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

This is the transcript of Day 30 of the trial, 17 April 2001.

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

                                                                    4145

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           April 17, 2001
                                                   10:00 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4146

       1                            APPEARANCES

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

       6
           ANTHONY L. RICCO
       7   EDWARD D. WILFORD
           CARL J. HERMAN
       8   SANDRA A. BABCOCK
                Attorneys for defendant Mohamed Sadeek Odeh
       9
           FREDRICK H. COHN
      10   DAVID P. BAUGH
           LAURA GASIOROWSKI
      11        Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali

      12   DAVID STERN
           DAVID RUHNKE
      13        Attorneys for defendant Khalfan Khamis Mohamed

      14
           SAM A. SCHMIDT
      15   JOSHUA DRATEL
           KRISTIAN K. LARSEN
      16        Attorneys for defendant Wadih El Hage

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4147

       1            (Trial resumed)

       2            (Jury not present)

       3            THE COURT:  Mr. Schmidt, is your witness here?

       4            MR. SCHMIDT:  Your Honor, he is on his way.  I spoke

       5   to him.

       6            THE COURT:  Mr. Baugh is making some gestures.  Let's

       7   bring in the jury.

       8            I take it this witness is not related to the

       9   defendant.  The witness, whose last name is O-D-E-H, is not

      10   related to the defendant, whose last name is O-D-E-H.

      11            MR. SCHMIDT:  That is correct.

      12            THE COURT:  I think it might be helpful to bring that

      13   out.

      14            MR. RICCO:  Thank you.  You saved us a quarter.

      15            MR. FITZGERALD:  Your Honor, just one other matter.

      16   I was handed an exhibit which has a picture of Mr. El Hage's

      17   child in it.  I would object.  I would request if anything is

      18   displayed to the jury we don't have child pictures.  There is

      19   a dog in the picture.  If they want to offer a picture of the

      20   dog, so be it.

      21            MR. SCHMIDT:  I don't think it was Mr. El Hage's

      22   daughter, I think it was a niece.  The purpose of putting it

      23   in is the dog.  If you want me to redact the child --

      24            THE COURT:  There is some relevance about the dog?

      25            MR. SCHMIDT:  There is testimony about the dog by

                                                                    4148

       1   Mr. Kherchtou -- actually, your Honor, if I may, I believe it

       2   is relevant for the -- no.

       3            THE COURT:  I haven't seen the picture.  I don't want

       4   to see the picture.  Delete the child.

       5            MR. SCHMIDT:  I think it is relevant for the child to

       6   be in the picture because the manner that the government put

       7   in the evidence of the dog, of purchasing the dog and sending

       8   two of them to Mr. Bin Laden, was that these are ferocious

       9   attack dogs and these are not.  These are pet German

      10   Shepherds, and you can tell by the picture of the child --

      11            THE COURT:  You can tell by a picture of a child with

      12   a dog that the dog is not an attack dog?  I don't know how

      13   much you know about dogs.  Dogs are trained to recognize

      14   friends and to recognize possibly hostile persons.  A

      15   photograph of a child with a dog -- you know, there is a trial

      16   going on now in some other community of an attack dog killing

      17   somebody.  I am sure that that dog with its owners' child

      18   would have been very peaceful.

      19            MR. SCHMIDT:  That dog was a vicious dog to

      20   everybody, your Honor.  That is why the neighbors complained

      21   about it.  If you want to raise this at the break, we will

      22   raise it at the break.

      23            THE COURT:  Let's raise it at the break.  Let's not

      24   turn this into a circus.

      25            MR. SCHMIDT:  Your Honor, I am responding to the

                                                                    4149

       1   proof of the government.  They are the ones that brought that

       2   out.

       3            Mohamed March way slay Odeh,

       4    MOHAMED ALI MURAWEH SALEH ODEH, resumed.

       5            (Jury present)

       6            THE COURT:  I remind everyone we are going to cease

       7   today at 3:00.  That may not be the right terminology.  We are

       8   going to terminate the proceedings today.

       9            Mr. Odeh, the court reminds you you are still under

      10   oath.

      11            Mr. Schmidt, you may continue.

      12            (Continued on next page)

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4150

       1   DIRECT EXAMINATION

       2   BY MR. SCHMIDT:

       3   Q   Good morning, Mr. Odeh.

       4   A   Good morning.

       5   Q   Mr. Odeh, yesterday you mentioned there is an Umm Reem and

       6   an Um Kefah.  Do you remember that?

       7   A   Yes, I said so.

       8   Q   Where does your wife Umm Reem reside?

       9   A   Umm Reem is living with me in Nairobi.  Um Kefah is living

      10   in Jordan.

      11   Q   Are you still lawfully married to Kefah?

      12   A   Yes, both is my wives.

      13   Q   How is Kefah supported?

      14   A   From our property in Jordan and our kids also.

      15   Q   Could you say that in Arabic so the reporter can get that.

      16   A   (Interpreted)  From my properties in Jordan.

      17   Q   What properties is that?

      18   A   I have house, big house, rent.  I have rent.  I have shop.

      19   Q   When you married Umm Reem, was your wife Um Kefah aware

      20   that you were marrying, taking a second wife?

      21   A   Yes, she is aware, which is normal in our country.

      22   Q   Was she present at the wedding of Umm Reem?

      23   A   I do not understand what you mean.

      24   Q   Was Um Kefah present at the wedding with Umm Reem?

      25   A   Yes.

                                                                    4151

       1   Q   You have a good relationship with Um Kefah?

       2   A   Of course.  I have 14 kids from her.  What is that

       3   relationship mean.

       4            (Laughter)

       5   Q   Mr. Odeh, I ask you to look around the courtroom, the

       6   tables over here.  Is there anybody here that you are related

       7   to?

       8   A   I couldn't understand what you saying.  Please repeat.

       9   Q   Is there anyone at any of these tables that is a relative

      10   of yours?

      11   A   No, I have nobody.  I have one friend here, this table.

      12   Q   Indicating?

      13   A   Mr. Wadih, with the long hair and the long beard.

      14            MR. FITZGERALD:  We will stipulate.

      15   Q   Did he have a long beard and long hair when you knew him

      16   in Nairobi?

      17   A   Unfortunately, no, but also he have no reason to make like

      18   this.  He haven't like this before.

      19            MR. SCHMIDT:  At this time I would like to play

      20   Exhibit W13 -- actually, we are not going to play 13.  It is

      21   in Arabic.  I move the tape of Exhibit W13 into evidence with

      22   the transcript W13-T.  Again we ask that it be placed on the

      23   screen, the transcript, and I will read in this

      24   conversation --

      25            MR. FITZGERALD:  No objection.

                                                                    4152

       1            THE COURT:  Received.

       2            (Defendant's Exhibit WEHXW13 and WEHXW13T received in

       3   evidence)

       4            MR. SCHMIDT:  I will read the part of Abdallah

       5   Zubeidy and Mr. Dratel will read the part of Harun.

       6            THE COURT:  What is the date of the conversation?

       7            MR. SCHMIDT:  The date of the conversation is

       8   February 7, 1997.

       9            (Defendant's Exhibit WEHXW13T in evidence read to the

      10   jury)

      11            MR. SCHMIDT:  I apologize.  May I have a moment, your

      12   Honor.

      13            (Pause)

      14   Q   Mr. Odeh, I am going to show you what is marked Defendant

      15   WEH-D-41 and 41T.

      16            MR. FITZGERALD:  If it will save time, I won't object

      17   to their being admitted.

      18            MR. SCHMIDT:  At this time I offer WEHD41 and 41T

      19   into evidence.

      20            THE COURT:  Received.

      21            (Defense Exhibits WEHD41 and D41T received in

      22   evidence)

      23            MR. SCHMIDT:  I apologize.  Please, on the screen for

      24   the jury, WEHD41.

      25            THE COURT:  That is the Arabic.

                                                                    4153

       1            MR. SCHMIDT:  Could you turn, please.

       2   Q   Do you see that document, both in your hand and on the

       3   screen, Mr. Odeh?

       4   A   Yes.

       5   Q   Is that the letterhead from Mr. Zubeidy?

       6   A   Yes, that is correct.  His name is Abdullah el Zubeidy.

       7   Q   How do you know him?

       8   A   I know him for a long, long time, maybe from 1990.

       9   Q   What is your dealings with Mr. el Zubeidy?

      10   A   I buy from him some stone, small star blue sapphire and

      11   jade, which is chrysoprase green.

      12   Q   Where does Mr. el Zubeidy live and have his place of

      13   business?

      14   A   Sometimes Nairobi, sometimes Mombasa, but his main office

      15   in Jakarta, Indonesia.

      16   Q   From time to time do you have telephone conversations with

      17   him?

      18   A   From time to time if we buy or selling each other, then he

      19   call or I call.

      20   Q   Do you receive fax transmissions from him?

      21   A   Yes, this is one of the fax transmission.

      22   Q   Through whose telephone?

      23   A   This through Mr. Wadih's fax.

      24            MR. SCHMIDT:  Your Honor, at this time I would like

      25   to read this exhibit.

                                                                    4154

       1            THE COURT:  Yes.

       2            (Defense Exhibit WEHD41T in evidence read to the

       3   jury)

       4   Q   Did you take care of the transaction that Mr. el Zubeidy

       5   indicated in the letter?

       6   A   Yes, sometime, but because of what he ask in the last

       7   paragraph he say about tanzanite --

       8            THE COURT:  "Yes" is a sufficient answer to your

       9   question?

      10            MR. SCHMIDT:  Yes.

      11            THE COURT:  Just answer as directly as you can the

      12   question.

      13            THE WITNESS:  Yes.

      14   Q   Regarding the tanzanite that you were talking about, who

      15   were you working with?  Who was your partner dealing with

      16   tanzanite in Nairobi?

      17   A   No one.  This is nobody, because this --

      18            THE COURT:  Nobody.  That's the answer.  Next

      19   question.

      20            MR. SCHMIDT:  At this time I am going to ask to offer

      21   into evidence WEHW8-T and the taped conversation which is in

      22   Arabic, WEHX-W8, the tape, and W8-T, the translation, and I

      23   would ask that the translation be placed on the screen and

      24   admitted into evidence.

      25            MR. FITZGERALD:  No objection.  Mr. Schmidt, I think

                                                                    4155

       1   we have two W8's.

       2            MR. SCHMIDT:  This is a conversation of November 4,

       3   1996.

       4            Your Honor, we are going to amend this one, because I

       5   believe there is another -- I apologize.  This is W5, your

       6   Honor.  I so amend it.

       7            MR. FITZGERALD:  No objection.

       8            THE COURT:  Received.

       9            (Defendant's Exhibits WEHXW5 and WEHXW5T received in

      10   evidence)

      11            MR. SCHMIDT:  This is a telephone call November 4,

      12   1996, between Wadih and an unidentified male.  Mr. Dratel will

      13   be reading Wadih El Hage and I will be reading the

      14   unidentified male.

      15            (Defense Exhibit WEHXW5T read to the jury)

      16   Q   If I may interrupt, Mr. Odeh, can you tell us what pipes

      17   these people were talking about.

      18   A   This is shower pipe.

      19   Q   Who had the possession of these pipes?

      20   A   What do you mean?

      21   Q   Who owned these pipes?

      22   A   I am.

      23   Q   How long had you owned the pipes?

      24   A   Since 1990, I imported to Kenya.

      25   Q   What were you trying to do with them?

                                                                    4156

       1   A   To sell them.

       2   Q   Was Wadih trying to sell them for you as well?

       3   A   Yes, because at the time when I liquidate --

       4            THE COURT:  Yes, yes.

       5            THE WITNESS:  Sorry.

       6            (Reading continued)

       7   Q   Mr. Odeh, the person that they are talking about who has

       8   the calculators, who are they talking about?

       9   A   Mr. Abdel Motaz in Hong Kong.

      10   Q   Who was the person they were talking about they would send

      11   over from the United States and be the person who would obtain

      12   the calculators from Abdel Motaz?

      13   A   I did not say United States.

      14   Q   I am sorry.  Who would be the person who would be

      15   responsible for obtaining the calculators from Abu Motaz and

      16   shipping them to Nairobi?  (Interpreted)  Would that be you?

      17   A   First of all, it is not responsibility on that because we

      18   need a buyer to this calculator first and he open and see --

      19            THE COURT:  Who?

      20            THE WITNESS:  We did not identify.  We asked

      21   Mr. Wadih to look to identify a buyer.  We did not identify a

      22   buyer.  We have offer, we did not have a buyer.

      23   Q   When they talk about the person who is traveling and not

      24   available, who are they talking about?

      25   A   Can I see that again?

                                                                    4157

       1   Q   They are talking about the sheik of the Arab nation is

       2   traveling.

       3   A   Yes, he is sheik, a joke maybe about me.  I am out of the

       4   country.  Maybe the other one he say sheik al Arab.

       5   Q   The person sending fax to about the calculators, who are

       6   you sending fax to to try to sell the calculators?

       7   A   I think Mr. Wadih, Mr. Ishaq and Motaz, the three of them.

       8   Q   So when they are talking about the papers being sent, we

       9   are talking about papers relating to trying to sell the

      10   calculators; is that correct?

      11   A   That is correct.

      12            (Reading continued)

      13   Q   Mr. Odeh, what kind of machine did Wadih El Hage have

      14   outside of his house?

      15   A   (Through interpreter)  It's a printer.

      16   Q   Is it a printer like the computers use or is it a printer

      17   that commercial printers use?

      18   A   It's commercial.  It's similar, little bigger than this

      19   table size.

      20   Q   A little bigger than this table right here?

      21   A   Yes, little bigger than this table, and higher.

      22   Q   Indicating approximately 5 feet by 2 1/2 feet.

      23            (Reading continued)

      24   Q   If I may interrupt, where is Jeddah, Mr. Odeh?

      25   A   Jeddah, in the Kingdom of Saudi Arabia.

                                                                    4158

       1            (Reading continued)

       2   Q   If I may interrupt, where is Arusha?

       3   A   It is in Tanzania, near the border of Kenya.

       4   Q   Is it east, near the coast, or inland, if you know?

       5   A   In the north I think, maybe -- I cannot tell the

       6   direction.

       7   Q   If you go to --

       8   A   No, Nmanga.  Nmanga is the last point in Kenya.  From

       9   there you enter Tanzania, and the first town in Tanzania, it

      10   is called Arusha.

      11   Q   Is that below Nairobi or is that on the coast below

      12   Mombasa, if you know?

      13   A   No, below Mombasa, because you have to go directly to

      14   Mombasa road and you turn to the left and go on that road.

      15            (Reading continued)

      16   Q   Mr. Odeh, who is Sheik Gabo?

      17   A   Sheik Ishaq.

      18   Q   The same person as Sheik Ishaq?

      19   A   Gabo.

      20            (Reading continued)

      21   Q   There was some talk in that conversation concerning

      22   T-shirts, white T-shirts.  Do you remember that?

      23   A   That is correct, I remember.

      24   Q   What was that about?

      25   A   What?

                                                                    4159

       1   Q   What was that about, that part?  Where were you going to

       2   get the T-shirts from?

       3   A   From China.

       4   Q   Who was going to be the person to supply that?

       5   A   Mr. Abu Motaz.

       6            (Pause)

       7   Q   Did you have a relationship, any type of business

       8   relationship with the Jordanian Export Development and

       9   Commercial Centers Corporation?

      10   A   That's correct.  I was preparing this.

      11   Q   What was that relationship?

      12   A   I was prepared to make a Jordanian Trade Center in East

      13   Africa, based in Nairobi.

      14   Q   When did that begin?

      15   A   1993.

      16   Q   Were you involved in setting up an exhibition in Nairobi

      17   in 1997?

      18   A   Yes, it was set in Nairobi in 1997, in August.

      19            MR. SCHMIDT:  At this time I ask to play tape NB109,

      20   Exhibit WEHXW16 and 16T.  The beginning of it is in Swahili.

      21   That was translated.  The rest of it is in English.

      22            MR. FITZGERALD:  No objection.

      23            THE COURT:  Received.

      24            (Defendant's Exhibits WEHX16 and WEHXW16T received in

      25   evidence)

                                                                    4160

       1            MR. SCHMIDT:  I would ask that we actually play the

       2   tape and put the transcript on the screen, since only a

       3   portion is in Swahili.

       4            (Tape played)

       5            MR. SCHMIDT:  I am going to ask that the card from

       6   Government's Exhibit 306 now be placed on the screen and

       7   published to the jury.

       8   Q   Mr. Odeh, do you know who Adan A. Hassan is?  I apologize

       9   if I mispronounced his name.  Do you know who that gentleman

      10   is?

      11   A   Yes, the director of KICC.

      12   Q   Why was Mr. El Hage speaking to the director of KICC on

      13   your behalf?

      14   A   Because I told you I have no telephone.  For that he can

      15   receive any communication on behalf of me.

      16   Q   Was he assisting you in setting up this exhibition?

      17   A   That is correct.

      18   Q   KICC means Kenyatta International Conferences, is that

      19   correct?

      20   A   That is correct.

      21   Q   Is that one of the places that you were considering

      22   setting up this exhibition?

      23   A   Yes.

      24            MR. SCHMIDT:  I ask if we can play 109-4, if we can

      25   set that up.  That would be Exhibit WEH27, and there would be

                                                                    4161

       1   an English translation, so I would ask that the exhibit, the

       2   tape be offered into evidence.

       3            THE COURT:  Any objection?

       4            MR. FITZGERALD:  No objection.

       5            THE COURT:  Received.

       6            (Defendant's Exhibit WEHW27 received in evidence)

       7   Q   What was the organization that you were working with to

       8   set up that exhibition?

       9   A   No, I do it in my own name, because I am a Jordanian, and

      10   this is Jordan, it is my home.

      11   Q   Were you coordinating with anyone the Jordan Export

      12   Development and Commercial Center Corporation?

      13            If I may, your Honor.

      14            (Pause)

      15   Q   Can you see that card?

      16   A   Yes, I know this card, yes.

      17   Q   Who is that person?

      18   A   He is one of the directors in the Jordanian export

      19   department in Amman, Jordan.

      20   Q   Did you have dealings with him concerning commercial

      21   activities relating to Jordanian products?

      22   A   Yes, most of the correspondence between me and him.

      23            MR. FITZGERALD:  Just so the record is clear, is this

      24   GX306?

      25            MR. SCHMIDT:  This is also from GX306, seized from

                                                                    4162

       1   Mr. El Hage's home in Nairobi.

       2            (Tape played)

       3            (Pause)

       4   Q   Mr. Odeh, where was the exhibition ultimately held?

       5   A   What?

       6   Q   Where was the exhibition, the Jordanian product exhibition

       7   held?

       8   A   In Grand Regency Hotel.

       9   Q   How come it ended up being held there?

      10   A   Yes, I have a correspondence, and I think I give you one

      11   copy of that correspondence, between me and the Grand Regency.

      12   Q   Do you recall why it ended up being at the Grand Regency

      13   and not at the KICC?

      14   A   Because the Jordanian group prefer to be at the Grand

      15   Regency.  I have no choice.

      16   Q   Do you recall a person named Daniel that was involved in

      17   the stone business?

      18   A   What?

      19   Q   Do you remember a person named Daniel that was involved in

      20   the stone business?

      21   A   What his full name?  Daniel, a lot.

      22   Q   What is his last name?

      23   A   There is one Daniel who I deal with him with chrysoprase,

      24   but there are many also Daniel in the stone business.

      25            MR. SCHMIDT:  I ask at this time then that we play

                                                                    4163

       1   tape 153-3, which is WEHXW22, that is, the English, so I offer

       2   the taped conversation but I ask that the transcript be

       3   published to the jury.

       4            MR. FITZGERALD:  No objection.

       5            THE COURT:  What is the date?

       6            MR. SCHMIDT:  August 26, 1997.

       7            THE COURT:  Received.

       8            (Defendant's Exhibit WEHWW22 and WEHXW22-T received

       9   in evidence)

      10            (Tape played)

      11            (Continued on next page)

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4164

       1   Q   You remember listening to this conversation in my office?

       2   A   Yes, completely I understand it.

       3   Q   I'm sorry.  I can't hear you.

       4   A   Yes, I understand all the conversation.

       5   Q   Why don't you sit back and you can move the microphone

       6   back a little bit towards you so you can sit back.

       7            Now, what stone was there conversation about?

       8   A   It is chrysoprase white color.

       9   Q   And do you know who the Daniel is that's being referred

      10   to, Daniel and his brothers?

      11   A   Yeah, he say Daniel it is a miner and his cousin.

      12   Q   And what was his job or role in dealing with Daniel?

      13   A   Only for assist me on that consignment.

      14   Q   This was one of your friends?

      15   A   Daniel, yes.

      16   Q   What was supposed to be done with, this is chrysoprase?

      17   A   Yes, chrysoprase.

      18   Q   What ultimately was going to be done with the chrysoprase?

      19   A   At that time collecting the sample is about five kilo to

      20   send to courier for testing and we have to sell a big

      21   consignment.  I think refer to that is in conversation.

      22   Q   During the time that you new Wadih El Hage were you

      23   traveling a lot overseas?

      24   A   Me?

      25   Q   Yes.

                                                                    4165

       1   A   Yes, of course.

       2   Q   And --

       3   A   Many times.

       4   Q   And who were you using as your base here in Nairobi to

       5   receive messages telephone calls and facsimiles?

       6   A   Wadih, because only he is the nearest neighbor to my

       7   house.

       8   Q   Did you have any conversations with Wadih involving gold?

       9   A   Yes.

      10            MR. SCHMIDT:  Now, I ask at this time that we show

      11   what's been marked Defendant's Exhibit WEHX-M-7X-23, the

      12   original Arabic first, and then the English, if I may.

      13            MR. FITZGERALD:  No objection.

      14            THE COURT:  Received.

      15            (Defendant's Exhibit WEHX-M-7X-23 received in

      16   evidence)

      17            MR. SCHMIDT:  Did we show the Arabic first?  I'm

      18   sorry, I'm slow.  I ask permission to read this letter to the

      19   jury, your Honor.  Thank you.

      20            (Exhibit read)

      21   Q   Now, did you have any conversations with Wadih concerning

      22   the sale of gold in this manner?

      23   A   With this matter in particular?

      24   Q   Not in this particular, but in this matter?

      25   A   Yes, I discussed with Wadih.

                                                                    4166

       1   Q   What was the nature of those discussions?

       2   A   I tried to send him for some person called Mbauga, to

       3   arrange a sample of gold because we have a buyer in Hong Kong.

       4   Q   What was the arrangement -- withdrawn.  Was that part of

       5   the arrangements with Wadih under Black Giant or is that a

       6   separate arrangement?

       7   A   No, it has come incidentally when I was Hong Kong some

       8   people asked me about gold and by chance somebody also in

       9   Nairobi told me that he can arrange gold from Tanzania for

      10   that when I sent for him a fax I sent him particular to that

      11   guy, and that moment what I did, did not know him for that I

      12   guide him to go to tell him about this gold, and I sent in the

      13   same time a fax to that guy.

      14   Q   Do you remember the name of that person Rican?

      15   A   Mbauga, Mr. Mbauga.

      16   Q   Is that M-B --

      17   A   M-B-A-U-G-A.

      18   Q   Thank you.

      19            Now, we discussed previously this printing machine

      20   that Mr. El Hage had outside of his home.  Was there any

      21   discussions with you about doing something with that machine,

      22   selling it, giving it away?

      23   A   This machine belonged to him and he is planned to do what

      24   he want to do with it.

      25   Q   Did he have any discussions with you in how to sell it?

                                                                    4167

       1   A   I remember one time I discussed he want to hire to some

       2   people.

       3   Q   Did he ever seek your help?

       4   A   Yes.

       5   Q   Were you able to help him with that?

       6   A   Not succeeded.

       7            MR. SCHMIDT:  Now, at this time I'd like to offer

       8   exhibit WEHXW17 and 17T.  It's an Arabic conversation found in

       9   MB1-129-3, July 27, there is a typographical error.  It's

      10   1997.

      11            MR. FITZGERALD:  No objection.

      12            THE COURT:  Received.

      13            (Defendant's Exhibits WEHXW17 and 17T received in

      14   evidence)

      15            MR. SCHMIDT:  No, I am not going to offer that.  I

      16   will offer that at another time.

      17            THE COURT:  Withdrawn?

      18            MR. SCHMIDT:  We apparently do not have that.

      19            THE COURT:  The exhibit is withdrawn.

      20            MR. SCHMIDT:  Your Honor, if I may, we don't have the

      21   tape, but if it's in Arabic we were going to read the

      22   transcript so I have to offer that as well.

      23            THE COURT:  I see.  They're in evidence but they're

      24   not going to be put on the display.

      25            MR. SCHMIDT:  No.  The transcript will be put on

                                                                    4168

       1   display.  We're not playing the tape that we would not have

       2   played anyway since it's Arabic, so I offer the transcript

       3   WEHXW17-T into evidence at this time.

       4            THE COURT:  Received.

       5            (Defendant's Exhibit WEHXW17-T received in evidence)

       6            MR. SCHMIDT:  At this time, Mr. Larsen will be the

       7   voice of Mohamed, and I will be the voice of Ali.

       8            Mohamed:  Hello.

       9            Ali:  Hello.

      10            Mohamed:  Hello.  Mohamed:  Hello.  Excuse me.

      11            Ali:  Peace of God be upon you.

      12            Mohamed:  And also on you.

      13            Ali:  Wadih.

      14            Mohamed:  Wadih is not here.  He's traveling.

      15            Ali:  How are you.

      16            Mohamed:  How are you?  Praise be God.

      17            Ali:  Mohammed.

      18            Mohamed:   Who is this?

      19            Ali:  Huh?

      20            Mohamed:  Who am I talking to?

      21            Ali:  Ali.

      22            Mohamed:  Ali who?

      23            Ali:  Ali Gab.

      24            Mohamed:   Ali Gab?

      25            Ali:  Yes.

                                                                    4169

       1            Mohamed:   How are you?

       2            Ali:    Fine, and you?

       3            Mohamed:    Praise be to God, your health.

       4            Ali:    Praise be to God.  How are you.

       5            Mohamed:   God bless you.

       6            Ali:    Yes.

       7            Mohamed:    How are things at your end.

       8            Ali:    Praise be to God, fine.

       9            Mohamed:    Wadiah?

      10            Ali:    What?

      11            Mohamed:    Hello?

      12            Ali:    Just a minute.  Is Wadih traveling?

      13            Mohamed:   Yes.

      14            Ali:    Okay.

      15            Mohamed:    But he told me that you wanted the

      16   machine.

      17            Ali:    Yes, the machine.

      18            Mohamed:    The machine, yes.

      19            Ali:    Yeah.

      20            Mohamed:    How to you want to take it to do what

      21   with it?

      22            Ali:    I saw a person in Kikuyu.

      23            Mohamed:  Yes.

      24            Ali:    But I want to check on him for I don't know

      25   him long enough.

                                                                    4170

       1            Mohamed:    You don't know him.

       2            Ali:    Not for long.  About three years only.

       3            Mohamed:    I see.

       4            Ali:    Just I want to ask people about him to see if

       5   we can trust him.

       6            Mohamed:   Yes.

       7            Ali:    Then we can deal with him, but before that we

       8   have to check him out.

       9            Mohamed:   Yes, yes.

      10            Ali:    However the man knows his work.

      11            Mohamed:   Yes.

      12            Ali:    But you know if we give him the machine.

      13            Mohamed:   Yes, it will be your responsibility then.

      14            Ali:    Yes, I know.

      15            Mohamed:    True.  You follow up on him.

      16            Ali:    God willing.

      17            Mohamed:    Find out about this man.  How is he.

      18            Ali:    Okay.  Then I will call you God willing.

      19            Mohamed:    Praise be to God.  How are you?

      20            Ali:    Fine, thank you.

      21            Mohamed:   God bless you.

      22            Ali:    God willing.

      23            Mohamed:    Any other service?

      24            Ali:    Thank you.  Peace of God be with you.

      25            Mohamed:    And you also."

                                                                    4171

       1            MR. FITZGERALD:  One moment, your Honor.

       2            (Pause)

       3            MR. SCHMIDT:  Mr. Fitzgerald on behalf of the

       4   government and myself on behalf of Wadih El Hage stipulates

       5   that Ali Omar Mohamed or Ali Gab is not the Ali Mohamed that

       6   had been mentioned in documents or in London, England.

       7            THE COURT:  Very well.  We'll take our mid-morning

       8   recess at this point.  Counsel remain in the courtroom.

       9            (Continued on next page)

      10

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                                                                    4172

       1            (Jury not present)

       2            THE COURT:  The witness may step down.

       3            (Witness not present)

       4            THE COURT:  Mr. Schmidt, how many more tapes

       5   comparable to those played this morning do you contemplate

       6   seeking to play?

       7            MR. SCHMIDT:  Well, I'm not sure which ones are

       8   comparable.  I would say this morning I have about four or

       9   five more.  We're waiting for some finished copies of other

      10   ones that are a little bit more substantial that we gave to

      11   the government yesterday, we dropped off in their office

      12   yesterday, yesterday evening, to play hopefully this

      13   afternoon.

      14            THE COURT:  Different subject matters?

      15            MR. SCHMIDT:  Most of them -- most of the other ones

      16   that we plan to do this afternoon are different subject

      17   matters.

      18            THE COURT:  Very well.  We'll take a five-minute

      19   recess.

      20            (Recess)

      21            (In open court; jury not present)

      22            MR. RUHNKE:  Your Honor, the government has differing

      23   views of what you wish from the defense by way of a

      24   representation that there will not be overlap an duplication

      25   at the penalty phase.  We'd like an opportunity to discuss it.

                                                                    4173

       1            THE COURT:  I was just responding to the statement

       2   made by the government that they understood that you were

       3   going to make or you had made an oral representation to them.

       4            MR. BAUGH:  Your Honor, the interpreters can't hear

       5   you --

       6            THE COURT:  That you had made an oral representation

       7   to them which satisfied them that there would not be an

       8   overlap run.

       9            MR. RUHNKE:  That was my understanding.

      10            THE COURT:  Don't let the jury come in until we

      11   finish this colloquy.

      12            I expressed doubt yesterday as to the enforceability

      13   of such a representation, and, of course, in order to make

      14   sure that there would be no overlap I would have to have a

      15   comparable representation on behalf of Al-'Owhali.  So I

      16   really do not have a very specific view of what that should

      17   be.  Does the government have any thoughts?

      18            MR. FITZGERALD:  Yes, Judge.  What we had thought was

      19   if counsel in writing or orally made a proffer to the Court of

      20   what the defense was, without the government being present,

      21   then the Court would understand what road they're going down.

      22            We understand subpoenas have been issued, but we

      23   don't know just because subpoenas were issued whether they are

      24   going down a particular road or whether they will be

      25   admissible.  We just thought if in they put in writing a

                                                                    4174

       1   proffer of where they expect to go in the defense, that would

       2   be helpful.

       3            MR. BAUGH:  Your Honor, I do want the Court to know

       4   that at the time Mr. Ruhnke made that representation both

       5   defense teams had a meeting and we discussed that very issue

       6   and when Mr. Ruhnke made his representation, he was making it

       7   for both.

       8            THE COURT:  I see.  All right.

       9            MR. SCHMIDT:  Your Honor.

      10            THE COURT:  Let's finish this.

      11            MR. SCHMIDT:  I apologize.

      12            THE COURT:  Okay.

      13            MR. FITZGERALD:  The government had asked for some

      14   showing of what the defenses would be.  We understand it

      15   wasn't appropriate for us to get it, but yesterday we were

      16   saying if there is a proffer made to the Court, your Honor

      17   could hear what each party says.  I thought that would be --

      18            THE COURT:  If you think it would be helpful to the

      19   Court in deciding on bifurcation, I will receive and consider

      20   it.  I am not requiring that at the trial.  What I do want is

      21   as I said yesterday, I want the government in writing to set

      22   forth its view on whether there are any circumstances under

      23   which in the Al-'Owhali penalty phase, should it be reached,

      24   the government would seek to introduce evidence of the

      25   specific attack on Correction Officer Pepe.

                                                                    4175

       1            MR. FITZGERALD:  Yes.

       2            THE COURT:  Not attacks in general, but that

       3   specifically, and that I would like to have in writing.  All

       4   right.

       5            MR. SCHMIDT:  Your Honor, if I may on the photograph

       6   issue, the reason why the request of the photograph of the

       7   child, the child, that small child in the photograph is not

       8   Mr. El Hage's daughter.  It's one of his nieces who was a

       9   guest that was there for a short period of time.  It simply

      10   reflects a pet, not a dangerous guard dog.

      11            THE COURT:  May I see the photograph?

      12            MR. FITZGERALD:  I would note a few things.  First,

      13   the record shows that he bought more than one dog and we were

      14   trying to corroborate the witness Kherchtou, since Kherchtou

      15   indicated he had a relationship with El Hage, and he walked

      16   the dog.  We put the records in to show that in fact that was

      17   true.  It also helps to set the timing.  We are not trying to

      18   argue to the jury because Mr. El Hage bought a dog he's a

      19   dangerous person.

      20            THE COURT:  Is there any suggestion that the dog was

      21   an attack dog?

      22            MR. FITZGERALD:  No, Judge.  There were dogs that

      23   were sent, other dogs that would be sent to Khartoum to be

      24   trained.  They weren't bought as trained attack dogs.  We

      25   won't contend that.  No one is going to argue that Mr. El Hage

                                                                    4176

       1   is a dangerous person because he possessed a dog and I don't

       2   think putting a picture of a girl next to a dog in there is

       3   necessary to rebut any argument not being made.

       4            THE COURT:  What probative value does this have?

       5   It's a cute picture.  The jury certainly has not seen cute

       6   pictures, but --

       7            MR. SCHMIDT:  Your Honor, it simply is for the

       8   purpose of showing that the contact between Mr. El Hage and

       9   Mr. Bin Laden concerning the dogs was not sinister, was not

      10   criminal, it was not related to viciousness.  This is his pet.

      11            THE COURT:  Do you know the age of the dog?

      12            MR. SCHMIDT:  Excuse me?

      13            THE COURT:  Do you know the age of this dog?  Do you

      14   know how large this dog would be?  Do we know the height of

      15   the child?  Do we know anything about the dog?

      16            The objection is sustained on the grounds that the

      17   photograph has no probative value with respect to the issues

      18   for which it is proposed, and it's simply a cute picture of a

      19   child and a dog.  The impact on the jury would not be proper

      20   or relevant to the issues here which you propose.  Mark this

      21   as an exhibit for identification so that the record will make

      22   this colloquy more meaningful.

      23            MR. SCHMIDT:  Your Honor, does that mean that we will

      24   be able to bring a redacted photo of this with just the dog?

      25            THE COURT:  No, for the same reason I just stated.

                                                                    4177

       1   Let's bring in the jury, please.

       2            (Continued on next page)

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                                                                    4178

       1            (Jury present)

       2            THE COURT:  There is a dog that comes in this

       3   courtroom every morning.  You think a photograph --

       4            MR. FITZGERALD:  Judge.

       5            THE COURT:  -- of a dog would show --

       6            MR. FITZGERALD:  Judge, the jury is present.

       7            (Witness resumed)

       8   Q   Mr. Odeh, I'm going to show you a photograph which has

       9   been marked WEHX-P1.

      10            MR. FITZGERALD:  No objection.

      11            THE COURT:  Received.

      12            (Defendant's Exhibit WEHX-P1 received in evidence)

      13   Q   Do you recognize that photograph?

      14   A   Yes.

      15   Q   What is that a photograph of?

      16   A   This is the office of Mr. Wadih El Hage.

      17   Q   Is that the office in his home?

      18   A   Yes, it is in his house, yes.

      19            MR. SCHMIDT:  I offer that into evidence, your Honor.

      20            THE COURT:  It's been received.

      21            MR. SCHMIDT:  I ask that it be shown.

      22   Q   You testified that yesterday that there was a desk in the

      23   office.  Is that the part of the desk that's showing on the

      24   right-hand side?

      25   A   Yes, it is a part of the desk.

                                                                    4179

       1   Q   And is that chair with some electronic equipment on it the

       2   only chair in the office or is there another chair in the

       3   office?

       4   A   Yes, there are two or three.

       5   Q   Thank you.

       6            (Pause)

       7            MR. SCHMIDT:  Your Honor, at this time defendant will

       8   be offering exhibits WEHX-Y297 to 300 and WEH-Y297-300T, the

       9   translation of the these documents.  The original is the

      10   document that was taken off of the computer seized in Mr. El

      11   Hage's home.  I offer the original document and the

      12   translations into evidence.

      13            MR. FITZGERALD:  No objection.

      14            THE COURT:  Received.

      15            (Defendant's Exhibits WEHX-Y297 to 300 and

      16   WEH-Y297-300T received in evidence)

      17            MR. SCHMIDT:  May we put the first page of the

      18   original document.  Would you move it down, please.  That's

      19   the first page of the document and now if we can put on the

      20   translation, the first page of the translation.

      21            If I may.

      22            (Exhibit read)

      23            THE COURT:  How much longer is this letter?  How much

      24   longer is this letter?

      25            MR. SCHMIDT:  This letter is four pages, I'm on page

                                                                    4180

       1   two.

       2            THE COURT:  Is the content of the rest of this letter

       3   relevant or has there been enough of a description so that the

       4   subject matter is clear?

       5            MR. SCHMIDT:  No.

       6            THE COURT:  You may continue.

       7            (Exhibit read)

       8            (Continued on next page)

       9

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      11

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      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4181

       1   Q   Mr. Odeh, was this letter prepared by you?

       2   A   Yes, it is written by me.

       3   Q   Where was it prepared?

       4   A   What?

       5   Q   Where and how did you prepare it?  (Interpreted)

       6   A   I write before in English but I think is in Arabic.  I

       7   write in Arabic and give to Wadih, because only the facilities

       8   of Arabic language was in Wadih.

       9   Q   And the fax numbers that were given for all the messages

      10   to go and come back, whose fax was that?

      11   A   Yes, this was Wadih fax.

      12   Q   Did you have many correspondence with the people

      13   concerning the Jordanian exhibition and the sale of Jordanian

      14   products?

      15   A   Yes, sometime look at from Kenya, sometimes from Jordan.

      16   It comes supply with that letter and many other letters,

      17   coming through that fax.

      18            MR. SCHMIDT:  Your Honor, there was a stipulation

      19   earlier before the break.  The government and the defendant

      20   Wadih El Hage agree that the persons previously mentioned in

      21   the government's case, Ali Mohamed, Mohamed Ali, or Abu

      22   Mohamed are not the Mohamed Ali Odeh who is here today or the

      23   Ali Mohamed Ali Gab mentioned yesterday or today.

      24            At this time, your Honor, I wish to read from the

      25   transcript of an Arab conversation, WEHXW28-T, conversation of

                                                                    4182

       1   July 15, 1997 between Wadih El Hage and Ali Gob, or Ali O

       2   Mohamed.

       3            THE COURT:  Any objection?

       4            MR. FITZGERALD:  No, Judge.

       5            MR. SCHMIDT:  I offer that transcript.

       6            THE COURT:  Received, 28 and 28T.

       7            (Defendant's Exhibit WEHXW28 and WEHXW28T received in

       8   evidence)

       9            (Defense Exhibit WEHW28T read to the jury)

      10   BY MR. SCHMIDT:

      11   Q   Mr. Odeh, Mr. Ali Gob indicated that he did not want to

      12   bring someone to the house because of thieves.  Do you know

      13   what he meant by that?  Do you know what is meant by that?

      14   A   You know sometime, you couldn't start talking in general

      15   about a tribe, but some, because it --

      16   Q   Let me withdraw that question and ask you another

      17   question.  What is the concern about bringing people that you

      18   don't know to one's home?

      19   A   Because they feel they are thief.

      20   Q   Have you been the victim of a theft from your home?

      21   A   Yes, my home completely stolen.

      22            MR. FITZGERALD:  Objection.

      23            THE COURT:  Sustained.

      24            MR. SCHMIDT:  At this time, your Honor, I am going to

      25   offer WEHX-M-7X-39T -- it doesn't have T but it is a

                                                                    4183

       1   translation of that document -- into evidence if I may.

       2            MR. FITZGERALD:  No objection.

       3            THE COURT:  Received.

       4            (Defendant's Exhibit WEHXM7X39 received in evidence)

       5            MR. SCHMIDT:  I ask that it be published)

       6   Q   Mr. Odeh, did you know the brand name of the printing

       7   machine that was in Mr. El Hage's property?

       8   A   Sorry, I don't know.

       9   Q   Do you know the name of the company who manufactured the

      10   printing machine?

      11   A   I don't know anything about it.

      12            MR. SCHMIDT:  Your Honor, at this time I am going to

      13   read the letter.

      14            (Defense Exhibit WEHXM7X39 in evidence read to the

      15   jury)

      16            MR. SCHMIDT:  At this time I offer WEHXW18-T, which

      17   is the transcript of the conversation found at NB1-138-1, a

      18   telephone conversation on August 9, 1997, between Ali Gob and

      19   Ali Mohamed, in parentheses Fadhl.

      20            MR. FITZGERALD:  No objection.

      21            THE COURT:  Received.

      22            (Defendant's Exhibit WEHXW18T received in evidence)

      23            MR. SCHMIDT:  I will read the part of Ali and

      24   Mr. Dratel will read the part of Mohamed.

      25            (Defendant's Exhibit WEHXW18T in evidence read to the

                                                                    4184

       1   jury)

       2   Q   Did you listen to that tape recording? (Interpreted)

       3   A   Yes, I did.

       4   Q   The Mohamed mentioned there is not you, is that correct?

       5   A   The voice of the second one I didn't recognize but the

       6   other voice Ali Gob, yes.

       7   Q   You don't know the voice of the first one, is that

       8   correct?

       9   A   No.

      10            MR. SCHMIDT:  At this time, your Honor, I wish to

      11   offer WEHX-K-31.

      12            MR. FITZGERALD:  No objection.

      13            THE COURT:  Received.

      14            (Defendant's Exhibit WEHXK31 received in evidence)

      15            MR. SCHMIDT:  I ask that it be published before the

      16   jury.

      17            THE COURT:  Yes.

      18            MR. SCHMIDT:  I would ask that I read it.  For the

      19   record, this was seized in the computer that was seized from

      20   Mr. El Hage's home in August of 1997.

      21   Q   Mr. Odeh, what is VAT stand for?  (Interpreted)

      22   A   (Through interpreter) Value added tax.

      23            MR. FITZGERALD:  I will stipulate to value added tax.

      24   Q   For importing those items into Kenya, is it your

      25   experience that you must pay value added tax?

                                                                    4185

       1   A   Yes, this is procedure, but I did not know what it mean in

       2   English.  In Arabic, I know.

       3   Q   Is there a procedure to get an exemption to value added

       4   tax for nongovernmental organizations?

       5   A   In general there is something for nongovernment

       6   organization and some personal effects also.  This is the

       7   procedure you have to follow in both way.  You write to the

       8   government, if they say yes, exemption or not exemption.

       9            MR. SCHMIDT:  I am going to offer WEHX-K-18.

      10            MR. FITZGERALD:  No objection.

      11            THE COURT:  Received.

      12            (Defendant's Exhibit WEHXK18 received in evidence)

      13            MR. SCHMIDT:  I ask that it be admitted and published

      14   to the jury.  I will read that to the jury.

      15            (Defendant's Exhibit WEHXK18 read to the jury)

      16            MR. SCHMIDT:  I note that this document was also

      17   obtained from the computer seized from Mr. El Hage's home in

      18   August of 1997.

      19   Q   Mr. Odeh, yesterday we discussed your request to Mr. El

      20   Hage to obtain visas for two Sudanese individuals coming from,

      21   I believe, Thailand.  Do you remember that?

      22   A   That's correct.

      23   Q   The procedure for obtaining those visas, is this the same

      24   type of procedure explained in this letter?

      25   A   No, this is different.

                                                                    4186

       1   Q   Would you explain the procedure.  (Interpreted)

       2   A   Yes.  When you ask for visa, is mean past visa.  It given

       3   for one month, two month.  He is not allowed to work.  He can

       4   make study and he leave.  This visa mean he have some business

       5   inside the country.

       6   Q   It is a different procedure --

       7   A   Yes, two different procedure, two different department.

       8   Q   Do you have a visa for working in Kenya?

       9   A   Yes, I have.

      10   Q   How often do you need to renew your visa?

      11   A   If it is class H, two years.  If it is class A, three

      12   years.  Mine is three years.

      13            MR. SCHMIDT:  At this time I would like to play

      14   NB1-020-1, WEH-W7-E.  It has very little Swahili.  It is

      15   almost all in English.  I would ask that it be played for the

      16   jury and the transcript be published to the jury.

      17            MR. FITZGERALD:  No objection.

      18            THE COURT:  Received.

      19            (Defendant's Exhibit WEHW7E received in evidence)

      20            (Tape played)

      21            THE COURT:  Why don't you read it.

      22            MR. SCHMIDT:  We will read it.  This is a

      23   conversation of November 21, 1996, between Ahmed and David

      24   Mbutua.  Mr. Dratel will read Ahmed and I will read David.

      25            (Defendant's Exhibit WEHW7E read to the jury)

                                                                    4187

       1            MR. SCHMIDT:  We are going to try, your Honor, to see

       2   if this taped conversation can be played.

       3            THE COURT:  Before you do that, I am handed a note

       4   which says there has been some foulup and that the jurors'

       5   lunches have already been sent in.  So we will break and we

       6   will resume at 1:45.

       7            (Luncheon recess)

       8

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      25

                                                                    4188

       1                 A F T E R N O O N    S E S S I O N

       2                             1:45 p.m.

       3            (In open court; jury present; witness resumed)

       4            THE COURT:  Mr. Schmidt, you may resume.

       5            MR. SCHMIDT:  Yes, thank you.

       6   DIRECT EXAMINATION (Continued)

       7   BY MR. SCHMIDT:

       8   Q   Good afternoon, Mr. Odeh.

       9   A   Good afternoon.

      10            MR. SCHMIDT:  Your Honor, at this time I'd like to

      11   play WEHX-31-E, also, corresponding to NB1-163 and it's

      12   English.  Hopefully we'll be able to listen to it in its

      13   original version without having to read it.  And I move the

      14   tape recording into evidence, and I ask that the translation,

      15   excuse me, the transcription of the English be shown to the

      16   jury.

      17            MR. FITZGERALD:  May I have a moment, your Honor.

      18            (Pause)

      19            MR. FITZGERALD:  Your Honor, no objection to W31.  I

      20   look ahead, no objection to W30.

      21            MR. SCHMIDT:  Thank you.

      22            THE COURT:  Received.

      23            (Defendant's Exhibits WEHX-31 and NB1-163 received in

      24   evidence)

      25            THE COURT:  What is happening now, Mr. Schmidt?

                                                                    4189

       1            MR. SCHMIDT:  We're cuing up the tape recording.

       2            THE COURT:  This is W31.

       3            MR. SCHMIDT:  That's correct.

       4            (Tape played)

       5            THE COURT:  It is an imposition to impose that

       6   discordant sound on the jury, and the inflexion language and

       7   so on is not of enough significance to warrant it.

       8            MR. DRATEL:  This is September 10, 1997 telephone

       9   call.  Mr. Larsen will read the part of April.  I will read

      10   the part of Wadih.

      11            (Exhibit read)

      12            THE COURT:  That's not what is being shown on the

      13   screen.

      14            MR. LARSEN:  This is 31.

      15            MR. DRATEL:  It's correct now, your Honor.

      16            THE COURT:  All right.

      17            (Continued reading)

      18            MR. SCHMIDT:  At this time, your Honor, we also move

      19   into evidence WEX-30-E corresponding with NB1-36 telephone

      20   call between Salim Chirchir and unidentified male, and NB1-36.

      21            MR. FITZGERALD:  No objection.

      22            THE COURT:  Received.

      23            (Defendant's Exhibits WEX-30-E and NB1-36 received in

      24   evidence)

      25            MR. SCHMIDT:  Mr. Dratel and Mr. Larsen will be

                                                                    4190

       1   reading.

       2            MR. DRATEL:  I will read the part of Salim and

       3   Mr. Larsen will read the part of the unidentified male.

       4            (Exhibit read)

       5   BY MR. SCHMIDT:

       6   Q   Now, Mr. Odeh, who is Salim Chirchir?

       7   A   Please correct the name.  His name is Salam, S-A-L-I-M.

       8   Q   Who is Salim?

       9   A   Salim Chirchir, yes, his name is Salim.

      10   Q   Who is he?

      11   A   He's working with security department in Nairobi.

      12   Q   For who, which security department?

      13   A   Security department.

      14   Q   Of what agency?

      15   A   For investigation.

      16   Q   Is that the Kenyan criminal investigation division?

      17   A   Yes.

      18   Q   And what invitation was he talking about, do you remember?

      19   A   You know somebody when he want to take a passport from

      20   Kenya he need some invitation from overseas, for that Samir

      21   when he was with me in Kenya he promise him to invite him and

      22   his family to stay some time in Hong Kong.

      23   Q   And when you were in Hong Kong who were you seeing?

      24   A   Myself?

      25   Q   Yes.

                                                                    4191

       1   A   What is that date first of all remind me on the date for

       2   that I can tell you.

       3   Q   That date of that conversation was August 6, 1997?

       4   A   1997 I see Abdul Martiz, I see Samir, I saw also Dr. Said

       5   Taleb, and some people Chinese for gem stones.

       6   Q   Now, how long had you known Chirchir at that time?

       7   A   You know I met Chirchir sometimes in the mosque, but we

       8   did not be close to each other.  Sometime I have a problem for

       9   that.

      10            THE COURT:  This is when?  How long have you known

      11   him?

      12            (Witness consults with the interpreter)

      13   A   I told you I did not know him clearly for but when we are

      14   getting out of the mosque we see each other till I have a

      15   problem and Mr. Wadih introduce me to him.

      16            THE COURT:  Sir, a date, approximate date?

      17            MR. SCHMIDT:  If I may, your Honor?

      18   A   It may be sometime August, September, 1996.

      19   Q   Is that when you were introduced to Salim Chirchir?

      20   A   Salim Chirchir, yes.

      21   Q   Prior to that you recognized him from the mosque?

      22   A   I saw him but we did not talk.  Mostly in the mosque we

      23   greet each other as we go.

      24   Q   What kind of problem did you have that caused you to be

      25   introduced to Salim Chirchir?

                                                                    4192

       1   A   I lost my documents.

       2   Q   And who recommended that you speak to Salim Chirchir?

       3   A   Mr. Wadih.

       4            MR. SCHMIDT:  At this time I wish to offer into

       5   evidence WEHX-K-32.

       6            MR. FITZGERALD:  I object.

       7            THE COURT:  We'll save it for the last break and go

       8   on to something else.

       9   Q   Did you know if Mr. El Hage had any dealings with Salim

      10   Chirchir prior to you being introduced?

      11   A   I don't think there is any deal, because Salim Chirchir is

      12   employee of the government, for that is not a businessman.

      13   Q   Yes.  Did Mr. El Hage have any dealings with Salim

      14   Chirchir as -- withdrawn.

      15            Did Mr. El Hage have any kind of problem that he went

      16   to Mr. Chirchir as a police detective to help him with?

      17   A   Yes.  Mr. Chirchir told me that El Hage had a problem with

      18   some house he give the money but rent for the money but they

      19   did not give him back.  For that, also somebody introduced him

      20   to Salim Chirchir.

      21            MR. SCHMIDT:  Now, at this time I wish to offer into

      22   evidence WEHX-W33-T which is a transcript of corresponding

      23   tape NB1-012-1 dated November 8, 1996.

      24            MR. FITZGERALD:  No objection.

      25            THE COURT:  Received.

                                                                    4193

       1            (Defendant's Exhibits WEHX-W33-T and NB1-012-1

       2   received in evidence)

       3            MR. DRATEL:  I will read the part of Wadih, and

       4   Mr. Larsen will read the part of Dr. Said.

       5   BY MR. SCHMIDT:

       6   Q   Mr. Odeh, when talking about paying the rent, whose rent

       7   are we talking about?

       8   A   My house rent.

       9   Q   Why is Mr. El Hage checking on it?

      10   A   Because I told you I have no contact with my wife

      11   directly.  I have to use his telephone to call.

      12   Q   Okay.  Thank you.

      13            (Exhibit continued read)

      14   BY MR. SCHMIDT:

      15   Q   What project were you talking about entering into with

      16   Wadih El Hage and Dr. Said Taleb?

      17   A   If you notice I say about Mutaki and Mutaki is in mining

      18   department for there the subject concern about stone.

      19   Q   And where were we talking about?

      20   A   What?

      21   Q   Where are we talking the project?

      22   A   Kenya of course.

      23   Q   Where in Kenya?

      24   A   You know different type of Kenya.  The stone it is

      25   available in one area called Bicut, Voy.  This is the area

                                                                    4194

       1   where the stone is located and we get the location then we

       2   take for that location.

       3   Q   It was your understanding that Mr. El Hage was the one

       4   that was going to be having the responsibility dealing with

       5   Mr. Taleb in this project as well as you?

       6   A   We planned to put that Taleb in Hong Kong with me, and we

       7   supply the stone to him.

       8            MR. SCHMIDT:  Thank you.

       9            (Exhibit continued read)

      10            THE COURT:  I misspoke a little earlier.  I made

      11   reference to our midafternoon recess, but since we're

      12   adjourning at 3 o'clock, we'll take up that other matter at 3

      13   o'clock.

      14            MR. SCHMIDT:  Now, at this time, your Honor I'd like

      15   to offer into evidence WEHX-W7-E -- withdrawn.  That's been

      16   offered.  I apologize.

      17            At this time I'd like to offer WEXW6-T which is an

      18   Arabic conversation corresponding with NB1-006 on November 13,

      19   1996 between Wadih El Hage and Ali Gab.

      20            MR. FITZGERALD:  No objection.

      21            THE COURT:  Received.

      22            (Defendant's Exhibit WEXW6-T received in evidence)

      23            (Pause)

      24            MR. SCHMIDT:  I apologize.  It is actually marked as

      25   73.  Mr. Dratel will read the part of Wadih and Mr. Larsen

                                                                    4195

       1   will read the unidentified man.  I'm sorry.  No, it's Ali Gab.

       2   Even though it says man, it's Ali Gab.

       3            (Exhibit read)

       4            (Pause)

       5            MR. SCHMIDT:  Your Honor, at this time we're offering

       6   exhibit WEHXM-7X-31 in the original Arabic, and the

       7   translation marked T.

       8            MR. FITZGERALD:  No objection.

       9            THE COURT:  What is the exhibit number?

      10            MR. SCHMIDT:  WEHX-M-7X-31.  This is one of the

      11   exhibits these are documents seized from Mercy International.

      12            THE COURT:  Received.

      13            (Defendant's Exhibit WEHXM-7X-31 received in

      14   evidence)

      15            MR. SCHMIDT:  Now if you can put on the translation

      16   and I'll read the translation.

      17            (Translation read)

      18   Q   Mr. Odeh, now, are with you -- withdrawn.  Have you had

      19   discussions with Mr. El Hage concerning the sale of

      20   semi-precious stones in the United States?

      21   A   No.

      22   Q   Did you participate in any of his attempts to sell stones

      23   in the United States?

      24   A   No, he was selling before me and we come to discuss about

      25   the United States.

                                                                    4196

       1   Q   So are you familiar with any of the merchants in the

       2   United States that he dealt with?

       3   A   To me or to him?

       4   Q   To him.

       5   A   I did not know anybody.

       6   Q   Did you deal with any merchants in the United States

       7   concerning semi-precious stones?

       8   A   Sorry, no, my market was only eastern.

       9            MR. SCHMIDT:  Thank you.

      10            Now, at this time wish we wish to enter WEHX-W15-E --

      11   excuse me -- W15, a tape conversation on May 5, 1997 between

      12   Daniel and Wadih.  I ask that we display the draft transcript

      13   and I guess we're going to read it to avoid hurting our ears.

      14            MR. FITZGERALD:  Can I have one moment, your Honor?

      15            THE COURT:  Yes.

      16            (Pause)

      17            MR. FITZGERALD:  No objection.

      18            THE COURT:  Received.

      19            (Defendant's Exhibit WEHX-W15 received in evidence)

      20            MR. DRATEL:  Mr. Larsen will read Daniel.  I will

      21   read Wadih.

      22            (Exhibit read)

      23            MR. SCHMIDT:  Your Honor, at this time we wish to

      24   offer into evidence the tape WEH-W9 and ask that the English

      25   transcription be published for the jury to see related to

                                                                    4197

       1   NB1-033, and while this is not dated, we believe this is a

       2   telephone call in December, 1996 between Wadih and David.

       3            (Pause)

       4            MR. FITZGERALD:  No objection.

       5            THE COURT:  Received.

       6            (Defendant's Exhibit WEH-W9 received in evidence)

       7            MR. DRATEL:  Mr. Larsen will read David's part and I

       8   will read of Wadih.

       9            (Exhibit read)

      10            (Pause)

      11            MR. SCHMIDT:  Your Honor, at this point we're going

      12   to offer into evidence two telephone conversations in English,

      13   WEHX-W25 and W26.  These are presently undated calls.  Thank

      14   you, your Honor.

      15            MR. FITZGERALD:  No objection.

      16            THE COURT:  25 and 26 received.

      17            (Defendant's Exhibits WEHX-W25 and 26 received in

      18   evidence)

      19            MR. DRATEL:  I'll read the part of Wadih.  Mr. Larsen

      20   will read the part of Dr. Miso.

      21            (Exhibit read)

      22            (Continued on next page)

      23

      24

      25

                                                                    4198

       1            MR. DRATEL:  Now we will read WHX-W26, which is a

       2   conversation between Wadih and an unidentified female,

       3   secretary for Dr. Massoy.  Mr. Larsen will read the part of

       4   the unidentified female, the secretary for Dr. Massoy, and I

       5   will read the part of Wadih.

       6            (Defense Exhibit WEHXW26 in evidence read to the

       7   jury)

       8            MR. SCHMIDT:  Your Honor, we are going to read a

       9   stipulation.

      10            MR. DRATEL:  It is hereby stipulated and agreed by

      11   and between with the United States of America, by Mary Jo

      12   White, the United States Attorney for the Southern District of

      13   New York, Patrick J. Fitzgerald, Kenneth M. Karas, and Paul W.

      14   Butler, Assistant United States Attorneys, of counsel, and the

      15   defendants, by and with the consent of their attorneys, as

      16   follows:

      17            That on August 20, 1998, the building located at 100

      18   Mufulo Avenue, Nairobi, Kenya, which were the offices of the

      19   Mercy International Relief Agency, hereinafter MIRA, were

      20   searched by Kenyan and United States officials, and the

      21   following items, among others, were recovered:  WEHX-M-7X-23,

      22   a letter dated June 24, 1997; WEHXM731, an undated letter, and

      23   7X-39, letter dated November 29, 1996.

      24            2.  The following items with the suffix T are fair

      25   and accurate translations of the documents with the

                                                                    4199

       1   corresponding exhibit numbers without the suffix T.  The El

       2   Hage Defense Exhibit numbers are WEHX-M-7X-23-T and

       3   WEHX-M-7X-31-T.

       4            3.  It is further stipulated and agreed that the

       5   government and the defendants are agreeing to the authenticity

       6   of the documents as specifically described above and more

       7   generally in the preceding paragraph.  The government and the

       8   defense reserve the right to object to the admissibility of

       9   any particular item or the translation of same as each is

      10   offered.  It is the purpose of this stipulation to avoid the

      11   necessity of calling and recalling multiple authentication

      12   witnesses at trial during the government and defense cases.

      13   Regarding the translations, the parties stipulate that if

      14   called as a witness a person fluent in Arabic and English

      15   would testify that the translations listed above are narrow

      16   and accurate translations.

      17            4.  It is further stipulated and agreed that this

      18   stipulation may be received in evidence as a defense exhibit

      19   at trial.

      20            THE COURT:  Received.

      21            MR. DRATEL:  There is another stipulation.  It is

      22   hereby stipulated and agreed by and between the United States

      23   of America, by Mary Jo White, the United States Attorney for

      24   the Southern District of New York, Patrick J. Fitzgerald,

      25   Kenneth M. Karas and Paul W. Butler, Assistant United States

                                                                    4200

       1   Attorneys, of counsel, and the defendants, by and with the

       2   consent of their attorneys, as follows:

       3            That the computer laptop seized by United States and

       4   Kenyan officials August 21, 1997, 1523 Fedha Estates, Nairobi,

       5   Kenya, the residence of Wadih el Hage and his family, and

       6   previously introduced in evidence as Government's Exhibit 300,

       7   contained within its hard drive the following files:  El Hage

       8   Defense Exhibit number WEHX-K18, which is an application for

       9   duty and VAT exemption dated May 4, 1996; WEHX-K31, May 28

      10   application for reentry pass; and WEHX-K32, a letter dated

      11   July 16, 1997.

      12            3.  It is further stipulated and agreed that the

      13   government and the defendants are agreeing to the authenticity

      14   of the documents as specifically described above and more

      15   generally in the preceding paragraph.  The government and the

      16   defense reserve the right to object to the admissibility of

      17   any particular item or the translation of same as each is

      18   offered.  It is the purpose of this stipulation to avoid the

      19   necessity of calling and recalling multiple authentication

      20   witnesses at trial during the government and defense cases.

      21            4.  It is further stipulated and agreed that this

      22   stipulation may be received in evidence as a Defense Exhibit

      23   at trial.

      24            One more, your Honor.

      25            THE COURT:  Do you have exhibit numbers for these?

                                                                    4201

       1            MR. DRATEL:  I was going to use --

       2            THE COURT:  Finish it first.

       3            MR. DRATEL:  It is hereby stipulated and agreed by

       4   and between the United States of America by Mary Jo White,

       5   United States Attorney for the Southern District of New York,

       6   Patrick J. Fitzgerald, Kent M. Karas and Paul W. Butler,

       7   Assistant United States Attorneys, of counsel, and the

       8   defendants, by and with the consent of their attorneys, as

       9   follows:

      10            That for the time period from July 1996 through

      11   September 1997, the Kenyan telephone number 254820067 was

      12   assigned to a telephone located at 1523 Fedha Estates,

      13   Nairobi, Kenya, which was the residence of Wadih El Hage and

      14   his family.  During that time period, the telephone was

      15   wiretapped.  Calls to and from the telephone number were being

      16   intercepted and monitored in a secure location in the Nairobi,

      17   Kenya, area.  Facsimile transmissions from the wiretapped

      18   telephone number were also intercepted during part of that

      19   time period and were monitored in a secure location in the

      20   Nairobi, Kenya, area.

      21            2.  That included among the tapes generated by the

      22   wiretap were the following El Hage defense exhibits which were

      23   recorded on or about the date and time indicated and outgoing

      24   calls were placed to the telephone number indicated.  I will

      25   read the list --

                                                                    4202

       1            THE COURT:  A list of telephone numbers?

       2            MR. DRATEL:  No, of exhibits, the transcripts or the

       3   tapes that were put in evidence, your Honor.  If you want me

       4   to read it, I will read it.

       5            THE COURT:  I don't care if you read it or not.  Give

       6   it an exhibit number and introduce it.

       7            MR. DRATEL:  I will read the numbers and we will

       8   introduce it.  WEHX-W1; WEHX-W1E; WEHX-W3; WEHX-W4; WEHX-W5,

       9   WEHX-W6; WEHX-W7; WEHX-W8; WEHX-W9; WEHX-W10; WEHX-W11;

      10   WEHX-W12; WEHX-W13, WEHX-W14; WEHX-W15; WEHX-W16; WEHX-W17;

      11   WEHX-W21; WEHX-W22; WEHX-W23; WEHX-W24; WEHX-W25; WEHX-W26;

      12   WEHX-W27; WEHX-W28; WEHX-W29; WEHX-W30; WEHX-W31; WEHX-W33.

      13            4.  That for the time period from July 1996 through

      14   September 1997, the Kenyan telephone number 25471202219 was

      15   assigned to a telephone number in Nairobi, Kenya, that was

      16   subscribed by Ahmad Sheik Aden.  During that time period the

      17   telephone was wiretapped.  Calls to and from the telephone

      18   number were being recorded on a tape recording machine in a

      19   secure location in the Nairobi, Kenya, area.

      20            5.  That included among the tapes generated by the

      21   wiretap were the following El Hage Defense Exhibits which were

      22   recorded on or about the date indicated and outgoing calls

      23   were placed to the telephone numbers indicated:  WEHX-WW25,

      24   WEHX-W26.

      25            7.  It is further stipulated and agreed that the

                                                                    4203

       1   government and the defendants are agreeing to the authenticity

       2   of the documents as specifically described above and more

       3   generally in the preceding paragraph.  The government and the

       4   defense reserve the right to object to the admissibility of

       5   any particular item or the translation of same as each is

       6   offered.  It is the purpose of this stipulation to avoid the

       7   necessity of calling and recalling multiple authentication

       8   witnesses at trial during the government and defense cases

       9   regarding the translation.  Defendant El Hage represents that

      10   if called as a witness, persons fluent in Arabic and English

      11   and Swahili and English would testify that the translations

      12   listed above are fair and accurate translations.

      13            8.  It is further stipulated and agreed that this

      14   stipulation may be received in evidence as a defense exhibit

      15   at trial.

      16            That's it, paragraph 8.  Thank you, your Honor.

      17            MR. SCHMIDT:  Your Honor, at this time we would like

      18   to deal with the issue concerning WEHXK32, your Honor.

      19            THE COURT:  Ladies and gentlemen, we will call it a

      20   day and we will resume tomorrow at 10:00 and we will have a

      21   full day tomorrow.

      22            (Jury excused)

      23            MR. COHN:  Your Honor, a technical matter, pragmatic

      24   matter.  Because the marshals can't hold Mr. Al-'Owhali beyond

      25   4 and we need to talk to him in the back, Mr. Al-'Owhali, with

                                                                    4204

       1   the permission of the court, would waive his presence now so

       2   that part of us can go back and talk with him, if that is OK.

       3            THE COURT:  Mr. Al-'Owhali, is that agreeable with

       4   you?

       5            DEFENDANT AL-'OWHALI:  Yes.

       6            THE COURT:  Mr. Mohamed likewise would like to be

       7   excused to talk in the back.  Is that all right?  The record

       8   will reflect Mr. Mohamed said yes.

       9            We will deal with that objection.  I have some

      10   questions of Mr. Schmidt as to how long he will be with this

      11   witness and this line of testimony.  Then we are dealing with

      12   the supposed subpoena of Madeleine Albright.  Let's take a

      13   three-minute recess.

      14            (Recess)

      15            THE COURT:  Before we turn to the specific objection,

      16   Mr. Schmidt, how much longer do you expect to be with this

      17   witness?

      18            MR. SCHMIDT:  Not very much longer.  We may have one

      19   or two short conversations and maybe a couple of exhibits.

      20            THE COURT:  Half hour?

      21            MR. SCHMIDT:  I would say at most.

      22            THE COURT:  Half hour at most, all right.  What is

      23   the exhibit to which there is objection?

      24            MR. SCHMIDT:  Your Honor, it is a letter --

      25            THE COURT:  Let me see it.

                                                                    4205

       1            MR. FITZGERALD:  I will state the objection in two

       2   words:  Self-serving hearsay.

       3            THE COURT:  This is a letter dated July 16, 1997.

       4            MR. FITZGERALD:  The part where he says I am engaged

       5   in relief work.  The witness has been testifying, telling the

       6   type of work he is doing.

       7            THE COURT:  How does that distinguish this letter

       8   from the past day and a half we have had?

       9            MR. FITZGERALD:  I think they were all objectionable

      10   as well.

      11            THE COURT:  Consistency -- overruled.

      12            Who is your next witness, Mr. Schmidt?

      13            MR. DRATEL:  Your Honor, we will be calling Ashif

      14   Juma for a very brief single purpose which I have discussed

      15   with the government, which has to do with a government exhibit

      16   that came in after his testimony for the government, and then

      17   Sikander Juma, another witness who has to be produced by the

      18   government, who I understand will be available tomorrow.

      19            THE COURT:  Are there any exhibits which are going to

      20   be introduced which have not been identified to the

      21   government?

      22            MR. DRATEL:  Yes, there may be, your Honor.

      23            THE COURT:  I said at the start of the trial that if

      24   that occurred I would sustain an objection just for that very

      25   reason.  I have obviously not enforced that rule for the past

                                                                    4206

       1   two days because I realize there has been a delay getting the

       2   documents and so on.  But I will enforce it from here on.

       3            MR. DRATEL:  So the court is aware, these are

       4   documents that were received from the government.

       5            THE COURT:  You have received hundreds of thousands

       6   of documents from the government.  Identify the night before

       7   what exhibits so that we don't have this business going on of

       8   a conference between questions.  You lose continuity, it

       9   distracts the jury, it wastes time.

      10            MR. DRATEL:  I agree, your Honor.  We will notify the

      11   government this afternoon and we will designate.  One exhibit

      12   that we will be showing is already in evidence, so that is not

      13   an issue.

      14            THE COURT:  How long will that witness be?

      15            MR. DRATEL:  The second witness, maybe a half hour.

      16            THE COURT:  And the third witness?

      17            MR. DRATEL:  We have an expert, your Honor, whose

      18   testimony on direct will be an hour -- I don't know how long

      19   the government's cross will be, they anticipate, of the

      20   current witness.

      21            THE COURT:  Is this the witness you complained about

      22   lack of a report?

      23            MR. FITZGERALD:  Both experts there is a lack of

      24   report but this was the adequacy of the report we complained

      25   about.  We will not be long with Mr. Odeh, so in terms of

                                                                    4207

       1   planning you can budget 15 minutes for cross.

       2            If I can make a record, we did see exhibits for the

       3   first time with insertions about how things got erroneously

       4   put in the transcript by the government, things like that.  I

       5   will be making an objection in the future.  We are getting

       6   discovery of new documents over lunchtime, not just

       7   transcripts.  We were asking for reverse discovery for the

       8   last six months and then documents show up the morning of or

       9   at lunchtime.  We are just making a record in case we make a

      10   future application.

      11            The second thing is, we are getting serious

      12   logistical problems.  With regard to witnesses under the

      13   government's custody and control or under the government's

      14   protection, we need notice as to who is testifying or not.  It

      15   is causing some problems.  For example, I understand a retired

      16   general from the U.S. Army has been subpoenaed.  The

      17   Department of Defense advised us that the service was

      18   defective.  He has a business appointment and is supposed to

      19   be traveling.  He was subpoenaed to court for this Friday when

      20   there is no trial.  To hold somebody hostage --

      21            THE COURT:  By whom was he subpoenaed?

      22            MR. FITZGERALD:  By the El Hage team.

      23            MR. DRATEL:  To complete the record with respect to

      24   the other issues, the documents to which Mr. Fitzgerald

      25   referred that he received at lunch --

                                                                    4208

       1            THE COURT:  Forget that.

       2            MR. DRATEL:  I want to make sure it is complete.

       3   Those documents he received days ago.  They were not stamped

       4   as exhibits.  What he received this afternoon are the same

       5   documents stamped as exhibits.  That's the only difference.

       6            With respect to the Jumas --

       7            THE COURT:  I want to make clear, whether the defense

       8   case one week or three weeks really isn't my concern.  I just

       9   think it is contrary to your client's interests to not have

      10   the matters proceed in a smooth fashion.

      11            What about this general who was subpoenaed for

      12   Friday?

      13            MR. SCHMIDT:  Your Honor, once we found out that

      14   there would not be a Somalia stip, I immediately subpoenaed a

      15   retired general who was in charge of the troops for the

      16   October 3 and 4 incidents.  If it was on Friday, that was an

      17   error.  I had spoken to him after service.  I explained to him

      18   that if a stipulation does work out that he won't be needed,

      19   that he might be needed.  I knew he traveled and therefore I

      20   wanted to try to reach him as soon as possible.  I also

      21   learned that the other retired general who was in charge of

      22   the American troops in Somalia, the quick reaction force

      23   subpoena had been returned unserved.  He is apparently out of

      24   the country now and I cannot locate him now.  This is the one

      25   that came back.

                                                                    4209

       1            Third was the person who prepared the after-action

       2   report or was responsible for the after-action report there,

       3   which we still do not have.  We are trying our best to fill in

       4   the holes on the Somalia issue and that's the problem.

       5            THE COURT:  I accept that, but now -- and I take it

       6   this witness's only objection is to the time?

       7            MR. FITZGERALD:  I haven't spoken to the witness, but

       8   he was leaving on a business trip tomorrow.

       9            THE COURT:  For how long?

      10            MR. FITZGERALD:  I got a message -- it sounds like a

      11   week or two.  He is going on an overseas trip.  He is retired

      12   but on business.  He has a subpoena for Friday.  The

      13   Department of Defense sent Mr. Schmidt a letter indicating the

      14   ways in which the subpoena was defective.  I haven't spoken to

      15   the general.

      16            THE COURT:  Today is Tuesday.  Can he be available

      17   Thursday?  Does anyone know?

      18            MR. SCHMIDT:  Judge, I don't know what the government

      19   case is at this point as to Somalia.  We haven't gotten all

      20   the discovery material.

      21            THE COURT:  What do you want?  What do you want to be

      22   told to this retired general who is about to leave the country

      23   for a week?  You can't put a hold on him.

      24            MR. SCHMIDT:  If he is available to come with a day

      25   or two notice to return to the United States, then he can do

                                                                    4210

       1   it.

       2            THE COURT:  Ask him to advise you when he will return

       3   to the United States, and when you have that information, pass

       4   it on to Mr. Schmidt.

       5            MR. FITZGERALD:  Yes, Judge.  Just so we are clear,

       6   that was his personal objection.  There is a Department of

       7   Defense objection to the subpoena and I am not waiving CIPA.

       8            MR. SCHMIDT:  I haven't received anything from the

       9   Department of Defense, your Honor.

      10            THE COURT:  This really brings me very logically to

      11   the matter of the Madeleine Albright subpoena.  We have had

      12   significant colloquy with respect to that, and I still believe

      13   that certain matters which were set forth as proposed areas of

      14   inquiry of the witness would not be permitted.  An example

      15   that comes to mind is the awareness of threats and the failure

      16   to close the embassy or take other precautions.  I think I

      17   have made my views known sufficiently both orally and in

      18   memorandum.

      19            The other thing that occurs to me is, even if one

      20   overcomes the hurdle of the content, of the subject matter,

      21   the defendant has chosen an individual which raises questions,

      22   one, as to her availability, and, two, whether she is the

      23   proper witness.  I understand the defendants' strong

      24   motivation to get before the jury her interview on 60 Minutes.

      25   There are ways that that could take place assuming it were

                                                                    4211

       1   admissible, without her being on the stand.  But we don't

       2   know -- none of us know -- I assume none of us know.  Perhaps

       3   the government has been in contact with her -- her

       4   availability.

       5            The other thing is, I take it her personal views, her

       6   personal opinions on any of these matters is really

       7   irrelevant.  She may have been personally of a view which was

       8   different than the administration view.  I am not suggesting

       9   that she was or was not.  I am simply suggesting that she is

      10   not really being subpoenaed as a private citizen but as

      11   somebody who is a spokesman for government policy.

      12            I note that the State Department regulations defining

      13   employees specifically include former employees.

      14            All of which -- let me ask another question.  For

      15   these purposes would the United States Attorney's office be

      16   her legal representative?

      17            MR. GARCIA:  Your Honor, in conjunction with the

      18   State Department, I think under a similar scheme as the

      19   Department of Defense, the regulations provide for input from

      20   the Justice Department when these agents are subpoenaed.

      21            THE COURT:  My inclination, just as yesterday with

      22   the subpoenas of AFP -- the issue was readily resolved after

      23   the subpoena was issued.  My inclination is to sign the

      24   subpoena, which I have not yet done, to make it very clear, as

      25   I did with the subpoenas on the media, that I am imposing no

                                                                    4212

       1   court imprimatur on the subpoenas.  I am not ruling on any of

       2   the many weighty objections that might be made to the subpoena

       3   both with respect to the subject matter, with respect to

       4   whether she is a proper or not or not.  But if we discover

       5   that she too has prior plans or commitments which would

       6   preclude her being here, what might be very profound legal

       7   issues would disappear.

       8            So that is what I would propose doing, but if anyone

       9   objects to that I would hear you.

      10            MR. BAUGH:  I do wish to note, your Honor, that

      11   unlike Mr. Schmidt's application for the issuance of a

      12   subpoena for a retired general, we have issued a subpoena in

      13   the punishment phase of the death case.  Quite candidly, if

      14   this were a subpoena for Joe the Ragman, they would be brought

      15   here and I can find no distinction in the statute that because

      16   this person Madeleine Albright is a former lofty ambassador of

      17   good standing in our nation there is no difference in their

      18   obligation --

      19            THE COURT:  You want to argue the merits now.  You

      20   know, I can't win.  You want me to sign a subpoena.  I have

      21   said I think I should sign the subpoena.  Now you want to

      22   object to my doing that?

      23            MR. BAUGH:  My concern was the caveat you put after

      24   that, and that is if Mrs. Albright, if an ambassador has a

      25   scheduling problem and if she is the best witness for this

                                                                    4213

       1   issue, then at that juncture, rather than try to bring in

       2   someone else, we will either have her made available or

       3   continue the matter until she can become available.

       4            THE COURT:  That is really incredible, that you

       5   should make that point now.  You know, I have tried to suggest

       6   that it may be entirely unnecessary and counterproductive to

       7   deal with these matters in the abstract.

       8            MR. BAUGH:  I agree, your Honor.

       9            THE COURT:  Unless you want me to rule on the merits

      10   of all these issues in the abstract, but I do not think that

      11   would be a prudent course for you to follow.

      12            MR. BAUGH:  Nor I, your Honor, but I don't want the

      13   court to assume, as the government did in its response, that

      14   by acquiescing to certain statements by the court and not

      15   responding to them in the record at this time that I am

      16   conceding those issues, and the government seems to assert

      17   that in its responsive pleading.  As long as we have that

      18   understanding, your Honor, I am ready to sit down.

      19            THE COURT:  Is there any objection to my signing the

      20   subpoena, understanding the reason why I sign it is simply to

      21   move the matter forward to the next step and without in any

      22   way indicating that I think that she is a proper party, that

      23   service will be made in the proper fashion or any and all

      24   other defenses that might be made?

      25            MR. GARCIA:  No, your Honor, I certainly understand

                                                                    4214

       1   that.  One point, not to be argumentative.  I think what we

       2   are seeing with a lot of these subpoenas, and Mr. Schmidt's

       3   subpoena, is a complete disregard for the CFR regulations,

       4   which provide a basis to quash and for requesting the

       5   information that is put forward, which seems to serve a

       6   twofold purpose.  One is to protect the government and give a

       7   basis for moving to quash, and the other is to give the

       8   defendant a basis to say that this is relevant material and it

       9   is relevant to my defense.  Without that we are going to be in

      10   a posture where the State Department, like the Department of

      11   Defense, is going to come back and say the notice is

      12   defective, we don't know what they want, we don't know what

      13   the relevancy is.  I understand, your Honor, that we are

      14   pushing that day off, but by doing that we are getting by a

      15   preliminary hurdle that might focus the issues at a later

      16   date.

      17            THE COURT:  I am not sure.  You know, the cases all

      18   deal -- not all, but primarily deal with quashing.  There is

      19   nothing to quash until a subpoena is in fact signed.  My

      20   efforts, really in the interests of expedition, to

      21   shortcircuit, I think have not been fruitful.

      22            If you resubmit the subpoena I will sign it, as I

      23   say, reserving to both sides all rights.

      24            Anything further?

      25            MR. GARCIA:  Nothing.  Thank you.

                                                                    4215

       1            THE COURT:  Thank you.

       2            (Adjourned until 10:00 a.m., Wednesday, April 18,

       3   2001)

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4216

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   MOHAMED ALI ODEH........  4149

       5                         DEFENDANT EXHIBITS

       6   Exhibit No.                                     Received

       7    WEHXW13 and WEHXW13T .......................4152

       8    WEHD41 and D41T ............................4152

       9    WEHXW5 and WEHXW5T .........................4155

      10    WEHX16 and WEHXW16T ........................4159

      11    WEHW27 .....................................4161

      12    WEHWW22 and WEHXW22-T ......................4163

      13    WEHX-M-7X-23 ...............................4165

      14   s WEHXW17 and 17T ...........................4167

      15    WEHXW17-T ..................................4168

      16    WEHX-P1 ....................................4178

      17    WEHX-Y297 to 300 and WEH-Y297-300T .........4179

      18    WEHXW28 and WEHXW28T .......................4182

      19    WEHXM7X39 ..................................4183

      20    WEHXW18T ...................................4183

      21    WEHXK31 ....................................4184

      22    WEHXK18 ....................................4185

      23    WEHW7E .....................................4186

      24    WEHX-31 and NB1-163 ........................4188

      25    WEX-30-E and NB1-36 ........................4189

                                                                    4217

       1    WEHX-W33-T and NB1-012-1 ...................4193

       2    WEXW6-T ....................................4194

       3    WEHXM-7X-31 ................................4195

       4    WEHX-W15 ...................................4196

       5    WEH-W9 .....................................4197

       6    WEHX-W25 and 26 ............................4197

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

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