committed that

      10     crime, was he also doing it in the course of

      11     committing other crimes.  I submit to you when

      12     you review the judge's charge, review the

      13     evidence, that is clearly done.  You will find,

      14     I submit, that factor.

      15               But you may wonder how much weight to

      16     give that particular factor.  I will tell you

      17     candidly, that factor should be given less

      18     weight.  But I'll tell you why.  That is a

      19     statute that says you know when a person

      20     commits murder, they are eligible for the death

      21     penalty, and you are trying to decide of those

      22     people who commit murder -- and there are

      23     people who deal drugs, there are people who

      24     commit murders for lots of reasons, lots of

      25     different places -- should they be selected out

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       2     as being the persons who merit or are eligible

       3     for the death penalty.

       4               And sometimes the underlying crime

       5     connected to the crime makes it seem a lot

       6     worse.  A person may kill as part of a drug

       7     deal or may kill as part of an effort to take

       8     over an airplane.  In this case, this factor

       9     doesn't jump out at you.  And you know why?

      10     Because the underlying crime is so horrible.

      11     This is mass murder.  You are in a room with

      12     someone who coldly killed 11 people.  It's hard

      13     to look at the other crimes and be wowed by it

      14     because you are numbed by the offense he

      15     committed.  Bear that in mind.

      16               The second factor is the fact that

      17     the defendant, in the commission of the

      18     offense, knowingly created a grave risk of

      19     death to one or more persons in addition to the

      20     victim.

      21               I remind you to think about Lizzy

      22     Slater.  She testified at the guilt phase of

      23     the trial.  She was the woman who was in an

      24     office and when the building blew up.  The wall

      25     fell on her.  She had to crawl out.  And when

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       2     she finally got outside, remember she saw a man

       3     with skin off, burning.  It was so horrible,

       4     she said, "I wish he would just hurry up and

       5     die."

       6               That's Pat Wagner, who was in her

       7     office when the wall got blown around behind

       8     it, and she is crawling out and she is stuck

       9     and she sees Cynthia Kimble with a piece of

      10     concrete stuck in her eye and has to rush her

      11     to the hospital, where she is bleeding next to

      12     a man face-down on a cot where the blood is

      13     flowing over the side.

      14               That's Henry Kessey, who told you

      15     that as he leaves the building, there's so much

      16     damage to his eye and so much blood, people are

      17     yelling, "Kessey is going to die.  Kessey is

      18     going to die."

      19               And you know what else it is?  It's

      20     Government Exhibit 1130.  That's the building

      21     across the street where the children's play

      22     group meets.  Fortunately, the Connolly family

      23     who had the children's play group there was out

      24     of town that week.  That's the crater from the

      25     bomb.  That's the house -- what's left of the

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       2     house where the children's play group met.

       3               The damage on August 7th in Dar es

       4     Salaam Tanzania was horrible.  11 dead, 60, 70,

       5     75 injured.  It's horrible.  It could have been

       6     worse.  It could have been the children's play

       7     group.

       8               He doesn't get credit for the fact

       9     that the Connolly family went away.  You will

      10     hear that he didn't know where the embassy was.

      11     And that's true.  And he didn't care.  He

      12     didn't give a damn.  He didn't care who was

      13     around it, who was in it, who was there.  He

      14     didn't kill before he bombed it, he didn't care

      15     afterward.  That's a grave risk of death, and

      16     that statutory aggravating factor is worth an

      17     awful lot.  It is heavily weighted, because he

      18     put all sorts of lives at risk and didn't care.

      19               The third factor, substantial

      20     planning and premeditation to cause death of

      21     one or more persons or to commit an act of

      22     terrorism.

      23               This defendant planned.  This

      24     defendant knew what was going on, knew where

      25     the target was.  He got the house.  He got the

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       2     truck.  He helped load the truck.  He made sure

       3     that the tow truck was there in case it didn't

       4     work.

       5               This factor should be given some less

       6     weight by the fact that others planned a lot

       7     more, but recognize what you are weighing here

       8     in deciding a sentence.  It is not just who

       9     else involved with these guys is worse, but is

      10     Khalfan Mohamed, from the collection of all the

      11     people who committed murder, someone who should

      12     be selected out.

      13               And this substantial planning tells

      14     you something very different.  Forgetting who

      15     did the most planning.  He planned, he

      16     premeditated, he wanted to do an act of

      17     terrorism.  This wasn't killing in the heat of

      18     passion.  This wasn't an argument.  This wasn't

      19     a fight.  This wasn't something where people

      20     got upset and lost their emotions or were

      21     disturbed for a while.  He killed in cold

      22     blood.

      23               I submit to you when you think about

      24     three, think about what it tells you about his

      25     dangerousness, what it tells you about the

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       2     evilness of his conduct.  It was preplanned to

       3     commit an act of terror, to take innocent

       4     people, blow them up to make your point.

       5               And the final statutory aggravating

       6     factor, the fact that he intentionally killed

       7     or attempted to kill more than one person in a

       8     single episode.  And again, that should jump

       9     out to you.  This is not a person who murdered

      10     one person.  He murdered 11 and could have

      11     murdered a lot more.

      12               I submit to you if you take the grave

      13     risk of death, the premeditation, and killing

      14     more than one person in an episode, those three

      15     factors together, without any non-statutories

      16     necessary, justify the death penalty in this

      17     case.

      18               But let's talk about the

      19     non-statutory aggravators, and I'll start with

      20     the second one, victim impact, since we have

      21     been discussing that.  Let's talk not just

      22     about Liz Slater, not just about Pat Wagner,

      23     but think about what Pat Wagner goes through.

      24               We heard just last week at the end of

      25     the week about how it is that someone down in

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       2     South Africa, nice person, but in denial, is

       3     upset; they miss Nassor, who used to make

       4     garlic chicken.  Compare that to Pat Wagner.

       5     She sees a woman and a child, she thinks of a

       6     miscarriage, the baby she lost, and thinks of

       7     the bombing.

       8               Think about Cynthia Kimble, her eye

       9     ruined.  And Pat Wagner told you she's in touch

      10     with her and she's sad and she's depressed.

      11     Her life is ruined by the injuries she received

      12     on the bombing that day.

      13               Think about Edward Ruthashewra and

      14     how he almost died, went to get tea and he came

      15     back and his buddy is dead, the guy who

      16     replaced him.  Think about Ruthashewra's

      17     brother, Valentyne Katunda.  He was there and

      18     he was one, one of the guards who survived.

      19               Look at the Government Exhibit 3012.

      20     That's a chart.  There are six names on the

      21     chart.  All six are guards.  The blue name is

      22     Valentyne Katunda.  He is the one who

      23     testified.  He testified because he is alive.

      24     The other names, all dead, all guards who

      25     worked to put food on their table, to support

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       2     their families, and Khalfan murdered them.

       3               Has anyone in history murdered more

       4     guards, attacked more guards?  He murders five

       5     guards on August 7th, and then we have the

       6     incident November 1st in the MCC.  Valentyne

       7     Katunda told you he's buried in the rubble,

       8     buried in the rubble for hours.

       9               And you know what?  Mtendeje,

      10     Mtendeje Mbegu.  We'll put her picture up,

      11     Government Exhibit 3030.  That's Mtendeje.

      12     Remember Henry Kessey told you she was a very

      13     nice, very happy woman, he liked to talk to her

      14     every day.  She stuck out above all the other

      15     guards.  And that's one of her two children.

      16               She was killed on August 7th, 1998

      17     when she was going in for an interview to get a

      18     better job as a secretary in the embassy,

      19     leaving her husband, bringing her papers,

      20     bringing her Koran, and saying to her husband,

      21     "Pray for me.  I want a better job."

      22               What did Valentyne Katunda tell you,

      23     where did she die?  He told you she died in the

      24     room with him.  As he said, "She was lying on

      25     my stomach." that beautiful woman, a mother, a

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       2     wife, blown to bits by Khalfan Mohamed.  She

       3     lies across the stomach of Valentyne Katunda,

       4     buried in the rubble for hours.  And he didn't

       5     give a damn.  Get rid of the grinder, get my

       6     name, go to South Africa and be a nice guy.

       7               Who else was killed?  Omari Nyumbu,

       8     Government Exhibit 3029.  That's Omari Nyumbu.

       9     That's him at his job as a security guard.  He

      10     had a wife, Asha Kambenga, who testified.  And

      11     Asha told you she had a daughter from a prior

      12     marriage, and then when this man Omari came

      13     into her life, he raised her daughter like she

      14     was his own.

      15               And then Government Exhibit 3000,

      16     this is what Khalfan did to that nice man, left

      17     Asha Kambenga, at 22 years old, without a

      18     husband, left a daughter, 4 years old, without

      19     a father.  Remember what Asha told you.  She

      20     can't send her; daughter to school.  And she

      21     said before she left, "Sometimes we don't eat."

      22     That's what she has got to live with.  That's

      23     what's left with Khalfan, who has no remorse.

      24               Government Exhibit 3023, Elisa Paul,

      25     another security guard, ironically posing very

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       2     near where he was killed, a person so brutally

       3     killed he had to be identified by body parts

       4     and DNA.  He left behind his wife Grace, his

       5     young daughter Merisiana.

       6               What does Merisiana do?  What does

       7     she have for a father?  Bear this in mind when

       8     we hear Khalfan had a rough childhood, he grew

       9     up without a father.  And that is a shame, but

      10     it's not a justification for what he did to

      11     this father.  Merisiana carries a picture of

      12     her dad to show people, this is my father.  She

      13     had a father.  She's left with plastic, glass,

      14     wood, a photograph.  She can't be sent to

      15     school.

      16               Government Exhibit 3027 is a picture

      17     of Abbas Mwila, another guard, who left behind

      18     his wife and three children, William was one,

      19     Edna was five, and on August 7th, 1998, when

      20     Khalfan Mohamed killed him, when he killed that

      21     man, the youngest child was named Happiness,

      22     six months old.  Happiness had no father due to

      23     Khalfan Mohamed.

      24               We don't have a social history of the

      25     man in Government Exhibit 3027, but his widow

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       2     told you that there was six families living in

       3     the house.  Their home was one room.  No

       4     electricity.  No running water.  She raises the

       5     children, she raises the father-in-law, and she

       6     earns $25 a month.

       7               So when you hear about the mitigators

       8     later, about Khalfan not growing up with a

       9     golden spoon in his mouth, remember what he

      10     did, how he brutally slaughtered people, left

      11     them behind and didn't give a damn.

      12               Government Exhibit 3028, Yusufu

      13     Ndange.  He was killed.  He was a water truck

      14     driver at the embassy, and you heard from his

      15     wife, Hanuni Ndange.  And he left six children,

      16     none of whom have a job.  They ranged in

      17     various ages from 12 to 25 for the time he was

      18     killed.  None of them work.  They are left

      19     without their breadwinner.

      20               You heard about Mahundi, Mr. Mahundi,

      21     Government Exhibit 3025, another driver,

      22     another person who worked as a driver, his life

      23     taken by Khalfan Mohamed.  We have no social

      24     history of him.

      25               Government Exhibit 3031, Saidi

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       2     Rogathi, another person who worked on the water

       3     truck, killed.

       4               Just think, for each of these

       5     persons, you don't know where they were born

       6     and, some of them, where they came from, and

       7     all they struggled through in life, but all

       8     they did was work hard to put food on their

       9     table, to do their life.

      10               And one thing we have to remember

      11     here is we hear a lot about different cultures;

      12     and sure, Tanzania is a different place and

      13     they speak a different language, but let's not

      14     lose sight of something.  They are people just

      15     like us, and the bond between us are far closer

      16     than they have been described.  They are

      17     hard-working people.  They are people who love,

      18     who laugh when they can, who cry when they are

      19     hurt, who go to school, who try to get jobs,

      20     try to get education, try to raise families.

      21     And one thing they do is they know right from

      22     wrong, and let's not let this case take Khalfan

      23     Mohamed and hide behind the Muslims, hide

      24     behind the Tanzanians and not like this is

      25     something we don't all understand.

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       2               It's something none of the people

       3     around him understood.  When you heard from his

       4     family, they never would have thought he would

       5     have engaged in violence.  When you heard from

       6     the imam in South Africa, he never thought that

       7     Khalfan would engage in violence.  When you

       8     heard from the Dalvies, they thought he

       9     wouldn't hurt an ant.  That's because Khalfan

      10     has a side to him, a cold-blooded killing side

      11     that he kills, remorseless, by choice, and

      12     doesn't show it to people.  That's not a

      13     cultural thing.  That's an evil character trait

      14     of the defendant.  That's what killed those

      15     people on August 7th.  That's what happened on

      16     November 1st, 2000.

      17               And let's not try to hide behind

      18     culture or religion.  Many, many people grew up

      19     in Tanzania with a lot less.  Many people grew

      20     up in America with a lot less.  He had a loving

      21     family.  There is no abuse.  That family didn't

      22     have violence in it or drugs or alcohol abuse

      23     or other stuff.  A lot of people grow up with

      24     rough lives a lot closer to this courthouse

      25     than Tanzania.  He had a loving family and he

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       2     made a cold choice.  He decided to do what he

       3     did and kill people and have no remorse.

       4               Government Exhibit 3022, Mohamed

       5     Jelani Mohamed, a man who helped his family,

       6     who helped his village, with a wife, who had

       7     children from a prior marriage that he tried to

       8     see but obviously will never see again.

       9     Khalfan Mohamed killed him, too.

      10               And Doto Rahadhani, Government

      11     Exhibit 3032.  Remember Doto.  Doto, his twin

      12     Kulwa testified.  The two of them played

      13     together.  They actually played on a soccer

      14     team together, but they had a rough life.

      15     Their mother and father both died.  They were

      16     left with four brothers and sisters, and it was

      17     Doto who was the family breadwinner.

      18               In fact, it's not coincidence that

      19     all the people killed were the family

      20     breadwinners.  A job in the embassy is a good

      21     job.  The people who work there were the

      22     mainstays of their families and their

      23     communities.  They could earn money to help

      24     others.

      25               And Doto was raising his family,

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       2     raising his brothers and sisters, raising his

       3     twin brother.  He had a fiance, Martha.  They

       4     were going to be married in September of 1998.

       5     If Khalfan Mohamed hadn't killed him, hadn't

       6     killed Doto a month before, he would be married

       7     and he would have his plan, his plan for two

       8     children.

       9               I submit to you that the victim

      10     impact in this case, we cannot get numb to it.

      11     We cannot get numb to it because of all the

      12     death we have heard.  We cannot be numbed to it

      13     because people speak a different language, are

      14     soft-spoken, from a different country.  They

      15     were good, decent, hard-working, law-abiding

      16     people who were slaughtered.  Khalfan doesn't

      17     care, but we all should.  I submit to you that

      18     the victim impact in this case, the magnitude

      19     of the crime, what he did to people is a

      20     sufficient reason to vote for the death

      21     penalty.

      22               And you may ask yourself, well, you

      23     know what, all those people are dead.  Voting

      24     for the death penalty doesn't bring anyone

      25     back.  What does it do?  I submit to you we

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       2     have to start thinking, we can't stop looking

       3     at Khalfan saying, what can we do for him?  We

       4     can't think of the victims as water under the

       5     bridge, because that's what Khalfan wants them

       6     to be.  Khalfan, the whole point to the

       7     bombing, the whole point to the bombing is to

       8     terrify people, slaughter them, bomb them, kill

       9     them.

      10               Omari Nyumbu's daughter doesn't go to

      11     school.  She doesn't eat.  What Khalfan did

      12     with the others is unspeakable.  And at some

      13     point, at some point when you do crimes so

      14     heinous, when you kill people, when you leave

      15     them with no one to visit and no one to write

      16     mail, to be blunt, you forfeit your right to

      17     live on this earth.

      18               When you take other people's lives

      19     away to coldly, to callously, after a moral

      20     choice to do so, you have lost your right.  And

      21     then, in the process, when you are standing for

      22     justice to try to beg for mercy for what you

      23     did, if you turn and do what you did to Officer

      24     Pepe, who was part of that process, we can't

      25     afford to let him do that to anyone else.

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       2               Let's talk about the second

       3     non-statutory aggravating factor:  Future

       4     dangerousness.  This is another key factor.  I

       5     submit to you that you have to understand that

       6     this case is not about what happened to Khalfan

       7     or what Khalfan did or what Khalfan chose to

       8     do, what he happened on the world.  He went for

       9     training.  He did the bombing.  He made the

      10     threats.  He did the assault.  I submit to you

      11     there is no remorse.  Any crocodile tears he

      12     sheds are for him and not for the people he

      13     left fatherless, without meals, without

      14     educations.  He cries only for himself.

      15               I submit to you the danger he poses

      16     is precisely because there is no fire in his

      17     eyes, there is ice in his veins.  And to leave

      18     him, for ten, twenty, thirty, forty, maybe

      19     fifty years in the prison system, to have

      20     guards have to watch him, three eight-hour

      21     shifts a day, seven days a week, fifty-two

      22     weeks a year for four, five decades in a prison

      23     system, where maybe he goes to Florence ADX --

      24     and remember, when you see those pictures that

      25     Dr. Cunningham shows you of stainless steel

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       2     cells, the pictures he shows always leave out

       3     the inmate.  The danger isn't from the shower

       4     or the concrete bed, it's the person in there.

       5     And this man has proven himself to be a danger

       6     time and time again.

       7               I submit to you his future

       8     dangerousness is something you have to weigh

       9     heavily.  When you decide between a death

      10     sentence and a life sentence, clearly there is

      11     a lot to weigh on the side of a death sentence.

      12     You do not wish to impose a death sentence

      13     inappropriately.  Of course not.  But you do

      14     not wish to impose a life sentence

      15     inappropriately when you leave the staff, the

      16     psychologists, the warden, the physician's

      17     assistants, the corrections officers, all those

      18     people to go by day after day after day.  And

      19     you learn that the people in the ADX prison,

      20     they leave, they go to penitentiaries where

      21     they can walk among thousands.  And he couldn't

      22     be trusted in the 10 South Unit up on MCC on

      23     November 1, 2000.

      24               It only takes once.  It only takes

      25     one person to be human, like Officer Pepe, one

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       2     person to lose their guard.  And Khalfan

       3     Mohamed is someone who was very good at fooling

       4     people.  The Dalvies are nice people.  They

       5     took him in.  They are in denial.  They

       6     couldn't believe he would hurt an ant.  He

       7     fooled the imam, who said, "I can spot people

       8     with two faces."  He didn't see that.  He

       9     fooled his own family and he fooled Officer

      10     Pepe.  Let's not let 50 years of people have to

      11     deal with that risk.

      12               About that, let's talk about

      13     Dr. Cunningham.  He was the psychologist who

      14     told you nothing about psychology.  You heard

      15     all about psychology degrees, but he really

      16     came to be an expert on prisons.  What a

      17     perfect defense witness on prisons he is,

      18     because he has never worked in one.

      19               When I submit to you is there is a

      20     real world out there, and Dr. Cunningham, he

      21     told you about conditions at ADX.  Let me place

      22     the comparison chart up.  Let's compare what

      23     ADX is supposed to be from the rules.  Let's

      24     compare what the MCC was supposed to be on

      25     November 1st, 2000.

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       2               MCC:  In your cell 23 hours a day;

       3     solid steel outer door -- these are from the

       4     rules that are posted in evidence -- each

       5     inmate checked every 30 minutes; before removed

       6     from cell, inmate is handcuffed through food

       7     slot, pat searched; triple escort when out of

       8     cell; recreation within the unit only; meals

       9     taken in the cell; no television; phone calls

      10     monitored; visits - no contact; non-legal mail

      11     opened, copied, analyzed.

      12               The main difference in ADX is a

      13     second outer door.  That's what it's supposed

      14     to be like in theory.  Dr. Cunningham shows you

      15     a nice picture of a cell which doesn't look all

      16     that different from an MCC cell when it's empty

      17     and clean.  That's the Internet.  Those are the

      18     rules.  That's the way it's supposed to be.

      19     And this is what Khalfan Mohamed can make it.

      20               You are sentencing him in the real

      21     world.  Make that decision in the real world.

      22               The last non-statutory aggravating

      23     factors is the fact that high public officials

      24     were targeted abroad, and Khalfan knew that

      25     because he knew that the embassy was a target.

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       2     I submit to you that has been proven.  It has

       3     been proven that it pertains to Mohamed,

       4     Khalfan Mohamed, but I submit to you that

       5     should be given less weight than the other

       6     factors.

       7               He was less involved in that

       8     decision.  You can consider it.  Don't give it

       9     great weight.  What I submit you should

      10     consider from the government's aggravating

      11     factors is the fact that he killed 11 people.

      12     And remember, we're not just comparing Khalfan

      13     Mohamed just to other people involved in the

      14     offense.  Your job is to say, does he meet the

      15     gateway factors; is he one of those persons who

      16     committed murder, who committed the gateway

      17     factors, which, I submit, is obvious, that

      18     makes him eligible for the death penalty and

      19     then say is he one of the persons who should

      20     receive it?

      21               And what makes him stand out from the

      22     rest of the people who commit murder is the

      23     people who do it in drug dealing in the Bronx

      24     or Texas or anywhere else, he's a mass

      25     murderer.  Factor in he killed 11 people.  He

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       2     wanted to kill more.  He created a grave risk

       3     of death and the victim impact he imposed on

       4     people was devastating.  Factor in the future

       5     dangerousness, the threat he poses, unlike

       6     other people, he has proven himself to be a

       7     danger within confinement, and he is

       8     remorseless.

       9               Now I'll talk to you about mitigating

      10     factors.  In considering the mitigating

      11     factors, remember this is not a numbers game.

      12     It is not how many factors can you come up

      13     with.  Some of the factors offered are true,

      14     some are not.  Some are worth some weight and

      15     some are not.  And some, I submit to you, are

      16     frankly downright offensive.

      17               We'll go through them.

      18               A.  His role in the offense.  I think

      19     we have them up here.  If you focus on A,

      20     Khalfan's role in the offense and relative

      21     culpability, that is broken into three parts.

      22     He was not a leader or organizer of the

      23     conspiracy which led to the bombing of the Dar

      24     es Salaam Embassy.

      25               Second, although guilty of the

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       2     murders, his participation was minor; and,

       3     third, he was recruited by others as someone

       4     who was an expendable member of the conspiracy.

       5               Let's deal with the first.  I don't

       6     factually dispute that he was not a leader or

       7     organizer of the bombing. I submit to you that

       8     that should be given some weight, but not a

       9     lot.  I'll tell you why.

      10               Khalfan Mohamed is a follower.  He

      11     listens.  He has a choice, but he listens, and

      12     if people tell him to kill, he kills.  If

      13     people tell him to attack, he attacks.  I

      14     submit to you in many ways he is not someone

      15     lathered into a frenzy, he is not brainwashed.

      16     According to Dr. Post, he told you they weren't

      17     even talking about America and Afghanistan.  He

      18     wasn't worked up.  He wasn't brainwashed.  He

      19     could sit there and think, coldly and

      20     calculating.  And he did.  He didn't struggle

      21     morally.  He just chose to kill.

      22               I submit to you the fact that other

      23     people played a leader or organizer role is

      24     worth something, but not all that much.  When

      25     you think about the fact that none of those

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       2     leaders or organizers did what he did November

       3     1, 2000, that puts a lot in perspective.

       4     Because he not only did what he did with the

       5     bombing, but then, when here in confinement,

       6     when waiting for the trial before you, just two

       7     months before, a hundred yards away, that

       8     bayonet went into Officer Pepe's brain from

       9     Salim and Khalfan Mohamed.

      10               Secondly, his participation.  Was it

      11     relatively minor?  We'll say this.  He was a

      12     lower-level guy in the group.  He did some

      13     work, but "minor" overstates it.  It wasn't

      14     unimportant.  It was necessary.  They needed

      15     someone to get the bomb factory.  Without a

      16     bomb factory, there is no bomb.

      17               They needed the truck to make sure

      18     they could transport things -- the Suzuki.

      19     Sorry.  They needed to make sure the truck was

      20     out of the sand, and he stuck around to make

      21     sure there were no problems.  Without him, it

      22     doesn't happen.  This is not something as the

      23     world turns.  He was needed, he was necessary,

      24     he was part of it.

      25               And he was recruited by officers as

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       2     someone who was expendable.  Well, sure.  Is he

       3     as important as Harun or Saleh or Abdel Rahman?

       4     No.  But the expendable ones are the ones that

       5     are killed or left to be killed.  He was left.

       6     He was needed.  He took it on his own to clean

       7     up the bomb factory.  Read the report.  He

       8     wasn't asked to do that.  He thought that was

       9     his role -- make sure he could clean up, so

      10     people didn't find it.

      11               He chose.  He wasn't expendable.

      12     They gave him the three numbers.  They gave him

      13     the numbers to get in touch with Bin Laden's

      14     satellite phone, the number in Yemen, in Wadih

      15     El Hage's phone book, which is also in Khalid

      16     Fawwaz's phone book.  He lived to fight another

      17     day and Officer Pepe is paying the price.

      18               I submit to you it's far more

      19     important to you in factoring in the weight of

      20     this factor that Khalfan Mohamed thought with

      21     11 hard-working people in the embassy on August

      22     7th were expendable.  I submit to you it is far

      23     more important in October 1999 when he thought

      24     that people that should be killed in the future

      25     were expendable.  And I submit to you it's far

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       2     more important that on November 1, 2000 he

       3     thought Officer Pepe and anyone else they could

       4     take as a hostage, they were expendable.

       5               I submit to you he sits here today

       6     and he looks out at all the people he will come

       7     into contact with if he is sentenced to prison

       8     for the rest of his life, that to him they are

       9     expendable, and they should not be.

      10               Second, we have the factor that

      11     others of equal or greater culpability in the

      12     murders will not be sentenced to death.  Let's

      13     talk about that.  There are a variety of people

      14     who may face the death penalty or may not.  You

      15     heard, for example, there are a number of

      16     fugitives and they may be caught, they may not

      17     be.  Don't assume they will or will not face

      18     the death penalty.

      19               Some people were not involved in the

      20     murders.  You heard about Salim, the promise

      21     made to the German authorities.  But don't

      22     overlook the fact you didn't hear evidence that

      23     Salim was involved, Mamdouh Salim, for all his

      24     evilness and all he did, he was not involved in

      25     the embassy bombings.  He was not charged with

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       2     it, so the German authorities were told he will

       3     not face the death penalty.  He didn't face it

       4     anyway.

       5               Salim, an evil man, clearly a key

       6     role in the attack on Officer Pepe, you heard

       7     from Mr. Ruhnke the law does not provide the

       8     death penalty for the attack on Officer Pepe

       9     because he lived.  It was unlucky for Officer

      10     Pepe in many respects that he be so badly

      11     maimed, but for Salim and Khalfan, it was lucky

      12     that they don't face the death penalty.  That's

      13     what the law is.

      14               You have heard about others for whom

      15     there may be trouble or not to find the gateway

      16     factors that you have to find here about

      17     participating in an act.  You heard about

      18     Eidarous and Abdel Bary who received the claims

      19     of responsibility in England and whether or not

      20     that would count as a gateway factor, which

      21     doesn't matter because you will assume that

      22     England has put in the condition that do not

      23     impose the death penalty if people are sent

      24     over.

      25               You heard about people who entered

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       2     into plea agreements.  And you have seen two of

       3     them, Al-Fadl and Kherchtou.  You saw that they

       4     didn't participate in the bombing.  They didn't

       5     face the death penalty.  They don't face it

       6     now.  But I submit to you from what you have

       7     seen with those deals with those two witnesses,

       8     the government smartly entered into those deals

       9     to get information, to try and work against

      10     people trying to kill us.

      11               To the extent that people want to

      12     speculate that there are other people

      13     cooperating, I submit trust the track record.

      14     If the government enters into a deal, don't be

      15     distracted by what is happening with someone

      16     else.  Because you know what the bottom line

      17     is?  There are a lot of different things that

      18     happen when people scatter all around the world

      19     into different situations, and that's the doing

      20     of the group, the group the defendant was part

      21     of.

      22               They decided to attack America

      23     overseas.  They decided to attack it in

      24     Tanzania and Nairobi.  They decided to attack

      25     and run.  And you know what?  Khalfan was part

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       2     of that decision.  They came to Khalfan.  They

       3     said we're getting out of town.  We need

       4     someone who knows how to get the truck there.

       5     And he cleaned up the place where the bomb was

       6     built to help them get away with it.

       7               They brought terror, they brought

       8     death, and they brought anarchy into the world,

       9     and now he wants to turn around and say, hey, I

      10     shouldn't get the death penalty.  After all,

      11     look at all those people who got away, all the

      12     people who got away because he helped clean up

      13     the bomb factory, the people who got away

      14     because they could leave because he was willing

      15     to stay behind to get the job done.

      16               Why reward, why reward Khalfan

      17     Mohamed with a benefit because he chose to be a

      18     part of a larger group.  Why does someone who

      19     works on their own and sets off a bomb in New

      20     Jersey or Texas or somewhere else, why should

      21     they die and suffer the ultimate punishment

      22     when he can say, hey, I chose to be part of an

      23     international group, I chose to run away, I

      24     chose to help the others run away and we have

      25     to have it nice and neat, you have to catch

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       2     everyone before you can put me to death.

       3               He chose to create the anarchy.  He

       4     chose to help other people runaway.  I submit

       5     to you, let's stop treating terrorists

       6     different.  If you murder, if you kill, if the

       7     crime is evil, if you try and stab an officer

       8     again, you get the punishment you deserve and

       9     stop pointing at other people.

      10               What about the 11 people he killed?

      11     What justice do they have?  They weren't

      12     equally culpable.  They weren't culpable at

      13     all.  What kind of sentencing hearing did he

      14     give them?  What kind of justice or due process

      15     did he give the children, the children who

      16     don't go to school and sometimes don't eat?

      17               C.  The postarrest statement.  To

      18     argue that his postarrest statement was

      19     complete and truthful, it demonstrated

      20     acceptance of responsibility and provided the

      21     interviewing agents with information, valuable

      22     information, I submit to you, was it largely

      23     truthful?  Yes.

      24               You can have your doubts when he

      25     talks about not knowing much about Bin Laden,

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       2     not knowing much about the group, when he spent

       3     nine to ten months in Afghanistan training and

       4     he spent time with Al Ittihad, training over in

       5     Somalia, but I submit to you, what is the

       6     point?  If you are talking about whether he is

       7     being truthful, look at the moral element.

       8               Why was he being truthful?  Was he

       9     saying, I'm sorry, I did a horrible evil thing

      10     and I have had a year to think about it, a year

      11     plus in South Africa, I've had people be nice

      12     to me, I abandoned my family, but I thought

      13     back to them and I realized what I did was

      14     horribly wrong?  No.  What he told Agent

      15     Perkins and the testimony was, he said that

      16     basically because we had found him where he was

      17     in Cape Town, that we already knew everything

      18     so there was no reason for him to tell us one

      19     thing when we knew that in fact another was

      20     true.  He said it because they knew it.  And he

      21     said it to say, I'm proud of the bombing, it

      22     was a success.

      23               It tied the investigators up because

      24     it took them 14 months to find him.  And he

      25     said he would do it again.  He gets no credit

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       2     for being complete and truthful.  And you know

       3     what?  Five weeks ago he is over there telling

       4     Dr. Post, I deny the FBI report.  He wants

       5     credit for that?  Admit it because you are

       6     caught.  Don't say you're sorry, lie to your

       7     own witness afterward, and then say, no, treat

       8     me differently because I was complete and

       9     truthful.

      10               Demonstrated acceptance of

      11     responsibility?  Hi, I murdered 11 people.  I

      12     injured many.  I'm not sorry.  I'm not sorry

      13     Tanzanians died.  I'm not sorry my countrymen

      14     died.  I'm not sorry my fellow Muslims died.  I

      15     wanted Americans to die.  I hope people keep

      16     killing Americans.  That's not acceptance.

      17               What he did to Officer Pepe, part of

      18     the process to make sure that he gets a chance

      19     for a fair trial, that's not acceptance.

      20               We'll talk about Dr. Post in a

      21     moment.  That's not acceptance either.

      22               I submit to you it's offensive to put

      23     before you credit for acceptance of

      24     responsibility and truth when he threatens and

      25     attacks an officer.  I submit to you his lack

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       2     of remorse, his coldness, his feeling nothing

       3     for the victims is something that will stay

       4     with him forever.  Part of what makes him

       5     dangerous while confined.  He doesn't see

       6     anything wrong.  He has no conscience.  He will

       7     do it again.

       8               Provided the agents with valuable

       9     information:  Remember that he told them they

      10     had papers which showed him he was charged when

      11     they caught him.  It came out in

      12     cross-examination that they basically knew

      13     everything.  They had been to the bomb factory.

      14     They had seen the Suzuki truck.  They had the

      15     lease.  They had analyzed the house.  They had

      16     talked to the person who rented the house.

      17     They talked to the neighbor.  They talked to

      18     the house girl.  They talked to the juice cafe

      19     owner who knew he went to Afghanistan.  They

      20     had been to his house.  They had been to his

      21     family.  They had the explosives results.  No

      22     showing he told them anything significant they

      23     didn't know.

      24               And the judge has told you in the

      25     guilt phase the last time that statements of a

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       2     defendant after, when they were being

       3     interviewed for an arrest, were only admitted

       4     against him.  They weren't admitted against

       5     anyone else at the last trial.  They are

       6     useless against anyone else.  No showing that

       7     he helped identify anyone else involved in this

       8     plot, no showing that he identified anyone who

       9     could be arrested, no showing that that

      10     statement could ever result in someone being

      11     brought to justice.  What value?

      12               D.  Mitigating factor is that the

      13     alternative to a sentence of death is that he

      14     will spend the rest of his life in prison.  I

      15     submit to you that's true.  We don't dispute it

      16     is true.  You can check it as being proven.

      17     You have been told that by the judge, but it's

      18     worth zero weight.  In fact, it is not worth

      19     zero weight, it's worth negative weight.

      20     That's the future dangerousness.  That's the

      21     point.  If he is not sentenced to death, he

      22     will be sitting there ticking like a time bomb

      23     waiting for the next Officer Pepe to come

      24     along.

      25               E.  No prior history of criminal

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       2     behavior.  Check that as true.  It's been

       3     proven.  We agree.  Zero weight.

       4               I see, so we know about the bombing

       5     of 11 people and the maiming of and injuring of

       6     five dozen others, and before he assaulted

       7     Officer Pepe with Salim sticking a bayonet in

       8     his eye, no record of criminal history.  He's

       9     offered nine to ten months training in

      10     Afghanistan how to kill, how to make bombs, how

      11     to wire them.  No history of criminal behavior.

      12     Give it the weight it deserves.  None.

      13               F.  If he is put to death, his family

      14     will suffer grief and loss.

      15               That's a tough one to talk about, but

      16     let's be blunt.  That should be given little

      17     weight, not because anything about his family;

      18     his family, to a person, are very nice, loving

      19     people.  But he can't hide behind them here.

      20     They raised him with love.  It was a good

      21     family.  That family is not the cause of these

      22     problems.

      23               He used his family.  He used his

      24     nephew to help clean out the bomb factory and

      25     he abandoned them.  In 1998, he lied about

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       2     where he was going.  He took his identity and

       3     he headed to South Africa.  He left them so he

       4     could escape from the jihad.  And I submit to

       5     you he didn't give a damn about anyone else's

       6     family.  He didn't care about the 11 people he

       7     killed, people he left fatherless, the people

       8     he left from breadwinners.

       9               Let him come here before you and say,

      10     yeah, I killed a bunch of families, I ruined

      11     family's lives, I participated in an attack a

      12     Officer Pepe, and now feel sorry for me because

      13     of what I have done to my own family.

      14               Let's not wait for another Officer

      15     Pepe to happen.  Let's not wait again until

      16     Officer Pepe's family, well, we spared him

      17     because he's from a different culture, he had a

      18     family.  He's a danger.  We have to face that.

      19     We have to face the fact that if you give him

      20     mercy, he poses a danger.

      21               Remorseful?  Let's talk about G.

      22     Khalfan Mohamed is remorseful for the death,

      23     injuries and other consequences.  And what did

      24     we hear?  We heard from the opening from Mr.

      25     Ruhnke, "You will hear testimony from both

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       2     Dr. Post and Jill Miller that they have

       3     discussed at great length Khalfan Mohamed's

       4     view of what occurred at the embassy in Nairobi

       5     and what occurred at the embassy in Dar es

       6     Salaam, and that the experience and how the

       7     experience of hearing from the victims had not

       8     changed his beliefs, not changed his core

       9     beliefs, but it changed his view of what jihad

      10     should be and should not be, and that jihad

      11     should not involve the killing of innocents,

      12     that it was wrong.

      13               And you heard from Dr. Post.  You

      14     heard he was Yale-educated.  He has a very

      15     impressive background.  I submit to you, what

      16     was he doing here?  He came before you as an

      17     expert on terrorism.  He told you, I believe,

      18     "I continued my research in religious extremist

      19     leader Usama Bin Laden and his group al Qaeda."

      20               And you found out what his research

      21     was.  He talked to one al Qaeda member, that

      22     was Odeh, for 30 to 45 minutes; took two pages

      23     of notes; didn't ask him if he was involved in

      24     the bombing.  That didn't come up.  Didn't know

      25     Ayman al Zawahiri, the man who signs the

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       2     fatwahs and claims responsibility for the bomb;

       3     didn't know Abu Ubaidah or the two al Qaeda

       4     witnesses you heard from for days, Jamal

       5     Al-Fadl and Kherchtou.

       6               I submit if Dr. Post wanted to

       7     continue his education, he should have served

       8     as a juror.  He should have learned what you

       9     did.  You knew a lot more about al Qaeda than

      10     he did.  What was he doing here?  To give a dog

      11     and pony show, to stand up and say I'm an

      12     expert, I spent a half an hour with Odeh.  He's

      13     a low-level gofer.  Didn't bring up the phone

      14     numbers in Fawwaz's phone book or Wadih El

      15     Hage's phone book -- not suggesting he knew

      16     about it; didn't spend much time on this.

      17               He came in with a Yale degree to tell

      18     you where the defendant fit in.  I submit you

      19     don't need a Yale degree to figure that out.

      20     He also came in, more importantly, much more

      21     importantly, to dress up a tale of remorse from

      22     Khalfan Mohamed.  And what did he do?  Well,

      23     you heard, you heard the Fanta story.  You

      24     heard about the crushing blow to poor Khalfan

      25     Mohamed, sitting there, making a bomb to blow

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       2     people up and told, don't ask questions, get me

       3     a Fanta.

       4               Well, he left out an awful lot.  Let

       5     me say one other thing.  He told you about the

       6     evolution of Khalfan Mohamed.  How, yes, in

       7     October of 1999 he told the agents he did it

       8     and wasn't sorry, but now he has evolved and

       9     now I think over the time he really sees the

      10     errors of his way and feels really sorry.

      11               The evolution was Dr. Post's

      12     testimony, because what he did when he took

      13     Khalfan Mohamed, sitting here after all the

      14     evidence at the trial, after hearing about the

      15     victims, after hearing all that, denying it, I

      16     didn't do it, denied the FBI report, the U.S.

      17     Embassy, I didn't know it was a target until

      18     after the bombing.  He thought the bomb was in

      19     Somalia.

      20               I submit to you Dr. Post laughed when

      21     we said, Did you invite the government in or

      22     did you videotape?  Of course not.  Well, if he

      23     really was remorseful, if Khalfan Mohamed

      24     really was remorseful, wouldn't Dr. Post want

      25     to make a videotape of the interview to show

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       2     the victims?  Hey, I did it.  I did wrong.  I

       3     made a moral choice.  It was wrong.  You are

       4     suffering.  I care and I want to do something

       5     about it.

       6               Dr. Post was a dress-up, a dog and

       7     pony show for you.  He had a Yale degree, a

       8     nice resume, come in, tell you Khalfan is a

       9     gofer and tell you Khalfan feels bad, and he

      10     left out the facts.  He left out that Khalfan

      11     is now worse, Khalfan is less remorseful,

      12     Khalfan denies what you know he did.

      13               Dr. Post was a fraud.  That was a

      14     fraud put on you to make you think that Khalfan

      15     Mohamed was remorseful.

      16               I'll say one other thing.  Jill

      17     Miller came, and I take my hat off to her.

      18     After you were promised that she would tell you

      19     the same thing, she said something different.

      20   "Q.  There came a time when Mr. Mohamed became

      21     involved with a group of people in Dar es

      22     Salaam.  At the end of that process, the

      23     American Embassy was bombed

      24   "A.  Yes.

      25   "Q.  And have you discussed that with him?  It's

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       2     in the FBI report, correct?

       3   "A.  Yes.  I have not discussed it at great

       4     length with him.

       5   "Q.  Your role was not to discuss the offense; is

       6     that correct?

       7   "A.  That's correct."

       8               We give her credit for not doing what

       9     Dr. Post did.  She did not participate in a

      10     fraud.  She did not put before you remorse from

      11     someone who is not remorseful.  And to come

      12     into this courtroom, someone like Dr. Post, to

      13     come into this courtroom, with the seriousness

      14     of your decision and the seriousness of what

      15     hangs in the balance, and try and basically

      16     slip one past people and make it seem that

      17     Khalfan Mohamed cares, when he doesn't, is

      18     wrong.

      19               You won't be shocked if I tell you

      20     that "G" should get zero weight.

      21               H.  Sincere religious belief.  It is

      22     asserted that Khalfan Mohamed acted out of

      23     sincere religious belief.  You can check the

      24     box as proven if you want.  We suggest it was

      25     not sincere religious belief.

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       2               What weight do you give that?  Think

       3     about this.  His religious belief is not as a

       4     zealot.  He's not crazy.  There's no fire in

       5     his eyes.  You know what?  Why does he get

       6     credit for defending his religion?  He killed

       7     Muslims.  He killed Tanzanians.  There are a

       8     billion Muslims in the world.  They don't blow

       9     up buildings.  There are how many Tanzanians in

      10     the world, from humble backgrounds, who work

      11     hard and don't blow up buildings.

      12               The fact that he acted out of sincere

      13     religious belief makes it frightening, makes it

      14     frightening they still hold for those core

      15     beliefs and want to sit in one of our prisons

      16     or penitentiaries for another 50 years waiting

      17     to strike again.  He is not brainwashed.  He

      18     knows what he has a choice to do and he makes

      19     choices.  The argument that he thinks that that

      20     is what his religion compels him to do, the

      21     fact that he is in more denial now than he was

      22     before makes him all the more dangerous from

      23     here on out.  We don't want to explain to the

      24     next Officer Pepe he got shanked because he

      25     still holds to his religious beliefs.

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       2               I.  Khalfan Mohamed was 25 years old

       3     at the time of the offense.  Conceded to be

       4     true.  Check the box.  Worth nothing.  25 years

       5     is an old person, a person old enough to make

       6     mature decisions, a person to decide whether to

       7     kill or not kill, to go to Afghanistan or not

       8     go to Afghanistan, to go to Somalia or not go

       9     to Somalia, to participate in a jihad job,

      10     knowing it's a bombing of an embassy or not.

      11     Look at what he did to Happiness, who was six

      12     months old.  Look what he did at 27 to Officer

      13     Pepe.

      14               Zero weight.

      15               J.  Martyrdom.  If Khalfan Mohamed is

      16     executed, he will be seen as a martyr and his

      17     death may be exploited by others to justify

      18     future terrorist attacks.  Let's think about a

      19     couple of things.

      20               First of all, you saw today, the last

      21     exhibit you saw was a videotape.  That was

      22     Usama Bin Laden last fall, September 2000,

      23     saying, free the brothers from prison.  Free

      24     Sheik Omar Abdel Rahman, who you know is a

      25     leading figure.  And clearly we're not trying

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       2     to equate Sheik Omar Rahman and Khalfan

       3     Mohamed, but he is saying free el Sayyid

       4     Nosair, another person who engaged in terrorist

       5     acts.  He is saying free Mohamed Rashid Dauod

       6     Al-'Owhali, who obviously was a defendant at

       7     the trial, and he is in prison.  He is saying

       8     free Wali Khan Amin Shah, who is a little

       9     higher, someone else who is in jail.

      10               Usama Bin Laden is screaming to free

      11     people from jail.  Just being a prisoner is

      12     enough.  I submit to you Khalfan Mohamed, maybe

      13     his stock has risen, maybe helping to carry out

      14     a bombing, he is worth maybe more.  Maybe he

      15     assaults an officer and tries to take a hostage

      16     and still serves a life sentence, maybe he is

      17     worth more.

      18               I submit punishing someone with life

      19     imprisonment or death, no one is going to give

      20     anyone credit.  No terrorist attack is going to

      21     be stopped because someone gets a life sentence

      22     versus death.  Usama Bin Laden hates us.  There

      23     is no way around it.  Everyone in his group

      24     hates us.  They hate everything we do,

      25     everything we try to do, everything we don't

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       2     do.  This trial, in their eyes, is a fraud.

       3     Everything we do is a fraud.  We are evil.  Do

       4     you really think this is an operation that is

       5     going to be wiped off the books if Khalfan

       6     Mohamed gets a life sentence?  I submit to you

       7     not.

       8               Look at this case.  The claims of

       9     responsibility for the bombing he did in

      10     Tanzania is in the name of Salmon al Odeh and

      11     Zafra Al-'Owhali.  Not related to Al-'Owhali,

      12     not related to Odeh, two scholars in a Saudi

      13     prison.  Look at the stipulation.  Sheik Omar

      14     was convicted for trying to murder President

      15     Mubarak of Egypt because of the arrest of

      16     Mahmud Abouhalima.  Bin Laden is screaming

      17     about Al-'Owhali because of his arrest.

      18               I submit to you, look at the note,

      19     look at the hostage-taking note left on

      20     November 1, 2000.  "Please release," fill in

      21     the blank, "from custody."  If you are in jail,

      22     they want you out.  And they are going to bomb,

      23     they are going to do what they want to do to

      24     get people out of jail.  If they decide to do a

      25     bombing and name it after people, they will

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       2     fill in the blank of whomever they want.

       3               But don't let Khalfan Mohamed try to

       4     get, a terrorist, gee, give me life, maybe it

       5     will be the last bombing.  It ain't happening.

       6     His name will be on the list of 50 others names

       7     when he is in jail or whether he is executed as

       8     a reason to go forward.

       9               K.  Khalfan Mohamed should not have

      10     been released by South African authorities.

      11     Mr. Ruhnke opened on the fact that this was

      12     almost like being struck by lightening.  And

      13     again, it's sort of passive stuff.  It's like

      14     the weather.  Khalfan Mohamed blowing in the

      15     wind, struck by lightening to face the death

      16     penalty.

      17               Let's step back and think about it.

      18     It is not lightening.  Okay, the law of our

      19     country, the law of our nation is if you commit

      20     murder, certain murders, you face the death

      21     penalty.  Khalfan Mohamed committed murder 11

      22     times over.  If he faces the death penalty,

      23     it's not because he got struck by lightening,

      24     but because he killed.  He made a choice and he

      25     killed and he'll get a punishment provided by

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       2     the law.

       3               He killed in Tanzania, where there is

       4     a death penalty.  He killed Tanzanians.  He

       5     killed trying to kill Americans, and the death

       6     penalty is here.  He killed Muslims, as the

       7     imam told you in that video.  Islam makes no

       8     apologies for the death penalty.  He killed in

       9     a country with a death penalty, against a

      10     country with a death penalty, and people of a

      11     religion who have the death penalty.

      12               And then he went to South Africa,

      13     went to South Africa, which happened not to

      14     have the death penalty.  He went to South

      15     Africa, where he got caught, and two years

      16     later, the highest court decided he shouldn't

      17     have come back without a promise not to have

      18     the death penalty.

      19               What almost happened was

      20     happenstance.  He almost got a break for having

      21     run to South Africa.  Why reward him for that?

      22     Isn't he morally different?  If you are caught

      23     in New Jersey or Connecticut or Texas or

      24     California and you bomb something, you are put

      25     to death.  But to run to a country without the

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       2     death penalty, whether knowing it or not, why

       3     should that count as a break?

       4               I submit to you, don't reward

       5     terrorists.  Think about this.  If there is

       6     anything arbitrary in this case, it's the

       7     miracle of Dr. Koslow.  And Dr. Koslow is not

       8     waiting in the hospital.  If Bellevue isn't

       9     where it is, they don't make the efforts to do

      10     what they do and save Officer Pepe's life,

      11     Salim and Khalfan Mohamed would face the death

      12     penalty for that.  I submit to you K is worth

      13     zero weight.

      14               L.  L is the last mitigating factor

      15     and I submit to you the most offensive.  I

      16     submit to you to sit before you and tell you

      17     Khalfan Mohamed's personal characteristics as

      18     an individual human being include the

      19     following:  One, Khalfan Mohamed has exhibited

      20     responsible conduct in other areas of his life;

      21     two, Khalfan Mohamed has shown himself to be a

      22     person capable of kindness, friendship and

      23     generosity; and, three, Khalfan Mohamed lost

      24     his father at an early age and worked to help

      25     his family, which struggled financially after

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       2     the death of the major breadwinner.

       3               He's a bomber.  He killed people.

       4     What was his life?  The sociologist, a very

       5     good job, very straightforward.  Did you hear a

       6     story that made your hair stand on end from

       7     growing up in an abusive household?  No, he

       8     grew up in a loving family.  We're sorry his

       9     father died at a young age.  We're sorry he got

      10     partway through high school.  A lot of people

      11     get partway through high school.  We're sorry

      12     he went to a mosque.  A lot of people went to a

      13     mosque.  We're sorry he didn't go to Bosnia.  A

      14     lot of people who wanted to go to Bosnia

      15     didn't.

      16               We are sorry a lot of things

      17     happened.  He had a loving home and he chose to

      18     turn on his family, to turn on his true

      19     religion, to turn on his countrymen and to kill

      20     and to try to kill Americans.  To come before

      21     you and talk about his unique characteristics

      22     as a kind human being.

      23               A.  He has exhibited responsible

      24     conduct in other areas of his life.  Sure, he

      25     has exhibited them.  That's what fools people.

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       2     That's what fools the Dalvies.  He can be very

       3     kind.  Teach a child.  You want him to marry

       4     your daughter.  You wouldn't think he would

       5     hurt an ant.  The next day he is in custody,

       6     saying, yeah, I bombed 11 people and I'll do it

       7     again.  That's what he is.  He's got two faces.

       8     And he can exhibit responsible conduct and he

       9     may well exhibit responsible conduct in a

      10     prison until he has a chance to strike.  He

      11     fooled his family, the Dalvies, he fooled

      12     Officer Pepe.

      13               The second:  He has shown himself to

      14     be capable of kindness and generosity.  I

      15     submit to you he is capable of that.  Everyone

      16     is capable of that.  He is capable of savagery.

      17               What happened to Officer Pepe, what

      18     they did to him in that cell room in November

      19     1, 2000 was a savage act, and Officer Pepe is

      20     no longer capable of a lot of things.

      21               And finally, he lost his father at an

      22     early age.  I submit to you a lot of people

      23     lost their fathers because of him.  Don't give

      24     him credit for that.  Don't give him a break

      25     because he had a loving family, a loving

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       2     mother, brothers and sisters and chose to kill.

       3     Think of all the families without fathers.

       4     Think of the woman who married Nyumbu's wife,

       5     widowed, Asha Kambenga saying, "My daughter,

       6     sometimes she doesn't eat."  I submit to you

       7     that in the balancing --

       8               Your Honor, I'll have to do it in

       9     under ten minutes.

      10               I submit to you that in the balancing

      11     of the factors -- and I apologize for keeping

      12     you late.  Obviously this is important, and I

      13     want to say a couple of things to you.

      14               In the balancing, you should weigh

      15     the aggravating factors of killing multiple

      16     people.  Remember what you are doing.  You are

      17     saying, okay, assuming you find the gateway

      18     factors, this person is eligible for the death

      19     penalty.

      20               From the group of people who commit

      21     that type of murder, all of the groups of

      22     people, people in America who do bombings, who

      23     kill, who commit murders, who kill one person,

      24     you have to sort out does Khalfan deserve the

      25     death penalty, and in doing that you have to

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       2     separate out your own views of the law, your

       3     own personal views.

       4               Some of you may think the death

       5     penalty is a good thing.  Some of you may think

       6     it's a bad thing.  Many of you may not really

       7     be sure, not for lack of thinking.  What you

       8     have to decide is, given that it is the law of

       9     our land, given that it is the jury's role to

      10     say which of those people are so bad, that

      11     committed such a bad crime deserve the ultimate

      12     punishment, you have to vote that straight.

      13               You cannot say in that group this

      14     person really isn't the one who deserves the

      15     death penalty, but I'm for the death penalty so

      16     I'll vote for it.  That would be wrong.  You

      17     can't look and say this person, based upon what

      18     they did, deserves the death penalty, but I'm

      19     against the death penalty.  That would be

      20     wrong.

      21               You have to call it.  You have to

      22     sort out, is this person sufficiently

      23     distinguished from the others to merit the

      24     ultimate sanction.  And I say, in this case,

      25     when you look at that, think about 11 murders,

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       2     11 people killed.  Think about the fact that he

       3     planned to do more.  He wanted to do more.

       4     Think about the children's play group that

       5     wasn't there that day.  Think about Pat Wagner,

       6     walking around, afraid to see a wife and a

       7     child because she thinks back to her

       8     miscarriage.  Think Cynthia Kimble's life,

       9     ruined.  Think about Mtendeje, a beautiful

      10     woman, lying dead on Valentyne Katunda's

      11     stomach, she's buried beneath the rubble for

      12     five hours.  Think about the grave risk of

      13     death to others.  Think about the injuries, the

      14     blinding, the terror.  Think about the victim

      15     impact, all those families ruined, lost their

      16     breadwinners, lost their loved ones, lost their

      17     people.  That's who the human bond is with.

      18     Think about the future danger.

      19               Think about the danger posed by a man

      20     who was in that cell on October 25th to

      21     November 1, when his hairbrush was made into a

      22     shank, when Salim's afro comb was made into a

      23     shank, and think about what they did to Officer

      24     Pepe.  Think about the risk he poses three

      25     eight-hour shifts a day, seven days a week,

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       2     fifty-two weeks a year for five decades in the

       3     prison system.  And weigh against that someone

       4     who played a lesser role, but someone who did

       5     it with a coldness, a coldness that is more

       6     scary because you can't see zealotry in his

       7     eyes, you don't see fire in his eyes.  The ice

       8     in his veins is something you see after he is

       9     done killing people.  The ice in his veins is

      10     his masquerade as a kind, gentle human being

      11     before he kills.

      12               I submit to you the one thing about

      13     this man is he made a free choice.  He was not

      14     brainwashed.  He made his choice in August

      15     1998.  He chose to threaten in October 1999, he

      16     chose to strike on November 1, 2000, and he has

      17     no remorse.

      18               And let me talk to you about your

      19     oath and your promise and what it means, what

      20     it means in this case.  You gave an oath, made

      21     statements in voir dire that you would try and

      22     do justice.  And justice means separating out

      23     Khalfan Mohamed from the others.

      24               I submit in this case, recognizing

      25     him as someone who deserves the death penalty

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       2     for the nature and magnitude of the crime he

       3     committed, his absence of remorse and his

       4     threatening to do it again, his future danger,

       5     I submit to you that when you return your

       6     verdict, when you return your verdict, put your

       7     personal views aside and you make a decision

       8     where he fits in.

       9               I submit to you, you should strive to

      10     be a unanimous verdict, strive to be unanimous

      11     one way or the other.  This jury is the

      12     conscience of the community.  You are sending a

      13     message to the community.  Usama Bin Laden

      14     doesn't care one way or the other what you say.

      15     He will hate us.  You send a message to the

      16     community.

      17               MR. RUHNKE:  Objection, "sending a

      18     message."

      19               THE COURT:  It's argument.  Obviously

      20     it's not intended literally.

      21               MR. FITZGERALD:  What you say, if you

      22     decide that life imprisonment is a death

      23     sentence, a unanimous verdict that says, 12 to

      24     nothing, we think life is appropriate makes a

      25     statement.  A unanimous decision 12/nothing

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       2     that in light of the fact that the death

       3     penalty is on the books, this defendant

       4     deserves it says something.  We all know if

       5     there is a deadlock, life results.  That's not

       6     a unanimous statement that is the right result.

       7               I urge you all to work to respect the

       8     process and work for a unanimous verdict, to

       9     take 12 different people and try to come

      10     together and say, when we return a verdict, we

      11     speak with one voice.  We have taken the law,

      12     we have put our personal views to the side, and

      13     we have said we have to decide, does he deserve

      14     the death penalty or not, and we have come

      15     together as 12 and spoke with one voice.

      16               I submit to you think about this.

      17     Mr. Ruhnke opened to you about a firing squad

      18     and everything else in this case just happens.

      19     When he wants you to think about a firing squad

      20     and say there are no blank bullets, don't get a

      21     guilt trip for what Khalfan did.  You are not a

      22     firing squad.  You are not killers.

      23               If Khalfan Mohamed gets the death

      24     penalty, if you sentence him to the death

      25     penalty, it's because the law is there.  There

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       2     is a law of our country and he broke it.  He

       3     broke it when he chose to kill.  He broke the

       4     law when he chose to kill in cold blood.

       5               The fault for him receiving the death

       6     penalty is sitting on his shoulders, and I

       7     submit to you that when you think about the

       8     firing squad, recognize that this is the firing

       9     squad.  12 bullets.  He killed 11 people on

      10     August 7th, 1998.  Let's remember who they are.

      11     These 11 people were killed by the firing

      12     squad, that is, Khalfan Mohamed:  Mr. Abdulla,

      13     Mr. Elisha, Mr. Ndange, for whom there is no

      14     photo, Mr. Mahundi, five, six, seven, eight,

      15     nine, ten, eleven.

      16               He was that firing squad, with no

      17     jury, with no trial, with no mitigating

      18     factors.  He just killed.  And you know what?

      19     He is a bullet.  He is a bullet that ripped

      20     through these 11 people and hasn't stopped.  He

      21     is a bullet that, when is caught in South

      22     Africa and said, yeah, I killed, yeah, I'm not

      23     sorry, I don't give a damn about the people I

      24     killed and I'll strike again, and he did.

      25               When he struck again, you saw what he

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       2     did to Officer Pepe.  This was his 12th bullet.

       3     That's a man who wanted to make sure the

       4     defendants could go and meet with their lawyers

       5     for a fair trial, this trial.  And I submit to

       6     you that this man is a firing squad and a

       7     bullet, and you are 12 pieces of a shield; and

       8     only if the 12 of you all come together, the 12

       9     of you form one shield, can you stop him from

      10     killing again.

      11               And I submit to you that when you

      12     consider the magnitude of the crime, the awful

      13     crime which he did coldly and with no remorse,

      14     that a just sentence is the death penalty.  But

      15     I submit to you when you take a person, the

      16     only person on the planet who is part of the

      17     Tanzania bombing, and then participated in that

      18     heinous assault on Officer Pepe, when you take

      19     that, a death sentence is not just a just

      20     verdict, I submit to you it's the responsible

      21     verdict.

      22               Thank you.

      23               THE COURT:  Thank you, Mr.

      24     Fitzgerald.  And we'll break for lunch and

      25     we'll resume at 2:20.

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       2               (Luncheon recess)

       3

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

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       2          A F T E R N O O N    S E S S I O N

       3                       2:20 p.m.

       4               (In open court; jury present)

       5               THE COURT:  Good afternoon.

       6               Mr. Stern.

       7               MR. STERN:  Good afternoon.

       8               You are not from Khalfan Mohamed's

       9     world and he is not from yours and yet today,

      10     nearly six months after we began, you sit here

      11     to judge him, to decide his fate.

      12               We all were raised in a world of air

      13     conditioning and Corn Flakes and color TV.  He

      14     was raised in a mud hut.  He went to a school

      15     where coconut tree trunks stood in for desks.

      16     You have never smelled the wind off an Indian

      17     Ocean.  You have never heard the cry of the

      18     prayers in dusty Dar es Salaam.  But today,

      19     it's your job to decide if he should live or

      20     die.  Today you are his peers, and the only

      21     ones who matter.

      22               Although he came here from half a

      23     world away, you also cannot forget what you

      24     have in common, and that is your humanity.

      25     Like you, he loves and feels pain.  His life

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       2     experience is not yours, none of you share it.

       3     But he is closer to you than you know.

       4               Mr. Fitzgerald would have you believe

       5     that the tears you saw him shed were crocodile

       6     tears.  That means somehow that he cried for

       7     your benefit, that he wasn't really moved by

       8     his family and friends.  But you sat here and

       9     saw those weren't for your benefit.  He tried

      10     his best to hide them, but, like all of you, he

      11     feels.

      12               There are not many things I suppose

      13     that Mr. Fitzgerald and I agree on but one is

      14     this:  On August 7th of 1998 Khalfan Mohamed

      15     participated in a terrible, terrible act and

      16     eleven people lost their lives.  You found it

      17     to be true.  Khalfan Mohamed said it was true

      18     and it is true.  And for that terrible act he

      19     will pay a terrible price.  The only question

      20     that remains is what price he should pay.

      21               So let's talk for a moment about the

      22     choices you have to make.  There are only two.

      23     The Judge has told you either you will sentence

      24     him to death or you will sentence him to spend

      25     the rest of his life every single day in

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       2     prison.

       3               Let's talk about the option of death.

       4     Death in the end punishes those who remain.

       5     Maybe there is a moment of pain, maybe the fear

       6     that precedes it, but in the end it grieves

       7     family, simple people who don't know why he's

       8     here, who can't understand how he came to be

       9     involved in the things he was involved in.  He

      10     won't have any more pain, and they will.

      11               Maybe worse than that, other people

      12     will cynically exploit his death.

      13     Mr. Fitzgerald told you, well, no matter what

      14     happens, whether he's put in prison, he'll be

      15     exploited, whether he's executed, he'll be

      16     exploited, but you know from something they

      17     showed you that he's not even on the radar

      18     screen.  When Usama Bin Laden went on TV, he

      19     mentioned a lot of people, Ramzi Yosef,

      20     al-'Owhali.  Did you hear him mention Khalfan

      21     Mohamed?  He's in jail, too, just like

      22     al-'Owhali.

      23               But part of the proof of how tiny he

      24     really is, is that Usama Bin Laden's firing

      25     people up.  When he's telling people, this is

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       2     why we fight, his name doesn't come up.

       3               Now, all of you know the power of

       4     martyrdom.  It's not just an Islamic thing.

       5     All of us know the name of Joan of Arc because

       6     she was burned at the stake.  But it's not just

       7     big people who are immortalized by martyrdom.

       8     Small people, too.  You all know the name

       9     Nathan Hale:  I regret that I have but one life

      10     to give for my country.  He was just a soldier

      11     in the revolutionary war, just a Vermont

      12     soldier.  No one would know who he was, had he

      13     be held in a prisoner of war camp, but,

      14     instead, once he was executed, he became a

      15     rallying cry, a martyr, and we remember him to

      16     this day.

      17               Send him to jail and he'll quickly be

      18     forgotten by all except those who love him.

      19     Kill him, and you've guaranteed him

      20     immortality.

      21               In the end if you kill him, you'll

      22     allow him to be used twice.  Now, when I say

      23     used, don't think that I am saying he didn't

      24     know what he was doing.  Don't think I am

      25     saying he was not responsible for what he did.

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       2     He knew and he is.  That doesn't mean that

       3     people bigger than him don't use all they've

       4     learned over years and years to manipulate

       5     people, to look for people with the kind of

       6     zeal he has, with the kind of belief he has.

       7     And so they got him, and he agreed of his own

       8     free will to participate, and he was just what

       9     the doctor ordered for this operation.  He was

      10     a local man.  It would be no real loss in the

      11     end if something happened to him.  And he was

      12     there to help him speak Swahili and get cars

      13     and whatever, and so he served their purposes.

      14     If you kill him, in death he will serve their

      15     purposes again.  Don't make that kind of

      16     mistake.

      17               The other option of course is life

      18     imprisonment.  And I want to talk to you about

      19     two things that life imprisonment does to a

      20     person.  It affects you in the simplest most

      21     day-to-day ways, and in the most profound ways

      22     that we all know as human beings.

      23               For him in the most basic way he will

      24     never hear his native language spoken again.

      25     He will never eat his native food.  Now you can

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       2     say boo hoo, too bad for him, and at some level

       3     that of course is right, because there are

       4     people who have suffered much, much more.

       5               But as Mr. Fitzgerald has told you,

       6     this will go on 24 hours a day, 7 days a week,

       7     12 months a year, maybe for 50 years for him to

       8     think about what he's done to his life and

       9     everyday.  When Thanksgiving comes and everyone

      10     one else says, oh, at least we get turkey here

      11     in the joint.  At least we have that bitter

      12     sweet memory of what it was like to be together

      13     with our families, it will mean nothing to him.

      14               Think of the things that make your

      15     lives sweet.  Think of picking what restaurant

      16     to eat in, what movie to see, what clothes to

      17     wear.  Think of going to the bathroom by

      18     yourself and no one is looking at you.  That

      19     will be taken from him.  Every choice that he

      20     will make will be determined for him by someone

      21     else.  Those are simple ways, ways that he'll

      22     feel everyday for the rest of his life, but in

      23     more profound ways as well, he will be

      24     punished.

      25               When his holiday Ramadan comes, he'll

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       2     fast alone without his family.  He'll never

       3     marry.  He'll never hold his child in his arms.

       4     He'll live and die without seeing his nieces

       5     and nephews born.  And one day somehow he'll

       6     get word that his mother has died, and he will

       7     not be able to go and be in the arms of his

       8     family.  He'll be in jail and when that day

       9     comes, five, ten, 15, 20 years from now, he'll

      10     know I did this to myself.

      11               Now, all of us, all of us have had

      12     the experience of growing up and of saying to

      13     ourselves:  How did I do that?  If we're lucky,

      14     it's, how did I get a tattoo?  But for him,

      15     he's cost himself the rest of his life.

      16               Those are the options you have and no

      17     others.  And the Judge will tell you the law

      18     you must decide in following them.  But I can

      19     make it easier for you because we agree with

      20     Mr. Fitzgerald again when he says the gateway

      21     factors, you recall what they are, are proven.

      22     They were proven by your verdict in the

      23     original phase of this trial.

      24               The statutory aggravators are proven.

      25     They were proven by your initial verdict.

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       2               Then there are the three nonstatutory

       3     aggravators.  Two of them are identical to

       4     those in al-'Owhali, and only one is different

       5     and that one of course is future dangerousness,

       6     because it's the government's position that

       7     Khalfan Mohamed is one of the people who

       8     attacked Officer Louis Pepe, and it must be

       9     obvious to you that that's really the crux of

      10     this case.

      11               On November 1st a terrible, terrible

      12     thing happened.  Officer Louis Pepe, a nice

      13     person, a good man, was attacked, and for him

      14     and his family nothing will ever be the same.

      15     That's a given.

      16               The question is, is Khalfan Mohamed

      17     responsible for that attack?  And the simple

      18     answer is no, the government has not proven it.

      19     The Judge will tell you that future

      20     dangerousness, like the other aggravators, must

      21     be proven to you beyond a reasonable doubt, and

      22     you must all agree if it's to be used against

      23     Mr. Mohamed.  But the government has failed to

      24     do that.

      25               Now, Mr. Fitzgerald told you a

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       2     version of the facts and it is a plausible

       3     version of the facts, but that is not proof

       4     beyond a reasonable doubt.  So let me suggest

       5     to you another plausible version of the facts,

       6     a version supported by the evidence that you've

       7     heard.

       8               Let's say that seven days before

       9     November 1st, Khalfan Mohamed and Mamdouh Salim

      10     are put in the cell.  They are not told they

      11     are going together, but they're put in a cell

      12     together.  And Mamdouh Salim doesn't really

      13     like Khalfan Mohamed very much and can't really

      14     communicate with him very well.  Look at the

      15     stipulations from the psychiatric reports.

      16     That's what he says.

      17               And they're in the cell, but they're

      18     not always in there together.  And the cell is

      19     filled with boxes.  Agent Hatton I think told

      20     you there were 68 boxes in that cell.  You look

      21     at the pictures and you'll see at the foot of

      22     this bed the foot of that bed, next to the

      23     sink, boxes everywhere.

      24               And sometimes Khalfan Mohamed is out

      25     of that cell and while he's out of that cell,

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       2     he can't possibly know what Salim is doing, and

       3     sometimes Khalfan Mohamed is sleeping and maybe

       4     he doesn't really pay attention to what Salim

       5     is doing, and Salim goes about his business,

       6     and Khalfan Mohamed goes about his.

       7               And then one day Salim gets a visit

       8     from his lawyers, McAllister and Adler, and he

       9     goes down the hall and on his way out he tucks

      10     into his Redwell a sharpened comb, and a

      11     sharpened brush.

      12               Now, a lot was made of that brush.

      13     Where is his brush?  Do you know that the brush

      14     next to Salim's bed isn't his that he used?  Do

      15     you know if there are brushes in any of those

      16     68 boxes?  You can't know because the FBI

      17     didn't give you a record of what was in them.

      18     So don't let them tell you it must be his

      19     brush.  What you do know is that no one ever,

      20     ever says they see him with that brush.

      21               So Salim goes down the hall and he

      22     goes into one of those little interview rooms

      23     and he he's sitting with his lawyers, and he

      24     sees Officer Pepe and he's miserable, he's

      25     angry, he hates being where he is, and he says

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       2     to himself:  I've got to get out of here.

       3               And Officer Pepe comes and he says:

       4     I have to go back to my cell for a minute,

       5     Officer.  And Officer Pepe is a good human

       6     being and makes the mistake of not cuffing

       7     Salim.  And on the way back to the cell Salim

       8     pulls out that comb and he attacks Officer Pepe

       9     and plunges it into his eye.

      10               What should make you think that

      11     that's what happened?  Well, look back at what

      12     Lance Maiden tells you.  He tells you:  We saw

      13     blood at cell number 4 on our way in.  And

      14     Jenkins, Rodrick Jenkins reluctantly tells you:

      15     I concluded that Officer Pepe was attacked by

      16     Salim on the way back to his cell.

      17               One thing you know, that cell is

      18     locked, and Khalfan Mohamed is locked inside.

      19     So if there is blood in that hallway as the

      20     officers are coming up then that blood got

      21     there before Khalfan was out.  Now, he takes

      22     Officer Pepe and they say you know he's a

      23     skinny man.  This man was mujahadeen.  You

      24     remember he was one of the old ones, a guy who

      25     fought in Afghanistan for years, and years.  Do

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       2     you think he can't take care of himself?

       3               So he drags him back to the cell, and

       4     he takes those keys and he opens that cell, and

       5     what is Khalfan supposed to do?

       6               If I could see picture 4020 for a

       7     minute, please?

       8               This is Khalfan Mohamed's bed.  Take

       9     a good look at it.  You see the folded pillow

      10     and the glasses set down.  It looks like

      11     somebody was sitting there reading or writing,

      12     doesn't it?  And it looks like after they got

      13     up stuff was thrown on that bed.

      14               So Khalfan Mohamed is sitting here,

      15     minding his own business, and here comes Pepe,

      16     and here comes Salim.  What should Khalfan do?

      17     Should he stay?  Wouldn't the government have

      18     said he was guilty if he stayed?  Should he run

      19     into the front?  Wouldn't the government say

      20     he's a lookout if he ran up to the front?

      21               So Khalfan gets up and Officer Pepe

      22     is being man handled by Salim, maybe stabbed

      23     again with that hair brush, and Khalfan walks

      24     out, and the only way he can walk out is here

      25     where there's a pool of Officer Pepe's blood,

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       2     and he goes out that door, he stops right

       3     outside the cell.  What should he do?

       4               In what circumstance would the

       5     government not come here and tell you he was

       6     guilty?  Then he waits, and he waits, and you

       7     remember Rodrick Jenkins sees Salim up near the

       8     front by the pillar.  Is Khalfan with him?  No.

       9               Now the government will say about

      10     that, well, I guess he was the lookout at that

      11     back door at 10 South.  And what if he went up

      12     front, what would they say?  He and Salim were

      13     acting together.

      14               Then they see Salim going with the

      15     keys and Salim opens that door with the keys

      16     and goes back inside.  Did he say, Khalfan come

      17     with me, buddy, we're in this together?  Just

      18     leaves Khalfan there.

      19               Is what I'm telling you speculation?

      20     No more than what the government told you.  And

      21     so when you're asked yourselves, what is proof

      22     beyond a reasonable doubt, you know the answer.

      23     No one really knows what happened there, and

      24     you certainly can't kill someone on

      25     speculation.

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       2               Let's look more carefully at the

       3     evidence the government produced.  They began

       4     by calling corrections officers and one of the

       5     things in this case that's most interesting is

       6     that these corrections officers cannot or will

       7     not tell the same story.

       8               Now, the government says we attribute

       9     that to their fright or the hectic pace of

      10     things that were going on, but they want you to

      11     believe them about some things and disbelieve

      12     them about others, and some of the things they

      13     tell you cannot be true.  Let's start with

      14     Rodrick Jenkins.

      15               He tells you he sees Salim alone near

      16     the door with blood on his hands.  He's

      17     instructed the disturbance control team.  And

      18     he makes this conclusion that Pepe was attacked

      19     returning Salim to his cell.  He sees Salim

      20     entering cell number 6 and now for the first

      21     time we hear him say something that others

      22     don't agree with.

      23               He says:  We come around the corner

      24     near cell number 6, it's a blind corner.  I

      25     have the shield in front of me, and I'm

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       2     attacked, boom, out of nowhere, I'm attacked.

       3               Could be true, I guess, except that

       4     Lance Maiden doesn't see it that way Lance

       5     Maiden says, Khalfan is back up against the

       6     wall, sort of bouncing on the balls of his feet

       7     with his hands clenched.  And Lt. Carrino says,

       8     Khalfan is crouched down in a corner.  So all

       9     those things can't be true, but maybe that's

      10     just attributable to the excitement and how

      11     hectic things were.

      12               Robert Jenkins doesn't recall the

      13     shield breaking, and we know it broke.  So

      14     maybe that's attributable to how hectic things

      15     were, but he does recall something.  And if it

      16     weren't so serious I guess maybe it would be

      17     funny how it comes out, because what he recalls

      18     is that Khalfan Mohamed had blood on his hands,

      19     and here's how it comes out.

      20               He's being questioned on redirect

      21     examination by Mr. Garcia and it goes like

      22     this:

      23               Do you recall seeing blood on the

      24     inmates Mohamed's hands?

      25   "Q.  Salim?

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       2   Q.                 This defendant?

       3   A.                 Oh, I don't rec

       4   Q.                 I'm going to sh

       5            Government Exhibit marked for

       6            identification only 35164 and ask you to

       7            read the last few lines on page 1.

       8               Jenkins beginning to read:  Got a

       9     visual.

      10   Q.                 Not allowed, I'

      11            yourself?

      12   A.                 Okay.?
    ot allo

      13   Q.                 Does that refre

      14            recollection as to whether or not you

      15            saw anything on Mohamed's hands?  Your

      16            recollection, not what the report says.

      17   A.                 Yes.ction, not

      18   Q.                 And what, if an

      19            recall yourself seeing on this

      20            defendant's hands?

      21   A.                 Says blood.nds?

      22   Q.                 Not what it say

      23            officer.  Your recollection, do you

      24            recall -- and I'll take the report back.

      25            Do you recall on your own whether or not

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       2            you saw anything on Mohamed's hands when

       3            you saw him in the corner?

       4   A.                 Yes, just a bot

       5            in his hand.

       6   Q.                 And do you reca

       7            withdrawn.

       8               Does this refresh your recollection

       9     as to anything else you saw on Mohamed's hands?

      10     Does this report refresh your recollection,

      11     your recollection as to anything else you saw

      12     in Mohamed's hands?

      13   A.                 Yes.ands?
    to a

      14   Q.                 What was that?

      15               And he finally says:  Oh, blood.  I

      16     saw blood on his hands.

      17               Now, you'll remember that Rodrick

      18     Jenkins is a specialist on this disturbance

      19     squad and he was asked some questions about

      20     some of his training, and these are the

      21     questions he was asked by me.

      22   Q.                 One of the thin

      23            from your training that any evidence

      24            needs to be preserved, isn't that fair

      25            to say?

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       2   A.                 Yes.Summation -

       3   Q.                 And so for exam

       4            had blood on their hands you wouldn't

       5            allow them to wash their hands, would

       6            you?

       7   A.                 No.  em to wash

       8   "Q.  You wouldn't allow them to wipe if off if

       9     you could help, would you?

      10   A.                 No.p, would you

      11   Q.                 And from the ti

      12            top of Mr. Mohamed, you never let him

      13            wash his hands, did you?

      14   A.                 No.is hands, di

      15   Q.                 And you never g

      16            anything to wipe his hands off on, did

      17            you?

      18   A.                 No."  to wipe h

      19               Now he says he has blood on his

      20     hands.  He says he never wiped them off and now

      21     we have luckily an external source, a neutral

      22     source that we can examine to see if indeed he

      23     has blood on his hands.

      24               So you should watch what we're about

      25     to show you.  Take a good luck.  Take it back

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       2     with you.  Look at his hands.  You get a good

       3     luck at the palms of both his hands so when

       4     Rodrick Jenkins says:  Oh, yeah, he had blood

       5     on his hands, he's not telling you the truth.

       6               But we have another opportunity to

       7     test what he says through a neutral source

       8     because he tells you Khalfan Mohamed was

       9     squirting something at him.

      10               And he tells you it got on him, but

      11     he tells you something else.  What he was

      12     squirting at me got on a shield I was using.

      13     And you know you remember Mr. Kessner I think

      14     his name was, came here and told you about

      15     testing for capsicum and dihydrocapsicum, so

      16     that if there was something on that shield all

      17     they have to do is take the plexiglas shield,

      18     test the plexiglas shield and see if it's

      19     spattered with hot sauce.

      20               But Agent Hatton, not part of the

      21     Bureau of Prisons says:  Nothing in my record

      22     indicates that hot sauce was on any of the

      23     plexiglas items.  How could that be true?

      24               Now one thing they do is they say,

      25     well, we do have hot sauce on our clothes.

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       2     That must prove that he was squirting hot

       3     sauce.  But you know that Salim was squirting

       4     hot sauce.  So the hot sauce on their clothes

       5     doesn't prove who squirted it.

       6               They could have proven it if it was

       7     on that shield because everyone tells you he

       8     was squirting it on the shield.  Where is it?

       9     If you're being told the truth, where is the

      10     proof?

      11               There is one other amazing thing in

      12     this case, and it's something that comes up

      13     again, and again, and again.  You know that

      14     Mamdou Salim and Khalfan Mohamed were badly

      15     injured.  You have a chance if you choose to

      16     look at their medical records.  Salim had a

      17     broken jaw, and a cut on his left eye.  Khalfan

      18     Mohamed had a fractured orbit, a broken nose,

      19     multiple fractures in his orbit.  You can see

      20     if you look at that video how badly bruised he

      21     was.  But not one person comes into this

      22     courtroom and says:  I hit him.  I punched him.

      23               Now, would it be understandable if

      24     one of their own had been hurt?  You can

      25     understand them being angry.  But someone had

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       2     to tell you the truth.  Read back through every

       3     single person and see if one person sees

       4     Khalfan Mohamed getting hit?  See if one person

       5     sees Mamdouh Salim getting hit?  People are

       6     with them all the time.  People are standing

       7     with them in a front near cell number 1.

       8     People are standing with him in the hall

       9     between cells number 4 and 5.  Why is that

      10     important?  Why does that matter?  What does

      11     that have to do with anything?

      12               Well, I guess what it has to do with

      13     something in the end is that you'll find you've

      14     been deprived of one of the most important

      15     pieces of evidence and you'll have to decide

      16     for yourselves why it doesn't exist, but maybe

      17     the reason has something to do with that these

      18     officers know that they beat these guys and

      19     that they shouldn't have.  But let's see, let's

      20     see as we go on what we hear about that video.

      21               Let's go next to Officer Maiden,

      22     Lance Maiden.  He's the person who tells you

      23     there's lots of blood on the floor near cell

      24     number 4, and that's interesting, because cell

      25     number 4 is right where they take Khalfan

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       2     Mohamed's clothes off, and I suppose that they

       3     are going to say to you at some point, he has

       4     Officer Pepe's blood on his clothes.  How could

       5     that happen?  He has it on his shoes.  How

       6     could that happen?  Although I already

       7     suggested to you one way, that when Mamdou

       8     Salim drags him in, Khalfan has to go right

       9     past him to get out.

      10               But you know there's another way.

      11     They are fighting with him on the floor,

      12     there's blood all over right inside the cell,

      13     and Lance Maiden tells you there's blood all

      14     over right in cell of number 4, and that's

      15     right where they take his clothes off right

      16     where you have photographs of his clothes lying

      17     on the ground.

      18               Anyway, he sees Khalfan, and he sees

      19     Khalfan's hands, too, and there is not a

      20     mention of blood on his hands from Officer

      21     Maiden.  He contradicts Rodrick Jenkins,

      22     Officer Jenkins about what happened when they

      23     approached.  He said Khalfan stood back and

      24     they approached him.  He never sees Khalfan run

      25     at them.  But be that as it may, he also has no

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       2     idea how anyone gets here, but there is

       3     something much more interesting about Lance

       4     Maiden.

       5               You all recall seeing a videotape of

       6     someone named Joe Rementer talking about what

       7     happened.  Joe Rementer is talking about what

       8     happened within minutes of this incident.  So

       9     you should take a look at this and keep in mind

      10     that Lance Maiden is the cameraman when this

      11     video is made ten minutes after the incident.

      12     That's what Lance Maiden tells you, ten minutes

      13     after the incident.

      14               (Video played)

      15               MR. STERN:  Now, there is a lot of

      16     interesting things about that video, but the

      17     first thing to consider is this:  Officer

      18     Maiden was asked questions about that video and

      19     this is what he had to say:

      20               As this crime scene video was being

      21     made you knew that it could be evidence or

      22     could be evidence in a case at some point,

      23     right?

      24   A.                 Correct.in a ca

      25   Q.                 And so you knew

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       2            be as accurate as it could possibly be,

       3            did you not?

       4   A.                 Yes. not?
    ïÿ

       5   Q.                 And you would n

       6            let innacuracy enter a crime scene

       7            video, would you?

       8   A.                 That's correct.

       9   Q.                 That would be a

      10            practice, would it not?

      11   A.                 That wouldn't h

      12               So what's said in that video?  What

      13     does Rementer say, with Maiden standing right

      14     there?  He says Khalfan Mohamed is crouched

      15     behind a plexiglas shield and Salim comes out

      16     spraying and he point to two bottles, and it's

      17     interesting, because his report is also in

      18     evidence, Joseph Rementer's report, and he says

      19     in there, he comes out with two bottles over

      20     his head spraying, and you know for a fact that

      21     only two bottles are found outside that cell,

      22     and you know for a fact that Khalfan Mohamed

      23     never goes back into the cell.

      24               So when they say Khalfan was spraying

      25     that sauce you begin to wonder if it could be

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       2     true, and it's not just that videotape that

       3     should make you think that, because, again,,

       4     Officer Hatton, Agent Hatton, I'm sorry, from

       5     the FBI, you remember him.  He went around

       6     collecting things and taking photographs.  Just

       7     like Officer Jenkins, Agent Hatton reached the

       8     conclusion -- go back to his testimony and read

       9     it if you like.  His conclusion was that hot

      10     sauce was sprayed from the door of cell number

      11     6.  Khalfan was never in the door of cell

      12     number 6.  He was opposite the door of cell

      13     number 6.  And when Mr. Fitzgerald was telling

      14     you his version of what had happened, he said:

      15     Oh, and, look, here's hot sauce on the wall

      16     inside.  That must have gotten there when

      17     someone squirted it at Officer Pepe, and that

      18     someone must have been Khalfan Mohamed.

      19               Well, you know, Salim locked himself

      20     in that cell and if you look there's a little

      21     puddle of hot sauce in the shower, so maybe

      22     what happened is Salim filled up those bottles

      23     and tried them out, squirting them on the wall.

      24     Oh, they work.  Then he opened that door and

      25     went after these officers.

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       2               It's all speculation, mine and his.

       3     Don't confuse that for proof beyond a

       4     reasonable doubt.

       5               They next called Glenn Carrino, and

       6     he again had what I would consider minor

       7     inconsistency, things that I suppose could be

       8     the result of the hectic activity or something,

       9     but he says I had the shield.  I had the

      10     plastic shield, not Jenkins.  He says that

      11     Khalfan stayed all the way back in the corner

      12     as far from him as he could get and they had to

      13     approach him.

      14               He then talks about a statement that

      15     Officer Pepe made, and those statements are

      16     interesting because in some ways they are the

      17     cornerstone of the government's case.  The

      18     government says, we have a witness.  That

      19     witness is Louis Pepe.  And he told you, they

      20     did it.

      21               Well, Carrino tells you about a

      22     statement and he tells you he's not 99 percent

      23     certain that that is the statement.  He says,

      24     I'm 99 percent certain.  He says, Lu, I gave em

      25     a fight.  I fought back.  And the government's

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       2     case relies on this.  Is it I gave em a fight,

       3     or did Officer Pepe in the condition he was in

       4     say, I gave them a fight?  He says I gave him a

       5     fight, I give them a fight, I gave him a fight.

       6     You think he was really saying those precise

       7     words?  You know he didn't say, Lu, I give them

       8     a fight.  I fought back, even though Carrino

       9     says he's 99 percent certain that's true,

      10     because he'd earlier said they slipped the

      11     cuffs and I fought back was the statement that

      12     was made to him, so maybe he doesn't have such

      13     a perfect memory of this statement, but the

      14     government will say to you, that word he's sure

      15     about.  He's another one who says:  Oh, the

      16     sauce was spattering on the shield.  Where?

      17     Where?  He sees no one hit.

      18               And then the most disturbing part of

      19     his testimony, because he says, I am aware of

      20     the taping system on 10 South.  I am aware of

      21     the way that system works and five months ago I

      22     made a complaint about it, because it wasn't

      23     working, and it hasn't worked since.  There's

      24     your explanation to why there is no tape.  Does

      25     that tape really matter?

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       2               Well, I guess you can't know.  Maybe

       3     it would show he was innocent.  Maybe it would

       4     show he was guilty.  Certainly it would show

       5     who covered up that camera if it showed nothing

       6     else.  But I guess the system hasn't been

       7     working for five months, then you wouldn't

       8     expect there to be a tape.

       9               So we go on to Robert Parrish.  You

      10     remember Mr. Parrish.  I think he's retired

      11     now.  And he also has a lot to say to you about

      12     the tape, but surprisingly it is a completely

      13     different story.

      14               He tells you, well, the FBI came once

      15     and I gave them a tape and that was the wrong

      16     tape.  And they came again and I gave them

      17     another tape, but that was the wrong tape.  And

      18     then after that, we just didn't have any tape.

      19     And he was asked if he told Agent Felch that

      20     the tape was a copy and he was asked if he told

      21     Agent Felch that the original tape had been

      22     copied over, and he said, you know, I've racked

      23     my brains and I just don't remember that.  But

      24     luckily Agent Felch does, and we all remember

      25     who Joseph Felch shall was.  And he says:

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       2   Q.                 Let me show you

       3            marked KKM12.  Does that refresh your

       4            recollection as to the date on which you

       5            called Mr. Parrish?

       6   A.                 Yes, November 9

       7   Q.                 And on that day

       8            conversation with Mr. Parrish about

       9            whether or not that tape was available,

      10            right?

      11   A.                 I had a convers

      12            Parrish, asking him or telling him and

      13            asking him the tapes that we had did not

      14            appear to be the tapes of the incident

      15            where Officer Pepe was assaulted.  And I

      16            was asking him if he knew what the tapes

      17            were that we had or where a tape that

      18            would show that assault might exist or

      19            if it did exist.

      20   Q.                 And Mr. Parrish

      21            he not, that he believed that the tapes

      22            started at 11 p.m. on October 31, 2000

      23            and stopped recording at 104 a.m. on

      24            November 1, 2000?  Didn't he tell you

      25            that?

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       2   A.                 That's what I r

       3   Q.                 And he then tol

       4            believes that the tape he had given to

       5            the FBI to an agent of the FBI was a

       6            copy and not the original, right?

       7   A.                 Yes, he did say

       8   Q.                 And he finally

       9            original was reused and was therefore

      10            unavailable, right?

      11   A.                 Yes."ble, right

      12               Now, this is a truly amazing turn of

      13     events because you're told by Glenn Carrino

      14     that for five months it hasn't worked.  You're

      15     told by everyone that there's no system for

      16     changing the tape, and so it's really okay that

      17     there's no tape.

      18               And then you find out that up until

      19     very early the very morning of this incident a

      20     tape was running, and then the FBI is told they

      21     don't have it, and you can look at it, there is

      22     a tape from October 31st into November 1st and

      23     it shows what's happening on 10 South.  That

      24     tape as it happens is at night, but you can

      25     look at the tape.  It's in evidence.

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       2               And incredibly what terrible luck at

       3     1:04 the tape stops functioning, no one

       4     replaces it, and they just don't have anything

       5     to show what happened that day.

       6               Now, you can say it's speculation

       7     that maybe it is just bad luck, but it's no

       8     different than what Mr. Fitzgerald asks you to

       9     do when he puts together the facts his way.

      10               It is curious at best that Carrino

      11     says it hasn't worked for five months and that

      12     Felch never mentions that the original tape was

      13     reused, and that only an outsider, I'm sorry I

      14     said the wrong person, I meant that Parrish

      15     never mentions the original tape had been

      16     reused.  It's only an outsider Agent Felch who

      17     tells you that that is what was said to him.

      18               That's half the government's whole

      19     case.  They call Officer Santulli who says that

      20     Officer Pepe tells her, I got them, and I think

      21     Mr. Fitzgerald said to you she failed to

      22     mention it when she was interviewed by the FBI.

      23     But that's really not what happened.

      24               You can have the agent's testimony

      25     read.  What really happened is he said to her:

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       2     Did he say anything to you about the incident

       3     and her answer was:  No.  And they know that's

       4     a problem, so they say, well, it was so hectic,

       5     she was so frantic she couldn't remember the

       6     answer to that question, but a few months later

       7     or a month later it came to her.

       8               But it wasn't so hectic that she knew

       9     to go to the doctors and say, give me the comb.

      10     I have to establish a chain of custody.  And

      11     her statement, too, is, make sure I get it

      12     right, I got him.

      13               Now they want you to read as, I got

      14     them.  I got them.  Therefore, it must be him

      15     and Salim.  And, finally, they offer you

      16     Mr. Patel and Mr. Patel says, too, oh, he made

      17     a statement something about them, but he does

      18     write down a statement contemporaneously

      19     notwithstanding what Mr. Fitzgerald says about

      20     how impossible it was to do that, he does write

      21     down a statement, and the statement he writes

      22     down, take a look at Officer Pepe's medical

      23     record is:  An inmate stabbed me in the eye.

      24     An inmate.

      25               So if we're so concerned about how

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       2     many people are mentioned in a statement, then

       3     factor that in, too.  An inmate, a inmate,

       4     stabbed me in the eye.  Well, that's not two.

       5               But I guess that one you should

       6     ignore, but I got 'em, you should take to mean,

       7     I got them, I got him and Salim.

       8               Now, the government might tell you

       9     that Khalfan Mohamed has ordered hot sauce and

      10     honey and that is true.  When you look at his

      11     commissary records you will see that Khamis

      12     Mohamed has a sweet tooth, and you'll see it

      13     from the day he came into MCC.  Look at all of

      14     his commissary records.  He always was ordering

      15     hot sauce and honey.  It was a regular part of

      16     what he ordered.

      17               They also want you to ignore what is

      18     powerful evidence of his innocence.  They don't

      19     mention the fact that he's never seen with

      20     Salim, that Salim ignores him entering the

      21     cell.  They say, well, sure, we know all the

      22     notes are Salim's.  We know that it's Arabic

      23     handwriting, written in the hand of a native

      24     Arabic speaker, but that's all right, we know

      25     that the note that, we are the Muslims of 10

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       2     South is so dissimilar from his writing that

       3     they didn't even submit it for analysis.

       4               We know that Salim's prints are the

       5     only ones found on these documents, but Salim

       6     must have told him.  Well, that's interesting,

       7     because if those documents were hung on the

       8     wall then even if Salim didn't tell him, he

       9     should have seen, because these documents were

      10     found in a box right next to his bed.

      11               You could say, well, they must be his

      12     or he must have known about them.  On the other

      13     hand, if they were found deep in the bottom of

      14     a box next to Salim's bed you might say:  How

      15     could he have seen?  This is a mess in here.

      16     It's a pig stye, Salim could have written these

      17     at any time.  But you don't know.

      18               The best they can tell you we know

      19     these are from cell number six.  Sorry,

      20     counsel, that's all we can tell you.  So they

      21     try to take Salim and make him, tag him along.

      22     Salim wrote nasty disgusting vicious things and

      23     they want you to attribute those things to

      24     Khalfan Mohamed.  It was Salim who was angry

      25     and upset fighting with his lawyers, going in

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       2     front of judges.  You can read when he went in

       3     front of Magistrate Eaton how he was

       4     complaining and fighting with the judge.

       5               You know from McAllister and Adler

       6     that he was angry.  He wouldn't meet with them.

       7     He finally did.  You'll see that Salim comes as

       8     close to admitting this crime as he could come,

       9     without actually doing it.

      10               He says when he's seen by the

      11     psychiatrist and the psychologist, I took the

      12     keys off his belt.  I saw my chance and I took

      13     it.  I took them off Salim's belt in my cell.

      14               Maybe the government will say he's so

      15     close to Khalfan Mohamed that he's protecting

      16     him somehow.  But that's sure not what he says

      17     when he talks to the psychiatrist and the

      18     psychologist.  He says:  I was not getting

      19     along with my cellmate, and I could barely

      20     communicate with him, because his English and

      21     his Arabic weren't really that good.

      22               Khalfan Mohamed can't control how the

      23     evidence is collected.  Khalfan Mohamed can't

      24     control if a videotape is put in the machine.

      25     He's stuck with the job they do.  And so when

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       2     you ask yourselves if his future dangerousness

       3     has been proven beyond a reasonable doubt, when

       4     you ask yourselves should we blame him for the

       5     attack on Officer Pepe, first say this:

       6               It is a terrible, terrible thing.

       7     And then say:  There is not proof beyond a

       8     reasonable doubt that he did this.

       9               I tell you that whatever he would

      10     have done the government would have said, it

      11     looks like he's guilty.  If you listen to

      12     Joseph Rementer, the only person who within

      13     minutes of this incident is telling you about

      14     it and the only person who tells you about it

      15     on videotape, a person who's telling it at a

      16     time when no one could talk about it or think

      17     about it, or plan about it, he says:  Khalfan

      18     Mohamed is in the corner behind a plexiglas

      19     screen.  No squirting, no weapons, just there.

      20               (Continued on next page)

      21

      22

      23               MR. STERN:  (Continuing) and Salim

      24     comes running out with these two squirt bottles

      25     in his hands and a crazed look on his face, and

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       2     Lance Maiden, who says, "I would step in if

       3     there was misinformation in a crime scene

       4     video," doesn't say a word.

       5               It's not the kind of proof a

       6     reasonable person would rely on without

       7     hesitation in the most important matters of

       8     their affairs.  It's just government

       9     speculation, and you cannot sentence someone to

      10     death on speculation.

      11               Now, the government may tell you

      12     whether you find the attack on Peppe is

      13     attribute to Mohamed or not, he is still a

      14     future danger.  They will say when he was

      15     arrested, he said, I would do it again, I'm

      16     glad Americans were killed.

      17               And Mr. Fitzgerald crafted a very

      18     good line:  He doesn't have fire in his eyes,

      19     he has ice in his veins.  Really excellent.

      20     You will remember it.  Newspapers will write

      21     it.  But is that really completely true?  And

      22     you have the chance to read his statement.  You

      23     have a handwritten copy of it.  That's the

      24     statement taken as he was speaking.  And you

      25     will see that he tells the agents, "I think of

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       2     the Kenyans all the time."  He is asked a

       3     question:  "If there was a fatwah to kill

       4     Americans anywhere you found them, what would

       5     you do?"  And his answer is:  "I would have to

       6     think about it.  Some are good and some are

       7     bad."

       8               So when Mr. Fitzgerald says to you he

       9     is a stone-cold killer, he is a person who

      10     hides behind a mask of meekness, waiting for

      11     his chance to kill, he has never had a moment's

      12     remorse, you should doubt it, because even then

      13     he was beginning to think for himself about

      14     what he had done.

      15               Well, that really is the government's

      16     case.  It must be clear that their whole case

      17     really is about what happened with Officer

      18     Pepe.

      19               You heard from Dr. Cunningham, and

      20     Mr. Fitzgerald ridiculed him, but the core of

      21     what he said was completely unchallenged.  At

      22     ADX Florence, a guard has never been

      23     hospitalized or killed as a result of an inmate

      24     attack.

      25               Now, do I know that Khalfan Mohamed

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       2     will go there?  No.  He fits all the criteria.

       3     But the only reason he won't go there is if the

       4     Bureau of Prisons, who is, as you might

       5     imagine, with 129,000 people in their system,

       6     very experienced, says he needn't go there.

       7     Otherwise, he will.  It is a place that houses

       8     the worst of the worst of the worst, and no

       9     guard has ever been killed or hospitalized.

      10               You saw what it's like, how they take

      11     real care with a prisoner when you saw the

      12     videotape of Khalfan being moved at Otisville

      13     with the three officers and sticking his hands

      14     through and the Martin chain and shackles on

      15     his ankles, and I guess Mr. Fitzgerald's point

      16     is that there is always human error.  And I

      17     guess that's true, there is.  But that's why

      18     they have three people -- to act as a check on

      19     one another.  That's why they change people all

      20     the time -- so there is no familiarity.

      21               Well, Mr. Fitzgerald ridiculed all of

      22     the mitigation from Mr. Mohamed.  He said

      23     almost every time:  Give it what it's worth.

      24     Zero.  Give it what it's worth:  Less than

      25     zero.  So let's talk about it.

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       2               One of the things to talk about is

       3     his role compared to others who participated in

       4     the offense, and Mr. Fitzgerald concedes that

       5     he was not a planner.  As a matter of fact, you

       6     will read a stipulation from someone in the

       7     U.S. Attorney's Office knowledgeable about this

       8     case who says he is a low-level participant.

       9     Not only is he not a leader, but there was no

      10     one lower than he.

      11               Mr. Fitzgerald says it couldn't have

      12     happened without him, but that's not true.

      13     Laborers, low-level people are a dime a dozen.

      14     If they didn't find him, they were finding

      15     someone else.  The only skills he needed was to

      16     speak Swahili and know how to do what he was

      17     told.

      18               Dr. Post came in and I think that Mr.

      19     Fitzgerald referred to him as a dog and pony

      20     show, as someone who had sold his dignity to

      21     help out a terrorist.  Now, you should think

      22     for a moment about who Dr. Post is.  Dr. Post

      23     worked for the CIA for 21 years.  Dr. Post did

      24     profiles of world leaders for presidents.

      25     Dr. Post is a psychiatrist.  Dr. Post is a

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       2     professor.  Do you think for a second that he

       3     is coming in here for him to destroy his own

       4     reputation?  He has spoken to 30 terrorists.

       5     He has written on terrorism.  He lectures on

       6     terrorism.  Do you think he is some sucker who

       7     he is taking advantage of, or do you think

       8     really that Dr. Post just said, I love this

       9     little terrorist, I'm going to help him any way

      10     I can?  It's ridiculous.

      11               Dr. Post came in here and tried to

      12     explain to you his role in this offense, as he

      13     understood it, and Mr. Fitzgerald says, well,

      14     he didn't go talk to Bin Laden, he didn't talk

      15     to Atef, he didn't talk to Zawahiri, he didn't

      16     talk to this person, he didn't talk to Jamal

      17     Al-Fadl, he didn't talk to Kherchtou, he didn't

      18     say Odeh was the final word on al Qaeda.

      19               He did say that Odeh described to him

      20     how al Qaeda worked, and it's really the same

      21     as what everyone else said.  And what Odeh told

      22     him was that there are members of al Qaeda --

      23     and it's conceded that he is not a member of al

      24     Qaeda -- and that the members of al Qaeda have

      25     a say in what happens.  I suppose maybe they go

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       2     to meetings or secret handshakes, I don't know

       3     exactly, but they have a say.

       4               Khalfan Mohamed had no say.  Mr.

       5     Fitzgerald ridiculed the story about the Fanta.

       6     Oh, poor Khalfan.  He had to get somebody a

       7     Fanta.  But that wasn't really the point of the

       8     story.  The point of the story is that his only

       9     job is to do what he is told, so when it comes

      10     time to buy the Suzuki, read the transcript,

      11     think back.  Someone was there and gave him the

      12     money to do it, and he put his name -- not an

      13     Abu name, not a fake name, his name -- on the

      14     car.

      15               And when it came time to rent a

      16     house, you remember someone, I think his name

      17     was Mohamed Jaquanda was the broker for a

      18     house, a slender elderly man, he said Khalfan

      19     was there, someone who didn't speak Swahili was

      20     there, and that person gave Khalfan the money

      21     and Khalfan passed it over and Khalfan put his

      22     name on there.  And Mr. Fitzgerald acts like,

      23     well, what's the big deal?  He was running away

      24     anyway.  They were all running away, but they

      25     weren't all putting their names on any

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       2     documents.

       3               He's the last one told of the

       4     destination of the bomb.  You know that al

       5     Qaeda has this real knack for making passports.

       6     You remember in El Hage's computer there were

       7     all these different Yemen and Saudi Arabia,

       8     different fake passport kind of things.  He

       9     didn't get one of those.  He didn't get one of

      10     a dead mujahadeen.  He went to his friend

      11     Zahran Malwi and said, hey, buddy, how about

      12     changing a few things on this document and

      13     letting me get a passport?  That's how he got

      14     his passport.  He paid for it himself.

      15               He was left there in the end, and Mr.

      16     Fitzgerald said, well, he was left there but he

      17     was supposed to go underground and they gave

      18     him three phone numbers.  They gave him three

      19     phone numbers.  They all went.  They all went

      20     to Yemen or Pakistan or Afghanistan before the

      21     bomb ever went off.  There was no risk for

      22     them, but him, if he got caught, big deal.

      23     Maybe they would get another martyr out of it.

      24               Mr. Fitzgerald mocks the idea that

      25     others of equal or greater culpability will not

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       2     be sentenced to death, and he says, well, Bin

       3     Laden's not caught, Atef isn't caught, Zawahiri

       4     is not caught.  We don't know what will happen

       5     to them if they are caught.  I suppose that's

       6     true, but we do know about the people who are

       7     caught.

       8               We do know Mamdouh Salim is one of

       9     the most powerful members of al Qaeda.  We know

      10     that Mamdouh Salim is on the Shura Council.

      11     You remember the description of al Qaeda.

      12     There's Bin Laden, the emir and then the Shura

      13     Council, and that's where Abu Hajer al Iraqui

      14     has his place and he lectures people.  He is

      15     one of the people who eggs on young men.  Go

      16     ahead, it's all right to do these bombings,

      17     because Ibn Tamiyeh told us when we were

      18     fighting the Tartars, if you kill people near

      19     them, if they were innocent, God bless them,

      20     they will go to heaven, and if they were

      21     guilty, they deserve to go to hell anyway.  So,

      22     don't worry, if I tell you to go ahead, it's

      23     okay.

      24               Salim is a person who tried to buy

      25     nuclear fuel to build a bomb.  Remember Jamal

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       2     Al-Fadl came in here and he told you how he was

       3     sent into the middle of Khartoum somewhere to

       4     meet with someone who had South African

       5     uranium, and he was told he had to get in

       6     contact with Salim and get something to weigh

       7     it.  Salim is one of the big moneymakers for al

       8     Qaeda, and I want to talk to you for a minute

       9     about that, because the top people in al Qaeda

      10     seem to live pretty good lives.

      11               You know that Ubaidah, before he died

      12     in Lake Victoria, had a wife in Kenya and a

      13     wife somewhere else and had cars and

      14     businesses.  You know that in Khartoum all

      15     these people had businesses.  And you remember

      16     at one point Jamal Al-Fadl said, oh, no, no,

      17     it's not true that just the most powerful

      18     people, just the most connected people do well.

      19     And I said, name one person who doesn't own a

      20     factory or have a good business.  Get back to

      21     me when you think of it.  And I'm still waiting

      22     for him to get back to me.

      23               Those people all do okay, and Salim

      24     did okay until he got arrested in Germany.

      25     Al-Fadl himself is doing pretty good.  He got

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       2     his whole family moved here.  Wadih El Hage

       3     doesn't face death.

       4               And then we get to people much, much

       5     closer to home.  How about Ali Mohamed.

       6     Remember who that is, Ali Mohamed, the guy who

       7     lurks in the background?  Well, now who should

       8     lurk in the foreground, because you were read

       9     his plea in which he admitted to what his role

      10     was.  And part of what he did was that he took

      11     pictures of various embassies and aid centers,

      12     I guess.  And he took those pictures, and among

      13     the things he did was he went back to Usama Bin

      14     Laden.

      15               Now, he has never gone to Usama Bin

      16     Laden with anything.  And he went back to Usama

      17     Bin Laden and he said:  Hey, Usama, or Bin

      18     Laden, or whatever he calls him, I have this

      19     picture here.  It's of an embassy in Nairobi.

      20     And Bin Laden said:  Hey, that looks like a

      21     good spot for a bomb, huh?  And guess what

      22     happened a few years later:  Blown up.  Ali

      23     Mohamed, he doesn't face the death penalty.

      24               How about Mohamed Sadeek Odeh.  You

      25     found that he was responsible for 213 deaths in

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       2     Nairobi, and you had good reason to find it

       3     because in his home in Witu he had a drawing of

       4     the entryway to the embassy and he had a

       5     drawing of his understanding of how the bomb

       6     blast worked.

       7               Now, that was tough to explain.  I

       8     remember Ed Wilford said, maybe it's a snow

       9     cone or a boat, or he had some try at

      10     explaining it, but you know that he was

      11     directly involved.  Not only was he directly

      12     involved, but he was a leader.  Because one

      13     thing most of these leaders do is they have the

      14     sense to never leave anything connecting them

      15     to what happens.  Did Salim know or not about

      16     these bombings?  No way of knowing.  Did El

      17     Hage know or not about these bombings?  Who

      18     knows?

      19               But Odeh, you know, did.  Why didn't

      20     he face the death penalty here?  How is that

      21     fair?  How is that just?  Mr. Fitzgerald says

      22     to you this is only about Khalfan Mohamed, but

      23     it's about justice.  It's about doing what's

      24     right and doing what's fair, and if Odeh,

      25     responsible for 213 deaths, doesn't face the

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       2     death penalty, then how can Khalfan Mohamed?

       3               A lot of people -- not a lot.  Three

       4     people are being extradited here from London.

       5     One of them is named Eidarous, one al-Fawwaz

       6     and one Abdel Bary, and you know that none of

       7     them face the death penalty.  One of them

       8     can't.  Al-Fawwaz apparently was not -- they

       9     don't have the information to connect him to

      10     the bombing, but Eidarous and Abdel Bary, they

      11     do.

      12               And Mr. Fitzgerald is right when he

      13     says it's just a quirk of fate that they don't

      14     face the death penalty.  They're lucky to have

      15     been arrested in a country like England.  But

      16     is that how this system should work, where your

      17     life or death depends on a quirk of fate?  Him,

      18     that quirk of fate was just a little late.  It

      19     was just a mistake by someone in South Africa

      20     or he would be just like Abdel Bary and

      21     Eidarous.

      22               Mr. Fitzgerald says to you, let's get

      23     who we can, and where that leaves you is, let's

      24     kill the least responsible person.  Because the

      25     last person you have to consider, all of you,

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       2     is Mr. Al-'Owhali.  You found him responsible

       3     for 213 deaths.  And while there is no way that

       4     any death is okay, there is no way you can

       5     balance one against the other.

       6               Khalfan Mohamed is responsible for

       7     11.  He specifically chose to do the job he

       8     did.  Not only that, but he went and

       9     reconnoitered.  He looked around and said, wow,

      10     that is crowded neighborhood.  There's houses

      11     and trains and banks and this and that.  And he

      12     even tried to get them to change it, but when

      13     they didn't, ah, that's all right.  We'll go

      14     ahead anyway.

      15               Khalfan Mohamed had never been to the

      16     embassy.  Everyone agrees with that.  He didn't

      17     really know what was there.  Does that mean

      18     he's not responsible?  No.  Don't mistake what

      19     I am saying for that.  But Al-'Owhali knew

      20     specifically what damage would be done and he

      21     went ahead.

      22               He was actually there at the bombing.

      23     He went there, he made sure it was carried out

      24     and then he ran away.  You know, it's hard, I

      25     think, to understand how someone could do this.

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       2     It's hard for me.  I'm sure it's hard for you.

       3     But it happened, and you have to somehow

       4     compare people and what they did.

       5               Part of what you can compare is how

       6     they acted, because you didn't know it at the

       7     time, but Mr. al-'Owhali straight-up lied when

       8     he was arrested.  And you will see there is a

       9     stipulation of reports he filled -- not he

      10     filled out, that were filled out about what he

      11     said over about a two-week period.  And he lied

      12     and lied and lied and lied.

      13               He said, I'm Khalid Saleh.  I was

      14     here to see my uncle.  I was with a friend,

      15     Harun, who was killed in the bombing, but we

      16     were just walking by.  I have no idea what

      17     happened.  I'm here from Yemen.  I'm here from

      18     here.  Every word was a lie, until he was

      19     cornered and had to tell the truth.

      20               Mr. Fitzgerald says he is entitled to

      21     nothing for having told the truth, and let's be

      22     clear about something.  Telling the truth,

      23     accepting responsibility is a separate issue

      24     from remorse.  There is something to be said

      25     for owning up to what you have done, and the

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       2     government can't point to one fact in his

       3     statement that is not true.  From the biggest

       4     to the smallest Mr. Fitzgerald says, well,

       5     maybe you don't believe him when he says he

       6     didn't know about Bin Laden.  Do you have

       7     evidence of that, or is that him asking you

       8     again to speculate?

       9               He gave them all kinds of information

      10     in that statement.  The FBI says that in that

      11     statement he told them the names of the members

      12     of his group.  Take a look at it.  It's an

      13     interesting document.  He gave physical

      14     descriptions of each member in that group.  He

      15     told them the places where things had happened.

      16     He told them what he had done and what others

      17     had done.

      18               And the government knows it's true

      19     because they had the information before he ever

      20     told them, but they didn't tell him.  He told

      21     them the truth without prompting, even down to

      22     the tiniest things.  You will remember that one

      23     of the people, I think Khalfan Ghailani, maybe

      24     rides a mountain bike, he can't drive, and he

      25     said I think he rides a mountain bike.  And

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       2     remember someone came from the Al Noor Hotel

       3     and said, oh, yeah, I remember one guy was on a

       4     fancy bike with a lot of gears.  He told them

       5     something they didn't know -- that he had

       6     mailed a package for Ahmed the German back to

       7     Egypt after Ahmed the German was killed in the

       8     bombing.  It turned out to be true.

       9               Every word he told them turned out to

      10     be true.  And it was in that same statement

      11     that he talked about how he thinks about the

      12     Kenyans, and I would have to think twice about

      13     following a fatwah to kill Americans because

      14     some are good and some are bad.

      15               Now, again, I want to talk about

      16     Dr. Post, who Mr. Fitzgerald ridicules as a dog

      17     and pony show.  He says, oh, that remorse,

      18     that's fake remorse.  That's the kind of

      19     remorse one has because one doesn't want to be

      20     executed and that he, sucker, Dr. Post, fell

      21     for it and then he came in here and told you

      22     all.  Huh.  Well, I've already talked about

      23     Dr. Post and I think you would have to go a

      24     long way to pull the wool over his eyes.

      25               But beyond that, if Khalfan Mohamed

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       2     wanted to try and fake remorseful, he would

       3     have started from minute one with Dr. Post.  He

       4     would have said, oh, Dr. Post, I'm so sorry.  I

       5     can't believe what I have done.  He didn't do

       6     that.  He didn't trust Dr. Post at first.  Some

       7     old white guy from the CIA comes in and starts

       8     to talk to him and he says, I don't know

       9     anything about anything.  Mr. Fitzgerald says,

      10     ah, he lied, but it's a lie that contradicts

      11     the argument he makes.  If it's false remorse,

      12     he would think I had better pour it on every

      13     chance I get, and that's not what he did.

      14               It's another one of those things that

      15     Mr. Fitzgerald says in his ringing way:  Give

      16     it what it's worth.  Zero.  Everything to him

      17     is worth zero because he wants Khalfan Mohamed

      18     dead.  But you should give it what it's worth

      19     because part of what we are as human beings is

      20     mutable.  We're able to change and learn.

      21               Khalfan Mohamed had never really met

      22     Americans before he came here, and all of a

      23     sudden he has Americans lawyers and American

      24     corrections people, American judges.  And you

      25     know, it's funny.  I've heard that there's a

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       2     tremendous amount of AntiSemitism in Japan,

       3     where there is no Jews, and we all know that

       4     very often in all white suburbs there's a lot

       5     of racism, because we're all afraid of what we

       6     don't know and we like to hate the people we

       7     don't know.

       8               But as you meet people, if you live

       9     in New York City, you realize that everyone is

      10     who they are as a person, and that's something

      11     he has come to learn.  And so when he says he

      12     feels sorry, that, having thought about it, he

      13     knows what a bad thing it was, must it be fake?

      14     How many of you have changed as you thought

      15     about things?  How many of you, for example --

      16     well, it doesn't matter.  You have all changed.

      17               Mr. Fitzgerald says there's a special

      18     terrorist standard you should not apply, and

      19     that standard that you should not apply is one

      20     that says because your beliefs are sincere, you

      21     don't deserve a break.  And by that I suppose

      22     he means to say that the person who murders out

      23     of greed or out of lust is just the same as the

      24     person who murders out of conviction.

      25               And I want to talk to you about that

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       2     for a minute, because it's sometimes hard to

       3     know what's right and what's wrong in the

       4     world.  90, 95, maybe 99 percent of these kinds

       5     of movements are wrong, but just in our

       6     lifetimes, we know that people call terrorists

       7     have won the Nobel Prize.  Yasser Arafat, when

       8     I was a boy, was a terrorist, and next thing I

       9     know, he's winning the Nobel Prize.  Was he no

      10     longer a terrorist?  Is he no longer a

      11     terrorist?  I'm not suggesting one thing or the

      12     other.  Nelson Mandela was a terrorist, the

      13     ANC, he was in jail on Robbins Island for 19

      14     years or something, and then he was president

      15     of South Africa.  His movement, it turned out,

      16     was right, not wrong.

      17               Israel was begun by terrorists.

      18     Menachem Begin was accused of blowing up the

      19     King David Hotel.  He was a terrorist.  But

      20     then later he was president, Prime Minister of

      21     Israel.  So when you say sincere beliefs don't

      22     matter, sometimes they do.  George Washington's

      23     did.  He was a terrorist to King George, I'm

      24     sure.

      25               You think it's hard to understand how

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       2     he could be like that acting just for his

       3     people.  And I know it's not the same thing,

       4     but as I think about it, I think of my grandma

       5     who used to say whenever there was an election,

       6     what's this person going to do for the Jews?

       7     That's all.  Not, how are they on the

       8     environment?  How are they going to be on

       9     education?  Is it good for the Jews was all she

      10     ever asked.  Now, she didn't bomb anywhere, she

      11     went and played bridge instead, but that

      12     doesn't mean that that impulse to look out for

      13     your own is an impulse only someone like him

      14     can have.  So it does mean something.

      15               That he acted out of sincere

      16     religious beliefs.  You know they are sincere,

      17     but of what he did?  South Africa.  Mr.

      18     Fitzgerald apparently would have you believe

      19     that the whole time he was in South Africa he

      20     was putting on a show; that when he was going

      21     to mosque and teaching the mother the Koran and

      22     teaching the kids the Koran and praying in the

      23     little corner of his restaurant, that that was

      24     all a show to tide him over until he could do

      25     his next killing, but you know that's not

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       2     really true.  The idea that people are all one

       3     thing or all the other is not the way the world

       4     works.

       5               We are not all evil or all good.  All

       6     of us have some of each.  And when you saw

       7     Sharhima Dalvie and you saw the people in her

       8     family, you knew that that good was genuine.

       9     He was working every day in a menial job, and

      10     when he wasn't working, he was focused on his

      11     faith.  You may think it's foolish.  You might

      12     not be able to understand how he was so driven

      13     just to focus on his faith, but he was, and no

      14     one saw it.

      15               You think he did it in preparation

      16     for this?  Hey, maybe some day I'll be arrested

      17     and I'll be facing the death penalty, so I

      18     better take this year out of my life and act

      19     real, real religious.  No.

      20               How did he end up here?  Well, it is

      21     his fault.  Mr. Fitzgerald is right about that.

      22     He put himself here.  But those sincere beliefs

      23     were formed over years.  I suppose you would

      24     have to be in a mosque in Dar es Salaam and

      25     hear what is said about Afghanistan and Bosnia

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       2     and Somalia.  You know, you know from his

       3     statement, which the government has not been

       4     able to show you in any way as untrue, that he

       5     went to Afghanistan to be trained to fight in a

       6     war, in a war.  And he went to Somalia, seeing

       7     if he could go to the front lines in a war.

       8     That's not so foreign.

       9               Americans have been to fight in wars

      10     to defend their people, and he wanted to fight

      11     in a war to defend his people but he didn't get

      12     the chance, and instead that made him

      13     susceptible to being easily led; his very

      14     religiosity, his very belief made him a perfect

      15     target.  Again, don't think I'm saying it's not

      16     his fault.  It's his fault.  He put himself

      17     here, but there's a road he took to get here

      18     and if you don't understand that road, you

      19     can't possible judge him fairly.

      20               He has proven with his family and

      21     with people in South Africa that he has good in

      22     him.  The government says to you not kill the

      23     most culpable, but kill the least

      24     sophisticated.  In the end, each of you has to

      25     make a uniquely personal judgment whether the

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       2     government has proven beyond a reasonable doubt

       3     that the only appropriate punishment for

       4     Khalfan Mohamed is death, whether that act

       5     negated everything else he is and everything

       6     else he will be.

       7               If you kill him, you say there is no

       8     hope not just for him, but for us.  You say

       9     there is no hope for the astounding human

      10     capacity for change.  You destroy the chance

      11     that he will age and have the experience we all

      12     share.  We say if I had only known that before

      13     and then pass it on to others.  You eradicate

      14     the hope that others will see the price Khalfan

      15     has to pay for what he did.  That price,

      16     getting old and dying in jail, frightens the

      17     young more than death.

      18               In the end, if you give him life,

      19     Khalfan will disappear.  No one except those he

      20     loves will remember him.  Someone has to say

      21     enough.  Someone has to say I will not hurt

      22     another family.  Someone has to say I will not

      23     become those I detest by doing what they do and

      24     killing in the name of justice.

      25               Let that be you.

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       2               THE COURT:  Thank you, Mr. Stern.

       3     We'll take a very brief recess and then we'll

       4     complete the opening statements.

       5               (Jury not present)

       6               THE COURT:  Very brief recess.

       7               (Recess)

       8               THE COURT:  Is someone here from CNN?

       9     I'll see you in the robbing room after we

      10     adjourn today.

      11               There is a request from CNN about

      12     post verdict interviews with jurors.

      13               (Jury present)

      14               THE COURT:  Mr. Garcia.

      15               MR. GARCIA:  Thank you, Judge.

      16               Good afternoon.

      17               THE JURY:  Good afternoon.

      18               MR. GARCIA:  It's been a very long

      19     day, and thank you, as always, for your

      20     attention and for your patience.

      21               In the short time that we have left

      22     together today, I would like to look at some of

      23     the arguments Mr. Stern made to you while he

      24     was up here this afternoon.

      25               And it got a little emotional, and

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       2     Mr. Stern said that Mr. Fitzgerald said you

       3     should give zero weight to some mitigators

       4     because he wants Khalfan dead.  And he called

       5     you killers a few times again, and I think we

       6     have to get back to the fact that the reason

       7     why you are here and the reason why you have to

       8     decide whether this defendant receives a life

       9     sentence or the death penalty is because of

      10     what Khalfan Mohamed did, the crimes he

      11     committed, and what he did in the prison on

      12     November 1, 2000.

      13               Everyone in this courtroom realizes

      14     that this is not an easy road, that this is not

      15     a simple decision, but you will know that it's

      16     the right decision in this case.  It's the

      17     right decision because of this defendant, who

      18     he is, what he has done and what he will do,

      19     that the right decision in this case is a death

      20     sentence.

      21               Let's talk first about some of the

      22     things that were said about causing pain and

      23     suffering, causing pain to Mr. Mohamed's

      24     family.  When you think about that, I would

      25     like you to keep one thing in mind:  That

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       2     Khalfan Mohamed hasn't been that person from

       3     Pemba that they knew for a long, long time.  He

       4     hasn't been that student.  He hasn't been that

       5     son or that brother for a long time, since the

       6     time that he became a killer, since the time

       7     that he agreed to murder and murder without

       8     remorse.

       9               The family lost Khalfan Mohamed, the

      10     Khalfan Mohamed they knew, a long time ago.

      11     And the Dalvies, they never knew Khalfan

      12     Mohamed.  They didn't even know his name.  They

      13     knew the face he put on in South Africa, the

      14     face he put on while he waited, the face that

      15     said I wouldn't hurt an ant, when he had just

      16     come from killing 11 people and when, the day

      17     after, he's nabbed, the day he's arrested, he

      18     says to the agents, I'd do it again, I'd help

      19     in another bombing, I would kill more

      20     Americans, I hope other people do it now that

      21     I'm caught, and I would carry on if I could.

      22               Let's talk about equally culpable

      23     defendants.  Other people don't face the death

      24     penalty.  Khalfan Mohamed chose this group.  He

      25     chose to be part of this global terrorist

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       2     conspiracy and he helped some of the other

       3     people get away, and that's who he wants you to

       4     compare him with.  He wants you to use Usama

       5     Bin Laden as the yardstick and those others.

       6     He should be compared to the group of murderers

       7     who face the death penalty, and in that group

       8     he stands out.

       9               Why should a drug dealer in New

      10     Jersey face the death penalty?  Because he is

      11     involved in such a heinous crime with such a

      12     heinous crowd.  And Mr. Stern made some

      13     arguments, arguments about other people, and

      14     those may have been very good arguments or they

      15     may have had some weight at some time.  And you

      16     know what time Mr. Stern could have come up

      17     here and talked to you about those arguments?

      18     On October 31, 2000.

      19               On October 31, 2000, there may have

      20     been some weight to the arguments that other

      21     people did more than me, because on November 1,

      22     this defendant participated in that vicious

      23     attack on Officer Pepe and he is the only one

      24     who directly participated in the bombings in

      25     Tanzania, killed 11 people, himself murdered 11

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       2     people, and then once inside prison in the

       3     United States, once here, awaiting a trial,

       4     awaiting justice, participated in a vicious,

       5     murderous attack on a guard in which the guard

       6     was maimed and will never be the same.

       7               You heard some talk about becoming a

       8     martyr.  Well, you have heard that Usama Bin

       9     Laden wants people out of jail and that are

      10     serving life sentences.  Well, we hear that

      11     those people were leaders before.  You are

      12     going to bring Khalfan Mohamed up to their

      13     level.  Well, Khalfan Mohamed got a lot of

      14     attention by being tried here.  Those other

      15     defendants, Ramzi Yousef and Sheik Omar Abdel

      16     Rahman, got a lot of attention for being

      17     sentenced to life in prison.  Should we not try

      18     Abdel Rahman because we are going to make him a

      19     martyr?  Should we not try Ramzi Yousef because

      20     we'll make him a martyr?  It's fill in the

      21     blank, as Mr. Fitzgerald told you.

      22               Do they need another, do they need

      23     another martyr?  He's a terrorist.  It may make

      24     him a martyr.  No.  No.  No. Let's have justice

      25     for this crime.  Let's have justice for this

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       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2     defendant.  There are a million reasons out

       3     there for Usama Bin Laden to attack America.

       4     The fact this defendant may become more

       5     notorious if he gets the death sentence should

       6     not figure into your calculation.

       7               There was some talk and there's been

       8     talk about Salim, about his mental state before

       9     this crime was committed on November 1st.  In

      10     his opening, Mr. Ruhnke said:  We do not

      11     contend, like Salim, that our actions are

      12     somehow driven or justified or excused by

      13     mental illness.  And then we have heard a lot

      14     about Salim's excuse.  We have heard that he

      15     talked to psychologists who went in to examine

      16     him, to hear what he had to say and to evaluate

      17     him.  And you heard that Dr. Rosenfeld, when

      18     talking about his hallucinations, he said, I

      19     talk to this creature, Salim says, and the

      20     creature told me to do things, and I fight with

      21     the creature and should I do it and should I

      22     not do it.  And Dr. Rosenfeld concluded that it

      23     is much more likely the possibility that Salim

      24     fabricated his hallucinations in an effort to

      25     explain the instant offense as due to the

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       2     stress of his confinement, that is,

       3     malingering.

       4               So what Khalfan Mohamed would do

       5     would be piggyback on Salim's excuse, which the

       6     psychiatrist or psychologist concluded was

       7     malingering, was fabricated, and to say Salim

       8     was crazy, Salim must have done it himself.

       9     And you know that's nonsense.  Salim fabricated

      10     those voices as his excuse, and now Khalfan

      11     Mohamed would use it to say that Salim

      12     committed this atrocious crime by himself.

      13               Let me talk to you a little bit about

      14     something the defense has done in this case.

      15     It's been very subtle.  They have tried to have

      16     it both ways.  They talk about Khalfan Mohamed

      17     and the bombing.  You heard Dr. Post say that

      18     Khalfan Mohamed was very able to be recruit, he

      19     was very susceptible.  And I'll read to you

      20     from Dr. Post's testimony, direct, 8328, lines

      21     11 through 25 on that page and the first line

      22     of the next page:

      23   "A.  Let me back up some.  He was brought into

      24     contact," this is Khalfan Mohamed, "with a

      25     small group in Mombasa by Fahid, who introduced

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       2     him to Hussein.  Hussein was described to me by

       3     Odeh, a member of al Qaeda, as a very strong

       4     leader, a man of compelling personality.  He

       5     didn't use the word 'charismatic,' but that was

       6     the basic quality that he communicated --

       7     strong, persuasive, authoritarian.  When I

       8     talked to Khalfan Mohamed about Hussein, he too

       9     described him as a very strong leader, a very

      10     powerful personality.

      11               "I want to remind you he had been

      12     told, by the way, he also mentioned that he was

      13     a highly religious man and a very educated man.

      14     He had been told back in Zanzibar at age 7 or 8

      15     or so, when he was in schools, the importance

      16     of paying unquestioning respect to learned men

      17     who are pious and religious men, who are

      18     authorities, and Hussein conveyed himself as an

      19     authority to the young Khalfan Mohamed.

      20               "So when it comes to Hussein, the

      21     young Khalfan Mohamed, Hussein believes that

      22     this pious religious scholar is irresistible.

      23     This Hussein said kill, and Khalfan Mohamed

      24     killed."

      25               Now we have also heard a lot about

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       1   1721BIN4
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       2     Salim and, in the relative culpability section,

       3     as being a scholar, someone who memorized the

       4     Koran.  He was on the Shura council.  He issued

       5     religious decrees and fatwahs.  In fact, when

       6     Mr. Stern crossed Al-Fadl at the guilt phase of

       7     this trial, he asked him about that.  I'm

       8     reading from page 517, Mr. Stern's cross of

       9     Al-Fadl:

      10   "Q.  And Salim would give explanations based on

      11     the Koran for why things al Qaeda was doing

      12     were okay, were good, right?

      13   "A.  Yes.

      14   "Q.  And he would quote from the Koran and try to

      15     convince people through those quotes what al

      16     Qaeda was doing and what you were being asked

      17     to do was something that a good Muslim would

      18     do, right?

      19   "A.  Yes."

      20               Page 518, line 13:

      21   "Q.  Okay.  Now, you yourself don't know every

      22     line of the Koran, do you?

      23   "A.  No.

      24   "Q.  And so when he would talk," this is Salim,

      25     "when he would talk to you about lines from the

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       2     Koran, according to you, he would tell you

       3     these things and you would accept them as the

       4     truth, wouldn't you?

       5   "A.  Yeah."

       6               Again page 521:

       7   "Q.  And that was his way of saying to you and

       8     everyone else," this is Salim again, "it's okay

       9     to kill civilians if you have to because I say

      10     it and another scholar says it and the scholar

      11     interpreting the Koran says it, right?

      12   "A.  Yes.

      13   "Q.  So that was to mean to say to everybody,

      14     it's okay, don't worry if you kill civilians,

      15     it's part of what we have to do?

      16   "A.  Yes, under war.

      17   "Q.  And when you heard that, you accepted it,

      18     did you not?

      19   A.                 Yes." heard tha

      20               So Salim, to Al-Fadl, is a leader, a

      21     religious scholar, a very pious man, big player

      22     in al Qaeda, and he is saying, based on the

      23     Koran, based on my interpretation, go kill

      24     civilians, and Al-Fadl saying, yes, we did it.

      25     And that's the man that Khalfan Mohamed is in

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       2     the cell with.  That was the man who, for seven

       3     days, is talking about violations of his legal

       4     rights, about taking hostages, about doing

       5     something.

       6               In that case Khalfan Mohamed says,

       7     oh, no, no, no, Hussein is charismatic.  Young

       8     Khalfan falls for that.  But in the cell with

       9     the leader of al Qaeda, Khalfan Mohamed is no,

      10     no, and he's very surprised when Salim shows up

      11     at the door, dragging Officer Pepe, and runs

      12     out and hides behind the shield.  There's a

      13     fundamental tension between those arguments.

      14     If Khalfan Mohamed is so susceptible to the

      15     arguments and persuasion of pious and religious

      16     men, he is susceptible to Salim.

      17               Let's talk a little bit about remorse

      18     before we get to the stabbing of Officer Pepe.

      19     Mr. Stern came up to explain about remorse and

      20     that it was a process.  Dr. Post was in a

      21     process with this defendant.  He didn't trust

      22     him.  He was a white man.  He was from the CIA

      23     and it was a little bit of a process to develop

      24     as to accepting and expressing remorse.

      25               Well, it was five weeks ago.  Within

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       2     the last five weeks, Khalfan Mohamed denies he

       3     knew the embassy was the target; says that if

       4     he knew the details, he would have tried to

       5     stop it.  He did not know the target as Ahmed

       6     drove off in the bomb truck.  He didn't know

       7     where it was going until he heard about it

       8     later.  That's all within the last five weeks.

       9     Then he says, as to the 302, there was a

      10     language problem.  There's another language

      11     problem there, and he denies the 302.

      12               And then he says, well, if I did it,

      13     I'm sorry.  And that's remorse.  That's the

      14     expression of remorse.  That's not remorse.

      15     That's not remorse.  The truthful statement is

      16     what he said to the agents, that he would do it

      17     again, he would do it again if he could.  And

      18     you know actions speak louder than words and

      19     you know he did it again.

      20               Let's talk a little bit about the

      21     language problem.  He's in his cell with Salim.

      22     You know he speaks English.  Salim speaks

      23     English.  You know they both speak Arabic.  On

      24     the tape, South Africa, the imam from South

      25     Africa says Khalfan was glad when he met me

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       2     because we could speak Arabic.  That's on the

       3     South African video.

       4               Now let's talk a little bit about the

       5     attack in Cell 6.  Before we do that, let's

       6     talk about the tapes.  A lot was made of the

       7     tapes in Mr. Stern's summation.  Officer

       8     Carrino Lt. Carrino said as far as I knew, the

       9     tape wasn't working.  That's how worthless it

      10     was.  There was no procedure for changing the

      11     tape.  There was no written directions for

      12     changing the tapes.  The protocol for 10 South

      13     was in evidence.  As far as I knew, the tapes

      14     weren't working.  Salim thinks the tapes aren't

      15     working.  Written in the notes:  What about the

      16     video, it may not work.

      17               What did you hear about the tapes on

      18     November 1?  Shortly after the incident, agent

      19     goes over to 10 South, sees Robert Perrish, who

      20     does not know about the taping system; it's not

      21     his responsibility.  He's there at the crime

      22     scene.  He goes back at the lieutenant's

      23     office, he pops out one tape.  Brings it out,

      24     hands it to the agent.  They leave.  They play

      25     it, they watch it, wrong tape.  Shows 9 South

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       1   1721BIN4
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       2     and shows a few of the corridors; does not show

       3     the cells.

       4               45 minutes to an hour, they bring the

       5     tape back.  They call the FBI agent, tell him

       6     it's the wrong tape; he says come back, see

       7     Perrish again.  They go back, they leave this

       8     tape downstairs.  They don't give it back to

       9     Perrish.

      10               Perrish says okay.  He goes in the

      11     back, finds another tape, pops it out of the

      12     machine, tries to play it in the front.  It

      13     gets stuck.  They pull it out of the machine.

      14     They hand it to the agent.  As it turns out, it

      15     is the view of the cells, but it's from 11 p.m.

      16     to 1 a.m. the night before.  Sometime later,

      17     Agent Foelsch goes back and retrieves what he

      18     thinks is the first tape which shows the 9

      19     South view.  So you have the two tapes here.

      20     They're in evidence.  You can watch them.

      21               Perrish, who is being called, he says

      22     I have a lot of conversations with agents about

      23     tapes.  On November 7 or 9 he talks to Agent

      24     Foelsch again.  He says, you know, I gave you

      25     the tape.  It shows 11 to 1.  Maybe you heard

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       2     that from another agent.  He talked to a lot of

       3     agents about it.  He said maybe, Agent Foelsch

       4     tells you, best recollection, he says the

       5     original was taped over and you have got a

       6     copy.  Well, maybe he's thinking about that

       7     tape they brought back that was left

       8     downstairs.

       9               Does he know if they had the

      10     original?  Do we know?  There's a copy.

      11     There's the original.  That's what he is

      12     talking about.  There were two tapes.  They

      13     were taken out of the machines.  Perrish

      14     testified.  He came in here.  He told you what

      15     happened.  He looked at you, and here are the

      16     two tapes, and that's the story of the tapes

      17     and they're in evidence.

      18               Let's talk about what happened on

      19     November 1st.  Now, Mr. Stern runs through a

      20     story about Salim and Officer Pepe walking back

      21     to the cell and the attack happening out there.

      22     And I submit to you that that has to be,

      23     because if the attack happens in the cell, it's

      24     devastating.  If the attack happens in that

      25     small space of Cell 6 with Khalfan Mohamed and

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       1   1721BIN4
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       2     Salim, that's devastating.  So the attack can't

       3     happen there, has to happen outside.  Well,

       4     let's look at the forensics.

       5               What do you see?  And we'll look at

       6     the photos too.  You have some blood here.

       7     Blood here is Peppe's.  You have Khalfan

       8     Mohamed's blood in front of Cell 4.  That's the

       9     blood in front of Cell 4.  And then you have a

      10     tremendous amount of blood back here.

      11               And we will look at the photographs

      12     of how that blood is.  The blood here, blood

      13     sample 3, it's on the walls.  It's on the

      14     walls.  And you remember, and look at the

      15     photographs.  Salim is running to the front.

      16     He is running to the front.  He's behind the

      17     post and he has blood on his hands.  Nobody

      18     says he doesn't.  And he's running back through

      19     the wing to get back to Cell 6.  And there's

      20     blood on the walls and there are a few little

      21     blood stains here on the floor.  There's a

      22     fountain, a fountain of blood inside Cell 6,

      23     all over here, all over the jumpsuit, all over

      24     the prayer rug.  You can see it in the

      25     photographs.

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       2               What else do you know?  All over here

       3     is hot sauce, sprayed in this area of the

       4     shower.  There is even a hot sauce top if you

       5     looked at one of the photos Mr. Carrino showed

       6     you; a yellow top, right here.  The Redweld is

       7     on the bed, bed 2.  The jumpsuit is on the

       8     floor.  When Salim exits this room here and

       9     comes around, he has the Redweld and the

      10     jumpsuit.  Redweld, jumpsuit inside the cell;

      11     hot sauce against the shower.

      12               Now, think, 155-pound Salim and

      13     270-pound Officer Pepe, he stabs somewhere

      14     here, doesn't leave a big pool of blood,

      15     there's some splashes on the walls.  He drags

      16     him back with his Redweld and his jumpsuit all

      17     the way around here, drags him here.  There's

      18     no blood, there's no smears like there is for

      19     Salim over here, and they drag Salim and he's

      20     leading.  Look at the photograph.  Look at the

      21     smear.  Look at the blood that's in this cell,

      22     how much Officer Pepe bled.  It's all over

      23     their clothes.

      24               No blood.  Drags him back here with

      25     his Redweld and with his jumpsuit, throws that

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       2     onto the cell.  Much to the surprise of Khalfan

       3     man Mohamed?  No.  No.  What the forensics show

       4     you is blood all over the cell.  Blood all over

       5     their clothes.  Hot sauce here, behind the

       6     corner here.  Redweld on the bed.  That's what

       7     the forensics show you and that's what

       8     happened.

       9               "Lure the hunt."  Remember the notes:

      10     "Lure the hunt."  They lured the hunt.

      11     Unfortunately for Officer Pepe, he was the hunt

      12     this day.  They lured him back.  He opened the

      13     cell, sprayed him with blinding hot sauce and

      14     stabbed him with two weapons, two weapons, the

      15     sharpened brush and the comb -- comb through

      16     the eye, sharpened brush to the skull.  To the

      17     skull.

      18               Two weapons.  Let's talk about the

      19     brush weapon.  Let's talk about the brush

      20     weapon.  It's found out here covered with

      21     Officer Pepe's blood, soaken to the bristles.

      22     The commissary reports show that Khalfan

      23     Mohamed ordered two brushes in the time before

      24     this and Salim ordered one.  Hatton tells you

      25     when they search the cell, they find one

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       1   1721BIN4
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       2     complete brush.  It is here, right behind

       3     Salim's bed.  The other brush, the only other

       4     brush they find, has been sharpened into a

       5     shive.

       6               Salim still has his brush.  If you

       7     look at the photograph of bed number 2, and

       8     that's 4036, you can see that brush behind

       9     Salim's bed.  And you know it's Salim's bed.

      10     If you focus, if we can, on that note right

      11     there, that's written in Arabic.  And much has

      12     been done in this trial to show you that

      13     Khalfan Mohamed doesn't write in Arabic.

      14               So Salim has his brush back here.

      15     Khalfan Mohamed's brush is sharpened into a

      16     lethal weapon and is outside the cell.

      17               And then you heard -- just look

      18     quickly.  Here's Salim's blood.  Here's Salim's

      19     blood and here's going back to Cell 6, blood on

      20     the walls here, his hands, blood here.  This is

      21     the cell between these two Cells 4 and 5.  That

      22     is Khalfan Mohamed's blood, little spatters

      23     going back here until you get to the cell,

      24     which is a blood bath.  Look at the corner

      25     here, hot sauce here.

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       1   1721BIN4
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       2               And when the guards come around this

       3     way to rescue Officer Pepe, when they get here

       4     to this blind corner, hot sauce this way, hot

       5     sauce this way, Salim comes out and attacks

       6     them after Mohamed comes out of the blind side,

       7     right here.  What could he have done?  He could

       8     have put his hands on the wall; he could have

       9     not fought with them; he could have not sprayed

      10     them with hot sauce, that's what he could have

      11     done.  But that's not what he did.

      12               Three officers came in here and

      13     testified about it.  They testified that

      14     Khalfan Mohamed sprayed them with hot sauce.

      15     Their clothes are in evidence if you want to

      16     look at it.  The photos are in evidence.  Where

      17     do they get sprayed?  They get sprayed on their

      18     sleeves from around the shield and it tests for

      19     hot sauce.

      20               What else?  If you look at the other

      21     diagram, which I won't put up, you will see

      22     there's hot sauce over the doorway on the

      23     outside of the cell.  Now, Mr. Stern told you,

      24     yes, Agent Hatton concluded from the stain over

      25     here that hot sauce had been sprayed this way.

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                                                                    8716

       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2     What do you conclude from the fact that there's

       3     hot sauce stains over the cell door of Cell 6?

       4     That someone is spraying it this way, and

       5     that's what happened.  That's what happened.

       6               So what do you know?  You know

       7     Officer Pepe's attacked in a little space with

       8     two weapons and that when the guards come up,

       9     they are attacked by Khalfan Mohamed first and

      10     then Salim comes out to help him.

      11               Finally, you also know what Officer

      12     Pepe said.  You know that he said, "I fought

      13     them.  I gave them a good fight." There were

      14     three witnesses that came in here, Carrino,

      15     Patel and Santulli, and they sat in this

      16     witness chair and they told you Officer Pepe's

      17     last words, describing what happened on

      18     November 1st.  You saw them.  You heard them.

      19     You watched them.

      20               Your decision.  You heard the direct.

      21     You heard the cross.  Your decision.  Do you

      22     think they were right?  Do you think they were

      23     accurate?  And I submit to you they were.

      24               Every one of them, from an officer

      25     responding to a physician's assistant to

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       1   1721BIN4
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       2     somebody who just rode along in the ambulance

       3     who didn't know what had happened before, all

       4     say the same thing, all tell you Officer Pepe's

       5     last words, his last words before his brain

       6     started to shut down, before he suffered that

       7     stroke in Bellevue Hospital, and it's "them"

       8     and it's "they."

       9               It's Salim and it's Khalfan Mohamed.

      10     That's how you know.  You know it from the

      11     statement.  You know it from the forensics.

      12     You know it from the evidence.  You know it

      13     from what he was doing when the guards got up

      14     to that floor.

      15               And remember, all of that, all of

      16     that activity in the back of that cell, the

      17     stabbings, the taking out of the sheets, the

      18     blocking the camera, the prying open of the

      19     electrical box, Salim going into the front, all

      20     happened in 15 minutes.  That's what McAllister

      21     said.  That's what McAllister said.  From the

      22     time Salim walks around the corner to the time

      23     the guards come through the door is 15 minutes.

      24     Two people, two people attacking, two people

      25     attacking Officer Pepe and maiming him.

                            REPORTERS CENTRAL
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       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2               Ladies and gentlemen, I submit to you

       3     at the end of the day you know two things,

       4     after you have seen all the evidence, after you

       5     have seen the plans and the videotapes and the

       6     stories about Burger World, you know that this

       7     defendant, this defendant, you found himself

       8     killed 11 people.  He murdered, slaughtered 11

       9     innocents on August 7th, 1998.  That's the

      10     crime he is convicted of:  Murder of 11

      11     innocents in cold blood.

      12               And you know that he's a danger.  You

      13     know that he's a danger to everyone he comes in

      14     contact with because he said it, he told it to

      15     the agents, he said he would do it again, and

      16     he did it.  He participated in the attack on

      17     Officer Pepe and he attacked the guards that

      18     came up to help him.

      19               He's a calculating killer who wants

      20     to kill again, and he will kill again.  And

      21     when he does, when he does hurt someone, maim

      22     someone, kill someone again, you know what?

      23     You know what, ladies and gentlemen?  He will

      24     still be from Pemba.  He will still be from

      25     Pemba.  He still will have worked in Burger

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       1   1721BIN4
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       2     World and there will still be atrocities that

       3     have been committed in Bosnia.

       4               The only difference the next time,

       5     the only difference the next time is there will

       6     be a different victim, there will be a

       7     different grieving family, there will be

       8     someone else maimed, there will be someone else

       9     killed.  That's the only difference.

      10               Khalfan Mohamed has killed and he

      11     tried to kill again, and a life sentence for

      12     Khalfan Mohamed is a death sentence for the

      13     next guard in one of those prisons who makes a

      14     mistake.  That's the choice.

      15               Now, you all said you could vote for

      16     the death penalty where it was appropriate, and

      17     there is no more appropriate circumstances than

      18     this mass murderer who tried to kill a guard.

      19     Stop Khalfan Mohamed's mission of murder, and

      20     the only penalty that will do that, the only

      21     penalty that addresses this crime and the

      22     threat this defendant poses every day is the

      23     death penalty.

      24               It is not easy.  It is not a

      25     comfortable decision, but Khalfan Mohamed left

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       1   1721BIN4
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       2     you no choice.

       3               Thank you.

       4               THE COURT:  Thank you, Mr. Garcia.

       5     Ladies and gentleman, tomorrow the first order

       6     of business will be the court's charge.  You

       7     should begin your deliberations midmorning

       8     tomorrow.  Have a pleasant evening.  We are

       9     adjourned until tomorrow morning.

      10               (Adjourned to 9:30 a.m. on July 3,

      11     2001)

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                            REPORTERS CENTRAL
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       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2                  DEFENDANT EXHIBITS

       3   Exhibit No.

       4     Received

       5    K.K.M. 1 ...................................8524

       6    K.K.M. 6 ...................................8526

       7    K.K.M. 8 ...................................8527

       8    K.K.M. 9 ...................................8528

       9    K.K.M. 10 ..................................8528

      10    K.K.M. 11, K.K.M.-PH-103 and K.K.M.-PH-104 .8528

      11    K.K.M. 12 ..................................8529

      12    K.K.M. 14 ..................................8529

      13    K.K.M. 15 ..................................8529

      14    K.K.M. 16 ..................................8530

      15    K.K.M. 17 ..................................8530

      16    18 .........................................8530

      17    19, 14A and 14B ............................8531

      18    K.K.M. 21 and 36 ...........................8531

      19    K.K.M. 22 ..................................8532

      20    K.K.M. 26 ..................................8532

      21    K.K.M. 27 ..................................8533

      22    K.K.M. 28, 42A, 42B and 42C ................8533

      23    K.K.M. 25A .................................8537

      24    K.K.M. 25B .................................8540

      25    2, 13 and 25 ...............................8541

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       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2    K.K.M. 27 ..................................8541

       3    K.K.M. 29 ..................................8541

       4    K.K.M. 32 and 32A through 32D ..............8542

       5    K.K.M. 34 ..................................8542

       6    K.K.M. 35A and 35B .........................8542

       7    K.K.M. 36 ..................................8542

       8    K.K.M. 38 ..................................8543

       9    K.K.M. 39 ..................................8543

      10    K.K.M. 40 ..................................8543

      11    K.K.M. 41 ..................................8544

      12    K.K.M 42 ...................................8544

      13    K.K.M. 43 through 47 .......................8544

      14    K.K.M.-PH-12, PH-28, PH-15, PH-31,

      15    PH-34, PH-5, PH-8, PH-19, PH-22, PH-11, PH-9,

      16    PH-3, PH-38, PH-39, PH-72, PH-20, PH-2, PH-51,

      17    PH-43, PH-68, PH-93, PH-83, PH-102

      18    and PH-94 ..................................8545

      19                  GOVERNMENT EXHIBITS

      20   Exhibit No.

      21     Received

      22    4306 .......................................8547

      23    4305 and 4329 ..............................8547

      24    4308 and 4309 ..............................8548

      25    4324 .......................................8549

                            REPORTERS CENTRAL
                             (212) 594-3582
                                                                    8723

       1   1721BIN4
                         REBUTTAL - Mr. Garcia

       2    4331 .......................................8550

       3    4332, 4326, 4331A through 4331Q and 4315 ...8552

       4    4331R and S ................................8552

       5    4307, 3050, and 3050-T .....................8555

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                            REPORTERS CENTRAL
                             (212) 594-3582

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