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

This is the transcript of Day 32 of the trial, April 23, 2001. Transcript delayed due to outage of e-mail of Court Reporters Office.

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

                                                                    4345

       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
                                                   New York, N.Y.
       8                                           April 23, 2001
                                                   9:30 a.m.
       9

      10

      11   Before:

      12                       HON. LEONARD B. SAND,

      13                                           District Judge

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4346

       1                            APPEARANCES

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

       6
           SAM A. SCHMIDT
       7   JOSHUA DRATEL
           KRISTIAN K. LARSEN
       8        Attorneys for defendant Wadih El Hage

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

      12   FREDRICK H. COHN
           DAVID P. BAUGH
      13        Attorneys for defendant Mohamed Rashed Daoud
           Al-'Owhali
      14
           DAVID STERN
      15   DAVID RUHNKE
                Attorneys for defendant Khalfan Khamis Mohamed
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4347

       1            (In open court)

       2            THE COURT:  Good morning.  We have a very long agenda

       3   for today.  I note that the defendants have not yet arrived.

       4            Let me, I'm aware of the fact that the defendants are

       5   not here, but take up a matter which is very distressing, and

       6   that is the government's complaint with respect to defense

       7   counsels' relationship with the press.  I had hoped that it

       8   would not be necessary for me to address the issue, but I do

       9   have to address it.

      10            I was distressed, Mr. Ruhnke, the weekend before

      11   last, it didn't get my full attention because I was in a car

      12   with a lot of youngsters who were concerned that I had turned

      13   off the Lion King tape, to hear you predicting to Ms. LeBlanc,

      14   who broadcast the tape, broadcasting the interview, that your

      15   client was going to be found guilty in the liability phase.

      16   And what purpose did that serve other than to suggest that

      17   that outcome would not be a reflection on your legal skills?

      18   What utility is served by predicting that your client will be

      19   found guilty?

      20            The record will indicate the defendants are being

      21   brought in.

      22            There were also interviews given to a reporter from

      23   the New York Times which seemed to detail the theories of the

      24   defense counsel in the death penalty phase of the case.  At

      25   the same time, there is a request that the jury be be told

                                                                    4348

       1   that they not see, read or listen to anything with respect to

       2   the McVeigh execution, a story which is going to be the lead

       3   news story in America for a significant period of time.  I

       4   find the juxtaposition between those two matters very strange.

       5            This is a death penalty case, and certain counsel

       6   here are death penalty experts and in many respects special

       7   rules apply, but the rules which deal with the

       8   appropriateness, that is, rather than non-appropriateness, of

       9   making statements intended to appear in the press with respect

      10   to an ongoing jury trial remain in effect whether it is a

      11   death penalty case or it is a petty misdemeanor case.  And I

      12   hope that it won't be necessary for me to address this matter

      13   again.

      14            The rules of this Court and the rules of professional

      15   conduct adequately deal with the matter, and unless counsel

      16   wishes to address the issue, I hope I will have no need to say

      17   anything further about it during the course of these

      18   proceedings.

      19            MR. RUHNKE:  Your Honor, in my own defense --

      20   actually, I think I need to defend myself,

      21            THE COURT:  Go ahead.

      22            MR. RUHNKE:  For example, the New York Times article,

      23   I was repeatedly asked questions by the reporter about this

      24   case, the strategy in this case, and --

      25            THE COURT:  The words are "no comment."  Are you

                                                                    4349

       1   familiar with that expression, "no comment"?

       2            MR. RUHNKE:  The client --

       3            THE COURT:  Can you imagine if the situation were

       4   reversed, if it were the government who was giving the

       5   interviews to the press?

       6            MR. RUHNKE:  It would depend on what they were

       7   saying.

       8            THE COURT:  Suppose, let us take the statement that,

       9   "I fully anticipate that the jury will find my client guilty

      10   during the liability phase," what was the purpose of that?

      11   Why did you say that?

      12            MR. RUHNKE:  I was just answering the question

      13   honestly, the question, "What's going on with your case?" and

      14   really in a very way generalized, since it's what lawyers do

      15   in death penalty cases all the time, which is to confront the

      16   question of "what's going to happen."

      17            THE COURT:  You can say what is going -- if my client

      18   is convicted, then there will be a separate proceeding.  What

      19   else do you want to tell me?

      20            MR. RUHNKE:  Your Honor, I have avoided discussing

      21   the specifics of the case.  I have avoided it with the New

      22   York Times, and I obviously have incurred your Honor's anger.

      23   It was not my intention to transgress.

      24            THE COURT:  I have such high respect for you.  I have

      25   such high respect for the way in which you have conducted

                                                                    4350

       1   yourself that I found it aberrational to hear a lawyer taping

       2   an interview, predicting the outcome of the liability phase.

       3            MR. RUHNKE:  Well, your Honor, let's rest on it being

       4   an aberration, and I understand your Honor's concerns.

       5            MR. BAUGH:  Your Honor, I have a concern.  The

       6   government has sent us a letter and our fax machine got jammed

       7   up.  It says, "The government respectfully submits this letter

       8   in response to Al-'Owhali's letter of April 22."  We didn't --

       9   concerning joinder and bifurcation, we didn't --

      10            MR. RUHNKE:  They're referring to my letter, I'm

      11   sure.

      12            MR. FITZGERALD:  Probably a typographical error

      13   referring to Mr. Ruhnke's letter which was marked for public

      14   filing.

      15            THE COURT:  All right.  I hope I don't have to

      16   address it again.  It's very difficult.  It's a very difficult

      17   issue for the Court to deal with because I understand, I think

      18   I understand some o the issues which are operative here.  And

      19   if I have to address it again, then I will do more than simply

      20   discuss the issue, I will take action and impose sanctions.

      21            All right, now in our long agenda I think the reason

      22   why we were meeting at 9:30 was because of an Al-'Owhali

      23   motion to bar the introduction by the government of certain

      24   Somali-related evidence, and I haven't received anything in

      25   writing on that.

                                                                    4351

       1            MR. COHN:  You have not.  I haven't sent it, that's

       2   why you haven't received it.

       3            THE COURT:  Would you briefly tell me what the issue

       4   is?

       5            MR. COHN:  The reason I didn't is because there isn't

       6   a lot of case law.  The government is going to, and by their

       7   3500 material, I have confirmed this intent, to call a pilot

       8   of a -- or somebody from a helicopter that was shot down in

       9   Mogadishu and two of the people aboard were killed.

      10            THE COURT:  May I interrupt for a moment?  There has

      11   been previous testimony by one of the first two defendants

      12   with respect to an incident involving a helicopter in Somali.

      13   Is that the same pilot, the same incident?

      14            MR. FITZGERALD:  I think the first two witnesses

      15   talked generally about incidents in Somalia.  This witness,

      16   Jim Yacone was a U.S. Army helicopter pilot who was involved

      17   in the firefight on October 3, 1993 in which 18 U.S.

      18   servicemen were killed and he was flying the --

      19            THE COURT:  No, there's some testimony about I think

      20   it was being in Somalia in a building opposite one which was

      21   being attacked by an American helicopter.

      22            MR. FITZGERALD:  Yes, that testimony was non-specific

      23   as to the day or event.  That was tied to the overt act listed

      24   in the indictment, the witness Yacone.

      25            THE COURT:  I see.  And the objection is what?

                                                                    4352

       1            MR. COHN:  The objection is this, your Honor.  I

       2   realize this is a charged overt act.

       3            THE COURT:  Yes.

       4            MR. COHN:  There is testimony that somebody -- I

       5   think that al-Fadl testified that somebody bragged about that

       6   18 people were killed as a result of their actions.  That is

       7   the only nexus to Mogadishu that we have.  The government's

       8   theory on Mogadishu is that al Qaeda in the conspiracy

       9   provided training so that the American troops were ultimately

      10   killed and that was the cause of that --

      11            THE COURT:  And claiming credit for it.

      12            MR. COHN:  That's right.  And they have that

      13   evidence, that somebody claimed credit for it.

      14            THE COURT:  Yes.

      15            MR. COHN:  The fact that this person can put the

      16   blood and guts into this thing, through no connection to the

      17   fact that the people who did the training were really in any

      18   way responsible for it, it just proves up further the fact

      19   that there were 18 Americans soldiers killed.  It really

      20   doesn't connect to this conspiracy in any particular way.  Its

      21   probative value, in my view, is very low.

      22            Now, you hear 403 arguments all the time about this,

      23   but remember that these are the same -- none of these

      24   defendants are charged with, in any way, or at least let me

      25   limit it to Mr. al-'Owhali, he is not charged in any way in

                                                                    4353

       1   being involved in the training or involved ever being in

       2   Mogadishu.

       3            The jury is going to see this evidence and, in all

       4   likelihood, they are going to be sitting in the penalty phase

       5   where they are going to recall this evidence, and there is no

       6   aggravator, none, towards Mr. al-'Owhali about Mogadishu, nor

       7   can there be.  So they are going to ask them to forget about

       8   lurid testimony, about 18 dead soldiers and the results of a

       9   firefighter, which was going to be very graphic and, I say,

      10   most provocative.

      11            The fact is that they have the connection that they

      12   already need, which is al-Fadl saying somebody bragged about

      13   it, we're responsible.  This brings nothing extra to it

      14   because they can't even prove the people that shot down the

      15   helicopter are the people who were trained or that it was in

      16   any way part of the plot.  They can do nothing with this.

      17            So its probative value is miniscule and, at least as

      18   to the death-certified defendants, its prejudicial value is

      19   extreme.  I will say, also, that Mr. Odeh's lawyers, who are

      20   upstairs in the Court of Appeals, told me to say that they

      21   join in this application.

      22            THE COURT:  Yes.  Mr. Herman is here on behalf of

      23   defendant Odeh.

      24            MR. COHN:  He wasn't aware we talked about it.  Mr.

      25   Ricco told me to say it.

                                                                    4354

       1            MR. RUHNKE:  Your Honor, on Mr. Mohamed's behalf, I

       2   also join in the argument.  I know we have a general rule that

       3   arguments are joined, but just to echo Mr. Cohn's remarks

       4   about this going to the penalty phase and the jury being asked

       5   to consider whether to impose a death sentence or not,

       6   assuming this goes to the penalty phase, let me put it this

       7   way, and a jury being asked to decide or not to send somebody

       8   to death, who will hear now evidence that, as framed in the

       9   indictment, trainers, people trained by al Qaeda or trained by

      10   trainers of al Qaeda were responsible for the deaths of 18

      11   American soldiers, something that is not charged as a murder

      12   count in the indictment but is alleged as an overt act and

      13   will now work its way to the penalty phase of this case, Mr.

      14   Cohn is correct, if the government wishes to argue this, it's

      15   there if it wishes to argue the overt act as the evidence

      16   before the jury, and I object to it as well.

      17            THE COURT:  Let me hear from you.

      18            The argument that it's charged in the indictment,

      19   it's an overt act but the government can't introduce evidence

      20   in support of it is a little strange, but I understand the

      21   argument is 403 because it's too much blood and gore.  I have

      22   to say, there has been relatively little blood and gore in

      23   this case compared to what I'm sure is --

      24            Let me hear from the government in response.

      25            MR. SCHMIDT:  May I briefly comment, your Honor,

                                                                    4355

       1   before the government gets a turn?

       2            THE COURT:  Yes.

       3            MR. SCHMIDT:  I believe that the manner of proof of

       4   this overt act is different than the manner necessary to prove

       5   this overt act with even the parameter that the government has

       6   in proving the way they want to prove something.  I think this

       7   goes way beyond what is necessary and is actually under 403

       8   because it specifically --

       9            THE COURT:  You have an advantage over me because you

      10   have material which tells you more about the nature of the

      11   government's testimony than I have or, to be truthful, have

      12   read because it hasn't been furnished to me, has it?

      13            It's in my 3500 book?

      14            MR. SCHMIDT:  Your Honor, my next point is, as to the

      15   3500 material and the discovery material requested, I do not

      16   know if we have all the discovery material requested

      17   concerning this, we certainly don't have the videos that would

      18   reflect about it.  But what we do have is an incredibly

      19   redacted conversation in which this witness participated which

      20   makes the reading of the transcript impossible to follow, and

      21   it also appears that it's redacted in a manner to take out

      22   what will be normal cross-examination material.  It looks like

      23   the word "killed" or "shot at" seems to be crossed out and

      24   left out.

      25            The documents that I received from the government,

                                                                    4356

       1   the 3500, your Honor, I believe are inadequate to provide the

       2   3500 under the obligation of the law.  So I would ask that

       3   they not be allowed to call this witness unless I can receive

       4   an unredacted transcript of his statements.

       5            THE COURT:  I'm looking at 35107-7, the pilot

       6   inquiry, is that the critical document?

       7            MR. FITZGERALD:  That's the pilot debriefing.  It's a

       8   joint debriefing, but we turned it over in any event.  That's

       9   a number of people, several people being interviewed.

      10            THE COURT:  Yes.

      11            MR. FITZGERALD:  Your Honor, if you would like a

      12   proffer, I can tell you what the testimony would be.

      13            THE COURT:  Yes, I would like a proffer.

      14            MR. FITZGERALD:  Mr. Yacone was a pilot in a

      15   helicopter.  He was the platoon commander for what were to be

      16   a squadron of eight helicopters going out on October 3, 1993

      17   to arrest Mr. Aideed in Mogadishu.  There were two helicopters

      18   that were not involved in the action, one of which was a

      19   command control helicopter, one of which was was a rescue

      20   helicopter.

      21            Mr. Yacone was flying one helicopter with a number of

      22   people in the back.  He and a second helicopter dropped the

      23   assault team that would run into the building to arrest Aideed

      24   pursuant to the United Nations warrant on the streets of

      25   Mogadishu.  Four of the helicopter which were in his

                                                                    4357

       1   platoon --

       2            THE COURT:  A warrant issued in this case?

       3            MR. FITZGERALD:  A warrant issued by the United

       4   Nations.

       5            THE COURT:  By the United Nations.

       6            MR. FITZGERALD:  For Aideed.

       7            Four other helicopters dropped what we call blocking

       8   teams which were other teams of Army rangers to try to prevent

       9   anyone from attacking the team when they went into the

      10   building and also prevent people from escaping.

      11            After he dropped his team, when he was in orbit with

      12   another pilot trying to do security for the people down below,

      13   they came under heavy fire.  The other helicopter in the orbit

      14   was shot by a rocket-propelled grenade, which I note the

      15   witness testified was one of the techniques they trained in

      16   the al Qaeda camps in Afghanistan.  The other helicopter

      17   crashed near the scene where they made the arrest.  The ground

      18   troops went to rescue that other team.

      19            This pilot was then in orbit around that crash site

      20   under heavy fire.  A second helicopter was sent in to support

      21   him.  He saw that helicopter be struck by a rocket with a

      22   rocket-propelled grenade.  That one crashed three-quarters of

      23   a mile away.  He then went to the site where the crowds

      24   swarmed the crash site.  There was no support there.  As he

      25   circled over that site, his helicopter was hit by a

                                                                    4358

       1   rocket-propelled grenade.

       2            He crashed back at the airport.  Before he was hit by

       3   the rocket-propelled grenade, the people on the ground at the

       4   crash site were being overrun and he dropped two snipers down

       5   below to help the people who were at the crash site.  His

       6   helicopter then crashed near the airport.

       7            He climbed into another helicopter and flew through

       8   the night above in a command control position.  Of the 18

       9   persons killed, he knew 17 personally, 5 were under his

      10   command and 2 more were in the back of his helicopter, the 2

      11   snipers that he dropped down to rescue.

      12            Through the course of the night, he saw for the first

      13   time rocket-propelled grenades being fired at an incredible

      14   rate.  As many as over 100 were fired at the helicopters

      15   through the night, and he establishes the overt act that there

      16   were 18 people killed, the U.S. Army servicemen; that they

      17   were going to apprehend Aideed; and that the majority of

      18   casualties of the helicopters were by RPGs being shot from the

      19   ground at the helicopters.

      20            THE COURT:  And the nexus to this case is?

      21            MR. FITZGERALD:  First, we had the testimony of

      22   al-Fadl indicating that there was a fatwah given by Bin Laden

      23   that the U.S. and U.N. involvement in Somalia was actually

      24   pretextual as to an invasion of Africa or invasion of the

      25   Sudan, that there was a fatwah given that we should fight

                                                                    4359

       1   America in Somalia, and al-Fadl also testified that the

       2   military commander came back from a trip to Somalia and

       3   indicated that all the casualties in Somalia were al Qaeda's

       4   responsibility.

       5            Kherchtou, the second cooperating witness, testified

       6   that he was trained in al Qaeda in the technique of shooting

       7   at helicopters with RPGs, which is very unconventional.  He

       8   then testified that Nairobi was set up as a support station

       9   for al Qaeda people going to Somalia.  He indicated that he

      10   saw trainers that went up to Somalia to train the people and

      11   that they were going to help train people to fight the U.N.

      12   and the U.S.

      13            He indicated that he heard from conversations with

      14   Saleh, who turned out to be a principal participant in the

      15   Nairobi Embassy bombing plot and Haroun, and Saleh and Haroun

      16   were in Mogadishu for actions against the U.S. troops and, in

      17   fact, were there for, as your Honor recalled, a firefight in

      18   which helicopters were shooting at an adjacent building.

      19            In addition to that, Bin Laden in his public

      20   statements indicated that it was correct that he had in fact

      21   supported Aideed in the fight against U.S. troops, and then in

      22   Mr. El Hage's computer seized in August of 1997 was the

      23   security report, apparently written by Haroun, which indicated

      24   that they were concerned about the Nairobi cell of al Qaeda

      25   because America knows well that it was a youth of the Sheik,

                                                                    4360

       1   Bin Laden, who attacked the Americans in Somalia and their

       2   base was in Kenya.

       3            It explains, in part, what the Nairobi cell was set

       4   up to do.  It was also very critical to establish that al

       5   Qaeda was against America as early as 1993, when the

       6   defendants are claiming that they were surprised in 1998 that

       7   Bin Laden would go against America, and that was set forth in

       8   the indictment since basically day one.

       9            THE COURT:  Mr. Cohn complains that there's going to

      10   be too much blood and gore.

      11            MR. FITZGERALD:  There are no pictures, no

      12   videotapes, no exhibits.  It will be the witness simply

      13   telling what happened.  There won't be --

      14            THE COURT:  And the significance of the fact, of the

      15   18 killed, he knew 17 personally?

      16            MR. FITZGERALD:  I just meant to show his foundation

      17   for his knowledge.  He is not going to describe any of their

      18   life histories.

      19            THE COURT:  Mr. Cohn?

      20            MR. COHN:  May I, your Honor?

      21            THE COURT:  Yes.

      22            MR. COHN:  I gather we finally have interpreters.

      23            The problem is, your Honor, that, although it's

      24   dramatic testimony, it adds nothing to what the government

      25   already has, except the physical fact that people were killed.

                                                                    4361

       1            THE COURT:  Your objection is it's cumulative?

       2            MR. COHN:  It's not.  It is and it isn't, Judge.

       3            Look, if this wasn't a death case, there would be

       4   nothing that I could say that would -- but it has limited

       5   probative effect because you don't need it.

       6            THE COURT:  Overruled.  The motion to preclude the

       7   introduction of the proffered testimony under 403 is denied.

       8   It appears to the Court to be highly relevant and the fact

       9   that it makes concrete, gives a specific example of things

      10   which otherwise are presented to the jury in a more abstract

      11   form is not a basis for a 403 motion.  It is denied.

      12            MR. HERMAN:  Judge, with regard to Mr. Schmidt's

      13   application.

      14            THE COURT:  Yes.

      15            MR. HERMAN:  Particularly with regard to the 3500

      16   material, which I think your Honor has, it is severely

      17   redacted, Judge.  It presents confrontation problems for us,

      18   due process --

      19            THE COURT:  We've heard Mr. Fitzgerald's proffer.

      20   What is there that you think you lack to deal with that

      21   proffered testimony?

      22            MR. SCHMIDT:  May I give some examples, your Honor?

      23            THE COURT:  Let's have one at a time.

      24            MR. SCHMIDT:  I made notes, that's why I'm offering

      25   it.

                                                                    4362

       1            THE COURT:  Yes.

       2            MR. SCHMIDT:  On page 3-15,

       3            THE COURT:  3-15 of what?

       4            MR. SCHMIDT:  Of 35107-4.

       5            THE COURT:  35107-4.

       6            MR. BAUGH:  Your Honor?

       7            THE COURT:  Yes.

       8            MR. BAUGH:  Your Honor?

       9            THE COURT:  I have three at a time now.

      10            No, I have it.  Thanks.

      11            MR. SCHMIDT:  At the bottom, it says, "When they

      12   launched" --

      13            THE COURT:  On what page?

      14            MR. SCHMIDT:  15.

      15            THE COURT:  Page 15.

      16            Are these pages numbered?

      17            MR. SCHMIDT:  Yes, at the bottom.  It's 3-15.

      18            THE COURT:  Yes.

      19            MR. SCHMIDT:  In the last one where Y apparently

      20   talks, Y being Mr. Yacone, "When they launched us, we at that

      21   point still didn't know which target we were going to," blank.

      22   Now, was it going to shoot?  I have no idea.  Assault?  "And

      23   then they decided they would," blank, blank, blank, blank,

      24   "and they went for the," blank.

      25            Then, in another example --

                                                                    4363

       1            THE COURT:  Yes, and suppose specific targets were

       2   identified.  How does that change anything with respect to the

       3   nature of what was happening or the relevance in this case?

       4            MR. SCHMIDT:  As your Honor is aware, it is our

       5   position that this assault especially, as well as the July 12

       6   assault, were military operations.

       7            I am hamstrung by questioning this witness about the

       8   nature of the operation to show the jury that it was a

       9   terrible thing that Americans died, it was a terrible thing

      10   that Somalis died, but this is the nature of a wartime

      11   operation, an operation that it liked war.

      12            Now, with this, I am missing all -- not just this, I

      13   could go on for an hour, your Honor, and go on and point out

      14   each page.  I can show you page 18, page 24, page 25, page 26,

      15   I can go on every page.

      16            THE COURT:  Mr. Fitzgerald, can you generally tell us

      17   what has been redacted here and why?

      18            MR. FITZGERALD:  Your Honor, to be honest with you,

      19   this is how I received it.  It was classified and I believe

      20   that they blacked things out to get it down to a declassified

      21   level so it could be used.  If if it were classified, we would

      22   be stuck without the ability for counsel to use it.

      23            MR. SCHMIDT:  Not necessarily, your Honor.  We would

      24   be at a different stage and we would be arguing whether they

      25   could call a witness.

                                                                    4364

       1            THE COURT:  I take it that what you are saying is

       2   that if the redacted material disclosed that there were

       3   non-military targets, that the shooting down of the

       4   helicopters would be, what?

       5            MR. SCHMIDT:  No, your honor.  Perhaps I haven't made

       6   myself clear.  Whether it was a military target or not a

       7   military target, the U.S. forces went on a military operation

       8   against this group of people, armed --

       9            THE COURT:  Is there any dispute as to that?

      10            MR. SCHMIDT:  Well, if the government is willing to

      11   consent -- will stipulate that this was a military operation,

      12   excuse me, an offensive military operation against the Aideed

      13   supporters, all right, we'll discuss it with counsel.

      14            THE COURT:  My understanding of the government's

      15   proffer is that the assignment here was to capture and bring

      16   back Aideed, who was under a United Nations warrant.  I don't

      17   know that to be in dispute.

      18            MR. SCHMIDT:  Just as the government wants to be able

      19   to fully show evidence as to this overt act, I want to be able

      20   to fully cross-examine as to the nature of the attack, and

      21   part of the nature of the attack is what he was thinking when

      22   he went in there, what he felt his -- the enemy was, the enemy

      23   was capable of, what he was told they were doing, all these

      24   things are left out.

      25            THE COURT:  I understand from the government's

                                                                    4365

       1   proffer that the witness is going to testify that he's in the

       2   United States Army, that this was an operation being conducted

       3   by the military, that the object of it was to capture and

       4   arrest somebody who was subject to United Nations warrant, and

       5   I don't see any reason why you can't cross-examine with

       6   respect to that.  I don't think there is an ambiguity as to

       7   why they went there.

       8            MR. SCHMIDT:  Your Honor, this is the problem.  It's

       9   a simplistic answer by the government, and I want to show that

      10   the operation and operations were not a simplistic military

      11   operation, it was much more complicated.  There were political

      12   and military things involved here.

      13            I am being hamstrung.  I have never been in a

      14   situation where the government is putting on a very

      15   substantial, important witness and I can't see what the

      16   witness has said in prior statements.  And I got this on

      17   Friday and other material on Sunday, and I'm left with

      18   cross-examining this witness with -- perhaps there's other

      19   information about the operation that I even haven't received

      20   yet.

      21            THE COURT:  You know, the weakest argument is a

      22   timing argument, because I think the record must show at least

      23   20, at least 20 occasions in which the Court said, "I

      24   understand there are questions with respect to Somalia.  I am

      25   ready to address them," and the Court was told, "No, no, no,

                                                                    4366

       1   your Honor, it's not ready for you to concern yourself with

       2   the issue because it's going to be stipulated."

       3            So with respect to the timing, I think I alerted

       4   counsel sufficiently to that.  The motion is denied.

       5            MR. SCHMIDT:  Your Honor, as to timing, the time has

       6   to do with the redactions of this material, not having any

       7   alternatives to the redactions, redacted material, not that I

       8   received 3500 material late.

       9            THE COURT:  Overruled.

      10            MR. HERMAN:  Two questions:  It's our understanding,

      11   Judge, that in addition to this being a military operation,

      12   women and children were on the ground and were killed by bombs

      13   or rocket fire that was taking place.

      14            THE COURT:  This witness is going to testify to what

      15   he saw was happening on the ground.

      16            MR. HERMAN:  Judge, we can't cross-examine him

      17   because what he saw happening on the ground has been blacked

      18   out.

      19            Secondly, Judge, with regard to RPGs, which seems to

      20   be an important part of the government's case, that the

      21   mujahadeen somehow were training people to use RPGs, it's also

      22   our understanding that RPGs were very common among many

      23   different groups, many different clans in Mogadishu and in

      24   Somalia at that time, and that may also be reflected in what

      25   has been blacked out here.

                                                                    4367

       1            At this point, it's a cross-examination problem.

       2            THE COURT:  If at the end of his direct you believe

       3   that there is a need for a continuance before

       4   cross-examination, I will take up that issue at that time, not

       5   indicating what my ruling would be.  But as I look at this and

       6   I look at what has been blacked out, I really don't think

       7   counsel is significantly prejudiced.

       8            This issue is closed.  The motion is denied.  The

       9   jury is here.  The jury will be brought in.

      10            MR. COHN:  One question, your Honor.

      11            THE COURT:  Yes.

      12            MR. COHN:  Collaterally, in one of the 3500

      13   interviews, there's an affidavit by a proposed prospective

      14   witness.  He says that he saw a videotape of soldiers being

      15   dragged through the streets, their bodies, and also that the

      16   two people were given the Congressional Medal of Honor.  I'm

      17   wondering if the government is going to elicit that testimony,

      18   which I think neither one of which is particularly germane.

      19            MR. FITZGERALD:  Your Honor, we'll see on redirect

      20   what the cross-examination is about civilian casualties and

      21   what happened there.

      22            MR. COHN:  So it's not going to be offered on direct

      23   testimony?

      24            MR. FITZGERALD:  I will lead around it on direct

      25   testimony and we'll see where we are after the

                                                                    4368

       1   cross-examination.  Your Honor, I believe --

       2            MR. SCHMIDT:  If I may, your Honor, if I may, I know

       3   your Honor can't make a ruling now, but I see no connection

       4   between testimony about the civilian casualties and the

       5   information that the government intends to elicit on redirect.

       6            MR. FITZGERALD:  Your Honor, I think if they want to

       7   talk about 403, when we're not putting any pictures, if they

       8   want to talk about civilian casualties and keep out what

       9   happened to the American soldiers, I think it's plain.

      10            THE COURT:  I think we're trying to come to a level

      11   playing field.

      12            MR. FITZGERALD:  Your Honor, I believe that Mr. Ricco

      13   and Mr. Wilford wish to be here if Agent Yacone was

      14   testifying, so we can flip the order.  He's here, but I don't

      15   want to do something to which Mr. Ricco and Mr. Wilford wish

      16   to be present.

      17            THE COURT:  What will you do in lieu of it?

      18            MR. FITZGERALD:  That's it.  The next thing is

      19   Mr. Schmidt.

      20            THE COURT:  So I should not bring in the jury?

      21            MR. FITZGERALD:  Or, I think, I don't know if Mr. --

      22            MR. DRATEL:  I'm sorry.

      23            MR. FITZGERALD:  I know that the El Hage team was

      24   calling an expert on Somalia and I know he's going to testify

      25   about Somalia in the 90s, but --

                                                                    4369

       1            THE COURT:  You have a witness?  Do you have a

       2   witness?

       3            MR. DRATEL:  Yes, your Honor.

       4            THE COURT:  Call your witness.

       5            MR. DRATEL:  Your Honor, this witness should not go

       6   on before the other witness.  This witness will have to

       7   testify about that.

       8            I had discussions with Mr. Fitzgerald, we've had

       9   discussions with Mr. Fitzgerald this weekend about what the

      10   parameters of the witness's testimony were going to be and

      11   whether the pilot was going to testify or not and the pilot's

      12   testimony puts the witness's testimony in a completely

      13   different context.  His testimony will have to be expanded.

      14   He should not have to go on before the government's witness

      15   goes on.

      16            If he were to go on before, if he were going to go

      17   and the pilot was not going to go on, it would be limited to

      18   issues that did not discuss anything to do with the American

      19   presence or that time period.  And we were trying to get

      20   there, but we didn't get there, and obviously we can still get

      21   there, but if they're intending to put on the pilot no matter

      22   what, then we're not going to get there.

      23            So I don't know what the government's position is in

      24   terms of, we had a discussion as to what the defense was going

      25   to put on about Somalia.

                                                                    4370

       1            THE COURT:  Is this witness's sole area going to be

       2   related to matters being impacted by the government's case?

       3            MR. DRATEL:  No, your Honor, but it's a thread.

       4            THE COURT:  We'll interrupt the thread.  Call him.

       5   We will take so much up to this point.  When Mr. Wilford and

       6   Mr. Ricco arrive, we can interrupt and call the next witness.

       7            MR. DRATEL:  Your Honor, I don't know where we're

       8   going to be in the course of the testimony with respect,

       9   whether it going to be five minutes or twenty minutes.  Your

      10   Honor, I mean --

      11            THE COURT:  All right.  All right.  The jury is

      12   ready.  I think we'll wait.

      13            MR. FITZGERALD:  Your Honor, my only concern is I

      14   don't know what the foundation for this witness is going to be

      15   about what happened regarding the events of October 3, 1993.

      16   I do not believe he was in Somalia, so I think we're getting a

      17   history geographer to talk about events that I don't know what

      18   his foundation for his expert testimony is.

      19            THE COURT:  You have received nothing about him?

      20            MR. FITZGERALD:  I have received 3500 material

      21   indicating that he's written on Somalia generally.  He was

      22   there, I believe, in the early 90s and the late 90s, but was

      23   not there in 1993.  I don't know what it is he's going to say

      24   about it.

      25            THE COURT:  Why haven't they received the testimony

                                                                    4371

       1   about him?

       2            MR. DRATEL:  Your Honor, because --

       3            THE COURT:  I'm going to accede to your request and

       4   we'll leave it at that.

       5            MR. DRATEL:  Thank you, your Honor.

       6            THE COURT:  So we'll be adjourned, then, until

       7   Mr. Wilford and Mr. Ricco return.

       8            (Pause)

       9            THE COURT:  While we're waiting, there are a few

      10   other matters.  There is a request that the jury be told --

      11   first asked whether they have read or seen anything with

      12   respect to McVeigh, which is a rather strange request to come

      13   at this stage of the trial and given the amount of media

      14   attention which has been given to McVeigh execution.

      15            I don't understand what purpose that would serve, and

      16   unless somebody wishes to be heard on it, I do not propose to

      17   ask jurors the extent to which they have previously been

      18   exposed to anything in the media concerning McVeigh's pending

      19   execution.

      20            MR. RUHNKE:  Your Honor, my particular concern,

      21   specific concern has to do with interviews of victims and

      22   statements victims have made in the Oklahoma City bombing

      23   case, Timothy McVeigh's execution, whether it be comfort,

      24   whether it be --

      25            THE COURT:  We are going to ask them.  They are going

                                                                    4372

       1   to say yes or no.  If they say yes, then what?

       2            MR. RUHNKE:  Then if they say yes, we ask them what

       3   they have read and we inquire.

       4            THE COURT:  And if they say "everything I can get my

       5   hands on with respect to it," and then what happens?

       6            MR. RUHNKE:  "And have you read any comments about

       7   victims?"

       8            THE COURT:  Yes.

       9            MR. RUHNKE:  "And what have you read?"

      10            THE COURT:  "I read the anguish, how people are

      11   looking forward to the execution and putting closure on this

      12   terrible incident in their lives."

      13            MR. RUHNKE:  "And how do you think that will impact

      14   on your service in this case?"

      15            THE COURT:  We're going to voir dire?  We voir dired

      16   for one month in this case.  Now we start a new voir dire?

      17            MR. RUHNKE:  We now have a sitting jury that could be

      18   exposed to prejudicial publicity, your Honor.  They have not

      19   been told not to read anything about this.

      20            THE COURT:  One is what they have previously read.

      21   Now there is a request that they not read anything with

      22   respect to McVeigh, and I am hesitant to do that on a number

      23   of grounds.  One is I don't think it serves any purpose to

      24   impose on the jury unreasonable restraints.

      25            To tell the jury not to read anything about this case

                                                                    4373

       1   I think is reasonable because the embassy bombing in a

       2   terrorism trial, at least in the media that I regularly expose

       3   myself to, are sort of consumed, but the McVeigh matter is a

       4   matter of significant national debate with respect to capital

       5   punishment in general and I'm very reluctant.

       6            Does the government have any view on any of this?

       7            MR. FITZGERALD:  Your Honor, I would agree that it is

       8   not productive to ask the retrospective question, but I think

       9   it might be helpful, given that this jury may be sitting in

      10   judgment on a capital case, for them to try to avoid the

      11   coverage of McVeigh at least until their service is done.

      12            We're not asking them to do that forever, but I think

      13   it might be helpful not to have people commenting on the

      14   McVeigh decision who may well during these broadcasts turn

      15   around and, at the same time this is going on, there's a case

      16   pending in New York.  People could go back and forth, and I

      17   think it would be best if they avoided the coverage for the

      18   pendency of the trial.

      19            THE COURT:  Mr. Cohn?

      20            MR. COHN:  Your Honor, my take on it is a little

      21   different and I was thinking of a way before we try and broach

      22   this.  I frankly don't think it's possible to avoid McVeigh

      23   and I think we're almost in a situation like Shepard when we

      24   are in the middle of a trial, and I understand, I was trying

      25   to find some way so we can figure out whether or not we were

                                                                    4374

       1   and I was trying to formulate some --

       2            THE COURT:  Shepard is different.  In Shepard the

       3   publicity was with respect to him and his trial.

       4            MR. COHN:  I understand.

       5            THE COURT:  There was a terrorist bombing in Israel

       6   yesterday, a suicide bombing, and it's a fact of life today

       7   that -- there's a rare day that goes by that the press doesn't

       8   have some reference to some terrorist threat or incident.

       9            MR. COHN:  And we haven't whined about that.  That is

      10   a fact of life and there's no way to do anything about it

      11   except to proceed.  But here the government has already said

      12   that they are going to bring more victim testimony during the

      13   aggravated and mitigation part of its case, and what you are

      14   essentially getting is generic victim testimony throughout the

      15   press about the effects of the execution on victims.

      16            THE COURT:  Does anybody object if I tell the jury

      17   that, to the extent possible, we request that they avoid in

      18   the future reading anything with respect to the McVeigh case?

      19   Anybody object to that?

      20            MR. FITZGERALD:  No, Judge.

      21            THE COURT:  I'll do that at the close of business

      22   today, and if I forget, please remind me.

      23            MR. RUHNKE:  I do press my request, your Honor, that

      24   you voir dire the jury on what they have read, if anything.

      25   I'm just thinking realistically if there are members of the

                                                                    4375

       1   jury who have been moved, as anybody would be moved, by the

       2   plight of the victims in Oklahoma City and the plight of the

       3   victims in this case, who says --

       4            THE COURT:  All of that existed in January.  The

       5   McVeigh case was on the books in January.  I don't think it's

       6   appropriate to conduct a new voir dire on a new coverage at

       7   this stage of the case.

       8            MR. RUHNKE:  Your Honor, the question does not come

       9   out of the clear blue sky, not for an unknown reason.  The

      10   reason -- and there's been a very significant change between

      11   January and today, and that is that McVeigh is going to be

      12   executed.  The newspaper publicity, the Internet, the media,

      13   the photo journalism, the T.V., as I said in my letter, it's

      14   prolific, and it's now moving to the front page of every

      15   newspaper, the lead story of every news book in this country.

      16   It's going to be for the next two or three weeks and it's been

      17   for the last couple of weeks.

      18            THE COURT:  I will advise the jury, to the extent

      19   possible, to avoid in the future reading anything with respect

      20   to the McVeigh case.  I will not interrogate the jury as to

      21   what it is that they have previously read since the jury was

      22   not at any time instructed not to read anything with respect

      23   to the McVeigh case, nor was the Court previously requested to

      24   address any inquiry to the jury with respect to the McVeigh

      25   case.

                                                                    4376

       1            MR. RUHNKE:  Your Honor, just so I can conclude my

       2   record.  I do make this application on Federal Constitution

       3   grounds, Fifth, Sixth and Eighth Amendments as well.

       4            THE COURT:  Yes.  And the Court's ruling has taken

       5   all of that into consideration.

       6            MR. RUHNKE:  Thank you, your Honor.

       7            THE COURT:  There has been a lot of give and take in

       8   the papers with respect to the bifurcation of the penalties

       9   phase, if it is reached, and the government opposes the

      10   bifurcation on the grounds that there has not been a

      11   sufficient delineation by defense counsel of what they will

      12   attempt to show in the respective phases of the death penalty

      13   case and the government requested the Court get more detail as

      14   to that issue.

      15            And for reasons I think I have previously stated, I

      16   am not inclined to do that for the reasons I have previously

      17   stated.  I don't believe the Court could reasonably enforce a

      18   limitation imposed by counsel as a quid pro quo for obtaining

      19   bifurcation.  And the government also takes the position that,

      20   depending upon the nature --

      21            Mr. Wilford and Mr. Ricco have arrived.

      22            -- that depending on the nature of the presentation

      23   made by the defendant, the government reserves the right to

      24   introduce evidence of the attack on the prison guard at the

      25   Al-'Owhali phase of the case.

                                                                    4377

       1            The Court grants the application to bifurcate the

       2   penalty phase, recognizing that there is a risk that there may

       3   be some duplication, but balancing the risk of duplication to

       4   the strength of the defendants' position that they will be

       5   significantly disadvantaged by any joint trial, I find the

       6   balance is in favor of bifurcation and I think, even given the

       7   risk of some repetitiveness, this is something which should be

       8   done.

       9            There is also a request, which I don't fully

      10   understand, and I take it defense counsel don't fully

      11   understand, a request by the government that there be an

      12   allocution of Mr. Mohamed with respect to bifurcation.

      13            MR. FITZGERALD:  The issue had been, your Honor, with

      14   regard to if there were bifurcation and there were proof at

      15   the Al-'Owhali proceeding, if there was one, and the

      16   Al-'Owhali proceeding went first, that he understood that the

      17   attack in which he's alleged to have participated would have

      18   been proven up before the jury on an occasion where he would

      19   not be present in the courtroom to confront it at the first

      20   instance.

      21            THE COURT:  So the question is whether

      22   Mr. al-'Owhali -- but the assumption here is Al-'Owhali goes

      23   first, is that the --

      24            MR. FITZGERALD:  Yes.

      25            THE COURT:  Yes.

                                                                    4378

       1            MR. FITZGERALD:  And if the assaulting of Officer

       2   Pepe was proven at the proceeding, then obviously

       3   Mr. Mohamed's attorneys would not be participating at that

       4   time.  And he should be aware that although it would be proven

       5   again at his second proceeding, he would know that the jury

       6   may hear a preview of the evidence without his being present.

       7            THE COURT:  Mr. Ruhnke, do you understand that?

       8            MR. RUHNKE:  I understand it.

       9            THE COURT:  Do you have any objection to Mr. Mohamed

      10   being asked whether he understands that if your request for a

      11   bifurcation takes place, the jury in the first death penalty

      12   phase with respect to Mr. al-'Owhali may hear testimony with

      13   respect to the attack on the prison guard, and will hear that

      14   in a proceeding in which he will not be represented and will

      15   not have an opportunity to call witnesses or cross-examine

      16   witnesses?

      17            MR. RUHNKE:  Your Honor, I don't understand the need

      18   to allocute Mr. Mohamed on it.

      19            THE COURT:  Do you have any objection?

      20            MR. RUHNKE:  I don't have any objection.

      21            THE COURT:  Mr. Mohamed, have you been following

      22   this?

      23            THE DEFENDANT:  (Shakes head back and forth.)

      24            THE COURT:  Mr. Mohamed is saying, no, he has not

      25   been following this.

                                                                    4379

       1            MR. RUHNKE:  Why don't we do this, if your Honor

       2   doesn't mind, do it at lunch hour.

       3            THE COURT:  We'll do it after the lunch.  We'll do it

       4   today.

       5            MR. COHN:  May I just ask for some clarification.  By

       6   this discussion, is your Honor ruling that if conditions in

       7   jail are raised, that will allow in the Al-'Owhali part of the

       8   case the direct proof of the Pepe affair or, as we say, we

       9   take the position that you can't, you're allowed to have

      10   generalized safety of guards --

      11            THE COURT:  I am not ruling.  I am not ruling on it

      12   because I think there is merit in the government's position

      13   that its ability to introduce such testimony will depend on

      14   what it is that the defendants proffer, and so I am deferring

      15   on that.  But I am saying that even if the possibility exists

      16   that the Pepe incident will be in evidence in the Al-'Owhali

      17   case, bifurcation is still appropriate.

      18            MR. COHN:  I fine.  I just wanted to make sure that

      19   wasn't a concern.

      20            MR. FITZGERALD:  Your Honor, may I have one moment

      21   with the witness to make sure he doesn't volunteer anything

      22   about the videotape or the Medal of Honor?  I was not

      23   intending to elicit it.

      24            THE COURT:  Why don't you do that now.  And it takes

      25   a few moments to bring in the jury, but let's bring in the

                                                                    4380

       1   jury.

       2            MR. FITZGERALD:  Just two items, Judge.  After this

       3   witness, I don't know if we get to the Somalia expert, but

       4   before Mr. Schmidt puts on exhibits, I think there are some

       5   pictures in my copies of ostriches, perhaps children riding

       6   ostriches.  So if we can have a brief moment to confer before

       7   the exhibits go to the jury when we got to the stage of today

       8   when he offers transcripts and exhibits -- we were served with

       9   three feet of paper late last night.  I just wanted to make

      10   sure we don't object to what goes in.

      11            THE COURT:  People riding ostriches?  I recall there

      12   has been some ostrich testimony in the case.

      13            MR. SCHMIDT:  There are going to be lots of

      14   ostriches.  Not lots.

      15            THE COURT:  There are going to be some ostriches, a

      16   little ostriches maybe, about burying their head in the sand.

      17            MR. SCHMIDT:  I apologize.  We're not going to

      18   present lots of any particular evidence but some of lots of

      19   evidence.

      20            MR. FITZGERALD:  Judge, will you tell the jury --

      21   it's going to be odd that the government is now calling a

      22   witness.

      23            THE COURT:  I'm going to remind them, when the

      24   government rested, it did so on the condition, and the

      25   condition was this witness would testify.

                                                                    4381

       1            MR. FITZGERALD:  Thank you, Judge.

       2            (Jury present)

       3            THE COURT:  Good morning.  I hope everyone had a

       4   pleasant weekend.

       5            You will recall that when the government rested, it

       6   did so with a reservation, and that reservation was that as

       7   part of the government's case it would call another witness.

       8   I don't think we explained exactly what the reservation was,

       9   but that is in fact why the government's resting was somewhat

      10   equivocal.

      11            And the government is now going to call that witness,

      12   and you should understand that his testimony is part of the

      13   government's case.  It's as if this testimony was received in

      14   evidence before the government rested.

      15            And the witness is ready.  The government may call

      16   it's next witness.

      17            MR. FITZGERALD:  Thank you, Judge.  The government

      18   calls James Yacone.

      19    JAMES FRANCIS YACONE,

      20        called as a witness by the government,

      21        having been duly sworn, testified as follows:

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

      23   your full name.

      24            THE WITNESS:  James Francis Yacone.

      25            DEPUTY CLERK:  Please spell your last name.

                                                                    4382

       1            THE WITNESS:  Y-A-C-O-N-E.

       2   DIRECT EXAMINATION

       3   BY MR. FITZGERALD:

       4   Q.  Mr. Yacone, would you tell the jury who you currently are

       5   employed by?

       6   A.  The Federal Bureau of Investigation.

       7   Q.  And are you an FBI agent?

       8   A.  That's correct.

       9   Q.  For how long have you been an FBI agent?

      10   A.  A little more than six years.

      11   Q.  And prior to becoming an agent for the FBI, what did you

      12   do for a living?

      13   A.  I was a commissioned officer in the United States Army for

      14   about eight years.

      15   Q.  Did you have a special skill when you were in the Army as

      16   a commissioned officer?

      17   A.  Yes.  I was an aviator.

      18   Q.  What did you fly?

      19   A.  UH60 Blackhawks, which is a helicopter.

      20   Q.  Now let me direct your attention to 1993.  Did there come

      21   a time when you were deployed to Somalia as part of your

      22   duties with the U.S. military?

      23   A.  Yes, that's correct?  In August 23, 18993, we were

      24   deployed to Somalia as part of a U.N. force to arrest Mohamed

      25   Farahid Aideed and members of his clan.

                                                                    4383

       1   Q.  Just for the record, we'll spell M-O-H-A-M-E-D,

       2   F-A-R-A-H-I-D, A-I-D-E-E-D.

       3            So is it fair to say you were working for the U.S.

       4   military when you were carrying out an arrest on behalf of the

       5   United Nations?

       6   A.  Correct.

       7   Q.  Now, what was your rank at the time you deployed Somalia

       8   in late August of 193?

       9   A.  I was a captain.

      10   Q.  And did you have what's called a platoon?

      11   A.  That's correct.  I was in command of a platoon.

      12   Q.  Can you explain to the jury how many people were in your

      13   platoon?

      14   A.  At the time deployed with me were about 30, 32 people in

      15   my platoon and five UH60 Blackhawk helicopters.

      16   Q.  Now let me direct your attention -- when you would fly a

      17   Blackhawk helicopter, how many people in your crew would be in

      18   a particular Blackhawk helicopter?

      19   A.  There would be four from my platoon, a pilot, a co-pilot

      20   and two crew chiefs or door gunners in the back sitting behind

      21   the pilot.

      22   Q.  And what role did the crew chiefs play when they were on

      23   the ground?

      24   A.  They were aircraft mechanics that maintained the aircraft.

      25   Q.  And what role did they play when they were in the air?

                                                                    4384

       1   A.  They were door gunners and helped us clear the aircraft

       2   and fly it.

       3   Q.  And besides the two pilots and the two persons called crew

       4   chiefs, how many other people could fit in a Blackhawk

       5   helicopter?

       6   A.  We generally would carry 12, 12 ground force in the back.

       7   Q.  And what would you generally do with the ground force in

       8   the back?  What was your role?

       9   A.  To insert or infiltrate the ground force and put them

      10   where they needed to go.

      11   Q.  Let me direct your attention to October 3 of 1993.  Did

      12   there come a time that day when you set out on a mission?

      13   A.  Yes.

      14            (Continued on next page)

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4385

       1   Q.  What generally was the nature of the mission?

       2   A.  We had intelligence --

       3   Q.  Without telling us what you were told or your

       4   intelligence, just tell us what your goal was, what you were

       5   going to do?

       6   A.  The goal that day was to capture a bunch of these top

       7   lieutenants or important members of the organization that were

       8   gathering at a place across the street from the Olympic Hotel

       9   from the Bakara market.

      10   Q.  Is the Olympic Hotel a notable landmark in Mogadishu?

      11   A.  It was one of the tallest buildings in Mogadishu.  From

      12   the air in the helicopter you could see all around the city.

      13   Q.  Focusing on Black Hawk helicopters for the moment, how

      14   many Black Hawk helicopters were part of this mission on

      15   October 3, 1993?

      16   A.  There were eight that day.

      17   Q.  Tell us what the role of the eight different Black Hawk

      18   helicopters were?

      19   A.  There were two helicopters, the first two, were myself and

      20   my wing man, and we were going to insert twelve people each to

      21   a target building where we thought the meeting was taking

      22   place.  There were four Black Hawks behind us that were

      23   inserting twelve soldiers each as a blocking force, and

      24   setting up a perimeter around the objective, and then there

      25   was a combat ship and rescue aircraft full of medics, and that

                                                                    4386

       1   was a contingency aircraft that stayed aloft and flew around,

       2   and there was also one command control Black Hawk which had

       3   the ground commander and the air commander, the overall

       4   commanders, in the back of the aircraft.

       5   Q.  And just so we're clear, the first two helicopters

       6   including yours, dropped a ground force that would actually go

       7   in and make the arrests in the building?

       8   A.  That's correct.

       9   Q.  And the other four Black Hawk helicopters dropped ground

      10   forces who you said were blocking forces?

      11   A.  Yes.

      12   Q.  What would they do?

      13   A.  They would establish a perimeter and basically contain any

      14   civilians from coming into the objective area coming towards

      15   the target building.  They would keep people away from the

      16   target building where the mission was going on.

      17   Q.  And did there come a time when you actually in your Black

      18   Hawk dropped a ground force team at the target building?

      19   A.  That's correct.

      20   Q.  Can you tell us roughly what time of day that was?

      21   A.  It was about 3:15 or, correction, 3:30:30 in the afternoon

      22   between 3:30 and 3:40 in the afternoon.

      23   Q.  How did you drop those forces into that location?

      24   A.  The streets are very narrow, and most of the streets were

      25   dirt and we couldn't land, so we hovered at about an altitude

                                                                    4387

       1   of between you know forty and sixty feet, and the soldiers

       2   slid down fast ropes or big thick ropes to the ground.

       3   Q.  And when you did that, how many people in the back or how

       4   many soldiers in the back of your helicopter did you drop at

       5   that location?

       6   A.  My aircraft and the aircraft ahead of me, we dropped nine

       7   passengers off and we kept three of the soldiers on board to

       8   be aerial snipers.  They stayed on the aircraft and provided

       9   precision sniper fire from the Black Hawks.

      10   Q.  So at the time after you dropped off the nine, how many

      11   personnel were in your Black Hawk?

      12   A.  There were the three snipers and there were my two crew

      13   chiefs, myself and my co-pilot.

      14   Q.  And what number was your Black Hawk referred to by that

      15   day?

      16   A.  Call sign was Super 62.

      17   Q.  And the other Black Hawk that dropped off nine men and

      18   kept three snipers, what was that referred to?

      19   A.  Super 61.

      20   Q.  And after you dropped offer your two contingents of

      21   soldiers, what did the Black Hawks known as Super 61 and Super

      22   62 do after that?

      23   A.  Well, what we would do is after we inserted our troops we

      24   would then establish what we called and overhead cap, and

      25   essentially that was kind of a racetrack pattern around the

                                                                    4388

       1   objective and again provide precision fire for the ground

       2   force that was on the objectives.  If they met resistance then

       3   they would call, they call for fire us to us and tell us where

       4   they were meeting resistance and we would assist them with

       5   arial gunnery and sniper fire from our aircraft.

       6   Q.  What happened to the other four Black Hawks that dropped

       7   off the ground forces that were part of the blocking force?

       8   Where did they go?

       9   A.  Blocking force aircraft departed the battlefield,

      10   essentially held about a mile north of the city out of harms

      11   way and waited for any contingencies that would have occurred.

      12   Q.  And were there other helicopters besides Black Hawks in

      13   the vicinity?

      14   A.  Yes, there were.  We had four Little Bird, they're NB-5

      15   McDonnel Douglas 500 aircraft.  They're much smaller and each

      16   of those carried and inserted four troops each.  They also

      17   held north of the city after making the insertion.  And there

      18   were two additional Little Bird gun ships which assisted

      19   myself and my wing man in providing close air support and

      20   arial gunnery fire for the ground force on the ground.

      21   Q.  And besides the ground force that was dropped into the

      22   locations by the various helicopters was there another set of

      23   ground troops being used at that time?

      24   A.  Repeat the question.

      25   Q.  Okay.  What was the plan on how to get the people, if they

                                                                    4389

       1   were arrested, out of that location back to the base?

       2   A.  Because the streets were so narrow and the city was so

       3   congested, there was no way to pick them up with the

       4   helicopters.  We had no place to land, no clear areas.  So we

       5   had a vehicle convoy of Humvees, and 500 trucks, military

       6   vehicles, drive up and hold short of the objective area by

       7   about two or three blocks away, and they would be radioed.

       8   Once the mission was complete, and they had arrested and

       9   detained all the people we were looking for they would be

      10   called forward via radio with the vehicles and take all the

      11   people, the soldiers and the detainees out of the objective

      12   area and back to the forward support base which was Mogadishu

      13   International Airfield.

      14   Q.  And with regard to the other helicopters in and or with

      15   your helicopter Super 61, who were the pilots on that the

      16   helicopter?

      17   A.  Cliff Wolcott and Donovan Briely were the pilots of Super

      18   61.

      19   Q.  We'll spell W-O-L-C-O-T-T.  Cliff Wolcott, and Donovan

      20   B-R-I-E-L-Y.  And were they part of your platoon?

      21   A.  Yes.

      22   Q.  Now, can you tell us after you went into the orbit what

      23   happened next after you dropped offer the nine men on the

      24   ground?

      25   A.  Well, we started receiving enemy fire almost instantly

                                                                    4390

       1   after the insertion, and the intensity of the enemy fire

       2   increased steadily, the longer we stayed on the objective.

       3   About 15 or 20 minutes after we inserted the ground force we

       4   got a radio call from the objective, from the ground force on

       5   the objective saying that they had secured all the people they

       6   needed to get, and they were ready to exfilitrate or be picked

       7   up and taken out of there by vehicle.  Shortly after that, I

       8   saw my wing man, Super 61 get hit with a rocket propelled

       9   grenade in the half section of the helicopter near the tail

      10   rotor, and he spun out of control, and crashed about two or

      11   three blocks away from the objective area.

      12   Q.  Can you explain to the jury what a rocket propelled

      13   grenade is?

      14   A.  It's a missile, a warhead probably a couple of feet long

      15   that has a grenade on the end of it, and there is no guiding

      16   system.  You simply aim it and shoot it, and once you press

      17   the trigger and it's gone, there is no way to control the

      18   missile.  It goes where you aimed it.

      19   Q.  In your training with the military when does an RPG

      20   ordinarily detonate?  When does it explode?

      21            THE COURT:  RPG is rocket propelled grenade.

      22   A.  That's correct.  Generally on impact.

      23   Q.  And did you notice anything about what was happening with

      24   RPGs or rocket propelled grenades on October 3, 1993 as to

      25   when they detonated?

                                                                    4391

       1   A.  They would detonate in the air.  In other words, they

       2   would not hit anything and they would simply explode after

       3   about 500 meters or 500 yards.

       4   Q.  What effect would they have when they exploded in the air

       5   if they did not strike the helicopter?

       6   A.  They throw shrapnel everywhere and you know could severely

       7   damage a helicopter.

       8   Q.  Returning to Super 61, the helicopter piloted by Wolcott

       9   and Briely, did they go to the scene where Super 61 crashed?

      10   A.  Yes.  The mission, the focus of the mission shifted from

      11   obviously capturing lieutenants to the assistance of the

      12   downed helicopter crew, and I flew over and tried to identify

      13   any survivors, and also assisted some of the ground force

      14   moving through the streets from the objective area a few

      15   blocks away to the crash site.

      16   Q.  What did you see when you flew over the crash site where

      17   Super 61 had crashed?

      18   A.  Well I, it was on its side, and had been severely damaged

      19   and I didn't think there was any survivors, and I was very

      20   surprised when I saw two or three soldiers crawling out of the

      21   back cabin area of the aircraft, so I radioed the commander

      22   and let them know we had survivors.

      23   Q.  And during the time that you were over the crash site at

      24   Super 61, what was the state of were you still taking enemy

      25   fire?

                                                                    4392

       1   A.  Yeah.  As I said earlier, it just continued to build.  The

       2   amount of automatic weapons fire and rocket propelled grenade

       3   fire continued to increase the longer we stayed over the

       4   objective area.

       5   Q.  And had you been in an orbit or a rotating orbit with

       6   Super 61 did there come a time when Super 61 was replaced by

       7   another helicopter?

       8   A.  Yes, after he was shot down we made a request to the

       9   commander to send one of the four Black Hawks holding north of

      10   the city forward to join me in orbit, because there were so

      11   many targets that needed to be engaged and the ground force

      12   was in a very vulnerable area trying to run through the

      13   streets to get to the crash site.  So we made a request and

      14   the ground force commander eventually sent Super 64 to join me

      15   in orbit to provide aerial gunnery and close air support for

      16   the ground force at the crash site.

      17   Q.  Who was the pilot of Super 64?

      18   A.  Mike Durrant, and Ray Frank.

      19   Q.  D-U-R-R-A-N-T and Ray Frank, F-R-A-N-K.

      20            And what happened when Super 64 joined your

      21   helicopter in the orbit above the crash site where Super 61

      22   was down?

      23   A.  After probably only minutes, maybe two or three patterns

      24   in orbit around the crash site responding to calls for fire

      25   from the ground force, they too were hit by a rocket propelled

                                                                    4393

       1   grenade in the tail boom section right by the tail rotor.

       2   They initially didn't lose control of the aircraft.  They knew

       3   they were hit.  They made a radio call and they tried to head

       4   directly back to the airfield or the forward support base

       5   where we were stationed, which is about four miles straight

       6   line.

       7            After about 15 to 20 seconds of heading in that

       8   direction back to the airfield, their tail rotor just came

       9   apart, they lost control of the aircraft and they crashed in

      10   and amongst a bunch of buildings and on top of a bunch of

      11   buildings on the periphery of where the battle was going on.

      12   Q.  And did you in your helicopter go by the crash site?

      13   We'll call it the second crash site where Super 64 was shot

      14   down.

      15   A.  Yes, I did.  We were directed by the commander to go down

      16   and obviously look for survivors of my other wing man, and we

      17   did so.  That aircraft was unlike the first aircraft that had

      18   crashed near the objective.  That aircraft was probably a half

      19   a mile, three quarters of a mile away from the objective area

      20   and consequently all the friendly ground enforcement, so they

      21   were very vulnerable.  They had no one near them.

      22            So we went and we were directed to go to crash site

      23   number two and provide close air support and provide them

      24   basically the only protection they had until they got a ground

      25   convoy, the plan to get a ground convoy over to the second

                                                                    4394

       1   crash site to pick up survivors.

       2   Q.  Now, you mentioned earlier that there was a command or a

       3   search and rescue helicopter above flying in a pattern.

       4   During the time of the battle what happened to the search and

       5   rescue helicopter?

       6   A.  About the same time Super 64 the, second aircraft crashed,

       7   the command search and rescue aircraft with medics on board

       8   was making a fast rope and search to the first crash site,

       9   they got their troops inserted, were also hit with an RPG, a

      10   rocket propelled grenade.  The grenade glanced off the top

      11   cabin area of the aircraft between the rotor system and the

      12   top cabin of the aircraft, damaged i severely, but they were

      13   able to limp it back to the airfield and land safely back at

      14   the airfield.

      15   Q.  Now, did there come a time that you were waiting at crash

      16   site number two for a ground force to arrive?  And what

      17   happened?

      18   A.  Yes.  Again, we were in orbit over crash site number two

      19   for probably ten or 15 minutes, awaiting the arrival of

      20   another ground convoy being sent from the airfield at forward

      21   support base, and at that time we identified that there were

      22   in fact survivors on Super 64.  I saw that Durant was moving

      23   and Ray Frank was moving, and one of the two crew chiefs, both

      24   crew chiefs were Tommy Field and Bill Cleveland.  We

      25   thought -- the crew chiefs in back of my aircraft, me and my

                                                                    4395

       1   co-pilot thought we saw Tommy Field at least waving an arm, so

       2   we saw three of the four crew members moving.  So we were

       3   overhead providing close air support for them and trying to

       4   keep away the unfriendly forces which were starting to mount

       5   and encroach upon the aircraft.

       6   Q.  And did there come a time when an alternative was

       7   suggested, instead of waiting for the ground force to arrive?

       8   A.  Yes.  Again, we had three snipers in the back of our

       9   aircraft and we decided at that time to insert two of the

      10   three snipers to the crash site as close as possible to the

      11   crash site.  We probably would have inserted a third, but my

      12   crew chief in the back of my aircraft had already been shot

      13   through the arm.  My aircraft had been hit by a barrage of

      14   automatic weapons fire a couple of different times during the

      15   battle, and he was bandaged up in the back of the aircraft.

      16            So the third sniper had taken his place as a door

      17   gunner of my aircraft.  So we had two snipers left.  We

      18   inserted both Randy Shughardt and Gary Gordon to the crash

      19   site number two.

      20   Q.  How far away from the crash site did you insert Randy

      21   Shughardt and Gary Gordon?

      22   A.  It was probably 60, fifty to sixty yards or meters away

      23   from that crash site.  There was a bunch of shacks and

      24   shanties and a collapsed building around the crash site and

      25   the closest area we could get to that we could land to was

                                                                    4396

       1   about fifty or sixty yards away.

       2   Q.  And during this time in the battle can you tell us

       3   approximately how often you would see an RPG being shot at the

       4   helicopters?

       5   A.  Again, I wasn't able to see all the RPGs being shot, but

       6   you know every thirty seconds or so we'd see the streak of

       7   smoke and then the puff of where the thing would detonate in

       8   the air.

       9   Q.  And over the course of the entire evening do you recall

      10   approximately how many RPGs you saw being fired that day into

      11   the following morning?

      12   A.  Hundreds.  Well in excess of a hundred.

      13   Q.  After you dropped off Shughardt and Gordon at a location

      14   near the second crash site, what happened next?

      15   A.  They again they took them about five minutes to make their

      16   way through the maze and the labyrinth of shacks and shanties

      17   and crawling over collapsed buildings to get to the crash

      18   site, but they eventually made it.  And, again, we were

      19   overhead at this time providing them close air support and

      20   keeping away any of the enemy trying to get to the crash site

      21   or firing upon them.

      22            The last thing, I saw the last pass I made was one of

      23   the two snipers, either Shughardt or Gordon, I'm not sure

      24   which, was tending to Mike Durrant on the right-hand side of

      25   the aircraft in the pilot station.

                                                                    4397

       1            The other sniper had already gotten Ray Frank out of

       2   the aircraft and Ray was propped up against the tree, just off

       3   the nose of the aircraft, and that was the last sight of that

       4   crash site that I had.

       5   Q.  What happened at that point to your chopper?

       6   A.  We got hit with a rocket propelled grenade in the crew

       7   chief station or the door gunner's station just behind my

       8   seat, and we then did a controlled crash to an area just along

       9   the coast line called Newport.

      10   Q.  Can you tell us what happened inside your helicopter when

      11   the RPG hit?

      12   A.  The explosion gravely wounded the sniper who had replaced

      13   my door gunner and was in that crew chief station.  It

      14   basically took off his leg, peppered him with shrapnel.  I had

      15   a Kevlar seat, and my seat was made of Kevlar, but I caught

      16   some shrapnel in my left arm, and my other crew chief had

      17   already been shot through the arm earlier.

      18            I had received some of the shrapnel from the rocket

      19   propelled grenade.  It took out one our engines.  The Black

      20   Hawk has two engines.  We had partial power and partial

      21   control of the aircraft.  The windshield was gone, and the

      22   window bubble, the plexiglas bubble below and above the pilot

      23   station was gone.  There was, you know, a bunch of smoke

      24   filling the cockpit.

      25   Q.  And where did you actually crash land the helicopter?

                                                                    4398

       1   A.  Again, it was a place called Newport which is just on the

       2   coast line of Somalia, Mogadishu, and lucky for us there was a

       3   UN contingent receiving goods at the port that day that saw us

       4   come in there and crash land, and they came over and attempted

       5   to provide assistance after we got on the ground.

       6   Q.  And were you and the remaining members of your crew in the

       7   helicopter rescued at that location?

       8   A.  Yes.  The search and rescue aircraft which had been shot

       9   up earlier with rocket propelled grenades had gone, limped

      10   back to the airfield.  They got into a spare Black Hawk, came

      11   out and picked up, first the gravely wounded sniper who had

      12   lost his leg and abdomen was peppered with shrapnel, and my

      13   other crew chief who had been shot through the arm also was

      14   hit with shrapnel.

      15            They took them to the hospital and they came back

      16   about thirty minutes later and picked up myself, the other

      17   crew chief, and Mike Goffena, the guy I was flying with, the

      18   other pilot.

      19   Q.  Once you were brought back to your base in Somalia after

      20   having your helicopter shot down, what did you do next?

      21   A.  I went to the tactical operations center which is where

      22   the overall commander was sitting, and provided any

      23   information I could on crash sites one and two.  And then at

      24   about, I don't know, maybe six or seven p.m. I replaced the

      25   pilot of the flying the commander control aircraft flying the

                                                                    4399

       1   overall air and ground commanders around, and flew throughout

       2   the night into the next morning until the mission was over.

       3   Q.  And during the night could you see what was happening

       4   below you as you flew above Mogadishu?

       5   A.  Yeah, there was a battle raging on throughout the night.

       6   Q.  How could you see at night?  Did you have any special

       7   equipment?

       8   A.  We had night vision goggles which essentially amplify the

       9   ambient illumination of the stars and the moon, and make it

      10   able, make you able to see at night.

      11   Q.  Did there come a time when a ground force actually reached

      12   crash site number one and was able to link up with the

      13   soldiers who were at that crash site?

      14   A.  Yes.  Earlier in the day when I was first shot down there

      15   were two convoys that were dispatched that were attempting to

      16   reach both crash sites.  They were both repelled and had to go

      17   back to the airfield.  At about seven or eight in the evening

      18   the UN or actually the US went to the UN contingent and asked

      19   the Pakistanis and the UAE the United Arab Emirates forces if

      20   we could borrow their armored vehicle to go back out and try

      21   to rescue the aviators from the downed crash site and pick up

      22   all the soldiers in the middle of the battlefield.

      23            It took them until about 11:30 or 12 midnight to

      24   actually launch out from the forward support base, and they

      25   didn't reach the crash site or crash site number one until

                                                                    4400

       1   about 3 a.m.

       2   Q.  And what time had the crash happened when Super 61 was

       3   shot down at crash site number one?

       4   A.  That was probably 4 p.m., 4:10 p.m., something like that.

       5   Q.  And once the ground force reached that crash site at about

       6   3 a.m., how long did they spend in that location?

       7   A.  It took about two hours for them to effect a linkup of

       8   friendly forces.  It was in the dark.  They were in the middle

       9   of a battle.  They didn't know exactly all the friendly force

      10   locations because the friendly forces were hunkered down in

      11   different areas around the crash site.  So it took quite a

      12   while to deconflict fires and make sure that friendlies didn't

      13   shoot at friendlies.

      14            And also ongoing during that time they were trying to

      15   free the body of Cliff Wolcott.  He was the pilot who was of

      16   Super 61 and he was dead, but they wanted to get his body out

      17   of the crash site and leave the crash site with all the bodies

      18   of the dead soldiers.  So it took them a couple of hours to

      19   free Cliff.  It wasn't until about maybe 5 a.m., 5:30 a.m.

      20   that they finally had everybody on board this big long convoy

      21   of armored personnel carriers and tanks and Humvees, and drove

      22   out.

      23   Q.  And did they go to a separate location, a secure location

      24   in Mogadishu?

      25   A.  Yes, they went to a place that was closer than the forward

                                                                    4401

       1   support base or our friendly location.  They went to a place

       2   called Pakistan Stadium which was about a mile away from the

       3   objective area which provided our forces some security to

       4   consolidate and regroup.

       5   Q.  And approximately what time did the people from crash site

       6   one make it to Pakistan Stadium?

       7   A.  It was about probably 6:30 in the morning.

       8   Q.  And, similarly, with respect to crash site number two, did

       9   a similar thing happen with regard to the ground force?

      10   A.  Yes.  A separate or another convoy of Tenth Division

      11   soldiers from United Nations force that was over there went

      12   and took a look at crash site number two and it was picked

      13   clean.  There were no soldiers.  There were no bodies at that

      14   crash site when they reached it.

      15   Q.  And as of the following morning, October 4, 1993, did you

      16   have an understanding of how much American casualties there

      17   were at that time?

      18   A.  We had six missing in action, and we had 13 I believe

      19   declared killed in action at that point.

      20   Q.  And did there later come a time when one of the missing in

      21   action was recovered?

      22   A.  Yes.  Later on that day or maybe the next day, we found

      23   out through the Red Cross that Mike Durrant, one of the

      24   lieutenants of Super 64, was actually taken captive and was

      25   not killed at the crash site.

                                                                    4402

       1   Q.  Was he recovered two weeks later alive?

       2   A.  Yes.

       3   Q.  And what happened to the other five missing in action?

       4   A.  They were killed.  Total went up to 18 killed in action on

       5   that day.

       6   Q.  And of the 18 who were killed in action how many were in

       7   your platoon?

       8   A.  Five.

       9   Q.  And did that include Cliff Wolcott and Donovan Briely the

      10   pilots of Super 61?

      11   A.  Yes.

      12   Q.  And who were the others in your platoon?

      13   A.  We had Ray Frank, the pilot of Super 64, and Bill

      14   Cleveland, and Tommy Field who were his crew chiefs in the

      15   back of that aircraft.

      16   Q.  And in addition to the people in your platoon, what

      17   happened to the two snipers Mr. Shughardt and Mr. Gordon who

      18   were dropped to rescue Super 64 crash site two?

      19   A.  They were killed as well.  They were eventually overrun by

      20   the enemy after we got shot down and they lost, they ran out

      21   of ammunition and were overrun.

      22   Q.  Were there a substantial number of Somalis killed during

      23   the fire fight in October 3th and 4th?

      24   A.  Yes.  We received estimates from the Red Cross that there

      25   were in excess of 500 killed, and about a thousand wounded.

                                                                    4403

       1   Q.  And during the night these RPGs that were shot at the

       2   helicopters, when you were trained in the military is that an

       3   ordinary technique to use RPGs against helicopters?

       4            MR. SCHMIDT:  Objection, your Honor.

       5            THE COURT:  Overruled.

       6   Q.  What is the ordinary purpose of an RPG when you're trained

       7   in the military?

       8   A.  Generally used against armored vehicles, but I mean it can

       9   be used against personnel as well.

      10   Q.  When you're talking about armored vehicles, you mean

      11   ground vehicles?

      12   A.  Yes.

      13            MR. FITZGERALD:  Thank you.  Nothing further.

      14            MR. SCHMIDT:  Mr. Schmidt.

      15   CROSS-EXAMINATION

      16   BY MR. SCHMIDT:

      17   Q.  Good morning.  Do you prefer being called Agent Yacone or

      18   Capt. Yacone.

      19   A.  Agent.

      20   Q.  Agent Yacone, was this the first time that you ever saw

      21   combat?

      22   A.  No.  We had executed six missions over in Somalia prior to

      23   3 October.  Is that what you're talking about?

      24   Q.  Well, that's the first start.  So prior to this --

      25   withdrawn.

                                                                    4404

       1            You would consider this a military operation on

       2   October 3th and 4th, wouldn't you?

       3   A.  Correct.

       4   Q.  And prior to that military operation in Somalia you had

       5   participated in six other military operations?

       6   A.  Over in Somalia from August to October 3rd from the time

       7   we landed till that mission on October 3.

       8   Q.  Have you been involved in any other military operations

       9   other than the ones in Somalia?

      10   A.  I was in Haiti in 1994, but there was a diplomatic

      11   resolution to that conflict so, no.

      12   Q.  So other than the -- so the only two military operations

      13   that you were involved in were Somalia?

      14   A.  In combat, that's correct.

      15   Q.  Prior to going to Somalia were you trained for combat in

      16   the urban environment such as Mogadishu?

      17   A.  Yes.

      18   Q.  Where were you trained?

      19   A.  I was with my unit at that time which is the 160th Special

      20   Operations Aviation Regiment.

      21   Q.  Were you trained in Somalia or outside of Somalia?

      22   A.  We had both.  We had, you know, trained prior to that to

      23   operate in urban environment, and then once we got on ground

      24   in Somalia we had done rehearsals for the missions.

      25   Q.  If you -- the prior training for urban areas, was that

                                                                    4405

       1   separate and distinct from -- withdrawn.

       2            How many years before you went to Somalia was that

       3   training?

       4   A.  It was fairly continuous.  It was part of kind of what we

       5   considered a mission essential task to be able to operate in

       6   an urban environment.  So you know at least annually or maybe

       7   twice, two times a year we try to get to an urban environment

       8   within the United States and operate.

       9   Q.  And then you had specific training in Somalia that was

      10   specifically related to military operations to be carried out

      11   in Mogadishu, is that right?

      12   A.  Correct.

      13   Q.  And so really basically dealing now with the countryside

      14   of Somalia, but not Mogadishu, is that correct?

      15   A.  We had conducted mission rehearsals away from Mogadishu

      16   proper, kind of on the outskirts, maybe five or ten miles

      17   south of the city at a area that we created as like a mockup

      18   objective area.  And then we had also done what we called

      19   signature flights during the numerous days that we were over

      20   there, because we were surrounded on three sides by the enemy

      21   and the enemy was continuously watching us from roof tops with

      22   radios.

      23            We would randomly take off organized for combat, fly

      24   around, you know, conduct a false insertion, do nothing and

      25   then come back and land at the airfield, because we had lost

                                                                    4406

       1   the element of surprise, and they were simply there sitting

       2   there watching us or waiting for us to take off.

       3   Q.  Let me go back to the training.  Where you said you set up

       4   a special kind of training operation, is that geared towards

       5   the narrow streets of Mogadishu, how to work in that kind of

       6   situation?

       7   A.  We had talked about it, but we were not in actual urban

       8   area.  We were on the outskirts on like the beach.  So, no, we

       9   weren't really able to effectively simulate the narrow streets

      10   that were going to have to deal with in Mogadishu, no.

      11   Q.  But you were aware that you were going to be dealing in

      12   then urban area with narrow streets?

      13   A.  Yes.

      14   Q.  An area that included the enemy militia and civilians as

      15   well, is that right?

      16   A.  Correct.

      17   Q.  And it was a populated area, is that correct?

      18   A.  Yes.  It was like 1.5 million people in Mogadishu.

      19   Q.  Now, during your training was there any discussion or use

      20   or practice of using tow missiles?

      21   A.  Say that terminology.

      22   Q.  T-O-W missiles.  I'm sorry, Tow missiles?

      23   A.  We had no tow missiles with my military unit.

      24   Q.  Is that, is there a particular reason why you had no Tow

      25   missiles on that mission?

                                                                    4407

       1            MR. FITZGERALD:  Objection.

       2   Q.  I'll withdraw that question.  Are you familiar with tow

       3   missiles.

       4   A.  Yes, I am.

       5   Q.  Are Tow missiles generally used in urban environments

       6   where there are civilians?

       7   A.  Sure, I suppose they can be, absolutely.

       8   Q.  Tow missiles cause tremendous amount of damage, is that

       9   right?

      10   A.  Depending on the target, yes.

      11   Q.  Now, when you were in your base, what part of Mogadishu

      12   were you based in?

      13   A.  We were right at Mogadishu International Airport.

      14   Q.  In what part of Mogadishu is that?

      15   A.  That's the East Coast kind of in the southern portion of

      16   the city.

      17   Q.  Is that in the area where Gen. Aideed militia supporters

      18   and clansmen lived?

      19   A.  They had free reign of the entire city, but their

      20   stronghold, at least the intelligence that I was given, their

      21   stronghold was principally in the Bakara market, but they

      22   operated all over the city.

      23   Q.  What about did you receive any information about a person

      24   called Ali Magdi?

      25   A.  That name doesn't ring a bell.

                                                                    4408

       1   Q.  Well, was there one operation, one of the six operations

       2   prior to October 3rd and 4th where a number of people were

       3   gathered up and taken away and imprisoned and learned that

       4   they were members of some other militia and not Aideed

       5   militia?

       6   A.  One of the missions, and I'm not sure which one you're

       7   referring to, we did have to release some of the people that

       8   we captured because they, we didn't have hard evidence that

       9   the people we captured were part of the clan.  They had a

      10   number of nongovernmental forms of identification.  Each of

      11   them had many, many forms of ID, so we couldn't be sure who

      12   they were, and we subsequently released them.

      13   Q.  Where were they released from?

      14   A.  I don't have any knowledge of that.  I assume that forward

      15   support base wherever they went to once they were brought back

      16   to the forward support base.

      17   Q.  Just so we understand the nature of these operations, when

      18   you went on an operation, the goal was to take custody of a

      19   number of people and obviously it depends on what information

      20   you have and the number of people are there, is that correct?

      21   A.  Correct.

      22   Q.  And I think you used the word arrest.

      23   A.  Detain is probably a better word.

      24   Q.  And the warrants that you mentioned, that was a UN

      25   declaration to capture Aideed; is that correct?

                                                                    4409

       1   A.  Correct.

       2   Q.  And only the person that actually mentioned was Aideed,

       3   isn't that right?

       4   A.  I don't believe so.  I think they had a number of others

       5   supporters or his top lieutenants, the important people in his

       6   organization that we were also looking for, but I don't know

       7   if they were listed in the UN arrest warrants or equivalent.

       8   I have no idea.

       9   Q.  Agent, obviously you only can testify to as to what can

      10   you actually know.

      11   A.  Right.

      12   Q.  And it's obvious that based on your testimony that it was

      13   a number of people that you were seeking to quote detain

      14   unquote.  But were you specifically aware, because you used

      15   the word, arrest warrant, were you, have you, did you read the

      16   document that you call arrest warrant?

      17   A.  No.

      18   Q.  So you're acting as a soldier, a commanding soldier

      19   following the orders of those above you; is that right?

      20   A.  Correct.

      21   Q.  And you are given some understanding of why you're there

      22   because you're entitled to, you're risking your life, you're

      23   entitled to know or understand why you're there, isn't that

      24   right?

      25   A.  Correct.

                                                                    4410

       1   Q.  But all of the specific legal documents or arguments none

       2   of your concern, isn't that right?

       3   A.  No.  I mean I was following orders, you know, lawful

       4   orders that given me by my chain of command.

       5   Q.  But lawful order came from your chain of command and

       6   generally they explained to you what the UN did, but no one

       7   provided with you a document saying, okay, here is the people,

       8   here are their pictures?

       9   A.  That's correct.  Well, actually, we did have pictures of

      10   many of the people we were going after.  I didn't see any

      11   arrest warrants or legal documentation.

      12   Q.  You're now an FBI agent, is that right?

      13   A.  Correct.

      14   Q.  Have you been involved in any arrests of people?

      15   A.  Yes.

      16   Q.  Have you been involved in arrests of people where a

      17   warrant was issued?

      18   A.  Absolutely.

      19   Q.  When you are going to arrest somebody with a warrant you

      20   actually have that warrant, right?

      21   A.  Correct.

      22   Q.  And you usually have the photograph of the person and lots

      23   of information, right?

      24   A.  Yes.

      25   Q.  And you go to arrest that particular person because you

                                                                    4411

       1   now have before you a signed, generally a copy, a signed

       2   warrant of arrest issued by a Judge of the United States?

       3   A.  Correct.

       4   Q.  When you are a soldier you don't have all of that.  You

       5   have a chain of command that you follow?

       6   A.  Correct.

       7   Q.  Now, do you recall one of the missions where a police

       8   official who, where there was insufficient proof that he was a

       9   member of Aideed's clan was arrested with others?

      10   A.  Yes.

      11   Q.  He and others.  Okay, now in that operation did people

      12   from your team arrive in helicopters?

      13   A.  Yes.

      14   Q.  Members of the team then dropped down from the helicopter;

      15   is that right?

      16   A.  Correct.

      17   Q.  How were they armed?

      18   A.  With you know M-16 or Kar 15 rifles, various weapons.

      19   Most guys had handguns as a backup.  We had some machine guns

      20   as well.

      21   Q.  Grenades?

      22   A.  Yes.

      23   Q.  They were prepared all the people who went to detain,

      24   we'll call it detain, these individuals they were prepared,

      25   your team members, to defend themselves under the

                                                                    4412

       1   circumstances that their lives were in danger?

       2   A.  Correct.

       3   Q.  As a soldier you could do nothing less than that?

       4   A.  Right.

       5   Q.  And you can't ask a soldier to do anything less than that,

       6   isn't that right?

       7   A.  We had pretty restrictive rules of engagement, yes.

       8   Q.  But you if you were attack, you certainly could --

       9   A.  That's right.

      10   Q.  And your goal was detaining, coming down from the sky,

      11   grabbing the people that you understood were supposed to be

      12   grabbed, taking them from their home, office or wherever they

      13   are and bringing them to a location where the UN would take

      14   control, is that right?

      15   A.  That is correct, but, again, just to make this clear I was

      16   an aviator.  I was in charge of getting them to the site.  I

      17   wasn't actually sliding down on the rope and putting the hands

      18   on people.

      19   Q.  But that was the operation's purpose?

      20   A.  Yes.

      21   Q.  You had a very important and difficult and dangerous job

      22   sitting up there in the bird in the sky?

      23   A.  Yes.

      24   Q.  Now, as to the operations that you were involved in up to

      25   October 3rd and 4th, there was fortunately very -- were there

                                                                    4413

       1   any casualties for your teams at all on the first six?

       2   A.  I believe two Rangers were wounded in one of the missions

       3   of those six previous missions.

       4   Q.  And there were very few Somalia casualties as well?

       5   A.  That's correct.

       6   Q.  Everything worked fairly nicely?

       7   A.  Correct.

       8   Q.  Now, when you were there on and operation coming down to

       9   make -- withdrawn.

      10            There were a number of times during your operations

      11   where you came up empty handed, there was nobody that you

      12   thought you wanted was at the location, is that correct?

      13   A.  Yes.

      14   Q.  You called that a dry hole?

      15   A.  Yep, that was a common phrase used.

      16   Q.  Now, generally in these missions other than the October

      17   3rd, 4th, when, how many helicopters were used?

      18   A.  There was I believe 18 helicopters.

      19   Q.  So if you went on a mission give, for example, the mission

      20   that caused the detention of the non-Aideed militia police

      21   officer and others, you would come with 18 helicopters flying

      22   in some sort of pattern.  Is that right?

      23   A.  Right.

      24   Q.  And you would, the helicopters were dropping off the

      25   soldiers at some point lower themselves to a level where it

                                                                    4414

       1   was safe, and the soldiers, and these are special commandos,

       2   right?

       3   A.  They were soldiers in the Army, yeah.

       4   Q.  But they were specially trained?

       5   A.  Correct.

       6   Q.  Urban commandos and other -- let's just use commandos, is

       7   that good?

       8   A.  I think special operations soldiers is probably a better

       9   term.

      10   Q.  And they would go down the ropes, hit the ground and go to

      11   the location, is that right?

      12   A.  Correct.

      13   Q.  And all that time the helicopters would all be in a pretty

      14   close location?

      15   A.  Again, after the insertion most of the helicopters would

      16   hold north of the city out of harms way and only the

      17   helicopters that were on standby and on call to provide, you

      18   know, close air support or ariel gunnery would remain over the

      19   objective.

      20   Q.  When your helicopters arrived, now, say in the operation

      21   where the police chief was or police officer was mistakenly

      22   detained, did you have special-ops soldiers going down from

      23   your helicopter?

      24   A.  I don't specifically remember, but more than likely yes.

      25   Q.  You're in an urban area, right?

                                                                    4415

       1   A.  Yes.

       2   Q.  I think sometimes the operations were like in the middle

       3   of the night so it was quiet, right?

       4   A.  Correct.

       5   Q.  Sometimes it was not in the middle of the night and there

       6   was more activity on the street?

       7   A.  Right.

       8   Q.  Can you describe to us what the people on the street would

       9   do, the civilian people on the street, what would they do when

      10   they saw 18 helicopters coming and letting down these troops?

      11   A.  They would generally, you know, flee or leave that

      12   immediate area, and go the other way.

      13   Q.  Now, except for obviously the ones that started to engage

      14   the aircraft and they stayed around, some of them would stay

      15   around and fire?

      16   A.  Right.

      17   Q.  Now, you came in August of 1993, is that correct?

      18   A.  I think it was August 23rd, that's correct.

      19   Q.  And were you aware that there are other American troops at

      20   the location, in Somalia, Mogadishu prior to you arriving, is

      21   that right?

      22   A.  Yes.

      23   Q.  Now, you knew that you were to some extent vulnerable as a

      24   helicopter pilot the longer you stayed in one location either

      25   dropping off or picking up people; is that right?

                                                                    4416

       1   A.  Yes, absolutely, I mean the longer you stayed in and

       2   around a battlefield chances are, you know, you're going to

       3   receive some fire.

       4   Q.  And the lower you go, the more chance you are getting hit?

       5   A.  Not necessarily true.  We tried to vary our altitude but

       6   if you remain low you actually present a quicker sight picture

       7   for somebody on the ground trying to engage you.  He has less

       8   time to track you or engage you if you're low, if you're in a

       9   densely urban area without a big field of view, because as he

      10   tracks you he may lose you to the next rooftop that becomes,

      11   or is between you the helicopter and if the guy is trying to

      12   shoot you, so it depended.

      13   Q.  But you talked a little bit about RPGs, the rocket

      14   propelled grenades?

      15   A.  Yes.

      16   Q.  Those are basically something like a rifle with a grenade

      17   at the end of it, is that right?

      18   A.  Yes, it's a big about a three four foot tube and the

      19   warhead sits on the front end of the tube and is fired out of

      20   the tube.

      21   Q.  And that's a man-held weapon, right?

      22   A.  Yep, held on the shoulder.

      23   Q.  And it doesn't take very much training to actually fire

      24   one of those things, does it?

      25   A.  I've never fired one myself, but I think to fire them

                                                                    4417

       1   accurately, yeah, you definitely have to get some training.

       2   Q.  To fire them accurately is probably very difficult, isn't

       3   it?

       4   A.  Again, I've never fired them, so from what I've been told,

       5   yes.

       6   Q.  Now, you described the, that night the day and night of

       7   October 3rd and 4th as being hundreds of RPGs being fired, is

       8   that right?

       9   A.  Yeah, through the course of the battle, that's correct.

      10   Q.  And during the course of the battle there were three

      11   helicopters that were hit?

      12   A.  Four.

      13   Q.  So the percentages of the people there in firing them was

      14   not very low, which is not surprising for RPGs, is that right?

      15   A.  When you consider the amount of aircraft that were

      16   actually over the objective area, the percentages were pretty

      17   high.  Again, the other Black Hawks went and held north of the

      18   city, so the only Black Hawks that flew over the battlefield

      19   on that particular day were hit except for the command control

      20   aircraft which was at much much higher altitude kind out of

      21   harms way.

      22   Q.  But we're talking about hundreds of RPGs fired at the

      23   helicopter, is that right?

      24   A.  Yeah, at all the helicopters over the battlefield,

      25   correct.  And at soldiers on the ground, you know, in and

                                                                    4418

       1   amongst the streets, and the vehicle convoys.

       2   Q.  Now, you were aware of previous attacks on Aideed's --

       3   withdrawn.  When you went into in August on your first

       4   operation, right, were you made aware that of the prior attack

       5   on Somalis that was called the Abdi House in July 12, 1993?

       6            MR. FITZGERALD:  Objection, your Honor, beyond the

       7   scope.  403.

       8            MR. SCHMIDT:  This goes into how he's conducting

       9   himself, your Honor.

      10            THE COURT:  I'll permit it.  That's a yes or no.

      11   A.  Yes, I was aware of the Abdi House incident.

      12   Q.  And were you aware of the Somali reaction to their

      13   perceptions of the Abdi House attack?

      14            MR. FITZGERALD:  Objection, your Honor, 403.

      15            THE COURT:  Yes or no.

      16   A.  Yes.

      17   Q.  Were you aware that helicopters, therefore, the people in

      18   the helicopters were in greater danger as a result of the

      19   Somali reaction to the Abdi House attack?

      20   A.  Say that again.  I'm not sure I understand the question.

      21   Q.  Were you aware that helicopters became more of a target of

      22   the anger of the Somalis as a result of the Abdi House attack?

      23   A.  No, not necessarily.  I just through the media -- I mean

      24   basically through the media I became aware that most of the

      25   Somalis became very irritated at perception of the attack, and

                                                                    4419

       1   the population who had backed the majority of the population

       2   who was backing the UN mission over there at the time were

       3   starting to be swayed towards Aideed's clan and what Aideed

       4   was trying to carry out as a result of the Abdi House

       5   incident.  And, again, that was through the media that I

       6   became aware of most of what happened.

       7   Q.  And you became aware that the Abdi House attack was very,

       8   very different than the operations that you were conducting,

       9   isn't that right?

      10   A.  It was a different military unit that did it.  I mean it

      11   was a US Force Tenth Mounted Division.

      12   Q.  It was a different type of operation?

      13   A.  Correct.

      14   Q.  Your operation, and you were under very strict limitations

      15   not to fire into buildings or groups of people unless you

      16   absolutely had to protect yourselves; is that right?

      17   A.  Yes.

      18   Q.  And you were aware that in the Abdi House attack Tow

      19   missiles were fired in a building that was not firing at the

      20   helicopters, had not attacked anybody?

      21            MR. FITZGERALD:  Objection, your Honor.

      22            THE COURT:  Sustained as to form.

      23   Q.  You were aware that the rules of engagement that caused

      24   the Abdi House attack -- withdrawn.

      25            Your rules of engagement changed as a result --

                                                                    4420

       1   withdrawn.  The rules of engagement that you were under --

       2   withdrawn.  I'll try my best on this.  Were you aware that the

       3   rules of engagement that you were now under were different as

       4   a result of the Abdi House attack?

       5   A.  I'm not really sure what their rules of engagement were on

       6   that day, and I don't know what predicated the Abdi House

       7   attack.  In other words, I think there were four journalists

       8   killed by a Somali mob earlier that day.  I know there were

       9   twenty-four Pakistan UN soldiers that were killed prior to the

      10   Abdi House, but I have no idea what their rules of engagement

      11   were on that day or what precipitated the Abdi House attack.

      12   Q.  You raised, you raised the issue about the --

      13            MR. FITZGERALD:  Objection, your Honor.

      14   Q.  -- journalists --

      15            THE COURT:  Yes, sustained.  Just ask a question.

      16   Q.  You were there and you saw the media.  Is that correct?

      17   You saw the media while you were there?

      18   A.  Yes.

      19   Q.  You were aware that the journalists were killed by a crowd

      20   of enraged Somalis as a result of the Abdi House attack,

      21   weren't you?

      22   A.  I'm not sure which occurred first to be quite honest,

      23   whether the journalists were killed and then the attack

      24   occurred, or the attack occurred and then the journalists were

      25   killed, I have no idea.

                                                                    4421

       1            MR. RICCO:  Your Honor, I object.  I'd like to be

       2   heard.

       3            THE COURT:  We'll take our mid-morning recess.

       4            (Continued on next page)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

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      19

      20

      21

      22

      23

      24

      25

                                                                    4422

       1            (Jury not present)

       2            MR. WILFORD:  Your Honor, may we state the reasons

       3   for the objection?

       4            THE COURT:  Please.

       5            MR. WILFORD:  I believe that everything after the

       6   witness answered yes with respect subsequent to saying yes to

       7   the question regarding his knowledge of the Abdi House

       8   incident should be stricken.

       9            We're talking about information that is leading up to

      10   I believe 24 other dead Americans.  We're talking about a

      11   situation that is not within the scope of this witness'

      12   personal knowledge.  He's talking about other information he

      13   received from some other source, and most respectfully we ask

      14   that everything after the Abdi House question with respect to

      15   the witness' knowledge of the existence of the Abdi House

      16   incident be stricken.

      17            THE COURT:  Mr. Schmidt.

      18            MR. SCHMIDT:  Your Honor, I think striking it doesn't

      19   accomplish the purpose.  The jury has heard it.  What would

      20   accomplish the purpose as to this witness would be perhaps a

      21   stipulation that the Abdi House attack occurred and then after

      22   the Abdi House attack occurred the correspondents were killed.

      23            MR. FITZGERALD:  Mr. Schmidt has gone into hearsay

      24   that he knows the witness wasn't in country for, and he walked

      25   into a door and when he gets an answer he doesn't like when

                                                                    4423

       1   the witness is saying, you're asking me what I heard from the

       2   media, then he wants to turn around and straighten out and

       3   leave just those facts he wants.  If he doesn't want to get

       4   inaccurate hearsay, don't ask someone what happened in July of

       5   1993 in Somalia of a witness who was in America.  He keeps

       6   going down that road and he goes down that road and he gets

       7   the answer he doesn't like, he wants to fix it.

       8            MR. SCHMIDT:  Counsel previously indicated that

       9   additional response was not responsive to my question.  It was

      10   volunteered by this witness.

      11            THE COURT:  Your question was, did he know two

      12   journalists and four Pakistanis were killed earlier that day.

      13            MR. SCHMIDT:  I didn't say that.

      14            THE COURT:  Then you asked whether he was aware of

      15   the journalists who were killed before or after the attack.

      16            MR. SCHMIDT:  That was after he volunteered that.  My

      17   question to him did not require him stating about the

      18   journalists being killed.  I made very specific questions.

      19   I'm up there asking him specific questions to avoid that type

      20   of answer and he's volunteered that.

      21            Go back and you'll see it is his volunteering that

      22   information and for the government to get up here and say now

      23   say they want to lead --

      24            THE COURT:  The government has made no objection.

      25   The only objection has been raise has been raised on behalf of

                                                                    4424

       1   Odeh.  So let's be clear how this issue has arisen.

       2            He was asked whether he was aware that the rules of

       3   engagement were different as a result of the Abdi House.

       4            MR. SCHMIDT:  That requires a yes or no.

       5            THE COURT:  What he responded was he doesn't know

       6   what precipitated the change but that he did know that two

       7   journalists and four Pakistanis were killed earlier that day

       8   and then he stated he was not aware whether the journalists

       9   were killed before or after the attack.

      10            MR. SCHMIDT:  Your Honor.

      11            THE COURT:  Let me ask you this question.  Do you

      12   have further questioning along these lines?

      13            MR. SCHMIDT:  As to the Abdi House.

      14            THE COURT:  As to the Abdi House.

      15            MR. SCHMIDT:  I'm done.  The only thing that I want

      16   to elicit through this witness, whether I request the

      17   introduction of the helicopter pilot in the Abdi House who saw

      18   one of the journalists running away after the attack who was

      19   very alive and explained how that journalist died, I'll do

      20   that.  I don't want to do that.  I don't want to make this

      21   into a circus.  All I want is the jury now to know what is

      22   undisputed.  The death of the journalists came after the Abdi

      23   House period.

      24            THE COURT:  But this witness doesn't know that.  This

      25   witness has already said --

                                                                    4425

       1            MR. SCHMIDT:  I'll do it another way if the

       2   government doesn't want to, but the jury is left that way, so

       3   I will do it, I will do it then another way, your Honor.

       4            THE COURT:  He can't answer that.

       5            MR. SCHMIDT:  If the government doesn't want to clear

       6   this issue now I will have produce another witness and I'm not

       7   sure where I'm going to get it.  I did not -- he left that

       8   question from that witness he put it in on his own.  It was

       9   not responsive to my answer.  I don't think that the

      10   government should try to protect them to allow misleading

      11   information in front of the jury.

      12            THE COURT:  Why do you keep attributing this to the

      13   government?  The objection was raised by codefendant.

      14            MR. SCHMIDT:  Your Honor, this is not simply a former

      15   Captain, your Honor.  This is an experienced FBI agent.

      16            MR. FITZGERALD:  Mr. Schmidt asked what happened on a

      17   different continent he was not present for and then is shocked

      18   when he doesn't get the answer he wants.

      19            THE COURT:  All right.  Let's cool it.  Let's cool

      20   it.  Mr. Wilford.

      21            MR. WILFORD:  Your Honor, we're simply seeking a

      22   ruling from the Court on my motion to strike.

      23            THE COURT:  Just very specifically what is it that

      24   you wanted?

      25            MR. WILFORD:  Everything after the witness said he

                                                                    4426

       1   was aware of the Abdi House incident.  He answered yes.

       2   Everything after that should be stricken.

       3            THE COURT:  That includes was he aware that the rules

       4   of engagement differed as a result of that Abdi House.

       5            MR. WILFORD:  Yes.

       6            THE COURT:  You want that stricken.  Do you want to

       7   have everything after that stricken?

       8            MR. WILFORD:  Everything after it stricken.

       9            THE COURT:  Does the government object to that being

      10   stricken?

      11            MR. FITZGERALD:  No, Judge.  I don't object to

      12   striking all his Abdi House testimony as hearsay.  He's not

      13   competent to give it.

      14            THE COURT:  The question, were you aware of you know

      15   is technically not hearsay.  I know that Mr. Schmidt is

      16   utilizing that device to avoid --

      17            Do you object, Mr. Schmidt, to the striking of

      18   everything after the question relating to the change of rules

      19   of engagement as a result of Abdi House?  Do you object to

      20   that being stricken?

      21            MR. SCHMIDT:  I'm thinking, your Honor.

      22            THE COURT:  I understand.

      23            MR. SCHMIDT:  I would, I don't object to being

      24   stricken after he said, he does not know.

      25            MR. FITZGERALD:  Judge, he only said that.

                                                                    4427

       1            THE COURT:  But that gets a question in.  There is

       2   really no evidentiary value in what he does not know about an

       3   incident that took place prior to his arrival.  Consensus.  We

       4   will strike everything after the question relating to rules of

       5   engagement and Abdi House.  We'll do that when the jury

       6   returns, and I understand you have no further questions on

       7   that subject.

       8            MR. SCHMIDT:  On that subject I have no further ones.

       9            THE COURT:  Very well.  We'll take a three-minute

      10   recession.

      11            (Recess)

      12            (In open court; jury not present.

      13            THE COURT:  Let's be seated.

      14            MR. SCHMIDT:  Your Honor, one point I want to make as

      15   a result of actually the last discussion.  On page 3500

      16   material, SLM slash 3-3 the question asked to, I'm not sure

      17   who was asking, was, when you were deployed over there what

      18   idea were you given of the degree of threat that was opposing

      19   US aircraft?

      20            THE COURT:  Yes.

      21            MR. SCHMIDT:  Those answers there would not only have

      22   allowed me to cross-examine this witness more intelligently,

      23   more limitedly, but also challenging him if he denies

      24   something that is indicated in his cross-examination.

      25            THE COURT:  You asked, were you aware of the previous

                                                                    4428

       1   attack and some reference to Abdi House and aware of the

       2   Somali action and the answer is yes.  Were you aware of the

       3   helicopters were in grave danger as a result of the reaction

       4   to the Abdi House attack?  And he said it was more of a

       5   target, and then he went into his awareness of the media

       6   reaction. He made very clear.

       7            What is it that you think that you did not ask that

       8   you might have asked him which would not have prompted the

       9   objections similar to the one received with respect to the

      10   question which you did ask?

      11            MR. SCHMIDT:  Judge, I'm asking a question which to

      12   some extent defense attorneys should not do, because I don't

      13   know the answer.  This would have given me the answer of what

      14   he knew the threat was.  I don't know what's in there.  I

      15   don't know.

      16            THE COURT:  What he knew the threat was, you mean

      17   awareness of a threat other than being shot down by hostile

      18   Somalis?

      19            MR. SCHMIDT:  The basis of believing that the threat

      20   of being shot down.

      21            THE COURT:  You asked that question and you got the

      22   answer.

      23            MR. SCHMIDT:  I don't know I got the answer he gave

      24   in the 3500 material.

      25            MR. FITZGERALD:  For the record, your Honor, the

                                                                    4429

       1   statement he's referring to that are redacted are not

       2   statements of Yacone.  This was a group interview.  There is

       3   no -- so whatever is redacted not a statement of the witness.

       4            THE COURT:  Let's bring in the jury.  The witness may

       5   resume the stand.

       6            MR. FITZGERALD:  My fear that Mr. Schmidt may be

       7   asking questions purportedly not for Mr. Yacone's state of

       8   mind but to try to get other information before the jury,

       9   other casualties.

      10            THE COURT:  I will not permit that.  I gave Mr.

      11   Schmidt greater latitude than I would normally do, because I'm

      12   aware of problems he has experienced with respect to witnesses

      13   that were disclosed to the Court ex-parte, but I think the

      14   objection that has been made on behalf of Odeh is well taken,

      15   and there is unanimity to striking this, and Mr. Schmidt

      16   advises he has no further questions along those lines.

      17            The witness may resume the stand.  Another matter.

      18   The interpreters are having great difficulty hearing defense

      19   attorneys except for Mr. Schmidt.  Probably the speaker in

      20   front of Mr. Wilford and Mr. Ricco, and Mr. Cohn and

      21   Mr. Ruhnke are not functioning well.

      22            MR. COHN:  Your Honor, this is a constant sort of

      23   balancing.  The problem is that speakers get to be very

      24   sensitive and then when we speak privately it gets overheard.

      25   So it is constantly either turning them off or moving them

                                                                    4430

       1   away and I think it is important.  I don't know.  We've been

       2   trying to balance that.  I don't know how we do it.

       3            MR. RICCO:  We'll speak louder when we address the

       4   Court, your Honor.

       5            THE COURT:  Not too loud.

       6            (Continued on next page)

       7

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      14

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                                                                    4431

       1            (Jury present)

       2            THE COURT:  I am aware that it is quite cool, and we

       3   have asked the building to reduce the air conditioning while

       4   you're here, and to turn it up.  You want if off?

       5            JUROR NO. 2:  This is perfect.

       6            THE COURT:  Right now they have turned it down.

       7   People seem to be shivering I think not as a result of

       8   testimony but because it's actually cold.

       9            The Court strikes, which means put it out of your

      10   mind and disregard, the series of questions asked by Mr.

      11   Schmidt which began with a reference to rules of engagement,

      12   and what he knew of events that took place prior to his

      13   arrival in Somalia.

      14            MR. SCHMIDT:  Your Honor, that's not my

      15   understanding, your Honor, of the agreement.

      16            THE COURT:  I'm trying to instruct the jury without

      17   repeating all the testimony which there was unanimous

      18   understanding should be stricken, and it began with a

      19   question:  Were you aware that rules of engagement were

      20   different as a result of the Abdi House event?  That's from

      21   that point to the time prior to the recess is stricken.

      22            Mr. Schmidt you may continue.

      23            MR. SCHMIDT:  Thank you, your Honor.

      24   Q.  Agent Yacone, were you aware of any United States

      25   casualties during the period that you were there that occurred

                                                                    4432

       1   outside the Mogadishu area?

       2   A.  No.

       3   Q.  When we talk about Aideed and militia, we're not talking

       4   about a full-fledged Army, are we?

       5   A.  I don't know how you would describe, I mean a militia.

       6   They were pretty well organized.  There were enemy clan, you

       7   know, was another way of describing them.  And they did have a

       8   rank structure, so, yeah, they were.

       9   Q.  They were a fairly well organized clan militia that

      10   approached being an Army?

      11   A.  I think that's a fair description.

      12   Q.  However, the communication during -- withdrawn.

      13            How did you communicate with your superiors and other

      14   people under you during battle?

      15   A.  We had radios in the aircraft and each member, I shouldn't

      16   say each member, most of the commanders and leaders on the

      17   ground had radios with them to communicate back and forth

      18   between the aircraft and each other.

      19   Q.  So the Somalis on the ground that you were fighting were

      20   communicating often by banging garbage cans, didn't they?

      21   A.  That was one method and means.  Again, we observed them

      22   using radios continuously while they had us under surveillance

      23   at the airfield.  So they definitely had radios.  They also

      24   burned tires as kind of a signal to rally the troops and bring

      25   everybody towards the battle.

                                                                    4433

       1   Q.  So to contact other people to help in the battle a fire in

       2   a location would draw the people?

       3   A.  That was one method or means they used.

       4   Q.  When you said that you saw radios, you're talking now

       5   about the Somalis who were watching over the base and seeing

       6   what was going on at the base; is that right?

       7   A.  They were outside of the base on the perimeter of the

       8   airfield, up on rooftops.

       9   Q.  Those are the Somalis that you are talking about that at

      10   times you saw radios?

      11   A.  Yes.

      12   Q.  But on October 3rd and October 4th the means of

      13   communication were fires and garbage cans, right?

      14   A.  Those were two methods that I was aware of.  I'm sure they

      15   were using radios, but I don't recall ever seeing people with

      16   hand held radios on the ground.

      17   Q.  Did you ever learn of the number of rounds of ammunition

      18   that was fired by the Americans in Mogadishu on October 3rd

      19   and October 4th?

      20   A.  The total quantity or total number of rounds?  No.

      21   Q.  Who is the commanding officer?

      22   A.  General William Garrison.

      23   Q.  Did you ever hear General Garrison say that --

      24            THE COURT:  I am going to be sustain the objection

      25   that's about to be made.

                                                                    4434

       1            MR. SCHMIDT:  I have no further questions with this

       2   witness.

       3            THE COURT:  Mr. Wilford.

       4            MR. WILFORD:  Yes, your Honor, thank you.

       5            THE COURT:  On behalf of defendant Odeh.

       6            (Continued on next page)

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      25

                                                                    4435

       1   CROSS-EXAMINATION

       2   BY MR. WILFORD:

       3   Q.  Good afternoon, Agent Yacone.

       4   A.  Good afternoon.

       5   Q.  Did I pronounce your name correctly?

       6   A.  Yes, you did.

       7   Q.  How are you doing today, sir?

       8   A.  Pretty good.

       9   Q.  Now, on August -- or, withdrawn.  In August of 1993, you

      10   went to Somalia; is that correct?

      11   A.  Correct.

      12   Q.  As a member of the United States Army?

      13   A.  Correct.

      14   Q.  As a captain in the United States Army; is that correct?

      15   A.  That is correct.

      16   Q.  And you went there with a -- not just you, but the United

      17   States Army went there with a specific purpose; isn't that

      18   correct?

      19   A.  Correct.

      20   Q.  As a matter of fact, during the time that you went to

      21   Somalia, there was a lot of chaos in Somalia, isn't that

      22   correct?

      23   A.  Yes.

      24   Q.  As a matter of fact, the forces of Aideed, this person

      25   that you wanted to arrest on October 3, was in fact preventing

                                                                    4436

       1   other Somalians from receiving food, isn't that correct?

       2   A.  Members of his clan, they were intercepting U.N. convoys

       3   and, correct, and preventing the logistical movement of food

       4   and supplies to the starving Somalis.

       5   Q.  And it wasn't just members of his clan, they were doing it

       6   at his behest, correct?

       7   A.  That's what it appeared to be, but again, I have no

       8   knowledge, personal knowledge, of how his organization was

       9   run.  But, yes, that's what we were being told.

      10   Q.  You didn't speak to him directly and say, "Hey, Aideed,

      11   are you stealing the stuff or not," right?

      12   A.  Right.

      13   Q.  But it appeared that they were taking it and selling it or

      14   doing something other than allowing people who were starving

      15   to eat; isn't that correct?

      16   A.  That is correct.

      17   Q.  Now, you went into Somalia in your capacity as soldier; is

      18   that correct?

      19   A.  Yes.

      20   Q.  And you went in after having been trained as a soldier;

      21   isn't that correct?

      22   A.  Yes.

      23   Q.  You were trained, prior to your training in aviation, in

      24   other areas as a soldier; isn't that correct?

      25   A.  Yes.

                                                                    4437

       1   Q.  And at some point you got trained as an aviator and you

       2   became a helicopter pilot; isn't that correct?

       3   A.  Correct.

       4   Q.  And you had training in flying helicopters prior to going

       5   to Somalia; isn't that correct?

       6   A.  Yes.

       7   Q.  And you were trained in using ammunition; isn't that

       8   correct?

       9   A.  Yes.

      10   Q.  You were trained in using ammunition on the ground; is

      11   that correct?

      12   A.  Yes.

      13   Q.  And also using ammunition from your helicopter; isn't that

      14   correct?

      15   A.  Correct.

      16   Q.  Now, you were also trained in how to defend yourself from

      17   attack; isn't that correct?

      18   A.  Correct.

      19   Q.  That's part of what you have called your ROE, or rules of

      20   engagement; isn't that correct?

      21   A.  Correct.

      22   Q.  Now, you also were trained in how to defend others; isn't

      23   that correct, sir?

      24   A.  Correct.

      25   Q.  As a matter of fact, that was your main purpose in being

                                                                    4438

       1   in Somalia, was to defend other people; is that correct?

       2   A.  Are you talking about me as an aviator, what my mission

       3   was?

       4   Q.  Well, okay.

       5   A.  My mission as an aviator, again, on that particular day

       6   was to bring in the ground force, insert them, and then

       7   provide close air cover and fire support for the ground force

       8   so that they could achieve their objective, which was to

       9   detain or go after and grab people that we were interested in

      10   in Aideed's clan.

      11   Q.  Aideed and the upper echelon of his clan; isn't that

      12   correct?

      13   A.  That's correct.

      14   Q.  And that was in the belief that if you got Aideed and the

      15   upper echelon of his clan off the streets of Mogadishu, the

      16   rest of the people in Somalia would have an opportunity to

      17   eat?

      18   A.  Correct.

      19   Q.  They would get some of that food that the United Nations

      20   was bringing in?

      21   A.  Correct.

      22   Q.  That some of the chaos would be reduced?

      23   A.  Yes.

      24   Q.  You were also trained, sir, were you not, in urban

      25   warfare?

                                                                    4439

       1   A.  Yes.

       2   Q.  Now, as a soldier when you are in training, you try to get

       3   prepared for whatever may come up; isn't that correct?

       4   A.  Yes.

       5   Q.  Now, you can't know what's going to come up, right?

       6   A.  Correct.

       7   Q.  For instance, when you got shot down, you didn't know

       8   whether or not you would be able to make it to where you

       9   landed or not; is that correct?

      10   A.  Correct.

      11   Q.  But your training kicked in, right?

      12   A.  Yes.

      13   Q.  Your training enabled you to think your way through that

      14   situation and make the landing at the coastline of Somalia;

      15   isn't that correct?

      16   A.  Training and a lot of luck.

      17   Q.  Well, without that, we would all be lost, right?

      18   A.  That's correct.

      19   Q.  Now, sir, you were trained for how long in urban warfare

      20   before you arrived in Mogadishu?

      21   A.  I think as a soldier, the urban environment, you know, you

      22   continuously train or at least talk about training in the

      23   urban environment.  Now, when I became of the 160th, we tried

      24   to again do it annually, at least a couple times a year try to

      25   get to an urban area and try in that environment.  So a couple

                                                                    4440

       1   times a year for the preceding three years.

       2   Q.  And that urban warfare training had absolutely nothing to

       3   do with your mission in Mogadishu, did it?

       4   A.  Correct.

       5   Q.  Now, sir, I want to talk for a moment, if I might, about

       6   Somalia, just looking at the Country of Somalia, if we could.

       7            MR. WILFORD:  Mr. Keneally, I need to have the

       8   defense tuned in on the system, on the technology system.

       9   Q.  Would you take a look at your screen.

      10            MR. WILFORD:  Your Honor, there is an agreement

      11   between the government and Mr. Odeh that this can go into

      12   evidence as Odeh A, as in Adam, 5.

      13            MR. FITZGERALD:  That's correct, Judge.

      14            THE COURT:  A5.  And this is a map of Somalia?

      15            MR. WILFORD:  Yes.

      16            THE COURT:  It is received.

      17            (Defendant Odeh Exhibit A5 received in evidence)

      18   BY MR. WILFORD:

      19   Q.  Would you be kind enough, Captain -- I'm sorry, Agent

      20   Yacone, to look at the map of Somalia, and could you indicate

      21   where it was that you landed on the coastline when your

      22   helicopter was shot down?

      23   A.  The map's really too large of a scale, but where you see

      24   Mogadishu.

      25   Q.  In that general vicinity?

                                                                    4441

       1   A.  Correct, right near the coast.

       2   Q.  And when you said that you were a little bit south of

       3   Mogadishu on some other occasions, it was basically in that

       4   general area; isn't that correct?

       5   A.  Yes.

       6   Q.  You weren't 600 kilometers away, were you?

       7   A.  No, we were maybe ten miles, fifteen miles.

       8   Q.  Maximum?

       9   A.  Yes, that's correct.

      10   Q.  And would that be in a ten-mile radius around Mogadishu?

      11   A.  Yes.

      12   Q.  So your whole time that you were in Somalia, you never

      13   went to the north or to the south?

      14   A.  To the best of my recollection, no.  I mean, not more

      15   than, you know, ten, fifteen miles away from the city.

      16   Q.  The reason that you never went anywhere else is because

      17   that's where Aideed was and that was the person that you

      18   wanted to arrest, not you personally, but the United States

      19   and the United Nations?

      20   A.  And that's where I don't necessarily know that Aideed was,

      21   but that's where the majority of his clan was and the strong

      22   hold of his clan, the important members.

      23   Q.  Now, when you talked about, on your direct examination and

      24   in your prior cross-examination, I believe you mentioned that

      25   you had six prior operations?

                                                                    4442

       1   A.  Yes.

       2   Q.  During those other operations did you in fact have an

       3   opportunity or need to discharge any of your weapons from the

       4   helicopter?

       5   A.  Yes.  Very limited, but yes.

       6   Q.  Do you know whether or not, as a result of the discharge

       7   of your weapons from the helicopter, any people on the ground

       8   died, any Somalians died?

       9   A.  I believe, I believe so.  Again, we were -- the one

      10   particular instance that I recall is we were essentially

      11   trying to break contact.  We were being fired upon, we fired

      12   back and continued on.  We were -- it was during the

      13   exfiltration or the carrying out of the ground force and the

      14   ground force and the ground convoy engaged where the enemy

      15   fire was coming from as well.  So I'm not sure the effects of

      16   our fires.

      17   Q.  But you do know that as a result of the engagement on

      18   October 3rd and October 4th, 500 Somalians died and at least

      19   1,000 were injured; is that correct?

      20   A.  That was a Red Cross number that was furnished to us after

      21   the battle.

      22   Q.  Now, you mentioned some terms that I'm really not familiar

      23   with.  I wanted to, just if you could clarify them.

      24            You said that during the course of your hovering over

      25   crash site number one, I believe, there was some targets that

                                                                    4443

       1   needed to be engaged.  What does that mean, targets?

       2   A.  Essentially what would happen is we would observe somebody

       3   with a weapon shooting at our soldiers or shooting at the

       4   aircraft and we would -- the door gunners would engage them

       5   with the door guns.

       6   Q.  They would try to shoot them?

       7   A.  Yes.

       8   Q.  Now, sir, when you observed these people shooting at your

       9   soldiers, were they shooting light weapons?  Were they

      10   shooting RPGs only?  What were they shooting?

      11   A.  The majority, we saw AK-47s, RPGs, other more antiquated

      12   sub-machine guns, Soviet variants.  That's about it.

      13            THE COURT:  That's, the people you observed on the

      14   ground were using those weapons?

      15            THE WITNESS:  That's correct.

      16            THE COURT:  Was that your question?

      17            MR. WILFORD:  Yes.

      18   Q.  And they were shooting, the observation you made from the

      19   helicopter was people on the ground were shooting at other

      20   U.S. troops on the ground with those weapons; is that correct?

      21   A.  They were shooting at U.S. troops, they were shooting at

      22   my aircraft, my wing man.

      23   Q.  So the fire that was being presented towards your

      24   helicopter was both RPG and other weapons?

      25   A.  Yes.

                                                                    4444

       1   Q.  Light weapons?

       2   A.  Yes.  There was, also, later on that evening with the use

       3   of night vision goggles we had seen heavy tracers from what

       4   appeared to be a much larger weapon, which was some sort of an

       5   anti-aircraft weapon that we didn't realize was operational

       6   during the day, but at night we could see the tracers and knew

       7   it was something a lot greater than a AK-47.

       8   Q.  By the way, is it correct that your operation on October 3

       9   started around 4:00, 3:00 or 4:00 in the afternoon?

      10   A.  About 3:30.

      11   Q.  And, sir, you mention that there was shrapnel that came

      12   out of these RPGs that were exploding near and around your

      13   helicopter; is that correct?

      14   A.  Correct.

      15   Q.  Do you have any idea, sir, how close you would have to be

      16   to the location of the RPG explosion for the shrapnel to hit?

      17   A.  I think that would depend on what it impacted upon.  If it

      18   was an air burst up in the sky, you know, you could be

      19   probably 50 meters away and still receive effects of the

      20   shrapnel being disbursed by the explosion.

      21   Q.  50 meters?

      22   A.  Well, it depends on where it explodes, but again, if it's

      23   hitting a wall and you're in a building, it would be a lot

      24   closer.  15 meters, 10 meters.

      25   Q.  And, sir, you also mentioned that you saw collapsed

                                                                    4445

       1   buildings while you were hovering between crash site one and

       2   crash site two; is that correct?

       3   A.  The collapsed buildings I think you are referring to is

       4   the one where Supersix 4, the second aircraft, crashed on top

       5   of.

       6   Q.  So there weren't other buildings that had collapsed during

       7   the course of your time period in Mogadishu as a result of any

       8   kind of fire from helicopters or from people on the ground?

       9   A.  Not to my recollection, no.

      10   Q.  Now, would it be a fair statement that the number of RPGs

      11   on the ground at Mogadishu were about as common as dust mops?

      12   A.  I think I know the document you are referring to.  They

      13   were fairly common, yes, that is a true statement.

      14   Q.  Would it also be fair that it appeared as though every

      15   other person had an AK-47?

      16   A.  Correct.

      17   Q.  So basically this is a situation where a lot of people

      18   were walking around with some artillary?

      19   A.  With weapons, yes.

      20   Q.  I'm sorry, as a military -- some weapons?

      21   A.  Right.

      22   Q.  Not cannons, but weapons.

      23            Now, it's also fair to say, then, that in Mogadishu

      24   there was a high concentration of weapons that were readily

      25   available for purchase or acquisition?

                                                                    4446

       1   A.  The intelligence that we had prior to 3 October didn't

       2   indicate that we would see the amount of weapons and certainly

       3   RPGs that we saw on 3 October.  In other words, we had no idea

       4   that we were going to see that volume of fire come from the

       5   enemy.  That was my understanding from the intelligence

       6   briefings that we received pretty much on a daily basis.

       7            So I think we were pretty much surprised at the

       8   volume of fire that they brought to bear on 3 October.

       9   Q.  And would it be fair to say, sir, that the intelligence

      10   that you were aware of was that the weapons had been provided

      11   by both the Russians and Americans during their support of the

      12   prior regime of Siyad Barre?

      13   A.  No.  I'm not aware of that.

      14   Q.  Sir, I just have a couple more questions.

      15            So on October 3rd, 1993, your specific mission was to

      16   arrest Aideed and/or members of his clan who were supposed to

      17   be present at a particular location; is that correct?

      18   A.  Correct.

      19   Q.  And that was in response not only to the U.N. warrant, but

      20   also in response to fatal ambushes that had been conducted by

      21   members of his clan against United Nations personnel; isn't

      22   that correct?

      23   A.  Correct.

      24   Q.  Now, sir, because of your efforts on October 3 and October

      25   4, 1996, you were decorated; isn't that correct?

                                                                    4447

       1   A.  Correct.

       2   Q.  And, sir, do you know the date specific on or about when

       3   the United Nations and the United States troops pulled out of

       4   Somalia?

       5   A.  Not the exact date, but it was within months after we left

       6   in October.  They started the withdrawal and it took a period

       7   of time but they started the withdrawal within months of us

       8   leaving in October.

       9   Q.  So it would be fair to say, as far as you knew, in 1997

      10   there were no U.S. troops in Somalia; is that correct, as far

      11   as you know?

      12   A.  As far as I know, you're correct.  I have no knowledge of

      13   what troops were over there.  I was in the FBI in '95.

      14   Q.  In 1995 there were no U.S. troops in Somalia; is that

      15   correct?

      16   A.  I'm not --

      17   Q.  As far as you know.

      18   A.  I'm not sure.

      19   Q.  Unless you were involved in some sort of covert operation,

      20   you wouldn't know of any?

      21   A.  I didn't know of any.

      22            MR. WILFORD:  Thank you very much.  No further

      23   questions.

      24            THE COURT:  Mr. Cohn, on behalf of Defendant

      25   Al-'Owhali.

                                                                    4448

       1   CROSS-EXAMINATION

       2   BY MR. COHN:

       3   Q.  Now, these Somali casualties that you referred to, 500

       4   dead and a thousand wounded which was the estimate or the

       5   number reported by the Red Cross, right?

       6   A.  Correct.

       7   Q.  Do you know whether or not any of the dead or wounded were

       8   noncombatants?

       9   A.  I have no knowledge.

      10   Q.  Well, Mogadishu is a city of about a million and a half

      11   people, right?

      12   A.  Correct.

      13   Q.  And fairly crowded conditions?

      14   A.  Yes.

      15   Q.  And in fact, at one time you referred to it as an armed

      16   city; is that right?

      17   A.  Say again.

      18   Q.  You have referred to it in your own words as an armed

      19   city, have you not?

      20   A.  Yes.

      21   Q.  And in fact, the words that Mr. Wilford used, "common as

      22   dust mops," were your words in a debriefing that you had,

      23   correct?

      24   A.  Not correct.

      25   Q.  Not correct?

                                                                    4449

       1   A.  I think that was one of the crew member's that was being

       2   interviewed with me from my crew.

       3   Q.  Pardon?

       4   A.  That was one of the other crew members of my crew that was

       5   being interviewed during that time.

       6   Q.  I see.  It's not your interview?

       7   A.  That is correct.

       8   Q.  Were you present while he was being interviewed?

       9   A.  Yes, I was.

      10   Q.  You didn't object to his use of the terms, did you?

      11   A.  I don't know that I understood his analogy.

      12   Q.  Well, you knew "as common as dust mops" was sort of a

      13   derogatory kind of --

      14            MR. FITZGERALD:  Objection.

      15            THE COURT:  Sustained.

      16   Q.  In any event, crowded city, armed city, and the weaponry

      17   that the -- your contingent, the U.S. Army contingent, was

      18   using could be characterized as weapons that were effective at

      19   reasonably long-range, is that not true?

      20   A.  Yes, but we traditionally used close ranges to engage the

      21   enemy.

      22   Q.  Well, I mean, and when the Blackhawks were up, were the

      23   lights of surveillance helicopters also up?

      24   A.  Yes, there were.  They were at a much higher altitude than

      25   we were.

                                                                    4450

       1   Q.  And they are in fact equipped with something called a mini

       2   gun, aren't they?

       3   A.  Yes.

       4   Q.  And a mini gun fires 6,000 rounds per minute, does it not?

       5   A.  No.

       6   Q.  How many rounds per minute does it --

       7   A.  2,000 on low rate and 4,000 rounds a minute on high rate.

       8   Q.  Okay.  It's a lot of bullets, right?

       9   A.  Yes, it is.

      10   Q.  They're large bullets; they're rifle rounds, right?

      11   A.  Correct.

      12   Q.  And at that rate of fire, pinpoint accuracy is not a high

      13   priority, is it?

      14   A.  It's definitely a priority.

      15   Q.  I said a high priority.

      16   A.  Absolutely.  It's a high priority whenever you are

      17   engaging somebody.

      18   Q.  So these were accurate weapons that you would point at one

      19   person and shoot 2,000 rounds into what's left of that person

      20   after half a second?

      21   A.  Well, again, you're not shooting for a minute continuous,

      22   but that is an area suppression weapon, you are correct, but

      23   you can use it and minimize the effects of the fire with a

      24   short burst.

      25   Q.  And with an area suppression weapon sometimes it's not

                                                                    4451

       1   easy to tell when you use it who are the friendlies and who

       2   are the not friendlies, is it?

       3   A.  No, that's not correct.

       4   Q.  You can always tell?

       5   A.  We were flying at altitudes that we could tell.

       6   Q.  Well, they were above you, right, the helicopters with the

       7   mini guns?  They were up higher?

       8   A.  The mini birds, no, not necessarily.  We tried to

       9   deconflict air space and they would stay in an orbit outside

      10   of the Blackhawks and a little bit above us.  But again, to

      11   make an engagement, they would do a gun run and they would,

      12   you know, maneuver the aircraft and dive it down and engage

      13   the enemy after a positive identification of what they were

      14   shooting at.

      15   Q.  You will agree with me, will you not, that in the heat of

      16   the moment, using the weaponry that was being used, that it

      17   was likely that noncombatants were killed or wounded, isn't

      18   that true?

      19   A.  I would say that, yes.  It was not likely, but I'm sure

      20   that there were a few noncombatants that were definitely --

      21   Q.  It's a risk that was assessed by command and deemed --

      22            MR. FITZGERALD:  Objection, your Honor.

      23   Q.  -- acceptable?

      24            THE COURT:  Ask him whether he knows.

      25   Q.  Do you know if this was a risk that would normally be

                                                                    4452

       1   assessed by command?

       2   A.  Absolutely.  Command --

       3   Q.  That's why you have rules of engagement, right?

       4   A.  Sure.

       5   Q.  Because you don't want innocent people hurt if it's not

       6   necessary, right?

       7   A.  That's absolutely correct.

       8   Q.  But sometimes one takes a look at the risks, sees what the

       9   mission is, and accepts the risk, right?

      10   A.  Civilian casualties are not acceptable, but unfortunately

      11   they sometimes happen.

      12   Q.  Sometimes?

      13   A.  Is that what you are saying?

      14   Q.  I'm asking.  I don't say anything, sir.  Asking.

      15   A.  To kind of summarize exactly what happened, after 30 or 40

      16   minutes or longer over the objective area, as battle is raging

      17   on, people coming towards the fight are obviously coming

      18   towards the fight for a reason.  People --

      19   Q.  Curiosity could be one of them, couldn't it?

      20            MR. FITZGERALD:  Objection, your Honor.  Can he

      21   finish the answer?

      22            THE COURT:  Yes.  Sustained.

      23   A.  If you are asking me if I'm aware of any civilian

      24   casualties that were sustained, I'm not directly aware of -- I

      25   can assume that I'm sure there were.  Of that 500 that were

                                                                    4453

       1   killed, were there some innocent civilians?  Possibly, but I

       2   don't have direct knowledge of it.

       3   Q.  Have you ever considered the question before this day?

       4   A.  Sure.

       5   Q.  Do you know whether any of the people who were killed were

       6   women or children?

       7   A.  I know in fact that, you know, we saw women as ammo

       8   bearers serve --

       9   Q.  Sir, can you just answer the question.

      10            MR. FITZGERALD:  Objection.

      11   A.  I'm answering the question.

      12            MR. COHN:  Your Honor, would you instruct the witness

      13   to answer the question.

      14   A.  I'm about to.

      15            MR. COHN:  The question was phrased in a way --

      16            THE COURT:  You want to withdraw the question?

      17            MR. COHN:  No, I want an answer to it, which says, do

      18   you know whether or not there were women or children killed.

      19            THE COURT:  You may answer that question yes or no.

      20   Just yes or no.

      21   A.  Yes.

      22   Q.  And were there women and children killed?

      23   A.  Yes.

      24            MR. COHN:  Thank you.

      25            THE COURT:  Anything further from defendants?

                                                                    4454

       1            Redirect.

       2            MR. FITZGERALD:  Yes, Judge.

       3   REDIRECT EXAMINATION

       4   BY MR. FITZGERALD:

       5   Q.  On that last question, Agent Yacone.  Did you see any of

       6   the women engaging in hostile action at the U.S. troops?

       7   A.  Yes, absolutely, that was what I was alluding to was my

       8   aircraft, we engaged a couple women that were involved in

       9   resupplying rocket propeller grenades who were fed to a guy

      10   that was shooting RPGs.  So they were acting as ammo bearers.

      11   They were also carrying weapons and shooting and it was not

      12   uncommon to see a hostile, you know, male have a

      13   woman in front of him kind of as a human shield and,

      14   you know, engage the enemy or engage friendly troops

      15   or the aircraft.

      16   Q.  And do the women appear to be willing shields when they do

      17   this?

      18            MR. COHN:  Objection.

      19            I'm sorry, can I have the question again?

      20            THE COURT:  Excuse me?

      21            MR. COHN:  Did they?

      22            THE COURT:  Could you repeat the question?

      23   Q.  Did the women appear to be shields against their will,

      24   carrying ammo against their will?

      25            MR. COHN:  Objection.

                                                                    4455

       1            THE COURT:  You can answer.

       2   A.  I can talk about my one engagement that I'm --

       3            MR. SCHMIDT:  Your Honor, there's an objection.

       4            MR. COHN:  We need --

       5            THE COURT:  The objection to the question, did the

       6   women appear to be --

       7            MR. COHN:  Willing shields, yes, I objected to that.

       8            THE COURT:  Well, were you able to see whether that

       9   was the occasion or not?

      10            MR. COHN:  Your Honor, that calls for the operation

      11   of somebody else's mind.

      12            THE COURT:  No.  No.

      13            Were you able to see?

      14            THE WITNESS:  The women that, or the one or -- the

      15   one instance that I'm specifically speaking of, your Honor?

      16            THE COURT:  Yes.

      17            THE WITNESS:  The woman was carrying rocket propeller

      18   warfare.  She was involved in resupplying warfare and she was

      19   participating, she looked like a wilful participant of what

      20   was going on.

      21            MR. COHN:  Your Honor, it was not responsive to the

      22   question.  It's about being a human shield.

      23            MR. FITZGERALD:  I object to Mr. Cohn's remarks.

      24            THE COURT:  Objection is overruled.

      25   Q.  Now, sir, do you know if any of the Somali participants

                                                                    4456

       1   killed any innocent bystanders when they were shooting?

       2   A.  Again, I can only assume that happened, but I have no

       3   personal knowledge.  I didn't witness it.

       4   Q.  Now, you were asked questions by Mr. Wilford about whether

       5   or not there were attacks by Aideed involving ambushes

       6   separate and apart from October 3, 1993.  Do you recall those

       7   questions?

       8   A.  Yes.

       9            MR. SCHMIDT:  Objection.

      10   Q.  Were there also attacks on U.S. troops involving land

      11   mines?

      12            MR. SCHMIDT:  Objection, your Honor.  This was not

      13   covered in cross-examination, either one of those questions.

      14            THE COURT:  Overruled.

      15   Q.  Were there also attacks by mortars?

      16   A.  Yes.

      17   Q.  Would you explain to the jury what a mortar is?

      18            MR. SCHMIDT:  Objection, your Honor.  Let's get the

      19   source of his information before he can talk about what --

      20            THE COURT:  Establish the basis of the witness.

      21   Q.  Did you yourself witness a mortar attack on which U.S.

      22   personnel was killed?

      23   A.  Yes.

      24   Q.  Tell us what happened and when.

      25   A.  Again, we were -- the airfield we were sitting on was

                                                                    4457

       1   surrounded on three sides by the City of Mogadishu where the

       2   clan operated, and commonly they would set up a mortar tube,

       3   which is maybe a three-foot tube with maybe a one-foot round.

       4   They would drop in the tube and launch a mortar tube, mortar

       5   round into the compound where they were staying, against the

       6   aircraft, against the personnel that were staying at the

       7   forward support base.  And that would generally happen after

       8   the hours of darkness where they could hide in the city.  They

       9   could drop a couple mortars, pick up the tube and move and get

      10   away from the area where they just shot from.

      11            On a few days after 3 October, we had sustained

      12   mortar attacks, probably every two or three days we would get

      13   mortared, and on 5 or 6 October we had our first casualty.  A

      14   guy named Matt Rierson was killed from a mortar round and 16

      15   other people in our contingents were injured.

      16   Q.  And how do you know this?

      17   A.  I was sitting maybe 50 to 100 feet away from where the

      18   round went off.

      19   Q.  Do you know the identities of the persons who carried out

      20   the ambushes, the land mine attacks or the mortar attacks?

      21   A.  No.

      22   Q.  And do you know of the identities or nationality of the

      23   people who carried out these attacks or trained people to

      24   carry out these attacks?

      25   A.  Well, I know from the intelligence --

                                                                    4458

       1            MR. WILFORD:  Objection.

       2            THE COURT:  The answer is yes.  Now ask another

       3   question.

       4   A.  Yes.

       5   Q.  Mr. Wilford asked you whether or not Aideed's clan had

       6   carried out ambushes against the U.S. troops.  Do you know for

       7   a fact one way or the other who it was that was training these

       8   people how to do this?

       9            MR. WILFORD:  Objection.

      10            THE COURT:  Overruled.

      11   A.  Can you rephrase the question?

      12   Q.  My question to you, do you know if the people who trained

      13   the persons who carried out their attacks, do you know if they

      14   are from Aideed's clan or someone else, if you know?

      15   A.  We were not aware of, but we had received intelligence --

      16            MR. SCHMIDT:  Objection, your Honor.

      17   A.  -- reports --

      18            MR. SCHMIDT:  Objection.

      19            THE COURT:  Overruled.

      20   A.  We had received intelligence reports that they were

      21   intercepting -- to drop a mortar round on somebody, it

      22   requires a communication between the spotter, the guy talking

      23   to the guy firing the mortar of where he wants the round to

      24   land and then actually where it lands and he adjusts the

      25   mortar round, and we were -- the U.S. was picking off radio

                                                                    4459

       1   transmissions in Arabic of the mortars being adjusted on the

       2   airfield.

       3            MR. FITZGERALD:  Nothing further, Judge.

       4            THE COURT:  Anything further of this witness?

       5            MR. SCHMIDT:  Yes.

       6   RECROSS-EXAMINATION

       7   BY MR. SCHMIDT:

       8   Q.  Do you have a copy of these intelligence reports for us to

       9   review, sir?

      10   A.  No.  We were given daily briefings while we were over

      11   there.

      12   Q.  You said that women and children were even

      13   participating --

      14            THE COURT:  I don't recall any testimony -- the

      15   jury's recollection will control.  I didn't recall anything,

      16   any reference being made to children participating.

      17            MR. SCHMIDT:  There was and it was interrupted.  I'll

      18   limit myself to women.

      19   Q.  You said that there were women involved in assisting in

      20   attacking -- or, withdrawn -- reacting to the attack by the

      21   Americans, isn't that right?

      22            MR. FITZGERALD:  Objection to form.

      23            THE COURT:  Yes, sustained.

      24   Q.  You said that there were women who were involved in

      25   reacting to the American military operation, isn't that right?

                                                                    4460

       1   A.  I was talking about the one particular engagement that my

       2   aircraft made when we spotted a woman carrying rocket

       3   propeller grenades.

       4   Q.  Now, based on your briefings, wasn't it a fact that women

       5   were not part of militias in this Muslim country?

       6            MR. FITZGERALD:  Objection, your Honor.

       7            MR. SCHMIDT:  He's allowed to talk about what his

       8   briefings are.

       9            THE COURT:  Please don't argue.

      10            Overruled.  You may answer.

      11   A.  I'm not really sure.

      12   Q.  Isn't it a fact that by October 3, as a result of the Abdi

      13   House attack and other attacks by U.N. and U.S. armed

      14   forces --

      15            THE COURT:  You are asking a question which has a

      16   causal relationship to something that occurred before this

      17   witness was here.  You want to re-think your question?

      18            MR. SCHMIDT:  No, I don't, your Honor.

      19            THE COURT:  Very well.  You may ask the question.

      20   Q.  As a result of the attacks --

      21            MR. FITZGERALD:  I object, your Honor.

      22            MR. SCHMIDT:  I'll withdraw that question.

      23   Q.  As a result of the military operations that you were aware

      24   of that occurred during the time that you were there and

      25   previous to the time that you were there, the Aideed clan and

                                                                    4461

       1   supporters were -- felt they had to defend themselves against

       2   further operations?

       3            MR. WILFORD:  Objection.

       4            MR. FITZGERALD:  Objection.

       5            THE COURT:  Mr. Wilford's objection is sustained.

       6   Q.  As to the -- I think you answered that -- withdrawn.

       7            You previously testified that the militia that the

       8   American troops were fighting appeared to be well-organized;

       9   is that right?

      10   A.  As far as the enemy clan, yes, they had a rank structure.

      11   Q.  Were you made aware in your briefings to enable you to

      12   understand your enemy that the Somali people had been at war

      13   with each other for a number of years before the U.N. and the

      14   U.S. troops arrived?

      15   A.  Yes.

      16   Q.  And that they had been fighting and killing each other

      17   during the years before the Americans had arrived?

      18   A.  Yes.

      19   Q.  And that they were doing that with AK-47s, RPGs, and other

      20   weapons?

      21   A.  Yes.

      22   Q.  And that every militia group in the Mogadishu area had a

      23   very large amount of weapons?

      24   A.  No.

      25            MR. FITZGERALD:  Objection to form.

                                                                    4462

       1   Q.  You said that there was a mortar attack on the base

       2   October 5th and 6th; is that correct?

       3   A.  It was either the 5th or the 6th.

       4   Q.  Those were the last American casualties in Somalia, isn't

       5   that right?

       6   A.  I'm not sure of that.  From my Unit Task Force Ranger that

       7   was over there, yes.

       8   Q.  When did you leave?

       9   A.  Mid to late October.

      10   Q.  When did the rest of the U.S. -- withdrawn.  The rest of

      11   the U.S. troops you testified left within months after that

      12   attack; is that correct?

      13   A.  That was when they started the withdrawal, but I'm not

      14   sure when the final American troops were pulled out.

      15   Q.  And is it fair to say you know of no other American

      16   casualty in Somalia since October 6th of 1993, is that

      17   correct?

      18   A.  I have no idea, no.

      19   Q.  It's correct that you have no knowledge?

      20   A.  That is correct.

      21   Q.  Did you remain in service after you left Somalia?

      22   A.  Yes.

      23   Q.  For how long did you remain in service?

      24   A.  I left there, again, October '93 and I got out of the army

      25   in February '95 and right into the FBI.

                                                                    4463

       1            MR. SCHMIDT:  I have no further questions of this

       2   witness.

       3            THE COURT:  Anything further of this witness?

       4            MR. WILFORD:  Yes, your Honor.

       5            THE COURT:  Mr. Wilford.

       6   RECROSS-EXAMINATION

       7   BY MR. WILFORD:

       8   Q.  Agent Yacone, while you were in Somalia, did you hear

       9   people speaking a variety of languages?

      10   A.  We really didn't interact much with the people outside the

      11   airport, so, no.  I mean, I wasn't really aware of any other

      12   languages other than, you know, the people speaking Somali.

      13   Q.  You were speaking English --

      14            I'm sorry, were you finished?

      15   A.  Again, I was going to say that I don't know that I would

      16   personally be able to differentiate between Somalian and

      17   another language.  I don't know the language that well.

      18   Q.  But you were speaking English; is that correct?

      19   A.  Correct.

      20   Q.  And you said that you had some intelligence about Arabic;

      21   is that correct?

      22   A.  That is correct.

      23   Q.  And there's also the native language of Somalia; isn't

      24   that correct?

      25   A.  Correct.

                                                                    4464

       1   Q.  So they had at least three languages that were being

       2   spoken; is that correct?

       3   A.  Yes.

       4   Q.  At least three?

       5   A.  That I was aware of.

       6   Q.  Sir, do you know that the second language in Somalia is

       7   Arabic, do you know that?

       8   A.  I didn't know that, no.

       9   Q.  Sir, you mentioned -- or, withdrawn.  You were asked some

      10   questions about training.  Remember those questions by Mr.

      11   Fitzgerald?

      12   A.  Which ones that referred to training?

      13   Q.  About Aideed's group.

      14            Well, do you remember being asked the question about

      15   who was training Aideed's group, if you knew?

      16   A.  I'm not really sure.

      17   Q.  You're not really sure if you remember the question?

      18   A.  No, I'm not really sure who was training Aideed's group.

      19   Q.  And you weren't even sure that Aideed's group was being

      20   trained by someone else, isn't that fair?

      21   A.  The reason why I remember about the Arabic intercepts of

      22   Intel being given to us was because that was thought to be

      23   unique, the fact that we were picking up Arabic, adjusting

      24   mortar rounds on us, so that led the Intel briefing to say,

      25   hey, there may be other people here training Aideed's clan.

                                                                    4465

       1   Q.  Okay.  Now, that's what Intel said, right?

       2   A.  That is correct.

       3   Q.  But you don't know for a fact and Intel didn't know for a

       4   fact whether or not the Arabic that was being spoken was being

       5   spoken by Somalians?

       6   A.  Correct.

       7   Q.  You don't know for a fact whether or not someone else, and

       8   Intel did not know for a fact whether someone else who was not

       9   Somalian was engaged in training Aideed's people; is that

      10   correct?

      11   A.  I have no knowledge of that.  I can't tell you the total

      12   extent -- I was not privy to all that the intelligence

      13   officers were aware of, but from what I was briefed, I was not

      14   aware.

      15   Q.  And there's nothing that you are aware of, sir, that is

      16   inherent in the fact of being Somalian that would prevent you

      17   from being able to speak another language, is there?

      18   A.  No.

      19   Q.  And there's nothing inherent about being Somalian that

      20   would prevent you from being able to learn how to shoot a

      21   weapon or be trained by another Somalian; is that correct?

      22   A.  Correct.

      23   Q.  Particularly around Mogadishu, is that correct, when we

      24   talk about all these weapons being available?

      25   A.  Correct.

                                                                    4466

       1            MR. WILFORD:  Thank you.  Nothing further.

       2            THE COURT:  Anything further of this witness?

       3            MR. FITZGERALD:  No, Judge.

       4            MR. COHN:  Not from me.

       5            THE COURT:  Very well, sir.  Thank you.  You may step

       6   down.

       7            (Witness excused)

       8            THE COURT:  Anything further from the government?

       9            MR. FITZGERALD:  No, Judge.

      10            THE COURT:  Government rests?

      11            MR. FITZGERALD:  Yes, Judge.

      12            THE COURT:  Government rests.

      13            Mr. Schmidt.

      14            Mr. Dratel.

      15            MR. SCHMIDT:  Your Honor, there is an application

      16   that I would like to make at this point outside of the jury.

      17            MR. WILFORD:  I'm sorry, your Honor.  I didn't hear

      18   Mr. Schmidt.

      19            THE COURT:  He has an application he wishes to make

      20   outside the jury.

      21            Can we reserve on that until after 1:00 with the same

      22   force and effect as if made at this time?

      23            MR. SCHMIDT:  Then no problem, your Honor.  Thank

      24   you.  Yes.

      25            THE COURT:  El Hage may call its next witness.

                                                                    4467

       1            MR. COHN:  Your Honor, I think we need a personal

       2   break.

       3            THE COURT:  Excuse me?

       4            MR. COHN:  We need a personal break at the defense

       5   table.

       6            THE COURT:  Personal break?

       7            MR. COHN:  I'm sorry.

       8            THE COURT:  We will take a recess at this time.

       9            (Jury not present)

      10            THE COURT:  Mr. Schmidt.

      11            MR. SCHMIDT:  Your Honor, at this time I'm moving for

      12   a mistrial.  This witness testified as to intelligence that he

      13   has given.  One, I do not believe that the door was open for

      14   him to testify as to intelligence that they heard Arabic

      15   speakers on the mortar attack.

      16            Secondly, we don't have access to intelligence

      17   reports and we don't know exactly what the intelligence

      18   reports say that would rebut the inference that the government

      19   wants to draw based on that testimony.

      20            THE COURT:  Wait.  It was defense counsel who sought

      21   to elicit this witness's understanding and his perception of

      22   these events.  There was no need for such questioning.  This

      23   witness's state of mind with respect to or knowledge with

      24   respect to such matters as who carried on the attacks, who

      25   trained the attackers --

                                                                    4468

       1            I withdraw the previous comments.

       2            Your motion for a mistrial is based on the witness's

       3   testimony that he had received intelligence reports; that

       4   intelligence reports indicated that communications were

       5   overheard in Arabic, causing the adjustment of mortar fire.

       6   Is that the basis of your motion?

       7            MR. SCHMIDT:  That indeed is the basis, that

       8   testimony, and it's a twofold objection and application as a

       9   result of that testimony.

      10            THE COURT:  Yes.

      11            MR. SCHMIDT:  First was that it was improper to come

      12   out in that manner, being intelligence, and the lack of

      13   relevance to mortar fire and unrelated to not only the October

      14   3 and 4th incident but any other mission that they went on.

      15   It was not relevant at all and it was only done for the

      16   purpose of them eliciting the Arabic language.

      17            Secondly, the second basis is that it refers to

      18   material that we do not have access to, we cannot challenge,

      19   we have no way of testing, we don't know whether it as

      20   accurate.

      21            THE COURT:  I think it was rather effectively dealt

      22   with on the cross-examination by Mr. Wilford, but go ahead.

      23            MR. SCHMIDT:  Well, Mr. Wilford indeed effectively

      24   dealt with it as best as any defense attorney could do.

      25   However, that doesn't eliminate the fact that it is now out

                                                                    4469

       1   there based on double, triple or quadruple hearsay, in a

       2   report that are known for not being terribly accurate, and

       3   that we have no access for that there were Arabic people

       4   speaking and helping place mortars.  That, I think, should not

       5   have been there.  There was no basis it being there.

       6            There are numerous conversations that I have had with

       7   personnel involved with Somalia, and they can say there was no

       8   intelligence report indicating anything to do with Bin Laden

       9   or Afghan Arabs or his group, and that would be totally

      10   hearsay; it would be useless and improper for me to bring that

      11   out.  If the government can bring that out, then I guess am I

      12   allowed to bring out a witness who can then say intelligence

      13   reports indicated no direction from Bin Laden, al Qaeda, or

      14   Afghan Arabs at all.

      15            THE COURT:  Why would you be precluded from doing it?

      16            MR. SCHMIDT:  I don't have access to intelligence

      17   reports.  That's double, triple, quadruple hearsay.  You don't

      18   know what the basis is of those reports and, as your Honor is

      19   well aware of and the media is well aware of, that

      20   intelligence reports give out information no matter what the

      21   source is and there is no way that that information can pass

      22   the reliability test unless we know the source of that

      23   information.  So there is no way that that should come in,

      24   especially when we don't even have access to it.

      25            THE COURT:  Mr. Fitzgerald, you you want to respond?

                                                                    4470

       1            MR. FITZGERALD:  Yes.  First of all, Judge, it was

       2   defense counsel who opened the door as to what this witness

       3   was briefed on, what he had been told about what the dangers

       4   were, what he expected.  This witness basically talked about

       5   the events of a single day, on October 3 to 4th, on direct.

       6            Then, on cross-examination, is what were you

       7   debriefed upon, what you might expect, what kind of danger was

       8   there, who was armed, what weapons are common, what kinds of

       9   weapons are they, where did they come from, where we were they

      10   supplied and what was the response to these attacks, and built

      11   into the questions was the implication all of the people

      12   involved in attacks on U.S. troops were Somali and Aideed and

      13   were trying to establish whether he does not know whether they

      14   were Somali or Aideed.

      15            But they opened the door and asked this witness.  No

      16   one objected when he said this is what I had heard from the

      17   media, this is what he was briefed on.  When they get an

      18   answer they don't like, suddenly the hearsay rule kicks in.  I

      19   think the motion for mistrial should be denied.

      20            MR. SCHMIDT:  Your Honor, there's a difference

      21   between --

      22            THE COURT:  I've heard sufficient argument.

      23            Mr. Cohn, briefly.

      24            MR. COHN:  We join the motion.

      25            THE COURT:  Yes, the motion is denied.  Let's bring

                                                                    4471

       1   the jury back in.

       2            The jury's lunch is here.  We're adjourned until

       3   2:00.

       4            MR. SCHMIDT:  Your Honor, my second application is to

       5   obtain all the briefing reports received by or the

       6   intelligence reports received by this witness and I can

       7   cross-examine him about those reports.

       8            MR. FITZGERALD:  Your Honor, you don't get discovery

       9   by walking in on cross into, what's your intelligence, and

      10   then coming back and saying, now I don't like the answer, so

      11   hand it all over eight years after the fact.

      12            THE COURT:  Denied.

      13            We're adjourned.

      14            MR. SCHMIDT:  I did not walk into that.

      15            THE COURT:  We are adjourned until 2:00.

      16            Please don't argue with each other.

      17            We're adjourned until 2:00.

      18            (Luncheon recess)

      19

      20

      21

      22

      23

      24

      25

                                                                    4472

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

       2                            2:00 p.m.

       3            (In open court; jury not present)

       4            THE COURT:  Have you had an opportunity to discuss

       5   with your client the proposed allocution?

       6            MR. RUHNKE:  Yes, your Honor, we discussed it with my

       7   co-counsel.  We do object to the allocution part.

       8            MR. BAUGH:  Your Honor, they can't hear.

       9            MR. RUHNKE:  The microphones here are not.

      10            THE INTERPRETER:  The system is not on right now.

      11            MR. RUHNKE:  Initially I had lodged no objection to

      12   your Honor having a colloquy with the client about this issue.

      13   This is basically an issue of trial strategy.

      14            THE COURT:  It may very well be during the first

      15   phase of this case the defendant Al-'Owhali may see fit to

      16   draw comparisons between himself and other defendants such as

      17   your client.  Material may be introduced at the first trial

      18   which inculpates Mr. Mohamed.  Mr. Mohamed by agreeing to two

      19   trials gives up the right to participate during such a

      20   proceeding, to raise objections, to be represented.  The

      21   decision whether or not to seek bifurcation, I agree is a

      22   lawyer's decision to make in the first instance, but unless

      23   your client is prepared to allocute to his conscious foregoing

      24   of the right to participate with respect to the Al-'Owhali

      25   death sentence proceeding, I won't grant it.

                                                                    4473

       1            MR. RUHNKE:  Your Honor, if that's the price to pay,

       2   obviously, we believe that separate penalty phases are very

       3   very much in my client's best interest, if your Honor is

       4   saying you will allocute the client over objection.

       5            THE COURT:  I don't understand your objection.  What

       6   is the objection?

       7            MR. RUHNKE:  The objection is that as a matter of

       8   trial strategy and the sort of practice where the Court simply

       9   allocutes a client after the government asks them to do so,

      10   that the Court allocute a client on decisions that lawyers are

      11   making, intrudes in the lawyer-client relationship.

      12            THE COURT:  I will allocute the standard procedure.

      13   I've already done it with respect to Mr. Odeh, and I will do

      14   it with respect to the other defendants, if they elect not to

      15   testify, and that's because they will be giving up a very

      16   fundamental right, and history and experience has told us that

      17   often there is an attempt to second guess that decision.  I

      18   can't distinguish that from foregoing the right to participate

      19   at the trial of a codefendant before the same jury where many

      20   of the same issues will be presented.

      21            MR. RUHNKE:  Your Honor, we've made our position

      22   clear.  If your Honor wishes to inquire of Mr. Mohamed, he is

      23   here.  We've discussed this matter with him thoroughly all

      24   along.  We certainly are not going to have an objection

      25   standing in the way of there not being separate penalty

                                                                    4474

       1   phases.

       2            THE COURT:  Mr. Mohamed, your lawyer -- can you hear

       3   me?  Is it being translated?  Do you understand what I'm

       4   saying.  The defendant is nodding his head yes.

       5            Do you understand that if you are convicted of

       6   certain crime, and if Mr. Al-'Owhali is convicted of certain

       7   crime there will be a subsequent proceeding in which the jury

       8   will hear evidence and the arguments of counsel concerning

       9   whether the sentence to be imposed is a sentence of death or

      10   of life imprisonment without possibility of parole?  Do you

      11   understand that?

      12            DEFENDANT MOHAMED:  (Nods head)

      13            THE COURT:  The defendant is nodding his head yes.

      14   Your attorney has requested that there be two separate trials

      15   rather than a jury trial of yourself and Mr. Al-'Owhali, and

      16   that Mr. Al-'Owhali's death sentence trial go first.  You

      17   understand that?

      18            DEFENDANT MOHAMED:  (Nods head)

      19            THE COURT:  Do you understand that if I agree to

      20   separate the two trials that you will not be able to

      21   participate either directly or through your attorney in the

      22   Al-'Owhali death sentence trial?

      23            DEFENDANT MOHAMED:  Yes.

      24            THE COURT:  You understand that.  Do you understand

      25   that at that trial evidence may be introduced and arguments

                                                                    4475

       1   may be made on behalf of Mr. Al-'Owhali which may be against

       2   your interests.  Do you understand that?

       3            DEFENDANT MOHAMED:  Yes.

       4            THE COURT:  And that will be made to the same jury as

       5   the jury that will later sit on the trial to determine whether

       6   or not you should receive the death sentence or life

       7   imprisonment.  Do you understand that?

       8            DEFENDANT MOHAMED:  Yes.

       9            THE COURT:  And you understand then that you will

      10   have no opportunity at that first, at the 'Owhali trial to

      11   bring out evidence or to argue to the jury on your behalf?

      12   You understand that?

      13            DEFENDANT MOHAMED:  Yes.

      14            THE COURT:  And is that agreeable to you?

      15            DEFENDANT MOHAMED:  Yes, it is.

      16            THE COURT:  You understand that you have the right to

      17   say no, if there is going to be evidence introduced before

      18   this jury with respect to me, or any of the issues that affect

      19   me I want to participate and I want my lawyer to participate.

      20   You understand that you have that right?

      21            (Pause)

      22            DEFENDANT MOHAMED:  Yes.

      23            THE COURT:  And what is your wish in this regard?

      24            DEFENDANT MOHAMED:  Separate this trial.

      25            THE COURT:  Anything further by way of allocution?

                                                                    4476

       1            MR. FITZGERALD:  No, thank you.

       2            MR. COHN:  Your Honor, just before you address the

       3   jury on this issue, I'd like to be heard again sometime.  If

       4   you want to do it now.

       5            THE COURT:  I was going to do at the end of the day.

       6            MR. COHN:  That's why I'm alerting the Court now that

       7   at sometime convenient to the Court and jury.

       8            THE COURT:  How about now?

       9            MR. COHN:  That's fine.

      10            THE COURT:  Go ahead.  What is it you want to say?

      11            MR. COHN:  I have been thinking about the McVeigh

      12   issue and I am convinced that the Court in dismissing the

      13   Shepherd issue is being uncharacteristically short sighted;

      14   that the Court may think of this as a partisan issue, but in

      15   fact it's not.  I mean I can conceive of away of looking at

      16   the McVeigh execution that would repel any sane person as a

      17   circus and make them opposed to the death penalty.

      18            On the other hand, I think that is unlikely.  There

      19   is no way for us to tell, and were this another time in the

      20   trial I would ask the Court for funds to commission a study,

      21   something which I think the Court, given at this point, would

      22   not be happy with.  I suggest respectfully that the Court

      23   commission its own study as to the anticipated effect of the

      24   McVeigh execution and what, I short circuit a long

      25   dissertation by saying, the circus surrounding it as it

                                                                    4477

       1   affects the jury.

       2            THE COURT:  Therefore, what would you have the Court

       3   do?

       4            MR. COHN:  Well, I think the Court should not

       5   immediately assume that a jury that is --

       6            THE COURT:  Don't tell me what I shouldn't do.  Tell

       7   me what it is that you want the Court do.

       8            MR. COHN:  I want the Court to hire an expert

       9   suggested by all sides to determine whether or not this jury

      10   can ignore the McVeigh execution and the impact that it may

      11   have with the ultimate view of delaying, of potentially

      12   delaying the penalty phase for some months.

      13            I think Shepherd is in fact terribly apt, not inapt

      14   and that there is no way --

      15            THE COURT:  Tell me how Shepherd relates to this

      16   case.

      17            MR. COHN:  Shepherd says that there was no way of

      18   circumventing publicity at that time and the case should have

      19   been postponed forever.

      20            THE COURT:  With respect to Shepherd.

      21            MR. COHN:  That's right.  And I'm telling the

      22   Court --

      23            THE COURT:  Denied.  Let's bring in the jury, please.

      24            MR. COHN:  Great.

      25            THE COURT:  Who is the next witness.

                                                                    4478

       1            MR. DRATEL:  Dr. Samatar, your Honor.

       2            THE COURT:  He may take the stand.  Doctor, if you

       3   just have a seat over here for a moment.

       4            It's my intention to have a charging conference this

       5   afternoon, take as long as it takes and to go over the charge

       6   line by line and page by page dealing with the objections and

       7   other issues.

       8            (Continued on next page)

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4479

       1            (Jury present)

       2            THE COURT:  We're now back on the case on behalf of

       3   the defendant El Hage.  Mr. Dratel, you may call your next

       4   witness.

       5            MR. DRATEL:  Thank you, your Honor, Dr. Abdi Samatar.

       6    ABDI ISMAEL SAMATAR,

       7        called as a witness by the defendant,

       8        having been duly sworn, testified as follows:

       9   DIRECT EXAMINATION

      10   BY MR. DRATEL:

      11   Q.  Dr. Samatar, good afternoon.

      12   A.  Good afternoon.

      13   Q.  Where were you born?

      14   A.  I was born in a country called Dijbouti in East Africa.

      15            MR. DRATEL:  If we could display El Hage E3 to

      16   counsel and the witness, please.

      17            -- E2, I'm sorry.

      18            MR. FITZGERALD:  We won't object if he wants to offer

      19   it in evidence.

      20            MR. DRATEL:  I would move it into evidence.

      21            THE COURT:  Received.

      22            (Defendant's Exhibit E2 received in evidence)

      23            MR. DRATEL:  It's on its side.  Turn it around.

      24   Q.  Is that a map of Somalia and Dijbouti?

      25   A.  That's a map of Somalia, Kenya, Ethopia and Dijbouti.

                                                                    4480

       1            MR. DRATEL:  I move it in evidence, your Honor.

       2            MR. FITZGERALD:  No objection.

       3            THE COURT:  Received.

       4            MR. DRATEL:  If we can publish it to the jury,

       5   please.

       6   Q.  Would you point out Dijbouti?

       7   A.  Dijbouti's in the northeast corner.

       8   Q.  Just turning to the coloring, the yellow part is Somalia,

       9   is that correct?

      10   A.  It seems like yellow color is Somalia.

      11            THE COURT:  It's the very, very top of the map.

      12            THE WITNESS:  That's correct.

      13   Q.  Right where the yellow part is in the top left that would

      14   be Dijbouti.  That's where you were born?

      15   A.  That's where I was born, right.

      16   Q.  And what citizenship do you hold?

      17   A.  I'm an American citizen.

      18   Q.  And what is the highest degree that you've received?

      19   A.  I have received a doctoral of philosophy from the

      20   University of California.

      21   Q.  In what specialized area?

      22   A.  I'm a geographer specializing in development studies and

      23   world development.

      24   Q.  What was the topic of your thesis, your doctoral thesis?

      25   A.  The topic of my doctoral thesis was on Somalia.

                                                                    4481

       1   Q.  And you also hold a masters degree?

       2   A.  I have a master's degree in community and regional

       3   planning.

       4   Q.  And from what institution?

       5   A.  Iowa State University in Iowa.

       6   Q.  And you have a bachelors degree as well?

       7   A.  I have a bachelors degree in geography and economics from

       8   the University of Wisconsin.

       9   Q.  What is your current employment?

      10   A.  I was just promoted to a professor at the University of

      11   Minnesota.

      12   Q.  It's Professor of geography?

      13   A.  Geography.

      14   Q.  Have you written on Somalia?  Have you written about

      15   Somalia in academic journals?

      16   A.  I have a book published by the University of Wisconsin

      17   Press which was published in 1989, and then I have something

      18   in the order of about 17, 18 articles on international

      19   academic journals on Somalia.

      20   Q.  And have you, have you been to Somalia?

      21   A.  I go to Somalia every year and I was there in last August.

      22   Q.  And have you ever been consulted by the United States

      23   State Department with respect to Somalia?

      24   A.  I was brought as a member of a committee in 1992 before

      25   the American troops were sent to Somalia as part of the United

                                                                    4482

       1   Nations.

       2   Q.  And the purpose of your being -- what was the purpose of

       3   your consultation with the State Department?

       4   A.  The purpose of the consultation was to inform and educate

       5   our officers in that place, in Washington, about the

       6   conditions in Somalia at the time.

       7   Q.  And have you previously been qualified as an expert on

       8   Somalia in court?

       9   A.  Yes.  I have numerous occasions maybe in the order of

      10   about ten times as an expert witness on asylum cases in the

      11   United States.

      12   Q.  That would be immigration cases?

      13   A.  Immigration cases.

      14   Q.  And what languages do you speak?

      15   A.  I speak English apparently, Somali, Arabic and a couple of

      16   other local languages in East Africa.

      17   Q.  And is Somalia included in your curriculum as a professor?

      18   A.  Yes.  I don't teach any course on Somalia, but in many of

      19   the courses I teach usually for or five a year, parts of the

      20   reading deal in Somalia.

      21   Q.  In addition, have you had grants or appointments that

      22   relate to Somalia and the area around Somalia whether it is

      23   Ethopia or Dijbouti?

      24   A.  Yes.  I had a grant in 1986 from something called the

      25   Social Science Research Council based here in New York to do

                                                                    4483

       1   work in marketing in Somalia.  I had a grant from the World

       2   Bank in Washington to do studies in Somalia, Mogadishu upper

       3   and lower Somalia, and I have a few others over the years.

       4   Q.  Anything in Ethiopia?

       5   A.  I was in Ethiopia as a US government Fulbright scholar in

       6   1999.

       7            MR. DRATEL:  Your Honor, I would move to have

       8   Mr. Samatar qualified as an expert at this time.

       9            MR. FITZGERALD:  No objection.

      10            THE COURT:  He may so testify.

      11            MR. DRATEL:  Thank you, your Honor.

      12   Q.  Now, just getting back to language for a moment, is Arabic

      13   spoken in Somalia?

      14   A.  Arabic is spoken, not as sort of everyday language, but

      15   it's taught in schools.  Every child who goes to public

      16   schools from grade one on.

      17   Q.  And how about in Mogadishu itself, the capital city?

      18   A.  Mogadishu when Somalia became independent in 1960 three

      19   languages were used by the government of Somalia, Brit --

      20   English.  I almost said British.  But English, Italian,

      21   because one region of the country was a British colony and the

      22   other part of the country was an Italian colony, and then

      23   Arabic was the third language used by government in official

      24   circles.

      25   Q.  Was Somalia a written language at that time?

                                                                    4484

       1   A.  No, it wasn't until 19770-71.

       2   Q.  And was there a particular language -- withdrawn.  Was

       3   Arabic a language that might be used in the Somali military?

       4   A.  Yes, quite a number of Somali officers were trained in

       5   places like Syria, Egypt, Libya, and I believe Iraq as well.

       6   So for them to be trained there they need to speak Arabic.

       7   Q.  Thank you.

       8            If we could go back to E2.  That's on the screen.

       9   Somalia is the area that yellow rather than green?

      10   A.  Correct.

      11   Q.  And can you tell us what it borders on in terms of body of

      12   water?  What Somalia borders in terms of bodies of water?

      13   A.  Indian Ocean and the Gulf of Aden.

      14   Q.  And the Indian Ocean would be to the east?

      15   A.  Indian Ocean be to the east.  The Gulf of Aden will be

      16   north.

      17   Q.  Thank you.

      18            If we could put E3 the small box of E3 if we could

      19   display that, please, publishing it to the witness and to

      20   counsel.

      21            Dr. Samatar, do you see the square in that frame?

      22   A.  Yes, I do.

      23   Q.  Is that the a representation of Somalia superimposed on

      24   the United States?

      25   A.  On the eastern part of the United States.

                                                                    4485

       1   Q.  Is that a fair and accurate representation of the amount

       2   of territory that Somalia covers in comparison with the United

       3   States?

       4   A.  I have seen this map before and it seems like that.

       5            MR. DRATEL:  I move it in evidence your Honor.

       6            MR. FITZGERALD:  No objection.

       7            THE COURT:  Received.

       8            (Defendant's Exhibit E3 received in evidence)

       9   Q.  Just so the jury is aware, the red part is Somalia

      10   superimposed on to the eastern part of the United States,

      11   correct?

      12   A.  That's correct.

      13   Q.  And the southern part goes as far as Tallahassee, Florida?

      14   A.  That's correct.

      15   Q.  The northeastern part goes north of Albany into Vermont;

      16   is that correct?

      17   A.  That's correct.

      18   Q.  And the western part goes as far west as Kalamazoo,

      19   Michigan?

      20   A.  Yes.

      21   Q.  And also just in terms --

      22   A.  If I may just correct there.  It doesn't go to Kalamazoo.

      23   Dijbouti is where Kalamazoo is.  Somalia would be sort of

      24   eastern part of Michigan.

      25   Q.  Thank you.

                                                                    4486

       1            With respect to just in terms of scale a country such

       2   as Sudan in Africa, compared to the United States, what is the

       3   land mass of the Sudan?

       4   A.  Area of the Sudan is about 980,00 square miles which is

       5   about the area of the United States east of the Mississippi

       6   River.

       7   Q.  That's the country of Sudan?

       8   A.  Sudan, correct.

       9   Q.  And if you could, Dr. Samatar, apparently you need to

      10   speak louder or to move the microphone closer to you if it's

      11   possible or move closer to the microphone.  Thank you.

      12            If we could get E2 back up, please.  Thank you.

      13            Actually, that's just, if you can move it up just up

      14   a little bit, and then a little bit to the right.  That's

      15   perfect.

      16            If we could just look at the map and can you tell us

      17   looking at the left border of Somalia, the western border of

      18   Somalia at the bottom there what country is to the left there?

      19   A.  Ethopia and Kenya.

      20   Q.  If you could identify for us the Gedo region of Somalia,

      21   G-E-D-O.  Is that listed on the map?

      22   A.  That's listed on the map and it's the northwest of that

      23   part of Somalia.

      24   Q.  But what part of Somalia would that be?

      25   A.  In terms of the totality of Somalia in terms of area you

                                                                    4487

       1   mean?

       2   Q.  Yes.  What geographic region would Gedo be in Somalia?

       3   How would you describe it?

       4   A.  Gedo is the name of administrative province.

       5   Q.  What part of Somalia is it in?

       6   A.  Southern Somalia.

       7   Q.  And just so we can identify some towns that are in the

       8   Gedo area there is Luuq, is that correct?

       9   A.  That's correct.

      10   Q.  And on the border of Kenya is El Wak?

      11   A.  That's correct.

      12   Q.  And just over the border into Kenya is Mandera?

      13   A.  That's correct.

      14   Q.  And could you also point out to us where the town of

      15   Baidea is?

      16   A.  Baidea is in the region of bay, B-A-Y.  It's the central

      17   town spelled as D-A-I-D-O-A.

      18   Q.  That would be to the right of Gedo is that the area?

      19   A.  It would be to the right of Gedo to the southeast of Gedo.

      20   Q.  And the town of Belahowa, can you tell us where that would

      21   be located?

      22   A.  It's not shown on the map, but it will be sort of

      23   northwest of Garbahaarey, directly southwest of Luuq on the

      24   border.

      25   Q.  So Garbahaarey is right there in the middle of Gedo?

                                                                    4488

       1   A.  Yes.

       2   Q.  Belahow will be west of that?

       3   A.  Belahow will be west on the Kenya border.

       4   Q.  The distance from Mogadishu if you know?

       5   A.  A little over six hundred kilometers.

       6   Q.  That would be four hundred miles?

       7   A.  About four hundred miles.

       8   Q.  Thank you.

       9            If we could also point out Kissmayo?

      10   A.  Yes, Kissmayo is on the Indian Ocean.  It's the last large

      11   major city in the south on the Jubbada Hoose.

      12   Q.  It's the last city on the map on the bottom on the coast?

      13   A.  That's correct.

      14   Q.  And up the coast is Mogadishu, correct?

      15   A.  Yes.

      16   Q.  And Mogadishu is the capital city?

      17   A.  The former capital of former Somalia.

      18   Q.  Now, in terms of Somalis as an ethnic group, is that

      19   confined just to the country of Somalia?

      20   A.  No, Somalis live in Kenya, in the northeast province of

      21   Kenya, in two areas of Ethopia called the Ogaden and the Haud,

      22   and in Dijbouti and then of course in Somalia proper south.

      23   Q.  And is Somalia the country a state that was created out of

      24   two colonial entities?

      25   A.  Somalia was created out of former British Somaliland and

                                                                    4489

       1   former Italian Somaliland.

       2   Q.  So it doesn't necessarily encompass the entirety of the

       3   Somali people?

       4   A.  Not at all.

       5   Q.  If we could show the entire, actually, if we can just show

       6   a little bit north.  Good.  Thank you.

       7            If we can look at the map again, Doctor. the border

       8   between Somalia and Ethopia?

       9   A.  Yes.

      10   Q.  If you look at the part that's on an angle a straight line

      11   essentially on an angle southwest to northeast, if you can

      12   read what's written there along that broken line?

      13   A.  Provisional administrative line is what's written up

      14   there.

      15   Q.  The provisional administrative line means what?

      16   A.  That's a boundary that has not been fixed and recognized

      17   by both countries.

      18   Q.  Either Ethopia or the former Somalia?

      19   A.  Ethopia I think recognizes it.  Somalia did not.

      20   Q.  If we could show the entire map again, please.

      21            When we're talking about, the people talk about

      22   northern Somalia generally what part of the country are they

      23   referring to?

      24   A.  Conventional northern Somalia is that part which used to

      25   be a British colony.  That's to the south of the Gulf of Aden.

                                                                    4490

       1   And there is the Ethopia sitting, if you may, or just sitting

       2   between southern Somalia and northern Somalia.

       3   Q.  So that everything below that would be considered southern

       4   Somalia?

       5   A.  Southern Somalia will be all the way from the extreme

       6   northeast of the horn to sort of south of Kissmayo.

       7   Q.  Thank you.  And is Somalia an Islamic country or Islamic

       8   land?

       9   A.  Most of the statistics that we know of suggest that

      10   anywhere up to 95 to 97 percent are Muslims.

      11   Q.  And how long has that been the case?  Not in terms of

      12   proportion, but when did Somalis become Muslim?

      13   A.  Almost seventh to eighty years under the Prophet's

      14   pilgrimage to Medina.

      15   Q.  What century would you put that in?

      16   A.  7th century.

      17   Q.  Thank you.

      18            Now, Somalia became a nation when?

      19   A.  1960, a nation state.

      20   Q.  An independent state?

      21   A.  That's correct.

      22   Q.  And what type of government did it have?

      23   A.  Once British and Italian Somaliland became the Somalia

      24   Republic in 1960 they had a parliamentary democracy.

      25   Q.  How long did that last?

                                                                    4491

       1   A.  Between 1960 and 1969, for nine years.

       2   Q.  What happened in 1969?

       3   A.  The military took over and denounced the Constitution, and

       4   disbanded the parliament.

       5   Q.  Who was the military leader?

       6   A.  The military leader was General Muhamed Seyad Barre.

       7   Q.  Can you spell that for us, please?

       8   A.  Last name is B-A-R-R-E.

       9   Q.  And how long did his rule last?

      10   A.  From 1969 to 1990.

      11   Q.  And at the time that his rule ended what was the

      12   condition, the political condition in Somalia?

      13   A.  All political authority broke down, civil institutions

      14   collapsed, and public order was history.

      15   Q.  And what power, where was power vested at that time?

      16   A.  At that point power was vested in small groups of

      17   warlords, both in the north and in the south of the country.

      18   Q.  And describe what you mean by warlords?

      19   A.  Warlords are former military people who are able to access

      20   guns and ammunitions from government stores and then who claim

      21   to control territory without any elections, without the rule

      22   of law, and their only source of legitimacy was the power of

      23   their gun.

      24   Q.  When you say military people, they were former Somalia

      25   military?

                                                                    4492

       1   A.  Somali military people.

       2   Q.  With respect to the Somali military during the Barre

       3   regime was Somalia aligned with any particular country or

       4   countries over that period of time?

       5   A.  Somalia had several allies over the years.  From 1964 to

       6   1978 it was allied with the former Soviet Union.  After 1978

       7   and the defeat of the Somali troops in Ethopia, Somalia leaned

       8   westwards and became an ally of the United States.

       9   Q.  So did Somalia, did the government of Somalia the former

      10   state of Somalia, and the military receive arms during that

      11   period from both the Soviet Union and then from the United

      12   States?

      13   A.  Correct.

      14   Q.  And was one of the warlords who commanded a militia during

      15   the period when the Barre regime was deposed was that Mohammed

      16   Fara Aideed?

      17   A.  That's correct.  Probably the strongest one of them all.

      18   Q.  And can you tell us a little bit about him?

      19   A.  Aideed was military man who wasn't in good friendship with

      20   Sayed Barre, the General who commanded the country.  He was

      21   removed from the military and posted as an ambassador overseas

      22   for a while and then he came back as things began to fall

      23   apart and created his own militia and then ultimately he was

      24   the General who chased Barre out of Mogadishu and out of the

      25   country.

                                                                    4493

       1   Q.  And when did that occur?

       2   A.  Which one?

       3   Q.  The last part the chasing, well, actually first chasing

       4   Barre out of Mogadishu?

       5   A.  1991, early '91 January to be precise, and later on in

       6   1992.

       7   Q.  And Gen. Aideed would he be described as Islamist or an

       8   Islamic activist in any way?

       9   A.  I have never heard that before today.

      10   Q.  So it's yes or no?

      11   A.  No.

      12   Q.  Do you know if Aideed --

      13   A.  That doesn't mean he wasn't a Muslim person, but he was an

      14   Islamic political person, that he was a military man.

      15   Q.  And he was never identified as such?

      16   A.  No.

      17   Q.  Do you know if Gen. Aideed ever held a position in the

      18   government of either Barre or previous government?

      19   A.  He was an ambassador and a General in the Army of the

      20   Barre regime.

      21   Q.  Was he ambassador to Egypt, do you know?

      22   A.  I'm not sure whether he was an ambassador to Egypt or

      23   Pakistan.

      24   Q.  Thank you.

      25            And would Barre be classified politically as an

                                                                    4494

       1   Islamist either?

       2   A.  In fact, he was, the public thought of him as a

       3   non-Islamic person because his government shot ten religious

       4   people in the early part of 1970's because they came against

       5   his sort of a stipulation of a new decree which said that

       6   woman could divorce men, which was a first in that country's

       7   history.  And these who opposed him which was led by Mullahs

       8   or Islamic men were beheaded or shot in Mogadishu.

       9   Q.  And when Gen. Aideed chased Barre from the capital from

      10   Mogadishu, where did Barre flee to?

      11   A.  If you look at the map he went to Baieda first, and then

      12   ultimately Gedo region.

      13   Q.  If we could focus on the Gedo region which is the

      14   southwest part of the map.

      15   A.  There is a paved road and there are aren't too many paved

      16   roads in Somalia that runs from Mogadishu to Baieda on a red

      17   line, and that's the road he took.  In part Baieda used to be

      18   a major military base of the Somali Army and the Air Force had

      19   a airport in Baieda.  That's where he went.

      20   Q.  What was the response of Gen. Aideed when Barre moved to

      21   Baidea?

      22   A.  Aideed wanted to pursue, but he first wanted to

      23   consolidate his power in Mogadishu, and there were a number of

      24   political deals that he attempted which didn't work, but he

      25   moved against Barre.  Barre tried to come back from Mogadishu

                                                                    4495

       1   and he was almost captured in a town just outside Mogadishu

       2   called Afigoy, and then he fled back to Baieda and then to

       3   Gedo region.

       4   Q.  What was the effect on the populace in the Gedo region

       5   when Aideed and Barre were in conflict during this time

       6   period?

       7   A.  The general population was caught in the middle of that

       8   conflict or tussle, and large number of people began to get

       9   access to weapons, not only in Gedo but across the country.

      10   Once the civil and the political order and authority

      11   collapsed, people didn't have anybody to protect them, so

      12   people either bought or somehow got access to former military

      13   weaponry.

      14   Q.  Just again, the time period that this is occurring?

      15   A.  This is anywhere from late 1990 to 1992 and thereafter.

      16   Q.  And in terms of resources, other resources, not just

      17   weapons, but food and daily resources for sufficiency

      18   purposes, was there any impact of this fighting on that to the

      19   populace, particularly in the Gedo region?

      20   A.  Unlike the United States, for instance, if I may sort of

      21   use that comparison, there isn't a great deal of food in

      22   storage that you can have if the crops fail this year, nor

      23   people had a lot of money in which they can use to import and

      24   access foods.  So if cropping failed one season, and there was

      25   nothing in the next season you could almost invariably expect

                                                                    4496

       1   famine and once farmers were terrorized by idea and other sort

       2   of warlords and marauding gangs, most of the people became

       3   vulnerable to famine and in the end thousands of them died

       4   because of that.

       5   Q.  Also did Aideed attack ultimately Baidea and Barre in

       6   Baieda?

       7   A.  He attack by Baieda, captured Bidaua and then went after

       8   Sayed Barre until Sayed Barre left the country for Kenya.

       9   Q.  The time period would be?

      10   A.  This was in 1992.

      11   Q.  And during this period of time or towards the end, at the

      12   time when the fighting is going on in Gedo, were there groups

      13   within Gedo that were looking to establish some sort of order?

      14   A.  Aideed's rule in Gedo was not firm and sort of a fighting

      15   militias ran back and forth.  Most people began to see that

      16   neither Sayed Barre groups nor Aideed really had the people's

      17   interest in mind or at heart as people began to starve in

      18   large numbers.  And so it wasn't only in Gedo at all, but in

      19   many parts of the country people began to look for other

      20   sources of normalcy, legitimacy and law, and Islam was the

      21   only source they could find as close reach, and that they can

      22   appreciate.

      23   Q.  Have you ever heard of a organization called Alika Had?

      24   A.  Yes, I did.

      25   Q.  Is the full name Alika had al Islam?

                                                                    4497

       1   A.  Alika had al Islam.

       2   Q.  Can you tell us how that emerged during that time period

       3   in the Gedo region?

       4   A.  What you had, it's very difficult to establish the exact

       5   date when groups got together and talked about the creation

       6   and the establishment of Ali Kahad Al Islam, but somewhere in

       7   the 1992 period as these military movements ran back and forth

       8   between the two groups it was about that time it said that Ali

       9   Kahad people began to talk about Alkihad and the formation of

      10   Alkihad, but nobody in my mind can pin the date and the time

      11   and the place with any degree of precision.

      12   Q.  Did Ali Kahad during this period of time have any presence

      13   in Mogadishu?

      14   A.  No.

      15   Q.  And what was the role of Islam in Ali Kahad in during the

      16   chaos of that period?

      17   A.  Most people that's citizens of the country were looking

      18   for someone to take responsibility for public order, and since

      19   the warlords and the roaming militias were not able to do so

      20   and Barre has run away from the country that they began to see

      21   Ali Kahad as a group who were not secondary in the sense of

      22   one clan versus another, one warlord versus another, but they

      23   were ones who were public began to see them as a group who

      24   were looking after all Muslims as a community.

      25            And they saw that Alikahad and Islam may be the

                                                                    4498

       1   closest thing that a civic organization that can insure the

       2   peace that they thought Al Islam al Kahad as that possible

       3   organization.

       4   Q.  And that would be in the Gedo region?

       5   A.  Gedo region, correct.

       6   Q.  Also, just have you heard of the Afar?

       7   A.  Yes.

       8   Q.  And what are the Afar?

       9   A.  Afar or Ganati people live in three countries in East

      10   Africa or in the horn of Africa, Ethopia, Dijbouti, and

      11   Eretria.

      12   Q.  And if we could show the entire map of E2 again, please.

      13   And again Dijbouti is just beyond Somalia in the northwest?

      14   A.  That's correct.

      15   Q.  And Eretria would be further north and west?

      16   A.  It doesn't show on this map in terms of the boundary but

      17   it will be further northwest of the Dijbouti.

      18   Q.  And Ethopia is that area that encompasses those three

      19   countries?

      20   A.  Right, where the Afar people, the people live is just a

      21   little bit sort of to the southwest of Dijbouti which means

      22   sort of north of Ethopia, and south east of Eretria.

      23   Q.  And did they have any connection or presence in the Gedo

      24   region?

      25   A.  Not at all.

                                                                    4499

       1   Q.  Do they have any presence or connection to Mogadishu?

       2   A.  No.

       3   Q.  And could you also point out the Agaden region?

       4   A.  Yeah.  It's sort of if you look at that triangle of

       5   looking area into Somalia, if you look, even Ethopia, the

       6   southern part of that is what's called Ogagan region.

       7   Q.  Would that also be where that broken line is, would that

       8   be a fair statement?

       9   A.  That's correct.

      10   Q.  And the Afar have any connection or presence in that

      11   Ogaden area either?

      12   A.  No.

      13   Q.  Now, during the period of time when Barre is fleeing the

      14   country, Aideed is consolidating power, are there other

      15   competing warlords at the same time in other parts of Somalia?

      16   A.  Yes.  It's hard to enumerate them because they come and go

      17   in many ways, but the enduring ones will be Mohammed Hersi

      18   General Morgan, will be Ali Mahdi in Mogadishu in and Morgan

      19   was in the south in Kisomoy area.  There was at least further

      20   northeast, and others.

      21   Q.  And during this period of time what kind of weapons were

      22   available to these warlords, those foreign military men?

      23   A.  They had access and control basically what used to be the

      24   armory of the Somalia military.

      25   Q.  So everything that had been received from the United

                                                                    4500

       1   States or the USSR?

       2   A.  And anybody else.

       3   Q.  Was available to the warlords?

       4   A.  That's correct.

       5   Q.  That includes rocket propelled grenades also known as

       6   RPGs?

       7   A.  That's correct.

       8   Q.  And heavier weapons, too?

       9   A.  Tanks and others, yes.

      10   Q.  And what was the number of men under arms in the Somali

      11   Army when it was constituted as a national army?

      12   A.  Nobody exactly knows that because they never used to

      13   publish it, but estimate, educated estimates are anywhere from

      14   70,000 to 90,000 and then militias on top of that.

      15   Q.  So there was a large available trained armed group

      16   available to these warlords to make combat against each other?

      17   A.  At some point in the 1970s persons in the United States

      18   and elsewhere suggested that the Somali Army was the strongest

      19   Army in Africa outside South Africa.

      20   Q.  And in addition to the militias and the warlords you had

      21   also mentioned that there was a widespread Army of the entire

      22   populace to a certain extent?

      23   A.  Yes.  This is one of the tragedies of that country as a

      24   citizen of the globe so to speak is a society unlike ours

      25   where nobody could get access to weapons, including small

                                                                    4501

       1   pistols and what not prior to sort of early '80s.  Over the

       2   years since then I've been going to that country every year

       3   and I don't know of a single household which I visited

       4   anywhere in the country which doesn't have a gun and usually

       5   an AK-45.

       6   Q.  AK-47?

       7   A.  47, not 45.

       8   Q.  And, generally, what's the purpose that is explained to

       9   you in terms of these weapons in the house?

      10   A.  One, I asked, I actually remember asking that question to

      11   a gentleman who had a shop in a number of towns because I went

      12   to each store to fix up my glasses because he ran that kind of

      13   business, and as we were in the back of the shop I saw a

      14   couple of guns lying, and I said, what is that for?  And he

      15   said, this is his security because there is no state.

      16   Q.  And the fighting that was going on between the warlords

      17   the factions, was full-scale military battle at times?

      18   A.  At times, yes.

      19   Q.  And the warlords themselves were formally trained military

      20   personnel?

      21   A.  Most of them were captains, generals, colonels and what

      22   not in the Somali Army.

      23   Q.  And many of their militia were also former Somali Army,

      24   either officers or other personnel?

      25   A.  Significantly so.

                                                                    4502

       1   Q.  And in your opinion would they require the training by

       2   outside forces to use any of the weaponry at their disposal?

       3   A.  They were well trained.

       4   Q.  In your opinion would they need the training by outside

       5   persons?

       6   A.  Not in my opinion.

       7   Q.  And in your studies and in your visits to Somalia have you

       8   ever heard of any outside training by others to any of the

       9   militia people in Somalia?

      10   A.  Before the government of the country collapsed there were

      11   Americans came to train before that the Soviets came to train.

      12   Somewhere in the middle Libyans, Iraqis, Syrians, Egyptians

      13   came to train, but I didn't hear of any thereafter.

      14   Q.  Now, was there an international response to civic and

      15   humanitarian crisis that existed in Somalia in 1992?

      16   A.  Yes, there were all kinds of NGOs.

      17   Q.  NGO being nongovernmental organizations?

      18   A.  Nongovernmental organizations that people who had the

      19   nonprofit business came to help because there was a great deal

      20   of shortage of all things from pencils for children in school

      21   to food, to medicine and what not and anything in between.

      22   Q.  Was there also a problem with respect to orphans due to

      23   the fatalities in the fighting?

      24   A.  Not only orphans, but children and elderly people

      25   generally.

                                                                    4503

       1   Q.  And was that NGO response sufficient in and of itself that

       2   to create order or to end the crisis?

       3   A.  The NGOs were not armed.  Its people like OxfarmAmerica,

       4   OxfarmBrit and they were humanitarians in the sense they

       5   didn't bring their guns and their security so they couldn't

       6   create order.  Their purpose was to provide by and large

       7   sustenance for the general population, particularly children

       8   and older people.

       9   Q.  And at some point did the United Nations become involved?

      10   A.  It became involved in large measure because Aideed and

      11   others have denied significant population of southern Somalia

      12   in the Bay region.

      13   Q.  They denied them?

      14   A.  They denied them access to food that was brought in either

      15   by NGOs or private business people couldn't get through

      16   because of these road checks and road blocks and so people

      17   began to die in large numbers.  That's when the United Nations

      18   began to get intervene militarily.

      19   Q.  And were there estimates on how many people died as a

      20   result?

      21   A.  The figures are many, but a reasonable for one to me is

      22   anywhere between two hundred and 400,000 people.

      23            THE COURT:  Between when and when?

      24            THE WITNESS:  We're talking anywhere from sort of the

      25   middle of the 1992 to 1993.

                                                                    4504

       1   Q.  So you're not talking about the people who died in the

       2   fighting in the early part of the Civil War.  You're really

       3   talking about from the humanitarian crisis that resulted as a

       4   result, that was the result of what you were just talking

       5   about?

       6   A.  That's correct.

       7   Q.  The food and other resources?

       8   A.  That's correct.

       9   Q.  Now, with respect to Baydo with and also Gedo, Barre had

      10   fled to that region.  Did he have a particular identification

      11   with that region?

      12   A.  I think Sayed Barre his regime not as an individual but

      13   his government introduced into Somali culture something that

      14   was not terribly important earlier on, and that was to divide

      15   the community into smaller groups in a sense what Africans

      16   used to call divide and rule mentality.

      17            For him to stay in power he has to set one group

      18   against the other and arm one group and disarm another and

      19   create all kind of vulnerabilities and so people began in the

      20   absence of a government that protects all its citizens, people

      21   began to see the Gedo region as the base of Sayed Barre's

      22   regime.

      23   Q.  Was it also base of the Maraha clan?

      24   A.  That's what's assumed.

      25   Q.  Now, did the international relief effort included in late

                                                                    4505

       1   1992 United States troops, is that correct?

       2   A.  That's correct.

       3   Q.  And what was the initial response first of the populace

       4   and then of the warlords, first, we'll do the populace, to the

       5   international relief efforts by the UN in conjunction --

       6   withdrawn?

       7            Did the United States send its troops in conjunction

       8   with the United Nations effort?

       9   A.  No.  First the United Nations sent troops and many of them

      10   Pakastanis and Indians, few Africans and elsewhere, and when

      11   it proved that that wasn't effective in terms of opening up

      12   the road so that food can get to victims of strangulation,

      13   then the UN and other people appealed to the United States to

      14   sort of help the UN to sort of deliver on it's humanitarian

      15   agenda, and it's at that point that the US intervened.

      16   Q.  But in conjunction with the United --

      17   A.  In conjunction under the umbrella of the United Nations.

      18   Q.  What was the initial response to the international effort

      19   including the United States involvement provided by the

      20   populace of Somalia?

      21   A.  I remember I was asked the question at NBC Today Show, and

      22   I think I suggested to my host that if President Bush, then

      23   President Bush, the senior, that is, ran for president in

      24   Somalia, the public would have voted him in hands down.

      25   Q.  And what was the warlords' reaction to the introduction of

                                                                    4506

       1   the UN and the US?

       2   A.  I think the warlords were ambivalent.  They were not

       3   certain.  There were risks and there were advantage to the

       4   intervention.

       5   Q.  What would the risks be?

       6   A.  The risks will be that they will be neutralized since they

       7   were the principal course of the famine and the mayhem in the

       8   country, what brought the United Nations and the United States

       9   to Somalia in the first place.

      10            (Continued on next page)

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4507

       1   Q.  And the advantages might be?

       2   A.  The advantages was that if indeed and we are talking

       3   primarily of two warlords, Sayid Barre and General Aideed, and

       4   that if they convinced the United States and the United

       5   Nations that they were the authority that could deliver some

       6   of the things that the United Nations and the U.S. were

       7   interested in, then they could piggyback on the U.S. and the

       8   U.N. and become the de facto rulers of the country.

       9   Q.  Did that opinion change by the fall of 1993?  Was there a

      10   shift in opinion either among the warlords and the populous?

      11   First of all, we'll talk about the warlords at this time, by

      12   the sort of latter part of 1993.

      13   A.  From the general public's vantage point and since one

      14   treads on a tricky ground here because there were no public

      15   service or you couldn't say and according to A, B, C, blah,

      16   blah, this survey, 70 percent of the public supports this or

      17   that, but the general feeling in the country was that the U.N.

      18   and the United States were not delivering on what the Somalis

      19   hoped they would deliver, that's peace and liberation from the

      20   warlords.

      21   Q.  And by the way, were you in Somalia during periods of

      22   1993?

      23   A.  I was there in the spring of 1993.

      24   Q.  And the fall of 1993?

      25   A.  And late summer in 1993.

                                                                    4508

       1   Q.  Do you recall what the reaction was amongst Somalis to an

       2   incident that occurred at something called Abdi House in July

       3   of 1993?

       4   A.  I heard about the Abdi House affair through the British

       5   Broadcast Corporation in Somali service news in the evening.

       6   Q.  And did you speak to Somalis about it when you were in

       7   Somali subsequently?

       8   A.  I did speak to them and it was -- many of them were quite

       9   taken aback and surprised because they were saying that too

      10   many civilians were getting caught in the middle of this what

      11   became the conflict between the warlords and the United

      12   Nations.

      13   Q.  Just for one second, the principal target of the United

      14   Nations was which warlord?

      15   A.  General Mohamed Farahid Aideed.

      16   Q.  And so, if you continue with respect to the Somali

      17   response.

      18   A.  And I'm sure people were beginning to wonder if they have

      19   asked for something, although their asking wasn't what

      20   initiated the U.N. and the U.S. to intervene, something they

      21   did back and forth, and that's many of civilians who were now

      22   getting killed in this crossfire and that this wasn't what

      23   they thought the U.N. and the United States will do.

      24   Q.  And what was the warlords' response to this?  Would it be

      25   fair to say there was an escalation of conflict, armed

                                                                    4509

       1   conflict between the U.N. and Aideed during this period of

       2   1993?

       3   A.  Right.  I think what you have is if you -- in their

       4   initial assessment, which was that the warlords, and Aideed in

       5   particular, thought there's a chance that he can piggyback on

       6   the U.N. and the U.S. and become the new law of Somalia, but

       7   once the process of disarmament began --

       8   Q.  Do you recall when that was, the process of disarmament,

       9   do you recall when that occurred?

      10   A.  I can't remember the exact date, but it was sometime in

      11   1993.

      12   Q.  So, go ahead.

      13   A.  So certainly before --

      14   Q.  What was Aideed's response?

      15   A.  Certainly it was before late summer 1993, and Aideed was

      16   one of the first warlords to be told to sort of identify where

      17   he kept weapons and whatnot.

      18   Q.  And his response?

      19   A.  The response was that if this was not taking place

      20   uniformly across the warlord terrain, that's all warlords who

      21   were being disarmed simultaneously, that in fact he might be

      22   disadvantaged if there is sort of an explosion of conflict

      23   between him and others, and that is the assumption that he

      24   could possibly piggyback on the United States and the U.N. was

      25   in danger.

                                                                    4510

       1   Q.  And what areas did he control -- withdrawn.

       2            Did Aideed control a significant portion of

       3   Mogadishu?

       4   A.  Mostly Southern Mogadishu, including what used to be

       5   Radio, Mogadishu.

       6   Q.  And the seaport?

       7   A.  The seaport and the airport.

       8   Q.  How was the -- withdrawn.  Did the warlords attempt to use

       9   the shifting opinion of the Somali populous with respect to

      10   the U.S. and the U.N. to their advantage, to the advantage of

      11   the warlords?

      12   A.  I think particularly Aideed was more successful than the

      13   other warlords.  I was, I remember, in Hurat in Zimbabwe and I

      14   ran into a professor of public policy and political science in

      15   Syracuse University who was going to attend a Pan-Africanist

      16   conference in Kampala, Uganda late that fall and the professor

      17   told me that one of the key speakers in that conference was

      18   expected to be General Aideed himself.

      19            So I asked him the question, what is General Aideed,

      20   a warlord, doing in a Pan-Africanist conference in Kampala,

      21   and apparently what Aideed has been very successful is to

      22   convince a few Africans across the continent that he was one

      23   of the key leaders of the new Pan-Africanist movement to unite

      24   all of Africa together and that his struggle with,

      25   quote/unquote, the Americans in Somalia was precisely

                                                                    4511

       1   anti-imperialist, as they put it.  And so he certainly was

       2   able to convince some elements in Africa, broadly speaking,

       3   that way and then --

       4   Q.  What about the population in Somalia in particular?

       5   A.  And the population in particular with Aideed and few

       6   others, but Aideed in particular, said what the Americans in a

       7   sense are doing in Somalia is, one, to redominate Somalia --

       8   this was the language that he used -- and that their

       9   involvement was not only about providing services to rebuild

      10   the country but they had a larger agenda, and he wired this

      11   into sort of a conflict in the Middle East and elsewhere.

      12   Q.  After the U.S. and U.N. forces left Somalia, do you recall

      13   when that was, not exactly but generally?

      14   A.  1994.

      15   Q.  And did the anarchy in Somalia continue?

      16   A.  The anarchy continued, but strangely enough, many people,

      17   including myself, many observers thought that Somalia was even

      18   going to implode more so than it was before if the U.N. and

      19   the United States troops left.  But all chaos continued.

      20   There was no sort of a major explosion other than what was

      21   already taking place in the country.

      22   Q.  To sort of jump ahead, then, to the time period 1996 in

      23   Somalia, were conditions effectively the same in the sense,

      24   was there a central government yet?

      25   A.  No, there was no central government yet.

                                                                    4512

       1   Q.  Were there effective regional governments of any size or

       2   authority?

       3   A.  Probably the one that comes closest in that sense is what

       4   is currently called Somali Land.

       5   Q.  And on the map that would be all the way to the north?

       6   A.  All the way to the north, just south of the Gulf of Aden.

       7   Q.  So not in Southern Somalia?

       8   A.  Not in Southern Somalia.

       9   Q.  Not in Gedo?

      10   A.  Not in Gedo.

      11   Q.  And what was, at that time period, 1996, what was the

      12   presence of Ali Ittihad in Gedo at that point?

      13   A.  Ali Ittihad, from what we know and the evidence by all

      14   sources put together will suggest that they were, as I said

      15   earlier on, that their primary role from the vantage of the

      16   public was to create an antisectarian community in Gedo and

      17   fill the vacuum between Siyad Barre and Aideed.  But as that

      18   time progressed, as Europeans began to send encouragement into

      19   Somalia, it's at that point I think where the popularity

      20   validly begins to become a factor in the region on certain

      21   incidents in Somalia.

      22   Q.  Just to back up a second, in the Ogaden region, in the

      23   region itself, were there conflicts between Ethiopia and armed

      24   groups in the Ogaden region?

      25   A.  When the new Ethiopian government came to power in 1991,

                                                                    4513

       1   this was a government dominated by a group called Tigre people

       2   from the north of the country, south of Eritrea, and the

       3   military that they brought to bear was not the European army,

       4   all the European army, but their militias became the national

       5   army immediately.

       6            And so the army began, the new army began to fan out

       7   into the country, and I remember hearing an interview in the

       8   BBC with Somali Services in London where one group called

       9   Ogaden National Liberation Front, a Somali group who live in

      10   Ethiopia, announced over the radio a message to the Ethiopian

      11   government not to send its troops to that part of the country

      12   of Ethiopia which was accommodated and populated by Somalis,

      13   or to be prepared for war if they do so.

      14            So that was the first signal that there was conflict

      15   in Ethiopia in the era after the revolution, so to speak, in

      16   1991.

      17   Q.  And that continued through the mid 90s?

      18   A.  Continued to the present.

      19   Q.  And just to situate us in the 1996 time period, also with

      20   respect to just in terms of the map, the way it is on the

      21   screen right now, also, the Gedo region essentially sits -- it

      22   borders on not only Ethiopia, but Kenya, as well, correct?

      23   A.  That's correct.  That's correct.

      24   Q.  And in fact, all of Kenya's Northeastern border there, I

      25   mean after Ethiopia, is Somalia all the way to the coast?

                                                                    4514

       1   A.  That's correct.

       2   Q.  And did the government of Kenya have concerns about the

       3   border activity with respect to Somalia because there was not

       4   any central government in Somalia during this period of the

       5   1990s?

       6   A.  I think the principal concern -- I mean, one has to think

       7   of the Kenyan government at its multiple levels.  At the

       8   central level in Nairobi, the concern was that the absence of

       9   government in Somalia may mean a lot of weapons coming from

      10   Somalia into Kenya itself.  That was the only concern that the

      11   Kenya government expressed.

      12            Lower level officials who are into corruption and

      13   bribes were concerned about money moving back and forth and

      14   commercial goods moving back and forth, but the key security

      15   issue for the Kenyan government was the shipment of arms

      16   across Somalia, from Somalia to Kenya.

      17   Q.  And did something occur in the summer of 1996 that sort of

      18   changed the conditions in the Gedo and the Gedo region with

      19   respect to Ethiopia and Somalia?

      20   A.  Yes, I think it's -- actually, I was in a place called

      21   Jijiga in Ethiopia.  At that time was the time I was beginning

      22   to do my current research, and over the radio, both on the

      23   Ethiopian radio initially did an announcement, but it was

      24   announced in the British Broadcasting Corporation local Somali

      25   Service, that Somalis in the region are claiming that

                                                                    4515

       1   Ethiopian troops have come across the border and have created

       2   mayhem in the region, Gedo in particular.

       3   Q.  And what did they use as part of this assault, the

       4   Ethiopia troops?

       5   A.  The reports suggested that they used helicopter gunships,

       6   heavy weaponry, artillery and the like.

       7   Q.  And this is in the summer of 1996?

       8   A.  About that time, yes.

       9   Q.  Did this involve the United States in any way in terms of

      10   troops or anything like that?

      11   A.  Absolutely not.

      12   Q.  And what was the impact of this Ethiopia invasion in the

      13   Gedo region of Somalia?

      14   A.  I think the impact was many, but the key ones were

      15   destruction of a lot of property, the death of many civilians

      16   and armed men and -- mostly men, not women, and the gradual

      17   creation of -- what's the word in English?  I speak English,

      18   but sometimes I run out of steam -- local support, the local

      19   militia supporters.  The Ethiopian government, reports

      20   suggested, were laying the groundwork for creating armed

      21   groups in Somalia that will support its own agenda in that

      22   country.

      23   Q.  And --

      24            THE COURT:  That would support?

      25            THE WITNESS:  An Ethiopian agenda in Somalia.

                                                                    4516

       1   Q.  And the Ethiopian envision, what was the reason given by

       2   the Ethiopian government for the invasion?

       3   A.  Formerly they suggested that they were in hot pursuit of

       4   Ittihad Islam, among others, but the key one was that.  But

       5   Ethiopia had other interests in Somalia, also, which were not

       6   spoken of, and that was there's the largest community, ethic

       7   community, in Ethiopia is a group called Oromos which

       8   constitutes anywhere up to 45, maybe even 50 percent of the

       9   population of the country who claim not to be part of the

      10   government as they would like, the democratic government, and

      11   that many of them or their organizations are said to be based

      12   in Somalia and to move into Ethiopia back and forth.  So I

      13   think one of the agendas of the Ethiopian intervention into

      14   Somalia was also to ensure that Oromos who were armed did not

      15   come across Ethiopia into Somalia.

      16   Q.  And what was the impact on Ali Ittihad of the Ethiopian

      17   envision in 1996?

      18   A.  I think it had two impacts.  One was they certainly were

      19   not a match for the Ethiopian troops, so they were sort of not

      20   completely destroyed but deeply maimed, but it also had the

      21   effect of creating a basis of legitimacy even more so for Ali

      22   Ittihad in the minds of Somali public, particularly in that

      23   region, for being one of the few forces who can carry, sort of

      24   a protect Somalis from the Ethiopian army.

      25   Q.  Did the Ethiopian influence and presence in the Gedo

                                                                    4517

       1   region of Somalia cease once the envision stopped, or was it

       2   something that continued for a considerable period of time?

       3   A.  The reports we have suggest that the Ethiopian invasion

       4   and presence declined shortly thereafter that immediate

       5   intervention, but has persisted and have been -- has escalated

       6   in more recent times.

       7   Q.  But it continued throughout '96 and '97?

       8   A.  To 19 -- to 2001.

       9   Q.  Did you review before you testified Government Exhibit

      10   310, Dr. Samatar?

      11   A.  Yes, I did.

      12   Q.  And this is something that's called "Report on the Latest

      13   News in Somalia"?

      14   A.  That's correct.

      15   Q.  Can you read the first line?  It's already in evidence.

      16   "Abdel Sabbur brings to light the new policy.  When Abdel

      17   Sabbur arrived on February 22, 1997, he contacted Khalid

      18   directly and asked him to come to Nairobi."

      19            And so that sets a time frame in February of '97,

      20   correct?

      21   A.  Correct.

      22   Q.  And having read this document, would you say that it, in

      23   many ways it describes some of the events that you have been

      24   talking about in terms of 1996, 1997?

      25   A.  Yes, it does.

                                                                    4518

       1            MR. FITZGERALD:  Objection to competence, your Honor.

       2            THE COURT:  Yes, sustained.

       3   Q.  Well, just looking at the bottom of page 1 --

       4            THE COURT:  That question and answer is stricken.

       5            MR. DRATEL:  Excuse me?

       6            THE COURT:  I'm saying the last question and answer

       7   is stricken.

       8            MR. DRATEL:  Thank you.

       9   Q.  With respect to the bottom of page 1, and that paragraph

      10   that starts, "Before Khalid's move to the interior," and it

      11   goes on to talk about Islamic courts in Kismayo, and was that

      12   something that Ali Ittihad been working on, the institution of

      13   Islamic courts?

      14            MR. FITZGERALD:  Objection to leading.

      15            THE COURT:  I'll allow it, but then refrain from

      16   leading.

      17   A.  No, Ittihad was not active and strong.

      18   Q.  And with respect to, moving down the page, at the very

      19   bottom, the last line, "Khalid met with the director of

      20   foreign affairs (for the Federation of Ogaden in Western

      21   somalia)," is that a reference to the liberation movement of

      22   Ogaden that was present that you discussed before?

      23   A.  It seems to.  I haven't, I never heard about the

      24   federation, but I heard of the Ogaden National Liberation

      25   Front, which is a Somali group in Ethiopia.

                                                                    4519

       1   Q.  And on page 2, there's a reference to a Sheikh Hassan, and

       2   are you familiar with the name Sheikh Hassan in the context of

       3   the Ogaden region?

       4   A.  I heard his name in a place called Jijiga in Eastern

       5   Ethiopia.

       6   Q.  In what context?

       7   A.  A passing context, as a major religious figure.

       8   Q.  In the area?

       9   A.  In the area, in the Ogaden region.

      10   Q.  And if we move to page 5, right underneath the second

      11   asterisk where it says, it talks about security situations in

      12   the region, Somalia-Ethiopia.  You see that?

      13   A.  On page 5?

      14   Q.  Yes, I think it's 5.

      15   A.  The next, second asterisk is "Haroun's meeting with the

      16   director."

      17   Q.  Right.  And the sentence under that says --

      18   A.  Okay, I see it.

      19   Q.  "On the security situations in the region," and it says

      20   Somalia-Ethiopia?

      21   A.  Correct.

      22   Q.  At this time period, February 1997, there were serious

      23   security issues with respect to the Somalia-Ethiopia border?

      24   A.  That's correct.

      25            MR. FITZGERALD:  Objection, leading.

                                                                    4520

       1            THE COURT:  Yes, refrain from leading.  Restate your

       2   question.

       3   Q.  Just read it and then say whether or not it reflects what

       4   was going on at the time in terms of the Somali-Ethiopia

       5   border.

       6   A.  The Somali-Ethiopia region?

       7   Q.  Yes.

       8   A.  Is an unstable region and that Ogaden National Liberation

       9   Front and Ali Ittihad move in and out of that region and sort

      10   of put bombs on roads, harass the Ethiopian military from time

      11   to time.  That has been the case since 1992.

      12   Q.  And during this period of February '97, it was relatively

      13   close -- was it particularly an issue in February 1997?

      14            MR. FITZGERALD:  Objection to leading.

      15            THE COURT:  It's a valid objection, but what was the

      16   condition in February 1997.

      17   Q.  What was the condition in February 1997?

      18   A.  The condition --

      19            MR. FITZGERALD:  Thank you.

      20   A.  In Ogaden, so to speak, was one in which the Ethiopian

      21   military was not formally on the alert but looking for Ali

      22   Ittihad, as they said, and the Ogaden National Liberation

      23   Front inside Ethiopia in the Ogaden itself.  So it was a

      24   condition in which there was literally security and some

      25   degree of political instability in the country.

                                                                    4521

       1   Q.  Were they also, was the Ethiopian army also active inside

       2   Somalia during that period, looking for --

       3            MR. FITZGERALD:  Your Honor, objection to repeatedly

       4   leading.

       5            THE COURT:  Yes.

       6            MR. DRATEL:  What?

       7            THE COURT:  When you state the fact and ask whether

       8   it's so, it's a classic leading question.

       9   Q.  Were they in Somalia?

      10            THE COURT:  What was the question?

      11   Q.  Was the Ethiopian army in Somalia?

      12   A.  The reports tell us yes.

      13   Q.  And the reasons stated by the Ethiopians for being there?

      14   A.  They were in hot pursuit of Ali Ittihad and Islam.

      15   Q.  And also if we look on the next page, page 6, on the

      16   bottom, the portion in bold, it says, "The Front of the

      17   Liberation of the Oromos," and if you tell us again about the

      18   Oromos at that time period and the area that we're talking

      19   about, Somalia, Ethiopia, Ogaden, early 1997.

      20   A.  The Oromo -- it's actually not called the Front of the

      21   Liberation of the Oromos, it's called the Oromo Liberation

      22   Front, and I know for sure because one of my former students

      23   dropped out of my department and disappeared and then I found

      24   out that he was in Mogadishu working with the Oromo Liberation

      25   Front.  So the Oromo movement was using Somalia as a base to

                                                                    4522

       1   go into Ethiopia during this period.

       2   Q.  Are the Oromos originally from Somalia?

       3   A.  No.

       4   Q.  But are they originally from Ethiopia?

       5   A.  They are the majority ethnic group in Ethiopia and there

       6   are Oromos in Kenya.

       7   Q.  Did the government of Ethiopia have concerns about --

       8   withdrawn.

       9            What was the Ethiopian government's position with

      10   respect to Islamic groups and Islamic charities as opposed to

      11   any other types of charity work?

      12            MR. FITZGERALD:  Objection, competence.

      13            THE COURT:  Yes.

      14            Do you know?  Is that something within your area of

      15   expertise?

      16            THE WITNESS:  Yes, sir.

      17            THE COURT:  You may answer.

      18   A.  What I have heard in Ethiopia is that the Ethiopian

      19   government allows Christian missionaries and NG organizations

      20   to register and do business in Ethiopia.  That's since the new

      21   regime came to power.  That is what the reports say, that is

      22   not only my opinion, that they have not allowed Islamic groups

      23   of the same kind to come to Ethiopia, register and

      24   proselytize.

      25   Q.  This is the same Ethiopian government that was in power in

                                                                    4523

       1   1996 and 1997?

       2   A.  Yes, this is the government that has been in power since

       3   1991 to the present.

       4            MR. DRATEL:  Thank you.  Nothing further, your Honor.

       5            THE COURT:  Any defense counsel have questions of

       6   this witness?

       7            Cross-examination.

       8            MR. FITZGERALD:  Yes, Judge.

       9   CROSS-EXAMINATION

      10   BY MR. FITZGERALD:

      11   Q.  Sir, if you could look at that document in front of you,

      12   Government Exhibit 310.

      13   A.  That's correct.

      14   Q.  If you could look at that first paragraph that was cited

      15   to you by Mr. Dratel.

      16   A.  Is that the one which says, "Abdel Sabbur brings to light

      17   a new policy"?

      18   Q.  Exactly.  Thank you.

      19            Do you know who Abdel Sabbur is?

      20   A.  No.

      21   Q.  Do you know who the person Khalid is that Abu Sabbur

      22   brought that new policy to?

      23   A.  No.

      24   Q.  Do you know who the person El Hajj, H-A-J-J, is that they

      25   brought the policy from?

                                                                    4524

       1   A.  There are plenty of El Hajjs in Eastern Africa, but no

       2   particular one.

       3   Q.  Do you know who it is?

       4            And if we could focus in on that first paragraph on

       5   the screen, as you sit here today, do you know if the person

       6   Abdel Sabbur had recently visited a person named El Hajj prior

       7   to the date on this document?

       8   A.  That's not what my research is about, sir.

       9   Q.  So you don't know who these people are, who they met with,

      10   and where they came from, correct?

      11   A.  My testimony here is not about individuals.

      12   Q.  And so you don't know what this first paragraph refers to

      13   in terms of who was meeting with whom, correct?

      14   A.  No, I don't know that, but what I know is, when I read

      15   this, of the context that's being talked about.

      16   Q.  Do you have any idea whether Usama Bin Laden was involved

      17   in these activities?

      18   A.  No.

      19   Q.  Let me ask you this:  You mentioned that the group was

      20   setting off explosions on the roadways since 1992, correct?

      21   A.  That's correct.

      22            MR. DRATEL:  Objection.

      23            THE COURT:  Overruled.

      24            MR. DRATEL:  Your Honor, just identify when he says

      25   "the group" right after the last question.

                                                                    4525

       1   Q.  You mentioned -- which group did you say set off

       2   explosions in the roadways?

       3   A.  I said the reports of the Ethiopian government, not my

       4   reports, say that there are people called Ittihad Islam.  They

       5   don't actually use the word "Islam," they use the word Ali

       6   Ittihad, they're called fundamental Islams, who have done this

       7   in Ethiopia.  Others suggest that the Ogaden National

       8   Liberation Front has done this.

       9   Q.  Did you hear about reports of them setting off explosions

      10   in the cities?

      11   A.  I have heard that, yes.

      12   Q.  Did you see it in this report that's sitting before you,

      13   Government Exhibit 310?

      14   A.  There was reference to that.

      15   Q.  So there were references to the explosions being in the

      16   cities, not on the roads, correct?

      17   A.  In this report?

      18   Q.  Yes.

      19   A.  There was reference to the cities, but they also have

      20   reference to the rural areas.

      21   Q.  Do you know a person by the name of Haroun?

      22   A.  No, I don't know.

      23   Q.  Do you know a person by the name of Saleh the Egyptian?

      24   A.  No, I don't.

      25   Q.  No one you interviewed in connection with your research?

                                                                    4526

       1   A.  Repeat.

       2   Q.  You never interviewed anybody by the name of Haroun and

       3   Saleh in connection with your research about Somalia, correct?

       4   A.  I interviewed neither.  I worked with a person called

       5   Haroun in Somalia during 1986.  He worked for me as research

       6   assistant in a place called Berber when I was doing research

       7   on livestock experts.  Also, Haroun is a relatively common

       8   name, so which Haroun, I don't know.

       9   Q.  Do you know any Haroun from the Comoros Islands?

      10   A.  No, I don't.

      11            MR. FITZGERALD:  Thank you.  Nothing further.

      12            THE COURT:  Any redirect?

      13            MR. DRATEL:  Just briefly, your Honor.

      14   REDIRECT EXAMINATION

      15   BY MR. DRATEL:

      16   Q.  Dr. Samatar, on cross-examination Mr. Fitzgerald asked you

      17   about explosions or reports of explosions in the road

      18   attributed to Ali Ittihad by the Ethiopian government.

      19            MR. FITZGERALD:  Objection to form.

      20   Q.  He asked you about explosions in the road, correct?

      21   A.  He did.

      22   Q.  Would it serve the Ethiopian government's purpose

      23   politically to justify its invasion of Somalia to blame

      24   Islamic organizations such as Ali Ittihad for any such

      25   explosions?

                                                                    4527

       1   A.  That's actually the official position of the Ethiopian

       2   government.

       3   Q.  But would it serve their political, their political

       4   purpose?

       5   A.  Yes, it would.

       6            MR. DRATEL:  Nothing further, your Honor.

       7            MR. RICCO:  Your Honor, may I have cross based on Mr.

       8   Fitzgerald?

       9            THE COURT:  I'm just a little concerned about the

      10   sequence here.

      11            MR. RICCO:  I just have a couple questions, your

      12   Honor.

      13            THE COURT:  Very well.

      14   RECROSS-EXAMINATION

      15   BY MR. RICCO:

      16   Q.  Doctor?

      17   A.  Yes, sir.

      18   Q.  Mr. Fitzgerald asked you questions about particular

      19   individuals?

      20   A.  That's correct.

      21   Q.  Is it fair to say that you don't know any of the men who

      22   are charged in connection with this case?

      23   A.  I wouldn't know.  That may be you, sir.

      24   Q.  Okay.  And you were called as an expert witness, I take

      25   it?

                                                                    4528

       1   A.  I think so.

       2   Q.  And your opinion was based on your scholarship; isn't that

       3   correct?

       4   A.  It's based on my scholarship and observations on the

       5   ground.

       6            MR. RICCO:  Thank you very much, sir.

       7            THE COURT:  All right.  Thank you.

       8            Thank you, Doctor.  You may step down.

       9            We'll take our mid-afternoon recess.

      10            (Witness excused)

      11            (Jury not present)

      12            THE COURT:  What is the next order of business?

      13            MR. SCHMIDT:  The next order of business, we're going

      14   to be playing a series of tape recordings of conversations

      15   between agents named Joseph and/or William with Mr. El Hage

      16   and his wife April Ray.

      17            THE COURT:  Very well.  How long will that take?

      18            MR. SCHMIDT:  It certainly will take, my guess, with

      19   everything working correctly, approximately an hour or so.

      20            THE COURT:  Is this ostrich pictures, is that

      21   relevant?

      22            MR. SCHMIDT:  They're not the ostrich pictures.

      23            THE COURT:  All right.  We'll take a five-minute

      24   recess.

      25            MR. FITZGERALD:  Two items, your Honor.  I will go

                                                                    4529

       1   through with Mr. Schmidt, I think he has identified the topic,

       2   whether the calls are of the 403 objection on some of them at

       3   the break.

       4            The other comment I just wish to make on the record

       5   is you requested the government, if they were caught off guard

       6   by expert testimony, to put it on the record.  On this witness

       7   we didn't get any expert disclosure that he was going to talk

       8   about Ethiopian military capability or the Ethiopia government

       9   and we get put in a position where, in front of jury, we are

      10   asking rank hearsay and in leading form about what someone

      11   heard on BBC and we either have to sit here and let in hearsay

      12   and eat up time or object in front of the jury, which I think

      13   is unfortunate.

      14            THE COURT:  The criterion for an expert hearsay is

      15   whether the reliance is on those things which experts in that

      16   particular field traditionally rely upon, and an expert or an

      17   observer even in Somalia might very well rely on BBC accounts

      18   of what is going on because there's probably very little else.

      19            MR. FITZGERALD:  I agree with that, Judge, but in

      20   this case we weren't given any expert disclosure that he was

      21   going to speak to the military capability of the militia,

      22   whether they need training or not.  We get a geographer

      23   allocution for expert testimony.  Since we don't know what's

      24   coming, we don't object to his qualifications, and then we're

      25   off to him telling us who needs training, who doesn't, what

                                                                    4530

       1   the Kenyan view of --

       2            THE COURT:  If there had been an objection to the

       3   question as to whether, in his opinion, there was a need for

       4   outside training, I would have sustained the objection.  There

       5   was no objection to it.

       6            MR. FITZGERALD:  I don't think we should be put in

       7   the position where we're not given adequate disclosure.

       8            THE COURT:  I can't quarrel with that.

       9            We'll take a five-minute recess.

      10            (Recess)

      11            THE COURT:  Mr. Submit, is there going to be a

      12   witness on the stand?

      13            MR. SCHMIDT:  No, there's not.

      14            THE COURT:  No witness on the stand.

      15            MR. FITZGERALD:  Your Honor, I have some issues with

      16   regard to the transcripts.

      17            THE COURT:  Yes.

      18            MR. FITZGERALD:  First, these transcripts are

      19   conversations largely between Wadih El Hage and a U.S.

      20   government person, or his wife and a U.S. government person.

      21   There are actually two U.S. government persons they speak to

      22   named Joseph and named William recorded on the wiretap.

      23            First of all, they are obviously hearsay

      24   conversations to the extent that Mr. El Hage is speaking.  I

      25   don't know if they are offered for the truth or the fact that

                                                                    4531

       1   words were said, but the entire set of conversations is Mr. El

       2   Hage and his wife speaking to government agents and, in

       3   particular, in two particular calls, Mr. El Hage in one,

       4   indicates that the warrant used to search his residence was a

       5   phony piece of paper, and on another occasion, Mrs. El Hage,

       6   his wife, is talking about bugs and whether there are lawfully

       7   used in the case.

       8            And I think it's both hearsay and also, under 403,

       9   greatly prejudicial to put in conversations where El Hage is

      10   spouting his view that the warrant is phony.  If they are

      11   trying to establish that Wadih El Hage was in touch with the

      12   government and told the government that he had traveled, then

      13   we can stipulate to that.  We certainly don't need to have

      14   Mr. El Hage express his view of the Kenyan warrant or have

      15   Mrs. El Hage ask questions about American law on tape.  I

      16   don't know how they will get it in as non-hearsay.

      17            THE COURT:  Mr. Schmidt.

      18            MR. SCHMIDT:  Your Honor, the purpose of the

      19   conversations were not for the truth of the matter, which we

      20   will not allege, it's for him complaining to the government

      21   agents about these things, to show --

      22            THE COURT:  That is for the truth.  It's not for the

      23   truth, but to show that he was complaining.

      24            MR. SCHMIDT:  I'm not -- no, I'm not claiming that

      25   the warrant was in fact invalid.  I'm putting it in for the

                                                                    4532

       1   fact that Mr. El Hage is complaining to the agent that he

       2   believed it's invalid.  He is basically talk to the American

       3   agents because he views the American agents as being on his

       4   side and not the Kenyan authority's side.  That's the only

       5   reason.  Not for the fact that -- if your Honor wants to give

       6   a charge saying that's not evidence as to whether the --

       7   whether it was valid or invalid, that's perfectly okay as

       8   well.

       9            THE COURT:  Tell me again.  Tell me affirmatively

      10   what is the argument that you make to the jury based on these

      11   transcripts.

      12            MR. SCHMIDT:  The ones that the government mentioned?

      13            THE COURT:  Yes.

      14            MR. SCHMIDT:  That Mr. El Hage had been in contact

      15   with the government agents to obtain return of his property,

      16   and he is complaining that he is having -- to the American

      17   agents, he is seeking their assistance to get his property

      18   back.

      19            THE COURT:  What date is this?  What period of time

      20   are we talking about?

      21            MR. SCHMIDT:  This is August and September of 1997.

      22            THE COURT:  And where is Mr. El Hage?

      23            MR. SCHMIDT:  In Nairobi.  This is after he returns

      24   to Nairobi.  He's questioned by the agents.  His home is

      25   searched.  They give them a copy of the -- Wadih gets a copy

                                                                    4533

       1   of the inventory, and there is, for the period of time from

       2   then until he leaves, he is in regular contact with the

       3   government agents.

       4            THE COURT:  And the significance of that is Mr. El

       5   Hage's perception that this was an American operation?

       6            MR. SCHMIDT:  No.

       7            THE COURT:  The American rather than Kenyan

       8   government?

       9            MR. SCHMIDT:  His perception that the people who can

      10   help him are the Americans, not the Kenyans, and that he is --

      11            THE COURT:  And what follows from that?

      12            MR. SCHMIDT:  His perception of the Americans and him

      13   being an American and the Americans on his side and is

      14   consistent with innocent conduct, consciousness of innocence.

      15   And he's maintaining contact with the agents on a regular

      16   basis.  He's not running from them, he's not using code, he's

      17   not hiding from them, being open, available.

      18            In a normal case, I would call the agents, your

      19   Honor.

      20            THE COURT:  It would be the same issue whether you

      21   call the agent.  It is what would be the relevance, what the

      22   basis for admission would be.  And, what about it?

      23            MR. SCHMIDT:  Mr. El Hage is charged with being a

      24   member in a nine-year worldwide conspiracy against the United

      25   States.

                                                                    4534

       1            THE COURT:  Yes.

       2            MR. SCHMIDT:  His first regular contact with

       3   officials of the United States is in September of -- excuse

       4   me, August of 1997.  After his contact with the Americans, he

       5   maintains close, personal and informational ties with them.  I

       6   think that's relevant.  The government may not think it's

       7   particularly relevant.

       8            THE COURT:  The question right now is whether I think

       9   it's relevant, not what the government thinks or not what you

      10   think.

      11            And its relevance is to show that Mr. El Hage thought

      12   that he had a relationship with the United States Government

      13   which caused him to initiate calls with them and that that's

      14   inconsistent with somebody who was in fact a hostage in the

      15   United States?

      16            MR. SCHMIDT:  Your Honor, the government has brought

      17   out in their testimony, both --

      18            THE COURT:  Is what I said wrong?

      19            MR. SCHMIDT:  In a general sense, in a general sense,

      20   the government has brought out perjury in the Grand Jury, the

      21   use of --

      22            THE COURT:  These are all arguments.

      23            To contrast this with perjury in the Grand Jury, you

      24   have to be asserting the truth of what he said to the agent,

      25   but you are disclaiming that.

                                                                    4535

       1            MR. SCHMIDT:  It's showing his willingness to deal

       2   with the Americans, to inform them when he is traveling to the

       3   United States, the difficulties he's having shows a

       4   consciousness of innocence as opposed to a consciousness of

       5   guilt.  That, I think, is part of -- it also shows the

       6   opposite side of the government's version of hostility to the

       7   United States.  Not the specific words that he is using, it is

       8   the tone, the repeated contact with them, the regular contact

       9   with them, his willingness to call them back, he's asking for

      10   help.

      11            THE COURT:  Would it be fair to say that they are

      12   being offered not for the truth but to evidence the fact that,

      13   while in Nairobi, Mr. El Hage engaged in communications with

      14   the American authorities, period?  Would that be a fair --

      15            MR. SCHMIDT:  No, that's not near what --

      16            THE COURT:  You tell me, then.

      17            MR. SCHMIDT:  He communicated with American

      18   authorities in a manner of cooperativeness, without fear,

      19   asking for help.

      20            THE COURT:  I'm not going to summarize all that.  In

      21   the manner demonstrated --

      22            MR. SCHMIDT:  In the demonstrated by the tapes, yes.

      23            THE COURT:  All right, I'll allow it and tell the

      24   jury it's for that limited purpose.

      25            MR. FITZGERALD:  Your Honor, under 403 we're now

                                                                    4536

       1   going to have, one, two, three, four, five, six, seven, eight,

       2   nine, I believe ten transcripts read to the jury.

       3            THE COURT:  Let me see them.

       4            MR. SCHMIDT:  Your Honor, that's just simply not

       5   true.  I just went over with the government that we have pared

       6   them down to at least now to seven, at the most, because six

       7   is leading into another issue.

       8            THE COURT:  Tell me which is the first one you are

       9   going to play.

      10            MR. SCHMIDT:  The first one is August 23, 1997.

      11            THE COURT:  August 23, 11:46?

      12            MR. SCHMIDT:  That's correct.  It expresses--

      13            THE COURT:  I'm reading it.

      14            (Pause)

      15            THE COURT:  And this shows, I'm now looking at W68-E,

      16   August 23, this shows what was Mr. El Hage initiating this

      17   meeting?

      18            MR. SCHMIDT:  It appears that it is Joseph asking if

      19   he wants to speak with them, then making arrangements to meet.

      20   I think that's the following day after he was initially

      21   detained at the airport.

      22            THE COURT:  But do we know -- this doesn't tell us.

      23   Do we know who initiated this?

      24            MR. SCHMIDT:  It's an incoming call from Joseph to

      25   Wadih El Hage.

                                                                    4537

       1            THE COURT:  Joseph says, "Okay, I wanted to know if

       2   you wanted to talk today."  Is there a request, do we know

       3   whether the request to talk originated with El Hage or with

       4   Joseph?

       5            MR. SCHMIDT:  I think the conversation basically

       6   speaks for itself.  It's actually a conversation from the day

       7   before that I think put in that indicates a conversation

       8   between one of the agents and Ms. Ray, which indicated that

       9   they were going to try to talk the next day, but I have

      10   selected this out of about 15 to 20 conversations between the

      11   parties.

      12            THE COURT:  I'm just looking at the second one of

      13   these tapes, August 26, and I think the government's objection

      14   is well-taken.  Discussion about the dog and so on.

      15            MR. SCHMIDT:  Your Honor, it's impossible to take

      16   every little thing that really is important in a conversation

      17   and take it out.  The United States Government goes to Mr. El

      18   Hage, all right?  He's questioned at the airport.  His home is

      19   searched.  He's told that they think he's working with

      20   terrorists, and the reaction of Mr. El Hage is not running

      21   from them, it's having conversations of this nature with the

      22   government agents.

      23            As is important that his conduct and conversations

      24   that show a consciousness of guilt, these conversations show a

      25   consciousness of "I have nothing to hide" with these people.

                                                                    4538

       1   That is the importance of it.

       2            To eliminate these conversations with the government

       3   agents is to eliminate what I believe is a very important part

       4   of our case, is Mr. El Hage's conduct from the time he was

       5   approached by the government in August of 1997 until his

       6   arrest in 1998, including testifying two times in the Grand

       7   Jury, not asking for an attorney.  I think this is consistent

       8   with his consciousness of innocence, and to eliminate these

       9   conversations, your Honor, I obviously very strenuously

      10   object.

      11            (Pause)

      12            MR. SCHMIDT:  If I may just make a brief analogy,

      13   your Honor.

      14            THE COURT:  Let me read them, please.  You go on and

      15   on about irrelevant things about --

      16            MR. SCHMIDT:  Maybe I can make an analogy that

      17   perhaps your Honor may change his mind.  If a police officer

      18   approaches somebody and the person runs away, that is evidence

      19   of consciousness of guilt.

      20            THE COURT:  I understand what --

      21            MR. SCHMIDT:  If he walks towards the police officer

      22   to enter into a conversation with the police officer and not

      23   run away, that shows consciousness of innocence.  That's what

      24   I'm trying to show by the few of these conversations.

      25            THE COURT:  First of all, you don't have a few, you

                                                                    4539

       1   have a great many, most of which are plane reservations and

       2   what the time of leaving is and what the route is and so on.

       3            MR. SCHMIDT:  I was trying to skip over some of that,

       4   but informing the government of the exact --

       5            THE COURT:  Give me a moment.

       6            (Pause)

       7            THE COURT:  I proposes the following.  I propose that

       8   you play them, if you wish, and the jury be told as follows by

       9   the Court:  You are about to hear records of conversations had

      10   between El Hage or his wife with a representative of the

      11   United States.  These conversations are not being offered or

      12   received as evidence of the truth of anything said to the

      13   agents or to the El Hages.  They are being offered and are

      14   being received solely to show that the El Hages were in

      15   communication with representatives of the United States while

      16   they were in Kenya, and to reflect the general tone and nature

      17   of the conversations.  They are being offered and received for

      18   no other purpose.

      19            MR. FITZGERALD:  Your Honor, and if we are putting

      20   them as they are, which includes some conversations about the

      21   law of bugging etc., there's one conversation being left out

      22   where Mrs. El Hage acknowledges that the U.S. government was

      23   just trying to help them.  I think that shows a completer

      24   picture.  I believe it's August 20.

      25            THE COURT:  You want to reply that?

                                                                    4540

       1            MR. FITZGERALD:  Yes.

       2            THE COURT:  You may play that.

       3            MR. SCHMIDT:  I have no objection, your Honor.

       4            THE COURT:  Very well.

       5            All right, let's bring in the jury.  That's the next

       6   order of business?

       7            MR. FITZGERALD:  Yes.

       8            THE COURT:  Mr. Schmidt, at what point do you think

       9   El Hage will rest?

      10            MR. SCHMIDT:  I'm thinking, your Honor.  It depends

      11   how long the Odeh defense is tomorrow.  I would --

      12            THE COURT:  I don't understand that.

      13            MR. SCHMIDT:  They were going to go tomorrow with

      14   their witnesses.

      15            MR. WILFORD:  Your Honor, that's what we discussed

      16   last week.  We indicated that we would have a witness that

      17   would be available tomorrow.  We would be prepared to put our

      18   entire case on tomorrow.

      19            THE COURT:  How much time, apart from the sequence,

      20   about how many more hours do you anticipate?

      21            MR. SCHMIDT:  I would anticipate, other than today,

      22   probably two and a half to three days.

      23            THE COURT:  What I'm really trying to find out is,

      24   are we going to complete live tomorrow by Thursday on behalf

      25   of all defendants?

                                                                    4541

       1            MR. COHN:  It appears not.

       2            THE COURT:  It appears not.

       3            MR. COHN:  If he has two and a half more days --

       4            THE COURT:  Two and a half hours.

       5            MR. SCHMIDT:  No, days.

       6            THE COURT:  Two and a half days?

       7            MR. SCHMIDT:  Days, because I have a lot of documents

       8   we're going to be putting in.

       9            MR. COHN:  I'm listening.

      10            MR. SCHMIDT:  Some of which we are going to read,

      11   some of which we are going to flash, some of them we're not

      12   going to be able to flash.  We may have a couple more

      13   witnesses, also.

      14            THE COURT:  The suggestion is that if we turn down

      15   the microphone, that will improve the quality of the playing.

      16   That will interfere with the interpreters, but there is the

      17   printed text available.

      18            Is that acceptable?

      19            MR. SCHMIDT:  Yes.

      20            THE COURT:  Is that acceptable to all defendants?

      21   All right.  I don't know how that gets done, but if you will

      22   do that.

      23            (Jury present)

      24            THE COURT:  Ladies and gentlemen, I'm advised that we

      25   are about to hear records of conversations had between the

                                                                    4542

       1   defendant El Hage or his wife, April, with a representative of

       2   the United States.  These conversations are not being offered

       3   or received in evidence as evidence of the truth of anything

       4   said to the agents or said to either of the El Hages.  They

       5   are being offered and are being received solely to show that

       6   the El Hages were in communication with representatives of the

       7   United States while they were in Kenya, and to reflect the

       8   general tone and nature of the conversations.  They are being

       9   offered and received for no other purpose.

      10            Mr. Schmidt.

      11            MR. SCHMIDT:  Your Honor, I also ask that the English

      12   transcriptions be published to the jury as they go.

      13            THE COURT:  Yes.  You may proceed.

      14            Why don't you offer in one fell swoop all of those

      15   that you are going to play, and they are all subject to this

      16   statement to the jury and will all be received in one fell

      17   swoop, subject to the limitations just stated.

      18            What exhibits are they?

      19            MR. SCHMIDT:  Your Honor, it's WEHX-W68E, a telephone

      20   call --

      21            THE COURT:  Just 68.  Do that later before each one

      22   is played, just give the exhibits, 68E, 54 --

      23            MR. SCHMIDT:  Excuse me, it's W68, W54, W55, W56,

      24   W49, W57 and W69, and before each one is WEHX for "Wadih El

      25   Hage exhibit."

                                                                    4543

       1            THE COURT:  Yes.  Those two, four, six, seven, they

       2   are received subject to the direction which I just stated to

       3   the jury.

       4            (Defendant El Hage Exhibits WEHX-W68, WEHX-W54,

       5   WEHX-W55, WEHX-W56, WEHX-W49, WEHX-W57 and WEHX-W69 received

       6   in evidence)

       7            MR. SCHMIDT:  The first one is August 23, 1997.

       8            (Tape played)

       9            MR. SCHMIDT:  The next telephone conversation will be

      10   September 11, 1997 at approximately 6:55.

      11            (Tape played)

      12            THE COURT:  All right, ladies and gentlemen, we'll

      13   take up at that point tomorrow.

      14            MR. SCHMIDT:  Can you remind the jury to shut these

      15   off?

      16            THE COURT:  Yes, the jury is reminded to shut them

      17   off.

      18            I have something else to tell you, and that is this:

      19   I have heretofore asked that you not read, watch, listen to or

      20   discuss with anyone anything related to this case, and I know

      21   you understand that and are complying with it.

      22            I would now like to broaden that and ask you, to the

      23   extent to which it is reasonably possible, that you avoid

      24   reading, watching or listening to anything in connection with

      25   the Timothy McVeigh case.  The Timothy McVeigh case is going

                                                                    4544

       1   to receive a great deal of publicity in the next several

       2   weeks, and I know it's going to be hard to avoid it, but I ask

       3   that you make every effort just not to read or listen or watch

       4   anything with respect to the Timothy McVeigh case.

       5            Other than that, my only other comment is, have a

       6   good evening.

       7            (Jury excused)

       8            THE COURT:  We'll take a five-minute recess and then

       9   we'll proceed with the charging conference.  Whether or not

      10   the defendants are present is a matter of their choice.

      11            MR. COHN:  We'll ask, your Honor --

      12            THE COURT:  The record should be clear they have a

      13   right to be here if they wish.

      14            MR. RUHNKE:  Judge, my client wishes to be excused at

      15   this charge conference.

      16            MR. COHN:  Mr. Al-'Owhali asks to be excused.

      17            MR. SCHMIDT:  Mr. El Hage is going to stay.

      18            (Recess)

      19            (In open court; jury not present)

      20            THE COURT:  All right.  I have in front of me the

      21   various submissions by the defendants with respect to the

      22   second working draft as of April 19, 2001, 5 p.m. proposed

      23   charge to the jury, which we'll mark as --

      24            MR. COHN:  Excuse me, your Honor, since

      25   Mr. Al-'Owhali, I've just been advised that since

                                                                    4545

       1   Mr. Al-'Owhali is not allowed to go back because Mr. El Hage

       2   is still here he wants to come back out, because he can't go

       3   back to the --

       4            THE COURT:  So they all have to come back.

       5            MR. COHN:  I was just told that.  I don't know that

       6   for a fact.

       7            THE COURT:  I maintain the position that for

       8   logistical reasons they all go back or they all stay, and I'm

       9   not going to --

      10            MR. COHN:  I'm not suggesting that you interfere.  I

      11   just said he'd rather come out rather than sit in back and

      12   stair at a brick wall.

      13            THE COURT:  It makes sense.  I have no problem with

      14   that.

      15            We'll mark as Court Exhibit A of April 23rd, and as I

      16   indicated during the course of the day I plan to go over each

      17   objection, page by page, but I'd like to first begin with some

      18   general rulings.

      19            (Court Exhibit A marked)

      20            The motion to dismiss the last count for a lack of

      21   venue is granted for reasons which I will elaborate in an

      22   opinion to follow, the substance of which is I do not find

      23   that to be a continuous offense.  It's an offense completed

      24   when the false statement is uttered regardless of its impact.

      25   Indeed, as counsel for El Hage notes in the prior submission

                                                                    4546

       1   the jury is specifically told that the impact of the false

       2   statement is irrelevant, and that the cases on which the

       3   government relies in which there is a transmission of a false

       4   statement and which permits venue to be either in the place of

       5   origin or place of impact are distinguishable.

       6            The government has requested that the Court revisit

       7   the Pinkerton issue with respect to Count Five of the

       8   indictment, and with respect to the defendant Odeh on the

       9   grounds that Count Five of the indictment has the specificity

      10   between the nature of the conspiracy and the substantive

      11   offense, the lack of which caused the Court to indicate that

      12   it would not grant the Pinkerton charge with respect to the

      13   other count.

      14            The problem with that is Count Five has three

      15   separate objects and does not in fact contain the degree of

      16   specificity which the government asserts.  Conceivably one

      17   could say if you have found with respect to Count Five -- I'm

      18   using original numbers throughout -- if you have found that an

      19   object of the conspiracy was to bomb the embassy in Nairobi,

      20   then you may find, but that really requires a limitation of

      21   what Count Five is about, or may also raise the question in

      22   the jury's mind why that applies only to that one count and

      23   one defendant.  The Court adheres to its prior ruling not to

      24   give a Pinkerton charge.

      25            While on this subject, you will note the special

                                                                    4547

       1   verdict form, which is a critical document, certainly at least

       2   as important as the charge itself, the jury is asked to

       3   indicate where multiple objects to the conspiracy which

       4   objects it has found.  I worried a long time about this.  The

       5   concern that I have of course is the jury, having found one

       6   may spend a great deal of time debating or trying to reach

       7   unanimity with other objects of the of the conspiracy count.

       8   My inclination is, it's worth the time, although in one

       9   instance I think there are five objects of a conspiracy, but

      10   if anyone thinks that's not worth doing, I'm ambivalent on

      11   that point.

      12            I think also it may be helpful with respect to those

      13   defendants who may be subject to a death penalty phase to have

      14   that added insight into the jury's reasoning and finding.

      15            Does anybody think that we should not require the

      16   jury to indicate which objects of a conspiracy it found,

      17   although it has unanimously found one object, then I would

      18   like to be so advised.

      19            Silence.  We'll leave it the way it is.

      20            Let me make one other general observation.  The

      21   structure of the indictment is the conspiracy, the agreement

      22   to do among other things, let's say X, the doing of X, the

      23   attempt to do X, the aiding and abetting in the doing of X,

      24   and the causing of another to do X.  I'd like to focus on the

      25   role of the attempt charge.

                                                                    4548

       1            Now, with respect to killing of individuals, I see

       2   that, the testimony is that there is a particular desire to

       3   kill Ambassador Bushnell.  The agenda would make that the

       4   subject of greater attention.  So there is an attempt to kill

       5   her, and not the actual killing of her, and, therefore, I

       6   think with respect to the killing count, it's appropriate to

       7   have both a substantive, the killing, the actual killing and

       8   the count which talks about attempt to kill, making clear to

       9   the jury, as I believe the proposed instructions do, that the

      10   jury cannot consider the same people.  You can't consider an

      11   attempt to murder somebody who in the previous count you have

      12   found to in fact have been murdered.

      13            But I have difficulty understanding what the role of

      14   an attempt is with respect to the other count.  My

      15   understanding of an attempt is when there has not been a

      16   consummation.  An attempt to kill the prison guard is an

      17   attempt, but what is the role of an attempt with use of

      18   weapons of mass destruction --

      19            MR. FITZGERALD:  Your Honor, I could save you time.

      20            THE COURT:  Yes.

      21            MR. FITZGERALD:  We have debated it back and forth

      22   and now we're back over the edge.  We'll drop the attempt

      23   counts beyond the attempted murder of Ambassador Bushnell.

      24   Beyond the attempted murder of Ambassador Bushnell we would

      25   drop the other attempt counts.

                                                                    4549

       1            THE COURT:  Nine goes out.

       2            MR. FITZGERALD:  Not the counts, I'm sorry.  The

       3   counts that talk about murder and attempted murder in the

       4   conjunctive we will specify that at the break if you want

       5   which counts there are.  We would not proceed on the attempt

       6   language.  We're keeping the count for murder.

       7            THE COURT:  I don't see what you just said.

       8            MR. FITZGERALD:  The use and attempted use count in.

       9   Count Nine we would not proceed on the attempted

      10   use.

      11            THE COURT:  You're keeping the count but you're

      12   striking the attempted use.  Okay.  Use of weapons.  I

      13   understand.  Very good.

      14            Now, the government objects to the requirement that

      15   in the special verdict form the jury has to be unanimous as to

      16   whether they find the defendant guilty as a principal or as an

      17   aider and abettor, and I am not prepared to resolve that

      18   question.  I have not had an opportunity to read these papers.

      19   I don't recall ever requiring a special verdict on whether the

      20   jury has to be unanimous in finding defendant guilty as a

      21   principal or as an aider or abettor, and I am going to defer

      22   on that.

      23            If the defendants are of the view that the Court

      24   should retain the present language requiring a special verdict

      25   as to the alternate theory of aiding and abetting or causing,

                                                                    4550

       1   then I would like to be so advised, and I would like to have a

       2   written submission on behalf of the defendants by Thursday

       3   morning.

       4            MR. COHN:  Excuse me, which morning, Thursday?

       5            THE COURT:  Thursday morning.

       6            MR. COHN:  Thank you, your Honor.

       7            THE COURT:  Having said all of which, I am going to

       8   just go page by page and going to rely on counsel to tell me

       9   where there is an issue or a point to be made.  What's the

      10   first page -- I'm going to have a table of contents, but tell

      11   the jury not to pay any attention to the captions.  There are

      12   cases where the parties litigate the meaning of captions, and

      13   simply add, on the top of page 2 on line 2 the phrase, and the

      14   captions are simply as a reference and have no other

      15   significance.

      16            On page 3, middle paragraph line 2, during the trial

      17   you insert, may have heard.  Three lines from the bottom on

      18   page 3, strike the word, struck, and substitute, be stricken.

      19            What's the first page on which somebody has a comment

      20   or objection?

      21            MR. COHN:  I have something on 35 unless somebody has

      22   something else.

      23            THE COURT:  On page 35.

      24            MR. COHN:  May do I this sitting down, your Honor?

      25            THE COURT:  Yes.  You may even take off your jackets

                                                                    4551

       1   if you like.  This would normally be down in the robing room.

       2            MR. COHN:  There is a limit to how much I'll burden

       3   the Court with unsightliness.

       4            THE COURT:  Now, with respect to the conduct of

       5   counsel, I put in the bracket and say, if used.  Is there

       6   anybody who does not want that paragraph?  We raised this at

       7   the beginning of the trial and there was not unanimity.  Do

       8   counsel want this in or out?

       9            MR. COHN:  I want it, but I would like it amended to,

      10   in fact, you know the jury has seen a number of us spend the

      11   time talking to the government as well, and so what I really

      12   wanted was conduct of cooperation of all counsel rather than

      13   leave it just with the defendants.  I don't know how my

      14   colleague on the defense side feel about that.

      15            MR. DRATEL:  That's fine with us, your Honor, but we

      16   also request the instruction be given.

      17            THE COURT:  The first sentence, divided the work.

      18   That relates only to the --

      19            MR. COHN:  I'm not sure they know we divided the work

      20   if you really must know.  I mean they've seen us consult.

      21   They've seen us pass notes to each other, but I don't know

      22   that they know on legal issues we've divided the work, but I

      23   don't know that we've done it on factual issues particularly.

      24            THE COURT:  You propose that that language be

      25   retained.

                                                                    4552

       1            MR. COHN:  No, I would say, and have divided the

       2   work -- well, I did propose it.  I didn't think of it in that

       3   context.

       4            THE COURT:  You know what, I'd better mark Court

       5   Exhibit B of today's date is Al-'Owhali's proposed changes.

       6   Court Exhibit C is the government's letter of April 20th.

       7   Court Exhibit D is Mr. Dratel's letter of April 20th.  Am I

       8   missing anyone?

       9            (Court Exhibits B through D marked)

      10            MR. DRATEL:  Your Honor, my letter is on behalf of

      11   both El Hage and Odeh.

      12            THE COURT:  That's Court Exhibit D is on behalf of

      13   those.  Mr. Odeh I think submitted something only with respect

      14   to the Pinkerton charge and I have ruled on that.

      15            I'll strike, and has divided.  I have also noted

      16   throughout the trial counsel for various defendants have

      17   consulted with each other.  Strike, and have divided the work

      18   of the trial, and leave in an effort to facilitate their

      19   presentation and to avoid duplication.

      20            MR. COHN:  You are not going to accept the language

      21   that we've consulted with the government as well?

      22            THE COURT:  No, I am going to put that in.  I can't

      23   put that in the first sentence.  Have consulted with each

      24   other.  I can put that in the first sentence.  Have consulted

      25   with each other and with the government?  Anybody object to my

                                                                    4553

       1   saying that?

       2            MR. FITZGERALD:  No, your Honor.  I just think it's

       3   very odd.  It looks like I don't think anyone is going to

       4   think there is something wrong with cooperating.  The fact

       5   that they're coordinating, you may want to instruct the jury,

       6   but I don't see why it look like we're cooperating with the

       7   defense.  I think --

       8            MR. COHN:  It doesn't say you cooperated with us.  It

       9   says we cooperated with you.

      10            THE COURT:  With each other.  We're going too long to

      11   have that type of humor.

      12            MR. FITZGERALD:  It might make sense just to put the

      13   cooperation with the government at the end of paragraph.

      14            THE COURT:  Yes, I'm coming to that conclusion.  How

      15   about share the burdens of defense?  Is that all right?  Last

      16   phrase?

      17            MR. COHN:  Sure.

      18            THE COURT:  And cooperated with the government

      19   without --

      20            MR. FITZGERALD:  I might suggest --

      21            THE COURT:  Without -- when this did not -- where

      22   possible.  Just, where possible.  That it would be unusual and

      23   waste of time and effort if counsel did not share the burden

      24   of the defense and cooperated with the government where

      25   possible.  Is that agreeable to everyone?

                                                                    4554

       1            MR. COHN:  Yes.

       2            THE COURT:  Next page after page 5?

       3            MR. COHN:  Next one I have is 10.

       4            THE COURT:  Before we get to that, I'm reminded

       5   Counts Seven and Eight also have attempt language in addition

       6   to counts Nine and Ten.

       7            MR. FITZGERALD:  Yes, Judge, we'll treat Counts Seven

       8   Eight and Nine the same, and Ten.

       9            THE COURT:  Now we're on --

      10            MR. COHN:  On page 10 I am requesting a charge of

      11   failure to testify.  I am requesting a charge that the

      12   defendant's right not to testify --

      13            THE COURT:  You want --

      14            MR. COHN:  I am asking for it.  Again, I don't speak

      15   for my colleague.

      16            THE COURT:  Does anybody not want it in?  We don't

      17   have to decide that now.

      18            MR. DRATEL:  Your Honor, just from page 8, we

      19   skipped.

      20            THE COURT:  Page 8.  Yes.

      21            MR. DRATEL:  Persons not on trial, number 2 in my

      22   letter, second to last line, defendant was not named as a

      23   defendant in this case, or I would just add, whether or not

      24   named as a defendant in the indictment was not tried with the

      25   defendant.

                                                                    4555

       1            THE COURT:  Any objection?

       2            MR. FITZGERALD:  No strong objection.

       3            THE COURT:  Whether or not named as a defendant in

       4   the indictment.

       5            With respect to the indictment and the long list of

       6   names and aliases with respect to defendants not on trial, is

       7   there some way we can simplify that or make it clearer to the

       8   defendants?  Delete them entirely?  Delete them entirely, may

       9   have to delete many of them.

      10            MR. FITZGERALD:  You might be able to.  We'll take a

      11   look at that, Judge, and we can certainly bold face.

      12            THE COURT:  Underline or do something so you can more

      13   readily identify who are the defendants in a particular case.

      14            On page 9, second paragraph under publicity, third

      15   line, strike, or the Internet, and substitute, elsewhere.  I

      16   didn't want to suggest to the jury some other place where they

      17   could find out about what's going on here.

      18            Next page?

      19            MR. COHN:  I have something on 12, your Honor, if

      20   nobody has anything before that.

      21            THE COURT:  On page 12.

      22            MR. COHN:  Actually it starts on page 12.  Use of

      23   particular investigative techniques.

      24            THE COURT:  Yes.

      25            MR. COHN:  I object to the use just instructed that

                                                                    4556

       1   law enforcement techniques are not their concern.  In fact,

       2   they can be their concern under certain circumstances and I

       3   just don't know that that's necessary language.

       4            MS. BABCOCK:  We join that objection, your Honor, and

       5   that's mentioned in the letter that we jointly submitted with

       6   El Hage.  I think that language what the Court does earlier in

       7   that the jury can consider investigative techniques in

       8   considering whether the government's met further proof.  I

       9   think it reached too broadly.  It is communicated adequately

      10   in the previous sentence which says as a legal requirement

      11   that the government use any specific investigative technique

      12   to prove its case.

      13            THE COURT:  I have no problem striking that sentence,

      14   although it offends tradition, I don't think I have not used

      15   that sentence, but I don't know it really adds anything.

      16            MR. FITZGERALD:  Judge, I would not that we say I

      17   think three times it's whether or not the case has been proved

      18   by whatever techniques and we can just reinforces the issues

      19   not the techniques use, but whether the result gives prove

      20   beyond a reasonable doubt or not.

      21            MR. COHN:  The problem is, your Honor --

      22            THE COURT:  The issue is clearly drawn.  Give me a

      23   moment.  I don't think there is any need.

      24            Change it to read, the use of specific law

      25   enforcement techniques or the failure to use them are not your

                                                                    4557

       1   concern.  Your concern is to determine whether or not.

       2            Next.

       3            MR. FITZGERALD:  The government has something on 16.

       4            MR. DRATEL:  Your Honor, I have something on 13

       5   before that, direct and circumstantial evidence.  We would

       6   prefer something that would give the jury an example of a weak

       7   circumstantial inference.  That was just the virtue of the

       8   example that Judge Leval used and the one that we cited.

       9            THE COURT:  Now, you know, there was one judge who

      10   got tired of the wet umbrella, analogy so he had some other

      11   analogy, and the Court of Appeals reversed, and said, you know

      12   I don't understand why people don't stick to the tried and

      13   true.  I know Judge Leval changes the rain to snow, but --

      14            MR. DRATEL:  Also the subway platform one, that I'm

      15   talking about with that.

      16            THE COURT:  Let's not.  This is classic, well-proved

      17   language, and it's perfectly clear and I see no reason to

      18   change it.

      19            MR. COHN:  In that same charge I have asked for a

      20   charge that where two inferences --

      21            THE COURT:  Yes, and there is law that's

      22   inappropriate.

      23            MR. COHN:  I can still ask.

      24            THE COURT:  Recent case.  The Judge said he was going

      25   to do it.  He then consulted leaving Friday on a subject,

                                                                    4558

       1   which I don't identify, then did not give it and the objection

       2   was that he had not charged it in the way he had indicated in

       3   the charging conference that he was going to give it.

       4            MR. DRATEL:  Just in terms of procedurally, your

       5   Honor, could I restate our objection, for example, if we raise

       6   and objection, the Court denies it, should we then restate it

       7   or is it preserved by the denial we restate our objection to

       8   the circumstantial evidence?

       9            THE COURT:  You don't need to say, I object.

      10            MR. DRATEL:  Thank you.

      11            THE COURT:  Next item?

      12            MR. COHN:  Your Honor, before we get to 16, your

      13   Honor, on page 15 where you deal exceedingly briefly with

      14   voluntariness, having collapsed it into near invisibility

      15   and --

      16            THE COURT:  You want the words, if any, after, what

      17   weight?  Yes.

      18            MR. COHN:  Yes.

      19            THE COURT:  I have no problem with that.  The next

      20   thing is page 18.

      21            MR. FITZGERALD:  Page 16.  The fifth line from the

      22   top.  My suggestion is that after we say, nor can any such

      23   false exculpatory statement, put the words, alone establish,

      24   or, alone be sufficient for an inference to be drawn that the

      25   defendant knew of and intentionally joined in the conspiracies

                                                                    4559

       1   charged.

       2            THE COURT:  Any objection?  I'll add a line after at

       3   the end of the fourth line on page 16.  I'm up to 18.

       4            MR. FITZGERALD:  Judge, we object to the first two

       5   paragraphs indicating that the government witnesses had anger

       6   toward the defendant, and I don't think that's borne out that

       7   the government witnesses had anger or hostility toward the

       8   defendants and certainly if we're going to talk about anger or

       9   hostility, we should just make it neutral, any witness having

      10   any hostility toward any party.  I think it singles out the

      11   government witnesses for impeachment.

      12            MR. DRATEL:  Your Honor, that's not true.  With

      13   respect to al Fadl who expressed a resentment of people who

      14   make more money than him which included Mr. El Hage, and he

      15   also had --

      16            THE COURT:  Strike government from the second

      17   sentence, which some witnesses may have toward one or more of

      18   the defendants.

      19            MR. FITZGERALD:  Judge, anger, hostility towards

      20   Mr. El Hage in this courtroom over the pay dispute?  I think

      21   there may be people who had anger toward al Qaeda or toward

      22   the bombing, but why are we singling out that no witness had a

      23   hostility toward a party?

      24            THE COURT:  I don't recall.  Was this requested or

      25   did this come from the Court sua sponte?

                                                                    4560

       1            Sua sponte.

       2            (Pause)

       3            The change is to read:  In connection with your

       4   evaluation of the credibility of the witnesses you should

       5   specifically consider evidence of resentment or anger on the

       6   part of any witness if you find this to be the case.  Evidence

       7   that a witness is biased, prejudiced or hostile -- strike,

       8   towards the defendant, requires you to view that witness'

       9   testimony.  And then continued.  So it's completely neutral.

      10   Next?

      11            MR. COHN:  Your Honor, in accomplice testimony at the

      12   starting at the bottom of --

      13            THE COURT:  Yes.

      14            MR. COHN:  I think that you have neglected, although

      15   I think it's implied, that they can reject the entire

      16   testimony or accept any part of it.

      17            THE COURT:  I have that someplace.

      18            MR. COHN:  It's not there.

      19            THE COURT:  I don't --

      20            MR. COHN:  I mean imply that by saying you should

      21   reject, and then you go on to say that.

      22            THE COURT:  Next paragraph.  On page 20, as with any

      23   witness let me emphasize that the issue of credibility need

      24   not be decided in and all or nothing fashion.

      25            MR. COHN:  Yes.

                                                                    4561

       1            THE COURT:  Even if you find the witness testified

       2   falsely.

       3            MR. COHN:  You never make specific that it's their

       4   right to reject it in its entirety, and it is their right.

       5            MR. FITZGERALD:  Which is said elsewhere.

       6            THE COURT:  I think it's covered on page 20.

       7            MR. FITZGERALD:  The next objection the government

       8   had was on page 20.

       9            THE COURT:  Yes.

      10            MR. FITZGERALD:  At the top of page 20 the standard

      11   language that a jury is told to look at an accomplice and to

      12   determine whether his motive is to testify truthfully or

      13   falsely is for them to determine.  And then at the bottom of

      14   page 20 we have a second charge on cooperating witnesses,

      15   somehow distinguished from accomplice witnesses, where the

      16   jury is instructed that cooperating witnesses have a motive to

      17   testify falsely.

      18            That I believe is on the top of page 21 it says:  A

      19   witness who realizes that he may be able to obtain his own

      20   freedom, et cetera has a motive to testify falsely.  I think

      21   the entire paragraph going from 20 on to 21 and the next two

      22   paragraphs is unnecessary in light of the standard charge of

      23   accomplice witnesses.

      24            THE COURT:  Why isn't that true?  There is no point

      25   in, there are no cooperating witnesses who were called other

                                                                    4562

       1   than accomplices.

       2            MR. DRATEL:  There are, your Honor.  There were for

       3   example Ashef Juma.  There are certain, the one that comes to

       4   my mind right now.  There may be others.  I don't remember.

       5   But who have protection agreements with the United States

       6   brought them over, brought 17 members of his family over but

       7   he's not an accomplice and a Ashef Juma he's the one I know

       8   just off the top of my head.

       9            MR. FITZGERALD:  Your Honor, also it describes a

      10   cooperative witnesses that the agreement not to further

      11   prosecute.  You can merge, if there is a distinction from

      12   accomplice witnesses to witnesses receiving benefits they can

      13   be merged into one section.  I don't think we should single

      14   them out twice and particularly the way the cooperating

      15   witness section reads it indicates that all motives are to

      16   testify falsely.  Cooperative witness section talk about

      17   people pleading guilty with cooperation agreements which does

      18   not employ to either of the Jumas.

      19            THE COURT:  I think that's a valid point.  I think

      20   what I ought to do is to simply say, cooperating witnesses

      21   called by the government, that the previous instruction given

      22   with respect to accomplices and judging their credibility

      23   applies as well to any cooperating witnesses called by the

      24   government who may receive some benefit such as, and then pick

      25   up the bottom of page 20.

                                                                    4563

       1            MS. BABCOCK:  Judge, we would object to removing the

       2   cooperating witness instruction because we also, like counsel

       3   for El Hage, believe there is a distinction to be drawn

       4   between accomplices and witnesses who are cooperating.  In

       5   fact --

       6            THE COURT:  I'm keeping it a separate instruction.

       7   The test is really the same with respect to both, and --

       8            MS. BABCOCK:  Well, the test is not really the same

       9   because cooperating witnesses receive a greater incentive and

      10   have a great motive to testify falsely.

      11            THE COURT:  That's right.  That's what we tell them

      12   with respect to in the accomplice provision.

      13            MS. BABCOCK:  My co-counsel reminds me there were at

      14   least two witnesses who were cooperating witnesses, but not

      15   accomplices.

      16            THE COURT:  All right.

      17            MS. BABCOCK:  Ashef Juma and a Ashef Sekander.

      18            THE COURT:  Suppose we said, cooperating witnesses

      19   called by the government on a related note let me say a few

      20   words about the agreements between the government and certain

      21   of its witnesses other than accomplices and then keep what's

      22   at the bottom of page 20.

      23            MR. FITZGERALD:  Your Honor, there is no agreement

      24   not to further prosecute for people to plead guilty.  The

      25   second sentence of that does not apply to the Juves, one of

                                                                    4564

       1   whom in fact was a defense witness.

       2            THE COURT:  Strike that sentence.

       3            MS. BABCOCK:  Your Honor, that language about the

       4   government bringing the witnesses cooperation --

       5            THE COURT:  Give me a moment, please.

       6            (Pause)

       7            THE COURT:  Suppose we say, on a related note, let me

       8   say a few words about the agreements between the government

       9   and certain of its witnesses other than accomplices.  Strike

      10   the next two sentences.

      11            Some of these witnesses have been placed in federal

      12   protective custody and some have received money in connection

      13   with their protective custodial status, and.  Then go down to

      14   three lines from the bottom.  Strike, therefore, you must

      15   examine the testimony of such a witness with caution and weigh

      16   it with great care if -- and then leave it the way it is.

      17            MS. BABCOCK:  Judge, we would ask the Court to keep

      18   in the sentence that says the government also promised to

      19   bring those witnesses' cooperation to the attention of the

      20   Court that is sentencing them.

      21            THE COURT:  That only applies to the accomplice.

      22   That doesn't apply here.  That's the point.

      23            MS. BABCOCK:  It's not in the accomplice instruction.

      24            THE COURT:  Yes, it is.  It isn't?

      25            MR. DRATEL:  Your Honor, all the parts that have to

                                                                    4565

       1   do with that should be reincorporated back into the prior

       2   structure.  Also, witnesses realize they may be able to --

       3            THE COURT:  I see what the problem is.  Okay.

       4            MR. FITZGERALD:  Judge, should we balance it?  That

       5   there is also a agreement that not only says that the

       6   government will bring the cooperation to the attention of the

       7   government.

       8            THE COURT:  You should ask yourselves whether

       9   so-called accomplices benefit more by lying than by telling

      10   the truth.  What we have to do is we have to take what I've

      11   just stricken from cooperating witnesses called by the

      12   government who are not accomplices and move it into the

      13   preceding paragraph.  We will do that.

      14            MR. FITZGERALD:  And without, Judge, the language

      15   that was stricken on page 21 indicated that such witnesses had

      16   a motive to testify falsely.

      17            THE COURT:  I'm striking that.

      18            MR. FITZGERALD:  Okay, great.  Thank you.

      19            THE COURT:  Let me do it.  Let me take the time.

      20            Page 20, under cooperating witnesses called by the

      21   government, the second and third sentence gets inserted on

      22   page 19 as a second full paragraph.  Otherwise, that remains

      23   the same.

      24            Cooperating witnesses called by the government then

      25   reads:  On a related note, let me say a few words about the

                                                                    4566

       1   agreements between certain of the government witnesses other

       2   than accomplices.

       3            We delete the next two sentences because we move them

       4   to page 19, and we strike the first paragraph on page 21 and

       5   the first two sentences of the second paragraph on page 21.

       6   We strike the word, therefore, and begin, examine that

       7   testimony of such a witness with caution and weigh it with

       8   great care.  After scrutinizing such testimony if you decide

       9   to accept it, you may give it what weight, if any, you find it

      10   deserves.  Next.

      11            MR. COHN:  Your Honor, it's not on the page because

      12   you took it out, but I don't know why you took out government

      13   witnesses, took out of the second draft quote government

      14   witness improper to consider guilty plea as it existed in the

      15   first draft, and I think it ought to be put back in.

      16            MR. FITZGERALD:  It's still there.

      17            MR. COHN:  Is it?

      18            MR. FITZGERALD:  Page 21.  In fact, we suggest one

      19   change to it.  The bottom of page 21 in the second draft talks

      20   about how it's improper to consider a guilty plea, with which

      21   we obviously agree.  The only question the government suggests

      22   that the third line from the bottom that we strike in light of

      23   the benefits afforded by the government to a cooperating

      24   witness that the only issue to tell them the plea is not their

      25   concern.

                                                                    4567

       1            MR. COHN:  In the words of Emily Latella:  Never

       2   mind.

       3            MS. BABCOCK:  Your Honor, we would like that language

       4   to remain in there.  We think that there is a real danger that

       5   the jury goes to be drawing comparisons between those

       6   witnesses who pled guilty under similar circumstances, and I

       7   think to say that it's simply a personal decision concerning

       8   his dealings is sufficient.

       9            THE COURT:  I'll leave it in.  Next page?

      10            MR. COHN:  26, your Honor.

      11            MR. HERMAN:  Judge, can we go back to page 21?  We're

      12   confused when the Court struck the first paragraph.

      13            THE COURT:  Why the Court struck the first paragraph

      14   on page 21?

      15            MR. HERMAN:  Yes, sir.

      16            THE COURT:  I'm sure the government would object to

      17   being put in.

      18            MR. FITZGERALD:  You can put it back in, that's fine.

      19            THE COURT:  We'll put it back in.

      20            MS. BABCOCK:  Would it be possible just to read the

      21   instruction?

      22            THE COURT:  Yes.  On page 19 I'm going to insert the

      23   second and third sentences under the caption, cooperating

      24   witnesses called by the government on page 20.

      25            The section called cooperating witnesses called by

                                                                    4568

       1   the government will then read:  On a related note, let me say

       2   a few words about agreements between the government and

       3   certain of its witnesses other than accomplices.  Then it

       4   should read:  Now the government is permitted to enter into

       5   agreements of this sort.

       6            MR. FITZGERALD:  I think you omitted the prior

       7   sentence, Judge.  I'm sorry, the last sentence on page 20 was

       8   staying.  Some of these witnesses --

       9            THE COURT:  Yes, that's in there.  That's in there.

      10   The government is permitted to enter into agreements of this

      11   sort.  You in turn may accept the testimony of such a witness

      12   and convict each of them on the basis of his testimony alone

      13   if it convinces you a defendant's guilty beyond a reasonable

      14   doubt.  Then we go down to, you must examine the testimony of

      15   such a witness with caution and weigh it with great care.  And

      16   then last sentence remains the same.  Next.

      17            MR. FITZGERALD:  Page 23, Judge.

      18            THE COURT:  Page 23.

      19            MR. WILFORD:  I'm sorry, your Honor, with respect to

      20   witnesses who have entered into cooperation agreements the

      21   language that you have in page 21, while realizing that the

      22   witness may, I think it's important for the jury to consider

      23   that.

      24            THE COURT:  21?

      25            MR. WILFORD:  Second paragraph on 21 which begins

                                                                    4569

       1   with, however.  I understand you don't want it included in

       2   this particular section.  However, it's important that the

       3   jury have an opportunity to consider the cooperation agreement

       4   and the motive of the witnesses who have entered the

       5   cooperation agreement.  It's not anywhere else.

       6            THE COURT:  It's in 19.

       7            MR. WILFORD:  It's in 19?

       8            THE COURT:  Yes, the last two lines.

       9            MR. DRATEL:  Your Honor is putting it back in the

      10   accomplice testimony part is my understanding, because it

      11   wasn't in the original.

      12            MR. FITZGERALD:  The bottom of 19.

      13            THE COURT:  Enough of this.  We'll give you another

      14   draft.  I think we all know what is intended.  Let's move on.

      15            MR. FITZGERALD:  Your Honor, page 23.  The last

      16   paragraph singles out to endorse an attack by defense counsel

      17   and the legitimacy of the law enforcement witness I don't

      18   think that's necessary in light of the prior paragraph.  Quite

      19   legitimate for defense counsel to try to attack the

      20   credibility of a law enforcement witness.

      21            THE COURT:  Also you know the foundations of the

      22   courthouse would shake if that were not included in the

      23   charge.

      24            MR. COHN:  On 24, your Honor, the government objects

      25   to the missing witness charge, and I think that in the second

                                                                    4570

       1   paragraph --

       2            THE COURT:  That's a question.  First of all, is

       3   anybody going to argue missing witness?

       4            MR. COHN:  I am.

       5            THE COURT:  Who is the missing witness?

       6            MR. COHN:  Missing witnesses are Kenyan police

       7   authorities to testify to the conditions of confinement.

       8            MR. FITZGERALD:  He didn't seek to produce them.  He

       9   didn't seek a letter rogatory to go to Kenya to bring them

      10   over here.

      11            MR. COHN:  Your Honor, we couldn't even get the names

      12   of the Kenyan witnesses when we tried.  The government had

      13   control of these witnesses and their identity.  It's their

      14   obligation to show the conditions of confinement, and the fact

      15   that they didn't can be argued to the jury.

      16            MR. FITZGERALD:  They could have sent a letter

      17   rogatory to Kenya saying please produce whatever witnesses

      18   were present for prison conditions.

      19            THE COURT:  What is your objection to it?

      20            MR. COHN:  In the second paragraph, your Honor, you

      21   restated what you said in the first paragraph, and instead of

      22   the word, could, you used, would, which means makes the jury

      23   project.  And new testimony is not exactly material testimony,

      24   but I would just leave out the word, new.  So I would, on the

      25   second sentence of the second paragraph replace the word,

                                                                    4571

       1   would, with, could, which I think is fair, and strike the word

       2   new.

       3            THE COURT:  Strike what word.

       4            MR. COHN:  New like in N-E-W, like in recent or

       5   something different, a different subject matter.  I think it

       6   implies too much.

       7            THE COURT:  Oh, no.  New testimony is just

       8   concatenation of a whole long paragraph which usually says

       9   bear in mind, however, that the government has no obligation

      10   to call any witnesses whose testimony would merely be

      11   duplicative of the prior testimony.  So we cut all that out

      12   and put in new.  You'd rather have --

      13            MR. COHN:  It's hardly a place I'm going to draw a

      14   battle line, your Honor.

      15            THE COURT:  I think you're well advised.  I'm going

      16   to leave it in, and I'm going to put, may, after, you.  You

      17   may have heard.  It shouldn't be evidence.  You may have heard

      18   arguments.

      19            MR. COHN:  Yes, that's right, your Honor.

      20            THE COURT:  You may have heard argument about a

      21   witness who has not -- about witnesses.

      22            MR. COHN:  Yes.

      23            THE COURT:  About witnesses who have not been called.

      24   The defendants argue that these witnesses, and then if you

      25   find that any uncalled witness.

                                                                    4572

       1            MR. COHN:  And, could have given, instead of would

       2   have given?  We have no idea what they would have done.  I

       3   mean I think that's fair to everybody.

       4            MR. FITZGERALD:  I think I know Mr. Dratel wants to

       5   speak.  Your Honor, I would ask that this be balanced by an

       6   instruction that the defendants have no burden of proof, but

       7   they have been given subpoena power and they do have the power

       8   to seek letters rogatory.  I think the jury should understand

       9   that it's not just the government that can produce witnesses.

      10            MR. COHN:  In the history of this case, Judge, we

      11   have been asking since last August for identification of

      12   witnesses.  Letters rogatory require that we be able to

      13   identify people.  We have been denied access to that.  It's

      14   clearly the government's --

      15            THE COURT:  You may consider whether witnesses

      16   testimony would have merely repeated other testimony and

      17   evidence already before you.  All right.  To change a, would,

      18   to a, could, that's a nuance that I'll change the, would, to

      19   the, could.

      20            MR. COHN:  The jury may say to themselves that --

      21            THE COURT:  I've granted your request.  Let's move

      22   on.

      23            MR. DRATEL:  With respect to missing witness and

      24   identification, but I just make it clear that we made a formal

      25   request of Ali Mohamed's attorney.

                                                                    4573

       1            THE COURT:  I put it in.  I put it in.  Let's not

       2   argue discovery now.  I'm leaving it in.  Next?

       3            MR. DRATEL:  26, 24 from the government.  26, your

       4   Honor, recording and transcripts.

       5            THE COURT:  Exhibit X on top of page 25 contains a

       6   list of all the stipulations which have been entered into in

       7   the case.  I hope there will be such an exhibit.

       8            MR. FITZGERALD:  Yes, Judge, we handed out the drafts

       9   last week.  We're just waiting to see.

      10            MR. COHN:  Your Honor, there is one issue that sort

      11   of comes up collaterally with that, and while they're not

      12   charged in the case, there probably will be on summations

      13   things like power point presentations, which obviously will be

      14   previewed to the Court, but I'm not sure they come within

      15   charts and summaries.

      16            In addition to all of it, we're probably going to

      17   present things by way of electronic blackboard and things

      18   which are illustrative on argument, but are not really charts

      19   that have been admitted in the case.

      20            THE COURT:  Page 7, certain materials displayed

      21   during the trial is not evidence.

      22            MR. COHN:  I guess during the trial, summation as

      23   well.  Okay.  Thank you.

      24            THE COURT:  Next.

      25            MR. DRATEL:  Your Honor, recording of transcripts,

                                                                    4574

       1   page 26.  It's also number 6 I believe in my letter.  Yes,

       2   just to add the sentence which the Court has in many other

       3   instances it says quote, like any other evidence the

       4   recordings of transcripts should be given such weight as they

       5   deserve in light of all the facts and circumstances.  I just

       6   ask that that be added and put it on equal footing or not more

       7   equal footing than anything else.

       8            THE COURT:  This is your item 6?

       9            MR. DRATEL:  Yes, your Honor.  The quoted portion at

      10   the end.

      11            MR. FITZGERALD:  It seems to say that already in

      12   paragraph 1 of 26, the last sentence.

      13            THE COURT:  You must therefore regard give this

      14   evidence equal consideration along with all the other evidence

      15   in the case.

      16            MR. DRATEL:  I don't think that's a correct statement

      17   because they don't have to give it equal consideration.  They

      18   should give it whatever weight they think it deserves.  They

      19   don't have to give it equal consideration because you're sort

      20   of putting tapes above everything else.  You say you have

      21   everything else that you give the weight it deserves, but

      22   tapes you have to give equal consideration to everything else

      23   and I think it's over emphasizing the importance of tapes.

      24            THE COURT:  Where do you want this to go, this

      25   language?

                                                                    4575

       1            MR. DRATEL:  I think at the end of the first

       2   paragraph or at the end of the third paragraph, either way.

       3            THE COURT:  You want something more than give this

       4   evidence equal consideration along with all the other evidence

       5   in the case?

       6            MR. DRATEL:  To me when I read it the reason I put

       7   that in when I read it, it's to be overemphasized.

       8            THE COURT:  Denied.  Next.

       9            MR. DRATEL:  Next is I think 32 and 33.

      10            MR. COHN:  No, I have something on 28.

      11            THE COURT:  I have something on 28, also.  Talk about

      12   numbers and counts and so on, they are going to change, right?

      13   We've stricken the last count.  You abandoned six so there are

      14   two left.  Whatever it is.

      15            MR. FITZGERALD:  We'll figure out the number, Judge.

      16            THE COURT:  Let's make sure we have the right number

      17   and also your answer to each of these special verdicts will be

      18   yes or no, or, guilty or not guilty because some of the

      19   questions are yes, no.  Some are guilty or not guilty.  What

      20   is on page 28?

      21            MR. COHN:  Your Honor, we would like you to say in

      22   that when you talk about the difference in dates and variance

      23   I'd like you to add the language saying, unless the difference

      24   in date is material.  You seem to give the impression that any

      25   date will do.

                                                                    4576

       1            THE COURT:  Where are you?

       2            MR. COHN:  That's on page 28 variance in dates.

       3            MR. FITZGERALD:  That's 29.

       4            THE COURT:  The jury should determine whether any

       5   such difference is material and if you find it is material.

       6   It's right there.

       7            MR. COHN:  Okay, that's fine, I'm sorry I missed it.

       8            THE COURT:  Okay.  Next.

       9            MR. COHN:  Anybody before 31?

      10            MR. DRATEL:  No, 32.

      11            MR. COHN:  Your Honor, I understand that my comments

      12   for page 31, the overview of conspiracy law and the issue of

      13   joining one object of the conspiracy being enough flys in the

      14   face of a long line of cases, but reviewing those cases it

      15   seems to me that all of them deal with conspiracies where the

      16   conduct is of such like nature no matter what the charge that

      17   joining one of the objects really contemplates joining all,

      18   even if they didn't know about all the objects.

      19            For instance, in the Bill Cosby, whatever the name of

      20   the case is, the Cosby thing there were two objects of

      21   conspiracy.  One was a travel act and the other was a Hobbs

      22   Act, but they both were for the same purpose of extorting

      23   money from Bill Cosby, and so they used both of these as

      24   objects of the conspiracy.

      25            Here we have objects which can be viewed as very,

                                                                    4577

       1   very limited, which is, for instance, bombing in Nairobi

       2   embassy, as that's an object of the conspiracy, and then there

       3   is killing all Americans essentially everywhere.  That I don't

       4   know that you can draw from that one object that they could

       5   have joined the other.  And what that does is so confuses the

       6   multiple conspiracy issue that I think it is misleading to the

       7   jury in this kind of case.

       8            So, again, I know that all the cases, even the most

       9   recent pronouncement of the circuit have said that proving one

      10   object is sufficient.  I think there has never been a case

      11   where the objects are so different and, therefore, and it sort

      12   of backs into your Pinkerton analysis.

      13            THE COURT:  It also backs into my reasoning in asking

      14   the jury to indicate which object it has found.

      15            MR. COHN:  Just because they tell us doesn't mean

      16   that it satisfies the requirement of law.

      17            THE COURT:  No, but it tells us what they have

      18   considered.  I understand your objection not really to be to

      19   the charge, but a substantive objection to the indictment and

      20   it is denied.

      21            MR. COHN:  In that regard, also, your Honor, I do

      22   suggest a multiple conspiracy charge that is somewhat

      23   different than yours, coming on page --

      24            THE COURT:  Page 4 of your letter.

      25            MR. COHN:  -- page 37 of your draft in which I take

                                                                    4578

       1   the language of United States against Berger, and I think

       2   again is less confusing to the jury under these circumstances.

       3            THE COURT:  This is the language in the case.

       4            MR. COHN:  That is a direct quote, your Honor.

       5            THE COURT:  In which the Court is suggesting what the

       6   charge should say?

       7            MR. COHN:  Yes.  I'm sure your Honor wants to look at

       8   the same case as the case in full, and I just suggested to you

       9   and we can proceed on this after you've read it.

      10            THE COURT:  I am going to reserve on that.  I

      11   reserved now on two things.  I think only two things I'm

      12   reserving on, the government's request that the jury not be

      13   required to be unanimous as to whether a defendant is

      14   convicted as a principal or an aider and abettor, and I'm

      15   reserving on the proposal that the multiple conspiracy charge

      16   language on page 37 tracks that in the United States against

      17   Berger.  My resolution of both of those things will be

      18   reflected in the next day.

      19            Next.

      20            MS. BABCOCK:  Your Honor, page 33, which we object to

      21   the use of the term combination to define a conspiracy, and

      22   this is something that the Court uses in a couple of different

      23   places throughout the charge.  Again, on page 35, I think we

      24   list, do we list the pages in our letter?

      25            MR. DRATEL:  No, just the three places without the

                                                                    4579

       1   pagination.

       2            MS. BABCOCK:  Our pagination was a little bit

       3   different than yours, so we didn't list all the specific

       4   pages, but object to that because to me common sense meaning

       5   of the word combination is just a joinder, and it doesn't,

       6   it's not the same as what is required for conspiracy which is

       7   a meeting of the mind or a mutual agreement.  I think the term

       8   is also vague.  I don't think the jury is going to know what

       9   it means.  I think it lowers the government's burden of proof

      10   on that element.

      11            MR. FITZGERALD:  Your Honor, the language follows

      12   immediately after combination of two or more persons to join

      13   together to accomplish some illegal objective in violation of

      14   the laws of the United States.

      15            THE COURT:  Denied.  I think this is time honored

      16   standard language, the meaning of which I think is quite

      17   clear.

      18            Next.

      19            MR. COHN:  Your Honor, although I didn't do the pages

      20   I believe as to Mr. Al-'Owhali aiding and abetting is just not

      21   possible under the evidence and no aiding and abetting charge

      22   ought to be given to him.  Either he's a principal, or he's

      23   not.

      24            THE COURT:  Denied.  Typo page 36 next to the last

      25   line should be conspiracy in fact had the unlawful purpose

                                                                    4580

       1   specifically alleged in the indictment.

       2            MR. DRATEL:  The proof of multiple conspiracies page

       3   38, that second paragraph with respect to the defendants

       4   intention is item 9 in our letter.  We would ask the Court to

       5   wait to determine what the defendants are going to argue, what

       6   the defendants' intentions are.

       7            THE COURT:  Wait till the arguments?

       8            MR. DRATEL:  I'm sorry, your Honor, I misspoke.  Wait

       9   till there is, that there is articulation of what is going to

      10   be argued.  I don't know that we're going to argue at that

      11   point, but no one else is going --

      12            THE COURT:  You just don't understand the sequence.

      13   The Court is mandated under the rules to advise the defendant

      14   prior to closing argument what it will charge, so apart from

      15   the logistics I don't think I can withhold advising you what

      16   the charge until you've made your argument.

      17            I do, however, and this is as good as time as any, to

      18   alert you to the fact that although there will be a printed

      19   charge which the jury will have, that I reserve the right to

      20   deviate from the printed charge in the event that I conclude

      21   that in closing argument any counsel has deviated improperly

      22   from the record or the law.  This is known by my colleague and

      23   good friend Judge Brieant as the right to spear the red

      24   herring, and as I understand, and counsel should understand,

      25   that that is a right that the Court specifically does reserve.

                                                                    4581

       1            Now, you want me to wait with respect to what issue?

       2            MR. DRATEL:  It says here the defendants contend that

       3   the government's proof failed to show under any of the

       4   coconspiracy counts that there existed only one overall

       5   conspiracy.  Rather they claim -- first, if we're going to put

       6   something here that's going to be conclusive I would ask that

       7   it say, some of the defendants.  It's not clear that all the

       8   defendants are going to argue that.

       9            THE COURT:  Is there any doubt that this is an

      10   argument that is going to be advanced by at least some of the

      11   defendants?

      12            MR. COHN:  I'll be making that argument.  I don't

      13   know who else is.

      14            THE COURT:  I'll put in here, some of.

      15            MR. DRATEL:  The only other change I would have then

      16   to that is the last sentence reads:  Rather, they claim that

      17   in each of the four conspiracy counts, before it gets to there

      18   actually just to put in to the extent that the government has

      19   proved the existence of any conspiracy.

      20            THE COURT:  No.  That doesn't really add anything.  I

      21   see what you are saying because this is what the defendants

      22   are saying.  You want to say to the extent?

      23            MR. DRATEL:  The government has proved the existence

      24   of any conspiracy, and then.

      25            THE COURT:  I'll put that in.

                                                                    4582

       1            MR. DRATEL:  Thank you, your Honor.

       2            THE COURT:  Let's take a five-minute recess.

       3            (Recess)

       4            (Continued on next page)

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    4583

       1            THE COURT:  Let's resume.  Some of the defendants

       2   have taken a prayer break but Mr. El Hage is the only

       3   defendant who wishes to be present, and he is present.

       4            Mr. Dratel, I revisited your concern about recording

       5   the transcripts, and would it alleviate your concern if on

       6   page 6 at the end of the first full paragraph we said, that is

       7   to say, you should give this evidence such weight as you

       8   believe it deserves in light of all the facts and

       9   circumstances?

      10            MR. DRATEL:  Yes, your Honor.

      11            THE COURT:  We will put that in.

      12            MR. DRATEL:  Thank you.

      13            THE COURT:  Where are we?

      14            MR. FITZGERALD:  The government has nothing until 43.

      15            THE COURT:  Does anybody have anything before 43?

      16            MR. COHN:  The only other thing I had, your Honor,

      17   and I raise it just by way of caution for the record, is that

      18   you are not giving me a single act charge.

      19            THE COURT:  What do you mean by single act charge?

      20            MR. COHN:  In other words, I suggested in my request

      21   to charge -- it's a Porelli charge.

      22            THE COURT:  Yes.

      23            MR. COHN:  Single act is not necessarily evidence of

      24   joining a conspiracy but must be considered in the context

      25   that -- it's that charge.

                                                                    4584

       1            THE COURT:  We say on 43, in fact, even a single act

       2   may be sufficient to draw the defendant within the ambit of

       3   the conspiracy so long as the defendant has knowingly and

       4   willfully joined the conspiracy.  Tell me the language you

       5   want.

       6            MR. COHN:  I had suggested it in my request to

       7   charge, your Honor, and I don't have it with me.  I will get

       8   it to you again.

       9            THE COURT:  No, no.  I have your requests to charge.

      10            MR. COHN:  Not the objection but the requests.  I

      11   didn't bring that with me, I am sorry.

      12            MS. BABCOCK:  We actually have something on 42.

      13            THE COURT:  42.

      14            MS. BABCOCK:  The first full paragraph, the second

      15   sentence from the end says on the other hand, each defendant

      16   denies that he was a member of any of those conspiracies.  We

      17   have asked that that be stricken and substituted for the

      18   following sentence:  On the other hand, the defendants contend

      19   that while they may have been acquainted and in contact with

      20   others named as coconspirators in the indictment, they did not

      21   have knowledge of the illegal purpose or purposes of the

      22   charged conspiracies.

      23            THE COURT:  We have that.  Look at page 44.

      24            MS. BABCOCK:  The reason we suggest it there, your

      25   Honor, is that the sentence that you have is kind of a non

                                                                    4585

       1   sequitur.  What you are saying in the preceding sentence is,

       2   the government contends that these acts and conversations show

       3   beyond a reasonable doubt knowledge on the part of the

       4   defendant, and then you say on the other hand each defendant

       5   denies he was a member.

       6            What we are trying to do there is to make that

       7   consistent with and sort of the opposite of what the

       8   government contends.  On the other hand, each defendant

       9   contends that the acts and conversations, that he was

      10   acquainted with them but that they don't show knowledge of the

      11   illegal purpose.

      12            THE COURT:  I see what you mean.  So it would read,

      13   on the other hand, each defendant denies that these acts and

      14   conversations showed that he had such knowledge.  All right, I

      15   will make that change.  Next?

      16            MR. FITZGERALD:  On page 43, your Honor, as suggested

      17   at the bottom of page 2 of the government's letter, I think

      18   that the first paragraph should be amended to make clear that

      19   having a conversation where you agree to an unlawful agreement

      20   can make you guilty.  So I think the language would be at the

      21   end of the first paragraph, such assembly and discussion does

      22   not by itself insert the word necessarily, establish an

      23   unlawful agreement --

      24            THE COURT:  I have lost you.  Where are we?

      25            MR. FITZGERALD:  Page 43, the end of the first

                                                                    4586

       1   sentence of the first full paragraph.  Such assembly and

       2   discussion does not by itself necessarily establish an

       3   unlawful agreement, inserting the word necessarily --

       4            THE COURT:  I am sorry.  We are on page 43?

       5            MR. FITZGERALD:  Yes, first full paragraph.

       6            THE COURT:  The one that begins I caution you.

       7            MR. FITZGERALD:  Yes, the end of that first sentence.

       8   Sorry.  The phrase and such assembly and discussion does not

       9   by itself, insert the word necessarily, establish an unlawful

      10   agreement, and then adding unless, of course, you find that an

      11   agreement was reached during that conversation.

      12            THE COURT:  I think that is fair.  Unless you find

      13   that -- I question whether we have to modify agreement.

      14   Unlawful agreement?

      15            MR. FITZGERALD:  Yes.

      16            THE COURT:  An unlawful agreement was reached at that

      17   time.

      18            MR. DRATEL:  Your Honor, I just think it somehow has

      19   to be tied to the agreement charged in the indictment.

      20            THE COURT:  Excuse me.  An unlawful agreement charged

      21   in the indictment was reached at that time?

      22            MR. DRATEL:  Yes.

      23            MR. FITZGERALD:  But the discussion of the law here

      24   generally discusses free discussion of ideas generally.  It is

      25   not illegal unless you have reached an illegal agreement.  It

                                                                    4587

       1   is not limited to the context of the indictment.

       2            THE COURT:  Yes, you can't put everything in one

       3   sentence.  I think the government's point is well taken.

       4            Next?

       5            MR. FITZGERALD:  The government has nothing until

       6   102, reserving its right on page 84.

       7            THE COURT:  Anything between 42 and 102?

       8            MS. BABCOCK:  Yes.  On 46, I believe it is, regarding

       9   the acts and declarations of coconspirators.  It is actually

      10   on page 47.  We move to strike that entire paragraph, starting

      11   with what does this mean, and the reason we move to strike it

      12   is because we believe that there is a risk that when the jury

      13   reads this they are going to be misled regarding the

      14   government's burden of proof on the substantive crimes charged

      15   in the indictment and might be tempted to convict on the

      16   substantive crimes based on the Pinkerton theory.

      17            THE COURT:  But, you see, this deals with statements

      18   made, which is very much relevant to the existence of the

      19   conspiracy and its objects.

      20            MS. BABCOCK:  Your Honor, I misspoke.  The paragraph

      21   that we wanted stricken is the one that begins with

      22   accordingly.

      23            THE COURT:  OK.  No.  I understand what your concern

      24   is and I am not going to charge Pinkerton, and I don't think

      25   Pinkerton will occur to a lay jury absent a specific

                                                                    4588

       1   instruction to that effect.  Next.  The government has nothing

       2   until 102.  Anybody have anything until 102?

       3            MR. DRATEL:  Yes, page 50.  This is number 12 and to

       4   a certain extent 13 as well, because it is the same section,

       5   Count 1 and Count 3.  The overt act committed in furtherance

       6   of a conspiracy, the last sentence on page 50.  In other

       7   words, the fact that they already found an overt act was

       8   omitted, and we would just add the portion underlined at 12.

       9   Where it says your obligation to find unanimously, I would

      10   just add there beyond a reasonable doubt, and then at the end

      11   of the entire sentence, considering, and then a comma and then

      12   before finding that element has been proved.  Just as a

      13   reference point, on 62 --

      14            THE COURT:  Just a moment.  I will put in beyond a

      15   reasonable doubt, and before finding that element has been

      16   proved just repeats what is at the beginning of the paragraph.

      17            MR. DRATEL:  That last language, the reasonable doubt

      18   language is already in 62, the second-to-last paragraph.

      19            THE COURT:  I am going to change the last sentence on

      20   page 50 by putting after the word unanimously, and beyond a

      21   reasonable doubt.

      22            MR. DRATEL:  Right.

      23            THE COURT:  Otherwise I will leave it the way it is.

      24            MR. DRATEL:  Thank you very much.

      25            THE COURT:  Next?

                                                                    4589

       1            MR. DRATEL:  I just wanted to say at 62 I had the

       2   same addition at the end but it is the same as the one your

       3   Honor just put in.  We can move on to 71, which is, we would

       4   not request a withdrawal charge.

       5            THE COURT:  And you said something about page 62 the

       6   same --

       7            MR. DRATEL:  Just at the end, I would ask for it to

       8   say before you find that element.

       9            THE COURT:  Page 62?

      10            MR. DRATEL:  Yes, second to last paragraph.

      11            THE COURT:  Yes.

      12            MR. DRATEL:  Which is essentially the same

      13   instruction as the one we looked at at page 50.  I am just

      14   asking you to add the language that your Honor didn't want to

      15   add to page 50.

      16            THE COURT:  Reasonable doubt is already in there, OK.

      17            Now, you are telling me you do not want a withdrawal

      18   charge.  Next thing that somebody wants.  That's it?

      19            On page 109 I am going to add the sentence this is

      20   because the offense of attempted murder does not apply to

      21   victims who were actually killed.  And at page 120, after

      22   Counts 280 and 281, whatever the correct numbers will be, I

      23   think I will say that is Julian Bartley, Sr. or Prabhi Gutpara

      24   Kavaler, who were actually killed.

      25            MR. FITZGERALD:  Judge, I am lost on the page

                                                                    4590

       1   numbers.  I think we may be on different pages.  121?

       2            THE COURT:  This is the attempt to kill

       3   internationally protected persons.

       4            Is there any evidence of an attempt to kill

       5   internationally protected persons other than those who were

       6   killed?

       7            MR. FITZGERALD:  I am still --

       8            THE COURT:  You are still lost.

       9            MR. FITZGERALD:  Yes.

      10            THE COURT:  I am still on 120.

      11            MR. FITZGERALD:  My 120 says --

      12            MR. COHN:  Mine says using explosives.

      13            MR. WILFORD:  Mine says please note.

      14            THE COURT:  Does any government attorney have a page

      15   120 that says please note?

      16            MR. FITZGERALD:  No, but we have it on 118.  Please

      17   note, however, that to satisfy this element --

      18            THE COURT:  Yes.

      19            MR. FITZGERALD:  Thank you.

      20            THE COURT:  My question is -- I make the same point

      21   made on 109.  You can't intend to kill somebody actually

      22   killed, so this is somebody other than Bartley and Kavaler who

      23   were actually killed.

      24            MR. FITZGERALD:  Yes.

      25            THE COURT:  My question to the government is, is

                                                                    4591

       1   there any evidence --

       2            MR. FITZGERALD:  Yes.

       3            THE COURT:  This is both Kenya and Dar es Salaam.  So

       4   the ambassadors.

       5            MR. FITZGERALD:  Yes.

       6            MR. COHN:  I don't know that they ever proved that

       7   the ambassador is an internationally protected person.  They

       8   asked for a stipulation as to the two people who did die, but

       9   I have no recollection that there was any evidence that the

      10   ambassador was such a person.

      11            THE COURT:  How about the definition of

      12   internationally protected person?

      13            MR. FITZGERALD:  Your Honor, the statute defines

      14   internationally protected person to include ambassadors.

      15            THE COURT:  I have some problem -- 282, attempted

      16   murder of the ambassador and other employees.  Yes?

      17            MR. FITZGERALD:  Yes, Judge.

      18            THE COURT:  283 is what?

      19            MR. FITZGERALD:  The same with regard to Tanzania,

      20   the ambassador employees of the U.S. Embassy in Tanzania.  282

      21   is the count with regard to the embassy in Nairobi.

      22            THE COURT:  And 283, the acting ambassador was not in

      23   fact killed.  He testified -- never mind, I withdraw the

      24   question.

      25            Next.

                                                                    4592

       1            MR. FITZGERALD:  Your Honor, 102 on my pages, which I

       2   will tell you is Counts 235 to 275 and 277 to 278, under the

       3   elements, second element, victim status, we just wanted to

       4   change your Honor's instruction, the last sentence on the

       5   partial paragraph of page 102 that says individuals employed

       6   in United States Embassies are officers and employees.  We

       7   wanted to change that to by, employed by United States

       8   Embassies.  That comes up twice.

       9            THE COURT:  Where is it?

      10            MR. FITZGERALD:  It is the second element of Counts

      11   235 to 275.

      12            THE COURT:  In should be by, OK.

      13            MR. FITZGERALD:  The same thing happens roughly six

      14   pages later under the second element of Counts 276 and 279 at

      15   the end of the first paragraph.

      16            THE COURT:  Yes.  What is the next point?

      17            MR. HERMAN:  Judge, I am sorry.  On page 116 where

      18   the discussion is Count 282, it is my understanding that Mr.

      19   Odeh is no longer charged in Count --

      20            THE COURT:  282 is Kenya.

      21            MR. HERMAN:  The red-lined copy I got took him out of

      22   283.

      23            MR. FITZGERALD:  He should be charged in 282.

      24            THE COURT:  Count 283 charges K.K. Mohamed.  I am

      25   looking at page 116.  The caption is Counts 282 and 283.

                                                                    4593

       1            Next.

       2            MR. FITZGERALD:  On page 139, unless there is

       3   something before then.

       4            MR. DRATEL:  138.

       5            THE COURT:  What does your page 138 begin with?

       6            MR. DRATEL:  Second element, falsity.

       7            THE COURT:  Good.

       8            MR. DRATEL:  End of the second line.  To satisfy this

       9   element the government must prove, I would just add beyond a

      10   reasonable doubt.

      11            THE COURT:  It's in the previous sentence.

      12            MR. DRATEL:  When I see the government must prove --

      13            THE COURT:  Yes, I know, but read the sentence

      14   before -- OK.

      15            MR. DRATEL:  Your Honor, I think the government is on

      16   140.

      17            MR. FITZGERALD:  Under the fourth element knowingly.

      18   It might be 138.

      19            THE COURT:  I have it 140.

      20            MR. FITZGERALD:  Then it says the defendant may have

      21   given incorrect testimony because of --

      22            THE COURT:  Yes, last line, page 140.  May have given

      23   incorrect testimony because --

      24            MR. FITZGERALD:  And I you go either that the

      25   defendant contends he may have given or a person may have.

                                                                    4594

       1   Otherwise it may sound to the jury that the court is giving --

       2            THE COURT:  If a defendant, change the to a.

       3            MR. FITZGERALD:  He is the only defendant charged

       4   with perjury.  A witness can give, as long as it is generic

       5   and doesn't look like the court is endorsing a view.

       6            THE COURT:  Let's change the defendant to a witness.

       7            MR. DRATEL:  If a witness may have given.

       8            THE COURT:  May have given.

       9            MR. DRATEL:  Your Honor, on the same page,

      10   materiality, the last paragraph, the last sentence, need only

      11   find beyond a reasonable doubt.

      12            THE COURT:  Change a witness to someone, someone may

      13   give incorrect testimony because of.

      14            What is next?

      15            MR. FITZGERALD:  Nothing from the government.

      16            THE COURT:  Is there a request for recantation?

      17            MR. DRATEL:  Yes, your Honor.

      18            THE COURT:  And the government agrees that the

      19   defendant is entitled to a recantation instruction?

      20            MR. FITZGERALD:  I don't believe so, Judge.  I

      21   believe a recantation is supposed to be a statement that what

      22   you said earlier is false.  We oppose the recantation because

      23   there was no testimony from El Hage that he gave false

      24   testimony earlier.  He merely tripped over that testimony.

      25            THE COURT:  I am just looking at the bottom of 142.

                                                                    4595

       1   You must find that the defendant El Hage admitted that a prior

       2   declaration was false -- what is the evidence that he admitted

       3   a prior declaration was false?  My understanding of the

       4   recantation is that it's got to be a very explicit statement.

       5   You can't deduce recantation by inference.

       6            MR. DRATEL:  Your Honor, our position is that it

       7   would be a question for the jury.

       8            THE COURT:  I am going to require briefing on that,

       9   and that is the reason why I put recantation in brackets.  Let

      10   me have a memorandum on behalf of El Hage by Thursday,

      11   indicating why defendant believes the evidence supports a

      12   recantation charge and the response from the government on

      13   Tuesday.  Is that it on the charge?

      14            Have people gone over the special verdict form?

      15            MR. COHN:  I have not.

      16            THE COURT:  Let's take up the special verdict form on

      17   Wednesday together with the motion to quash.  There is a

      18   motion to quash --

      19            MR. FITZGERALD:  Department of Defense subpoenas.

      20            THE COURT:  Will Mr. Baugh be here?

      21            MR. COHN:  I think he will.  I know that he submitted

      22   something.  I will check.  He should be here tomorrow.

      23            THE COURT:  If he is not here tomorrow, ask him

      24   whether he wants to withdraw the subpoena, and that might

      25   resolve the whole matter.

                                                                    4596

       1            MR. DRATEL:  Your Honor, I can do this in writing.

       2   This is to give the government an opportunity.  The most

       3   recent redacted indictment that the government provided, there

       4   are still a couple of things that I think should be redacted.

       5            THE COURT:  Do it in writing so the government will

       6   have an opportunity to reply in writing.  I see I was unable

       7   to convince the defendants to omit the initials for the

       8   multiple acts.

       9            MR. FITZGERALD:  Third alphabet we throw in the

      10   towel.

      11            THE COURT:  Anything else?

      12            MR. FITZGERALD:  With regard to tomorrow, there is an

      13   issue with regard to two witnesses that the defendant Odeh

      14   seeks to recall.  Defendant Odeh wishes to recall Kherchtou as

      15   a witness with respect to what his knowledge was in the 1994

      16   time frame when Ali Mohamed was coming through Nairobi.

      17   Because they were provided materials with respect to Kherchtou

      18   relevant to that point, we do not object.  However, I

      19   understand there may be an intention to cross-examine him on

      20   his cooperation agreement, which I think was amply covered in

      21   his prior appearance.  So there is no objection to Kherchtou

      22   being produced but there is in going beyond the scope of the

      23   surveillance in the 1993 and 1994 time frame.

      24            THE COURT:  Any quarrel with that?

      25            MR. RICCO:  Yes.

                                                                    4597

       1            THE COURT:  Why?

       2            MR. RICCO:  We don't believe that our defense case is

       3   limited by the scope that the government presents in its

       4   direct case and our cross-examination.  We initially were

       5   going to call Mr. Kherchtou with respect to the Somalia issue.

       6   That was not resolved until this morning.  We put the

       7   government on notice with respect to that.  But in our

       8   preparation for that Somalia issue, we saw an outstanding

       9   issue that we had not fully explored with respect to his

      10   knowledge about the decision to kill Americans wherever they

      11   could be found, worldwide, and his decision to enter a plea.

      12   So our question to Mr. Kherchtou is really a very simple

      13   question:  At what point did he join the conspiracy to kill

      14   Americans wherever they are found.  I don't see any prejudice

      15   to the government at all by asking that question.

      16            THE COURT:  I don't think a defendant is precluded

      17   from calling a witness in the defendant's case simply because

      18   the witness was a government witness on the government's case.

      19            MR. FITZGERALD:  No, Judge, but if it is

      20   cross-examination on issues previously covered, I do not think

      21   that you can call someone back in the defense case and have a

      22   second run at cross-examination.  I understand if new ground

      23   is covered, but we have gone down the road of the cooperation

      24   agreement and, one, I don't know what else the Odeh team is

      25   going to do, I don't know what other defense teams might do,

                                                                    4598

       1   but I don't think we should have another round of

       2   cross-examination of Mr. Kherchtou.  That is why we did not

       3   object to further questioning on the surveillance.

       4            THE COURT:  Thank you for alerting me to the issue,

       5   but I think I have to hear the questions before I can make a

       6   ruling.

       7            MR. FITZGERALD:  The second and last issue is with

       8   regard to Special Agent Dohrn, who was sort of a summary

       9   witness, who was aware of some money that Mr. Odeh had, which

      10   was not offered in evidence.  It was taken from Mr. Odeh in

      11   Nairobi.  Evidently it was placed with, I believe, the Kenyan

      12   authorities.  It was taken by the FBI, given back for

      13   safekeeping.  The FBI lost track of it but recovered it later

      14   and later gave it to Michael Young when he needed funds.  My

      15   understanding is that she will be called to testify as to the

      16   tracking of the funds and I don't understand questioning with

      17   respect to chain of custody with respect to something not in

      18   evidence.

      19            MR. WILFORD:  First, there was testimony with respect

      20   to other items seized from Mr. Odeh.  Additionally, there is

      21   evidence with respect to the chain of custody.  These items

      22   were seized from Mr. Odeh and they were together at one point

      23   and then they were separated.  I think it is appropriate for

      24   the jury to determine the weight to give that evidence.

      25            THE COURT:  When you say chain of custody, was this

                                                                    4599

       1   money kept together with other things as to which the chain of

       2   custody is relevant?

       3            MR. WILFORD:  For a period of time, and then all of a

       4   sudden the money goes someplace, we don't know, and reappears

       5   after a full-blown search, and not only do they find the

       6   money, they find his glasses and other property which was

       7   separated from the other property.  I think it goes to chain

       8   of custody.  The government presented evidence to show that

       9   when the FBI came into the picture it was a very tight chain

      10   of custody.  That was presented to the jury.  The jury should

      11   have the opportunity, your Honor, to have the ability to

      12   examine that chain of custody.  Part of the examination of the

      13   chain of custody is the disappearance and reappearance of the

      14   currency and his glasses and other items, which were all

      15   seized from him at the same time.

      16            THE COURT:  Were seized at the same time as the Nike

      17   bag?

      18            MR. WILFORD:  Everything was seized at the same time,

      19   Judge.

      20            THE COURT:  I will allow it.

      21            Is Odeh going to present its entire case tomorrow?

      22            MR. RICCO:  Entire case tomorrow, God willing.

      23            THE COURT:  To coin a phrase.

      24            Where are you with respect to the hearsay in the

      25   Gaudin matter?

                                                                    4600

       1            MR. RICCO:  We are not going to call Gaudin but we

       2   don't believe his testimony should be stricken.  We can do

       3   that at any time before closing arguments.

       4            THE COURT:  This Somalia thing with the stipulation

       5   wasn't enough of a stipulation, with today as a result.  I am

       6   not going to push counsel any harder.

       7            So Odeh will rest tomorrow and Mr. Odeh has already

       8   allocuted on his not testifying.

       9            MR. RICCO:  That is correct.  Your Honor, Mr. Cohn

      10   has always said that he has an objection to a witness that we

      11   are calling tomorrow and I think he wants to put that

      12   objection on the record.

      13            MR. COHN:  Your Honor, I started to apologize because

      14   I know that Mr. Ricco sent an e-mail this weekend.

      15   Unfortunately because I have moved and Verizon does not seem

      16   to be on line --

      17            THE COURT:  Maybe you can find a good friend whose

      18   house you can use for telephone and faxes.

      19            MR. COHN:  In any event, I don't know precisely what

      20   this witness is going to opine about but I believe that he is

      21   a religious expert who will testify about proper

      22   interpretation of the Koran and who may issue fatwahs and how

      23   they are followed.  If that is the case, I fail to see the

      24   relevance to this trial, and I regard the potential testimony

      25   most prejudicial, particularly if he interprets the Koran in

                                                                    4601

       1   ways that are at odds with actions of some of the defendants

       2   here.

       3            THE COURT:  I don't think I can preclude the

       4   defendant from offering that.

       5            Odeh is going to be tomorrow.  How long tomorrow?

       6            MR. RICCO:  If we get started on time, Judge, we may

       7   finish before the lunch hour.

       8            THE COURT:  And then go back to El Hage, two and a

       9   half days?

      10            MR. COHN:  Is that subjective or objective time?

      11            MR. DRATEL:  Mr. Schmidt has a better sense of it.  I

      12   am going by his estimate.

      13            THE COURT:  Is Mr. El Hage going to testify?

      14            MR. DRATEL:  Not at this time, your Honor, no.

      15            THE COURT:  Not at this time.  What does that mean?

      16   Not at 10 minutes of 7?

      17            MR. DRATEL:  Your Honor, we will have to defer that

      18   question.  I understand your Honor's previous point.

      19            THE COURT:  I think if you recall my previous remarks

      20   in chambers I don't need to reiterate.

      21            Wednesday we will have a motion to quash with respect

      22   to the military.

      23            MR. COHN:  Is that the morning or the end of the day?

      24            THE COURT:  4:30.  And we will deal with the special

      25   verdict form, which really requires a great deal of thought

                                                                    4602

       1   and a great deal of attention, certainly equal to that given

       2   to the charge.  Thank you all.

       3            (Adjourned until 10:00 a.m., Tuesday, April 24, 2001)

       4

       5

       6

       7

       8

       9

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      14

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      17

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      25

                                                                    4603

       1

       2                        INDEX OF EXAMINATION

       3   Witness                    D      X      RD     RX

       4   JAMES FRANCIS YACONE....4381   4403    4454    4459

       5   ABDI ISMAEL SAMATAR.....4479   4523    4526    4527

       6                         DEFENDANT EXHIBITS

       7   Exhibit No.

       8    A5  .......................................4440

       9    E2 .........................................4479

      10    E3 .........................................4485

      11    WEHX-W68, WEHX-W54, WEHX-W55, WEHX-W56,

      12   WEHX-W49, WEHX-W57 and WEHX-W69............. 4543

      13

      14

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      18

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