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

This is the transcript of Day 28 of the trial, April 12, 2001.

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

                                                                    3898

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           April 12, 2001
                                                   2:30 p.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    3899

       1                            APPEARANCES

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

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

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

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

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    3900

       1            THE COURT:  I am aware of the fact that Mr. El Hage's

       2   attorney has not yet arrived.  There seems to have been some

       3   confusion as to when we would start.

       4            MR. FITZGERALD:  I apologize to the court for the

       5   government being late.  We were uniformly -- we did get the

       6   notice of the allocutions and we did not notice the change of

       7   time, and I apologize for that.

       8            THE COURT:  We have a very long agenda.  I have

       9   distributed a document called "Proposed charge to the jury,

      10   April 12, 2001," which purports to be a working draft.  It was

      11   written prior to receipt of the government's response to the

      12   defendants' Rule 29 motions.  I read the government's

      13   response.  I am not aware of any immediate changes that have

      14   been made, but it should be understood that it was written

      15   prior to receiving the government's response and of course

      16   prior to anything that may be decided this afternoon.

      17            What I would like to do today is take up in order of

      18   priority matters which must be resolved for Monday, then to

      19   deal with the motions to dismiss and any other matters.  The

      20   first order of business was going to be the allocution of the

      21   defendants with respect to which we will await Mr. Schmidt's

      22   arrival.  Then with respect to the matters which must be

      23   resolved by Monday, there is the question of hearsay, Odeh,

      24   Gaudin matter.  I don't know what the Somalia matter is, but

      25   let's await Mr. Schmidt's arrival, unless -- has it been

                                                                    3901

       1   resolved?

       2            MR. FITZGERALD:  I think it was almost resolved.  I

       3   was calling chambers when I found out the matter was at 2

       4   instead of at 3.  If we put that at the end of the calendar,

       5   we may not have to deal with it.

       6            THE COURT:  I will put it at the end.  I think it

       7   really doesn't make sense to -- well.  Mr. Ricco, is it your

       8   understanding that your client wishes to testify or does not

       9   wish to testify at the guilt phase of this case?

      10            MR. RICCO:  Your Honor, Mohamed Odeh will waive his

      11   right to testify at the guilt phase of this case and he is

      12   prepared to allocute to that.

      13            THE COURT:  Mr. Cohn, does Mr. Al-'Owhali wish to

      14   testify?

      15            MR. COHN:  With respect, your Honor, I believe that

      16   the inquiry is premature.  I think forcing a decision today

      17   would not be a reliable indicator of what might happen.  As a

      18   Constitutional matter, this is a decision that is made at the

      19   last second, and I believe that it will be made at the last

      20   second in this case.  If he says something now and changes his

      21   mind before this case is over, I don't think he would be bound

      22   by it in any event.  I don't want to surprise the court.  If I

      23   had my druthers, I would postpone this inquiry.

      24            THE COURT:  I scheduled it really more as an

      25   accommodation to counsel.  It is a matter of sublime

                                                                    3902

       1   indifference to me, but if fully scripted as to what will

       2   happen Monday morning till the government rests -- but if you

       3   wish to delay it until Monday morning --

       4            MR. COHN:  The decision as a matter of law in my view

       5   does not come about until Mr. Al-'Owhali's case comes up in

       6   turn and he has to make a decision.  If I can advise the

       7   court --

       8            THE COURT:  I think you have said enough.  I accept

       9   that.  Mr. Ruhnke?

      10            MR. RUHNKE:  We are in exactly the same position,

      11   your Honor.

      12            THE COURT:  Very well.  But I take it that insofar as

      13   the defendant Odeh is concerned, Mr. Ricco, as you said, you

      14   are prepared to have him allocute on his waiver of the right

      15   to testify.

      16            MR. RICCO:  Yes, your Honor, and we are mindful of

      17   the fact that the defendant can change his mind, but as we

      18   presently stand before the court he has no intention to

      19   testify.

      20            THE COURT:  Mr. Kenneally, would you put Mr. Odeh

      21   under oath.  He need not rise.

      22            (Defendant Odeh duly sworn)

      23   BY THE COURT:

      24   Q   Mr. Odeh, I want to make sure that you understand what

      25   your rights are under our system of criminal justice with

                                                                    3903

       1   respect to a defendant testifying or not testifying at a

       2   trial.  A defendant has the right, if he wishes, to testify in

       3   his own defense, and if he elects to testify in his own

       4   defense he is then a witness like any other witness and is

       5   subject to cross-examination by the government, and he may not

       6   refuse to answer questions put to him by the government on the

       7   grounds that the answers might incriminate him.  The defendant

       8   also has a right not to testify, and if he elects not to

       9   testify, the jury is explicitly told that no inference can be

      10   drawn against him by reason of his not testifying, and the

      11   jury is explicitly told that they may not discuss or consider

      12   the fact that the defendant has exercised his constitutional

      13   right not to testify.

      14            The other thing as to which the law is clear is that

      15   this is a decision made by the defendant.  It is not a

      16   decision which the attorney can make for the defendant.  It

      17   must be a decision made by the defendant freely and

      18   voluntarily.

      19            Do you understand all of that?

      20            DEFENDANT ODEH:  No, your Honor.

      21            THE COURT:  This is a decision that you are making

      22   independently and not as a result of any force or pressure or

      23   instructions from your attorney?

      24            DEFENDANT ODEH:  Absolutely.

      25            THE COURT:  Is there anything further anyone

                                                                    3904

       1   requests?  Very well.  We will adjourn until the arrival of

       2   Mr. Schmidt, who I am told was advised that things were going

       3   to begin at 3:00.

       4            (Recess)

       5            THE COURT:  I am advised by Miss Hess, the court

       6   reporter, that in answer to my inquiry of Mr. Odeh as to

       7   whether he understood what I had said with respect to the

       8   right to testify or to waive, that the answer recorded was no,

       9   and I think --

      10            MR. FITZGERALD:  I think what happened was, she

      11   didn't hear the answer, indicated she didn't hear the answer,

      12   and then you asked the next question do you waive.  The court

      13   reporter then indicated that she had not heard the prior

      14   answer.  I think Mr. --

      15            THE COURT:  Let's do it again.

      16            MR. FITZGERALD:  Yes, right.

      17            THE COURT:  Mr. Odeh, do you understand what the

      18   court said with respect to your right either to testify or to

      19   waive your right to testify?  Did you understand that?

      20            DEFENDANT ODEH:  Yes.

      21            THE COURT:  Do you wish to testify or do you wish to

      22   waive your right to testify?

      23            DEFENDANT ODEH:  I waive my right.

      24            THE COURT:  And you do so freely and voluntarily and

      25   not because anybody has forced that answer upon you?

                                                                    3905

       1            DEFENDANT ODEH:  Absolutely not.

       2            THE COURT:  All right.  Mr. Schmidt, in your absence,

       3   as you have heard, Mr. Odeh allocuted to his desire to waive

       4   his right to testify.  Mr. Al-'Owhali and K.K. Mohamed have

       5   asked to defer until it is their turn to present the defense

       6   or not present the defense.  What is your pleasure with

       7   respect to that matter?  Because we have a long, long agenda,

       8   just tell me, do you wish Mr. El Hage allocuted on that?  Yes

       9   or no.

      10            MR. SCHMIDT:  May I have a moment on that?

      11            THE COURT:  Yes, sure.

      12            Did you not get a fax indicating the 2:00 and the

      13   3:00 and the schedule for Monday?

      14            MR. FITZGERALD:  We received a fax and whatever was

      15   on the fax was on the fax.  We knew that you had a 3:00

      16   proceeding and that there would be allocutions today.  We

      17   didn't notice the change of time to 2:00.

      18            MR. DRATEL:  Your Honor, same with us.  We received

      19   the fax but neither of us noticed the time change.

      20            (Pause)

      21            THE COURT:  Mr. Schmidt, why don't we defer this

      22   until the end of this afternoon.

      23            MR. SCHMIDT:  Very good, your Honor.

      24            THE COURT:  The reason I sent the fax was to afford

      25   counsel the opportunity in a leisurely fashion to explore the

                                                                    3906

       1   subject with their clients, but like so many other good

       2   intentions, that does not seem to have been able to occur.

       3            I said what I would like to be able to do today was

       4   first deal with any matter which must be resolved on Monday,

       5   of which I was aware of two:  The issue on behalf of Odeh with

       6   respect to Agent Gaudin's failure to identify Odeh, and the

       7   government's redirect examination in which Agent Gaudin

       8   indicated that Al-'Owhali had said that he was not going to

       9   tell everything.  That was the subject of a memorandum that I

      10   sent to counsel, the memorandum in which I concluded that the

      11   rules of hearsay would permit a carefully worded question

      12   which elicited a carefully worded response to the effect that

      13   there was nothing said by Gaudin with respect to Odeh, and

      14   would permit the introduction of the redirect of

      15   Mr. Al-'Owhali's statement to Agent Gaudin that he did not

      16   intend to tell all that he knew.  Has there been any

      17   consensual resolution of that issue?

      18            MR. WILFORD:  Not quite.

      19            THE COURT:  Absent a consensual resolution of the

      20   issue, I will permit the question to be asked as it is set

      21   forth in my memorandum, and I will permit the government on

      22   redirect to elicit the statement of Al-'Owhali's intention,

      23   and that is it.  Any attempt to gild the lily, to elaborate,

      24   to elicit anything beyond that, beyond those two limited

      25   things will be not only subject to objection but will be

                                                                    3907

       1   contrary to the court's direct order that it not be asked.

       2            Having resolved that, I think the only other open

       3   matter is the so-called Somalia issue.

       4            MR. RICCO:  Judge, before we move to the so-called

       5   Somalia issue, I did receive the government's lengthy letter

       6   about what it thought or thinks that we are going to do on the

       7   defense case with respect to Agent Gaudin, and let me just

       8   advise the court of what we intended to ask Agent Gaudin,

       9   notwithstanding what the government thinks.  The only question

      10   that we had intended to ask Agent Gaudin, and I pose this now

      11   so the court is aware, is whether or not he showed a

      12   photograph of Mohamed Odeh to Mr. Al-'Owhali, which will

      13   require either a yes or no answer from him.  That does not

      14   require a statement from Al-'Owhali at all, response from the

      15   agent at all about what Mr. Al-'Owhali said, and I believe,

      16   your Honor, that that is a permissible question to ask the

      17   agent because it doesn't call for a hearsay response at all.

      18            THE COURT:  So you are going to ask the question as

      19   posed at page 2 of my memo, which is, and did he, Al-'Owhali,

      20   ever mention to you that Mohamed Odeh had anything whatsoever

      21   to do with the bombing, the execution of or the planning of

      22   the bombing of the United States Embassy, and presumably

      23   elicit the response no.

      24            MR. RICCO:  Judge, at this point we don't even intend

      25   to ask that question.

                                                                    3908

       1            THE COURT:  What do you intend to ask?

       2            MR. RICCO:  We do know, and we will abide by the

       3   court's ruling, what the response will be but we don't intend

       4   to ask that question.

       5            THE COURT:  What do you intend to ask?

       6            MR. RICCO:  We merely intend to ask Agent Gaudin

       7   during the course of his interview did he show a photograph of

       8   Mr. Odeh to Mr. Al-'Owhali.

       9            THE COURT:  Is that the only question that you intend

      10   to ask?

      11            MR. RICCO:  That's it.

      12            THE COURT:  Does the government have any objection to

      13   that?

      14            MR. RICCO:  Your Honor, the reason we are limiting

      15   that question is because at this point we are prepared to

      16   abide by the court's prior ruling striking the testimony and

      17   the court's instruction that Mr. Al-'Owhali's statement can

      18   only be used for one purpose and that is against

      19   Mr. Al-'Owhali.

      20            THE COURT:  You have that already.

      21            MR. RICCO:  Yes, we do, Judge.

      22            THE COURT:  And it has not been stricken.  Page 2089

      23   of the transcript.  "You did not show him a photograph of

      24   Mohamed Odeh?  No, sir, I did not."

      25            MR. RICCO:  Your Honor, I note that we did ask the

                                                                    3909

       1   question but I was under the impression during the robing room

       2   conference that your Honor had deemed all of that testimony

       3   stricken and that you just chose not to inform the jury of it.

       4            THE COURT:  Well, I did say in the robing room

       5   conference that they were stricken and I asked the government

       6   to prepare a more specific order striking that testimony,

       7   citing the page and line, which order I have not received.

       8            Does the government have any objection to that

       9   question being asked?

      10            MR. KARAS:  Your Honor, we don't have an objection to

      11   the question being asked.  Our only concern is that counsel

      12   not be allowed to argue from the question that by not showing

      13   the photograph to Al-'Owhali that there is some proof that

      14   Odeh therefore is not involved in the bombing.

      15            THE COURT:  I don't understand that.  Something is

      16   admissible or it is not admissible.  To say it is admissible

      17   but you can't make a perfectly logical, rational argument

      18   based on it, I don't find that in the rules of evidence.

      19            MR. KARAS:  Your Honor, I think, as we set forth in

      20   our letter dated yesterday, the difficulty is that there is an

      21   asymmetry.

      22            THE COURT:  Do you want then to ask on redirect, was

      23   did Al-'Owhali tell you what his intent was with respect to

      24   disclosing all of the information he knew of in connection

      25   with the bombing?

                                                                    3910

       1            MR. KARAS:  Your Honor, the answer to that question

       2   is, that would be one question that we would want to ask on

       3   redirect but it wouldn't be the only question.

       4            THE COURT:  What else would you ask?

       5            MR. KARAS:  We would want to be able to elicit what

       6   it was that Al-'Owhali said about the people he did indicate

       7   were involved in the bombing --

       8            THE COURT:  No, denied.

       9            MR. RICCO:  Judge, my only response to what the

      10   government wants to do on redirect is that it really is

      11   outside the scope -- on its cross -- it really is outside the

      12   scope of the direct of calling this agent.  If the question is

      13   did you ever show the defendant this photograph, that doesn't

      14   call for an affirmative answer with respect to Al-'Owhali.

      15            THE COURT:  No, but what it is relevant to is why he

      16   wasn't shown it, and relevant to that question would be his

      17   understanding that Al-'Owhali was not going to tell he knew.

      18   Since we have now limited it to that one question and one

      19   answer, can't you stipulate to that?

      20            MR. RICCO:  Judge, the reason we can't stipulate to

      21   it is because the government's question in response to that,

      22   that the reasons why he didn't show him a photograph was

      23   because of something that Al-'Owhali said, is not

      24   chronologically correct.  Photographs were shown to

      25   Al-'Owhali.  They chose not to show him a photograph of Odeh

                                                                    3911

       1   for the government's own reasons that were totally absent from

       2   anything that was said to him.  They showed him photographs.

       3   They just chose not to show Mr. Odeh's photograph to

       4   Al-'Owhali.  The reasons Agent Gaudin and others made that

       5   decision is something that I guess will be subject to their

       6   testimony.  We will learn about it on the witness stand.

       7            THE COURT:  Mr. Cohn.

       8            MR. COHN:  Your Honor, I just want you to know, the

       9   question about what Mr. Al-'Owhali said about not fully

      10   cooperating impacts on him and his case in this phase and,

      11   more importantly, in the penalty phase, and I don't believe it

      12   is a relevant question.  We have, I think, standing on that

      13   issue and we would object to that question being asked in the

      14   defense of what Mr. Odeh's counsel intends to ask as the only

      15   question.

      16            THE COURT:  Overruled.

      17            The other matter I hear about every time you are

      18   before me is the so-called Somalia stipulation, and the

      19   government's letter to me said that if it is not resolved by

      20   Thursday it would be presented to the court, but I take it you

      21   want not to present it to the court.

      22            MR. FITZGERALD:  I thought if we were going to deal

      23   with Rule 29 at the first break before 3:00, we were very

      24   close.  Mr. Schmidt sent a revised stipulation and we had a

      25   conference today.  I think we are pretty far down the road.  I

                                                                    3912

       1   think it would take five minutes perhaps.

       2            THE COURT:  I will take a five-minute recess.

       3            (Recess)

       4            THE COURT:  Is there anything which requires a court

       5   action with respect to whatever the Somalia matter is?

       6            MR. SCHMIDT:  Yes, your Honor.  Your Honor, as to the

       7   so-called Somalia stipulation, there appears to be a lack of

       8   agreement among defense teams as to the Somalia stipulation.

       9   As a result, we cannot reach an agreement with the government.

      10   Therefore, we require your Honor's intervention to enforce

      11   your previous order concerning discovery material that the

      12   government is to turn over to the defense so that we can

      13   actually then present our defense concerning the Somalia

      14   issue.

      15            THE COURT:  This is an outstanding order that I

      16   issued when?

      17            MR. SCHMIDT:  I believe it was in January.

      18            THE COURT:  And what the Somalia stipulation has been

      19   has been an effort to reach some accommodation other than

      20   compliance with the court's order?

      21            MR. FITZGERALD:  And to remove an overt act and to

      22   save proof and time.  In other words, this stipulation was to

      23   shorten the trial, remove an overt act, save trial time and

      24   not delay the trial by what would have been a burdensome

      25   production.

                                                                    3913

       1            THE COURT:  Delay the trial in the defendants' case.

       2            MR. FITZGERALD:  Yes.

       3            THE COURT:  So there is really nothing for me to do

       4   than to say absent a stipulation my prior order remains in

       5   effect and should be complied with.  My only question then is

       6   when will there be compliance?

       7            MR. FITZGERALD:  Your Honor, I think if we could have

       8   a brief conference in the robing room, some of the issues may

       9   be classified.  If we can articulate better where we are at, I

      10   think it might save everyone some time.

      11            THE COURT:  We will do that at the end of our other

      12   matters.

      13            I have received motions pursuant to Rule 29 to

      14   dismiss all or some of the counts on behalf of all of the

      15   defendants, and I have received two documents from the

      16   government.  One was a letter dated September 5, which was in

      17   the nature of a summary -- April 5 -- which was in the nature

      18   of a summary of the government's evidence.  Was that ever

      19   filed or docketed?

      20            (Continued on next page)

      21

      22

      23

      24

      25

                                                                    3914

       1            MR. FITZGERALD:  Your Honor, when we sent it to

       2   chambers we did not file it or docket it, and we just advised,

       3   I believe advised chambers we had no position whether it

       4   should be public or not.

       5            THE COURT:  With respect to today's memorandum, the

       6   government quotes and refers to it.  What have you done with

       7   respect to today's April 12th matter?

       8            MR. FITZGERALD:  I believe we served but have not --

       9   chambers has the original.  So that if it's to be filed, we

      10   gave the original to be chambers.

      11            THE COURT:  We will file them both the April 12th and

      12   the April 5th since they should be read together.

      13            MR. FITZGERALD:  Okay.

      14            THE COURT:  I know there is a desire on at least

      15   Mr. Schmidt's part for oral argument with respect to this, but

      16   I think it might be helpful if I focus on the matters which

      17   are troubling me and the matters as to which I have reached

      18   tentative decision subject to whatever it is that you may wish

      19   to tell me.

      20            The first matter I wish to address is the so-called

      21   Pinkerton issue.  The Pinkerton issue is the legal theory

      22   which enables a jury to find the defendant guilty of the

      23   substantive counts which are an object of the conspiracy.

      24            The lines between ordinary conspirator liability,

      25   aiding and abetting, and the Pinkerton liability are weighty

                                                                    3915

       1   and they're not always carefully recognized by the courts.

       2            My understanding of the proper application of

       3   Pinkerton is that where there is a conspiracy, the object of

       4   which is clearly defined, then a Pinkerton charge is

       5   appropriate, in the discretion of the court.

       6            Courts, especially the Second Circuit, have expressed

       7   concern that where the objects of the conspiracy are not so

       8   clearly defined, there is a risk that there will be a reverse

       9   Pinkerton analysis by the jury, that is, that they will reason

      10   from the commission of the substantive crimes to the existence

      11   of the conspiracy, and of course that would be improper.

      12            Assuming you have a case such as Pinkerton where

      13   there is a conspiracy to operate a still and two brothers, and

      14   one brother is in jail so he could actually be operating the

      15   still, but the nature of the conspiracy and the goals of the

      16   conspiracy were sharp and defined, the court said in Pinkerton

      17   that where the substantive offense was clearly "foreseeable,

      18   necessary or natural consequence of the unlawful agreement," a

      19   finding by the jury of the existence of the conspiracy would

      20   enable the jury to find the substantive offense.

      21            There are many reasons why I believe a Pinkerton

      22   analysis is inappropriate in this case.  First, one may say

      23   many things about the conspiracy alleged, particularly in

      24   Count One, but it is certainly not as sharply delineated as a

      25   conspiracy to distribute cocaine or a conspiracy to run a

                                                                    3916

       1   still.

       2            The government urges the application of Pinkerton

       3   with respect to Al-'Owhali and Odeh on the theory that Count

       4   One of the indictment alleges the conspiracy to kill U.S.

       5   nationals, the bombing of the embassies was an act to kill

       6   U.S. nationals and therefore a Pinkerton charge would be

       7   appropriate.

       8            I cannot equate that object of a conspiracy and the

       9   bombing of the embassies as having that direct connection and

      10   nexus as exists in those cases in which Pinkerton is properly

      11   applied.  I reach this conclusion independently of the very

      12   significant question of whether Pinkerton can ever be the

      13   basis for a finding of liability in a death case.

      14            Accordingly, it is the Court's conclusion that the

      15   government's request for a Pinkerton instruction should be

      16   denied.

      17            That raises the question of what evidence links

      18   defendants Al-'Owhali and Odeh to the Tanzania bombings

      19   independently of Pinkerton, and I'm not aware from the

      20   government's response on the particular question of any

      21   non-Pinkerton basis for finding Odeh liable with respect to

      22   the substantive counts involving Tanzania.

      23            The government urges that with respect to Al-'Owhali

      24   he can be found liable with respect to Tanzania on the aiding

      25   and abetting theory, and that is predicated, I believe -- and

                                                                    3917

       1   I'm going to ask the government in a moment to correct me if

       2   I'm wrong -- is predicated on Al-'Owhali's presence at the

       3   hotel, knowledge that it was going to take place.  No?

       4            MR. FITZGERALD:  Just a clarification:  Al-'Owhali or

       5   Odeh?  You may be transposing names as to who was at the

       6   hotel.

       7            THE COURT:  Let me just ask you affirmatively.  Is

       8   there anything which lists Odeh to Tanzania other than

       9   Pinkerton?

      10            MR. FITZGERALD:  No, Judge.

      11            THE COURT:  No.  The Court therefore grants the Rule

      12   29 motion insofar as Odeh is concerned with respect to

      13   Tanzania.  There are a variety of Tanzania counts.  They

      14   are --

      15            MR. COHN:  Your Honor, there's a list of them in our

      16   memorandum.  There's a complete list of all the counts.

      17            MR. RICCO:  222 through 234.

      18            THE COURT:  What are they?

      19            MR. RICCO:  I'm sorry, your Honor.  I believe it's

      20   222 through 234.

      21            THE COURT:  Wait a minute.

      22            MR. RICCO:  224 to 234, and these are the murders --

      23            THE COURT:  224 to 234, yes.

      24            MR. RICCO:  And then 277 and 278, 279, 283, 286 and

      25   10 and 8.

                                                                    3918

       1            THE COURT:  With respect to Al-'Owhali, what evidence

       2   is there other than the Pinkerton which links Al-'Owhali to

       3   the Tanzania bombing?

       4            MR. FITZGERALD:  Your Honor, if there is no Pinkerton

       5   liability for Mr. al-'Owhali on Tanzania, it would be an

       6   aiding and abetting theory since Mr. al-'Owhali expressly knew

       7   about the Dar es Salaam bombing and knew the two bombings were

       8   both going to happen, and by his playing a role in carrying

       9   out the one bombing he is freeing up the members of the crew

      10   and helping the joint venture succeed, which is two bombings.

      11            THE COURT:  Well, but the standard rule on aiding and

      12   abetting is that mere knowledge, acquiescence, presence, well

      13   wishing is not enough, that there has to be some action taken,

      14   some participation to enable an aiding and abetting charge.

      15            MR. FITZGERALD:  Judge, two responses.  One is,

      16   obviously the personnel by Al-'Owhali being in Runda Estates

      17   and knowing that he is going to do the one job in conjunction

      18   with the other, his taking the role of getting the truck to

      19   Nairobi allows the venture to free up other people who would

      20   do other roles in Dar es Salaam, but I would argue this one

      21   point just on the Pinkerton point.

      22            THE COURT:  Yes.

      23            MR. FITZGERALD:  You can make the argument that the

      24   conspiracy charged may not have been clearly defined in the

      25   abstract as a case involving a still, but in this case, this

                                                                    3919

       1   is far more foreseeable to Al-'Owhali than in any case

       2   involving a still.  It was actually foreseen by him.  He is

       3   told that the enterprise is going to carry out the two

       4   bombings, one in Nairobi and one in Dar es Salaam.

       5            He carries out the Nairobi bombing under either a

       6   Pinkerton analysis or an aiding and abetting analysis.  This

       7   was explicitly foreseen.  He understood they were doing both

       8   together.  The fact that he physically carried out the Nairobi

       9   bombing seems to me, either under the aiding and abetting

      10   analysis or under Pinkerton, he understood exactly what was

      11   going on.  He is stronger than the other cases.  It is

      12   explicitly foreseen, not something foreseeable.

      13            THE COURT:  Let's stick to the aiding and abetting.

      14   How did he facilitate the Dar es Salaam bombing?

      15            MR. FITZGERALD:  There is an overlap in personnel,

      16   according to his own statement.  Abdel Rahman is the same

      17   person building the bomb in both places.  By him taking the

      18   role in Nairobi and helping at 43 Runda where his bomb is

      19   wired --

      20            THE COURT:  What did he do?  Tell me one specific

      21   thing that he did which was in furtherance of the Dar es

      22   Salaam bombing.

      23            MR. FITZGERALD:  By carrying out the Nairobi bombing.

      24   This wasn't a bombing and another bombing happening on a

      25   different day.  They want the bombings to happen the same

                                                                    3920

       1   time.  By knowing that he is there in Nairobi to help get the

       2   bomb truck into the embassy, he frees -- they now have that

       3   role covered.  It's a dual bombing.  If there had been a

       4   bombing across the street, not at the embassy but there were

       5   two bombings in adjoining buildings, it's no different.  He is

       6   taking care of one role in what is to be a twin attack.

       7            What they wanted to do was bomb two embassies on

       8   Friday morning.  He takes one role.  He knows about the other

       9   bombing.  He's aiding and abetting a plan to bomb both

      10   embassies.  If there had been a building around the corner

      11   from the embassy and there were two trucks going in, this is

      12   no different other than geography.  He is taking up a role to

      13   carry out simultaneous bombings.

      14            If he doesn't do what they want to do in Nairobi, if

      15   they can't carry it off, the evidence was they wanted to do it

      16   simultaneously.  They may not have carried off Dar es Salaam.

      17   They wanted to do both 10:30 Friday morning.

      18            THE COURT:  You want to be heard on it?

      19            MR. COHN:  Briefly, your Honor.  First, I should note

      20   that aiding and abetting is not charged against Al-'Owhali in

      21   the indictment, and therefore the only theory we could presume

      22   that the government was --

      23            THE COURT:  But you and I well know that the Second

      24   Circuit does not require an explicit aiding and abetting

      25   definition.

                                                                    3921

       1            MR. COHN:  That may be, but it doesn't necessarily

       2   make it right.  I just call your attention to it.  There are

       3   higher courts than the Second Circuit.  You know this may get

       4   there.

       5            Second of all, your Honor, I never heard of the

       6   theory of aiding and abetting attached to such passive

       7   behavior.  The government's proof which comes from

       8   Mr. al-'Owhali's statement is that after, only after he was

       9   told what his own mission was, which was the Nairobi bombing,

      10   did he find out about the Tanzania bombing.

      11            THE COURT:  And in fact, the Nairobi bombing -- if

      12   the Dar es Salaam bombing had been aborted for any reason at

      13   the last moment, the Nairobi bombing would have gone forward

      14   in any event.  The masterminds behind the two bombings

      15   obviously thought that there would be a greater impact by

      16   having a simultaneous explosion, but there is nothing that he

      17   does -- he, Al-'Owhali, does -- which furthers the Dar es

      18   Salaam bombing itself.

      19            MR. FITZGERALD:  Two points.  First, your Honor,

      20   Section 2 is charged in the indictment explicitly.  Secondly,

      21   I believe the testimony from Agent Gaudin was that they were

      22   to make a phone call before the bombings happened to make sure

      23   they're still on and the central people will know that the

      24   Nairobi bombing may be prominent, but if Al-'Owhali doesn't

      25   carry out the Nairobi bombing and they can't go forward on

                                                                    3922

       1   Friday, August 7th, they may not go forward in Dar es Salaam.

       2   The headquarters want to know that this is happening.

       3            THE COURT:  But the indictment itself separates the

       4   two.  You put the Nairobi bombing in one series of counts and

       5   you put the Tanzania bombing in another series of counts.  The

       6   indictment itself treats them as independent.

       7            MR. FITZGERALD:  The indictment treats every victim

       8   killed independently as well, but it doesn't mean that the

       9   person is not responsible for all the people killed.  There

      10   may be 11 counts in Dar es Salaam and maybe 211 in Nairobi,

      11   separate counts, but the enterprise, the way they looked at

      12   it, they were doing two bombings simultaneously and he

      13   expressly knew that at the time he carried out the bombing.

      14            THE COURT:  I think that is not sufficient for aiding

      15   and abetting and I will grant the motions to dismiss as to the

      16   substantive Tanzania counts as to Al-'Owhali, and those would

      17   be the same counts that we had previously discussed, 8, 10,

      18   282, 286, 277, 279, 224 to 234.

      19            Now I have some other specific things, but one of

      20   the -- there are two consequences on that --

      21            MR. RICCO:  Judge, it may not be an important point,

      22   but I think you misspoke with respect to the last two counts.

      23   I think it is 283 and 286.

      24            THE COURT:  8, 10, 289, 286, 277, 278, 279, 224 to

      25   234.  But if those are not the right numbers, we're dealing

                                                                    3923

       1   with the substantive Tanzania counts.

       2            All right.  Now, with respect to Al-'Owhali and the

       3   death penalty, there is an aggravator, which was the subject

       4   of previous discussion, as to whether his knowledge of

       5   Tanzania was an appropriate aggravating consideration.

       6            There is one thing we have to decide now, but there's

       7   something else that we don't have to decide now.  We don't

       8   have to decide now whether the dismissal of the substantive

       9   Al-'Owhali Tanzania counts creates a change with respect to

      10   the Al-'Owhali Tanzania aggravator.

      11            The language of the aggravator, as I recall it,

      12   simply relates to his knowledge.  It's somewhere in this pile

      13   of papers.  But I think the language is knowledge, not --

      14   doesn't allege participation in the Tanzania bombing but

      15   alleges knowledge.

      16            The concern that I have, and it's going to lead me

      17   into my next major point, is the importance of our knowing

      18   whether the jury has made a finding with respect to

      19   Al-'Owhali's knowledge of Tanzania.  Since it now is not a

      20   part of a count, I assume that we would not want in the death

      21   phase, if we reach it, to have the jury making a factual

      22   finding as to whether or not Al-'Owhali knew of the Tanzania

      23   bombing.  And one thing that we could do is simply to put that

      24   as a question in the special verdict form.

      25            The indictment alleges 155 overt acts in Count One,

                                                                    3924

       1   and I know the government had pared down somewhat, but I tried

       2   to put myself in the position of the jury.  And the jury is

       3   told there are 154 overt acts, you only have to find 1.

       4            What does the jury do?  What do we want the jury to

       5   do?  Do they just go down the list until they reach one and

       6   they are unanimous and then stop?  Do we want the jury to make

       7   findings with respect to 154 overt acts?

       8            And that line of thinking led me to the next thought:

       9   Why are there, at this stage -- I understand it was a

      10   different posture when the indictment was drafted and when one

      11   did not know how many defendants listed in the caption would

      12   in fact be on trial, but I can see great advantages to

      13   everyone if that list of 154 overt acts gets pared down to 26.

      14            Some of the problems are, obviously, if there is an

      15   overt act as to which some appellate court finds there was

      16   insufficient evidence, and we don't know which overt acts were

      17   found by the jury, then the whole count may be in jeopardy.

      18   Over and over again you will see in this draft charge there is

      19   an admonition to the jury that where there are alternatives,

      20   where you have to find one of three objectives of a conspiracy

      21   but you must be unanimous as to which one, or one overt act

      22   but you must be unanimous as to which one, the question is

      23   whether we should ask the jury to indicate which objectives

      24   they found for the various conspiracies and which overt acts

      25   they found.

                                                                    3925

       1            There is a very, I think, erroneous decision in the

       2   Court of Appeals -- and you know when a district judge says

       3   "erroneous decision of the Court of Appeals" he is referring

       4   to a decision in which he was reversed, but I think for many

       5   other reasons the United States v. Garcia is bad law, but

       6   Judge Pratt moans and groans about the fact that the absence

       7   of a special verdict required reversal of conviction.  The

       8   Supreme Court in a later case a few months later said exactly

       9   the opposite, but that didn't affect Garcia.

      10            Anyhow, apart from the reasoning which leads me to

      11   that conclusion, my question to the government is, wouldn't it

      12   fully present the nature of the conspiracy, greatly facilitate

      13   the jury deliberations, greatly diminish the government's

      14   obligation to prove the sufficiency of the evidence with

      15   respect to each overt act if instead of 155 overt acts we had

      16   26?

      17            Twenty-six is the number of the letters of the

      18   alphabet.  It's A to Z.  We now have P to the 7th power, and

      19   even with my new glasses I have difficulty counting the number

      20   of letters.  And if you do keep the present format, my

      21   recommendation, and it isn't a direction, is that you go A to

      22   Z and then A parentheses 1, B parentheses, so you don't have

      23   to count them, you don't have to count up all that.

      24            You want to think about that?

      25            MR. FITZGERALD:  Yes, Judge.  We'll submit something

                                                                    3926

       1   next week indicating perhaps a proposed redacted indictment

       2   that's pruned.

       3            THE COURT:  All right.  Obviously some of the overt

       4   acts are then incorporated by reference in subsequent counts

       5   and you can't eliminate them in Count One.

       6            My next note was whether the firearm acts, 285 and

       7   286, a point raised in the motions to dismiss and I think the

       8   government's submission today, makes clear that the firearm is

       9   the bomb itself.  And that's, I think, not a matter of basis

      10   for dismissing the counts but simply to make clear that the

      11   firearm is, as said earlier on, the firearm includes a

      12   destructive --

      13            When I finish.

      14            MR. COHN:  Okay, Judge.  I just want to be heard.

      15            THE COURT:  Silence is not acquiescence.  I'm blocked

      16   out until 7:00.

      17            I have never seen the press look as distressed.

      18            Okay.  Two other points:  The government suggests a

      19   felony murder instruction as an alternate to premeditation.  I

      20   don't think the presence or absence of premeditation is going

      21   to be something which gives this jury any pause, and I propose

      22   not to include the felony murder charge because anything which

      23   can be done to simplify without affecting serious interests

      24   should be done.

      25            The government also asks for a conscious avoidance

                                                                    3927

       1   instruction.  I know that I'm mixing the charge with the

       2   counts but I think of them as being so interrelated.

       3            Conscious avoidance in this context is very different

       4   from conscious avoidance in the money laundering context where

       5   the motive for people knowing only is on a need to know basis.

       6   In this context it is quite different.

       7            I note, just in passing, there's a little conflict

       8   between the Pinkerton theory and the conscious avoidance

       9   theory, but we have crossed that bridge.

      10            Here, if there is conscious avoidance, it wasn't for

      11   fear of criminal liability, which is, I think, the last thing

      12   that these defendants were thinking of, it was because

      13   envisioning themselves to be engaged in a quasi military

      14   operation and concerned of what informants might know and

      15   disclose, people were left out of the loop.  It is my intent

      16   not to charge on conscious avoidance.

      17            Venue.  Am I correct that the defendants have stated

      18   on the record and in their papers any and all objections they

      19   have to venue?

      20            Mr. Schmidt?

      21            MR. SCHMIDT:  Thank you.  Yes.

      22            THE COURT:  Does the defendant have any objection to

      23   venue other than as set forth in its submission?

      24            MR. SCHMIDT:  No, your Honor.

      25            THE COURT:  So that the record is absolutely clear,

                                                                    3928

       1   the defendant Al-'Owhali concedes the existence of venue with

       2   respect to the false statement charged in the indictment --

       3   defendant El Hage?

       4            MR. SCHMIDT:  I don't believe we concede that, your

       5   Honor.

       6            THE COURT:  This is an area of the law in which

       7   silence is acquiescence, so I think you need to -- there are

       8   cases which hold that a defendant who fails in his Rule 29

       9   motion to make a challenge to venue waives that.

      10            MR. DRATEL:  Your Honor, then we challenge venue as

      11   to the Count 308.

      12            THE COURT:  What is the basis for venue?

      13            MR. FITZGERALD:  Your Honor, the investigation being

      14   conducted out of the Southern District of New York and the

      15   agent testified he did it in conjunction with Agent Coleman

      16   from New York, and the false statement would impact upon that

      17   investigation being conducted out of this district.

      18            THE COURT:  So that anywhere in, well, in the United

      19   States to which the agent would question a person on with

      20   respect to this investigation would have venue in Southern

      21   District?

      22            MR. FITZGERALD:  No, your Honor.  Two things:  First,

      23   since this objection is late in the day, we would like to have

      24   a chance to brief it, if that's important.

      25            Secondly, this is a defendant who specifically knew

                                                                    3929

       1   the investigation was in the Southern District of New York and

       2   in fact had testified in the Grand Jury here.  So it's not

       3   someone who can claim surprise or due process that he's in

       4   Texas and suddenly he is obstructing investigation in New

       5   York.

       6            THE COURT:  I'll give you an opportunity to brief it,

       7   and of course, of course, you haven't previously briefed it

       8   because it's never been raised before.

       9            There are cases which hold that where there is a

      10   continuity, venue may be predicated on the particular event

      11   being one stage and in a continuous process.  I have not been

      12   able to find any case which is remotely similar to this.

      13   Al-'Owhali -- I'm sorry, El Hage was questioned before a Grand

      14   Jury in 19 --

      15            MR. FITZGERALD:  In September 24, 1997.

      16            THE COURT:  Yes.

      17            MR. FITZGERALD:  And he was interviewed September 23,

      18   1997 and then he was interviewed by the same agent in Texas in

      19   August 20, 1998 in the presence of Agent Miranda.  Having a

      20   period in the Southern District of New York for a Grand Jury

      21   investigation, he clearly understood that the investigation

      22   was based here.  And in October of 1997 he was interviewed by

      23   agents from New York and Texas in Texas.

      24            THE COURT:  How much time do you want?

      25            MR. FITZGERALD:  Monday.

                                                                    3930

       1            THE COURT:  Monday?  Okay.

       2            I will defer decision on whether the last count in

       3   the indictment should be dismissed for lack of venue.  You

       4   want two days, you want by Wednesday to respond?

       5            MR. DRATEL:  Fine.  Thank you, your Honor.

       6            THE COURT:  All right.  Suppose I now let anybody who

       7   wishes to be heard be heard on any aspect of the motions.

       8            Mr. Cohn.

       9            MR. COHN:  Your Honor, may I just address the 924(c)

      10   issue?

      11            THE COURT:  The 924(c) issue?

      12            MR. COHN:  The firearm issue.

      13            THE COURT:  Yes.

      14            MR. COHN:  The problem with it -- it was perfectly

      15   conceivable to us that the government might be defining the

      16   firearm as the bomb.  The problem is I believe it merges

      17   because the crime, one of the crimes charged is using a

      18   destructive device to commit the murder and so the possession

      19   of a firearm in furtherance of that is sort of a double

      20   jeopardy issue.

      21            THE COURT:  You make it a double jeopardy issue.  Of

      22   course it isn't double jeopardy.  Double jeopardy is a very

      23   different concept.  You are arguing multiplicity, duplicity,

      24   whatever it is.  Haven't I already ruled on that?

      25            MR. COHN:  I don't believe you ruled on that in terms

                                                                    3931

       1   of the 924(c).  I'm not sure.  And besides that, Judge, it was

       2   not in the context of them defining this as a firearm.  That's

       3   really the issue.  We never knew before your Honor elicited a

       4   response that the firearm in the 924(c) was that.  It could

       5   have been --

       6            THE COURT:  I did ask the government that a couple of

       7   weeks ago.  I think after I saw there was aiding and abetting

       8   and I had difficulty with aiding and abetting and carrying of

       9   a firearm, and the government said, no, we're talking about

      10   the explosive.  Now you know, right?

      11            MR. COHN:  Now I know and now I believe that that

      12   merges, Judge.  You can't have carrying of a firearm when you

      13   are using a firearm.  If the firearm they are carrying is the

      14   bomb and the bomb is used --

      15            THE COURT:  Aren't you talking about sentencing?

      16            MR. COHN:  No, I don't believe so.  I believe that

      17   there's an absolute merger of the issues, not at sentencing at

      18   all.

      19            THE COURT:  Government wish to respond to that?

      20            MR. FITZGERALD:  Your Honor, I am responding because

      21   you are looking at he me, but Mr. Karas has been the Rule 29

      22   person.

      23            THE COURT:  He is the Rule 29 person.  That's what

      24   that 2-9 on your forehead is?

      25            MR. KARAS:  Your Honor, the responses which we made

                                                                    3932

       1   in our papers was that whether you call it a Blackburn

       2   analysis or any other type of analysis, the count that the

       3   924(c) relates to is the 844(f), which says it covers

       4   malicious destruction of property by either an explosive or

       5   fire.

       6            So it's not necessarily the case that to prove the

       7   844 we would have to prove the use of an explosive, and of

       8   course the 924(c) doesn't require proof of the destruction of

       9   a building.  So there is no absolute merger under a plain

      10   reading of the two statutes.

      11            MR. COHN:  Your Honor should look at the charge of

      12   844(h), which is in the indictment, which is use of the

      13   destructive device during commission of a felony.  It's the

      14   same charge using the same destructive device.

      15            MR. KARAS:  And the answer is the 844(h) charge

      16   relates to Count One, this is conspiracy to murder U.S.

      17   nationals.  That's Count 284.  The 924(c) counts are 285 and

      18   286.  Those relates to the 844(f) counts.

      19            THE COURT:  I think it's the -- yes, that's right.  I

      20   was driving a car last weekend and I was behind a car that had

      21   a bumper sticker on it which had a quote from Thoreau on it --

      22   will someone explain to the defendants who Thoreau is -- and

      23   it said "simplify."  And as I read the indictment and as I

      24   read the Court's proposed charge, I really wonder whether this

      25   is not the time for the government to simplify the burden on

                                                                    3933

       1   the jury by abandoning some of these counts.

       2            For example, the sixth -- I'm using the old

       3   numbers -- the sixth conspiracy count, whether that really

       4   isn't a redundancy.  When I say redundancy, I'm not talking

       5   about legal adequacy, I'm talking about the effective,

       6   intelligible presentation of the case to this jury, which we

       7   know has been very conscientious.  You witnessed the complaint

       8   that the stipulations were being read too quickly so all of

       9   the numbers couldn't be written down.

      10            MR. WILFORD:  Your Honor?

      11            THE COURT:  Yes.

      12            MR. WILFORD:  With respect to Count 284, as it

      13   relates to Mr. Odeh, we're in a different posture because

      14   there's no substantive -- Mr. Odeh didn't participate in a

      15   substantive act, the delivering of a bomb.  There's no proof

      16   whatsoever of that.

      17            Even though the government relies on the conspiracy

      18   count, that particular charge is in effect the same as 285 and

      19   merger does exist with respect to Mr. Odeh.  And also, your

      20   Honor, as we stated in our papers, the government seeks to

      21   prove up the conspiracy by the overt act, which is really an

      22   inverse Pinkerton situation, and Count 284 should be dismissed

      23   as to Mr. Odeh as well for those reasons.

      24            THE COURT:  284 is on page 100.  The government's

      25   theory as to Odeh and 284?

                                                                    3934

       1            MR. KARAS:  Judge, first of all, Odeh is charged with

       2   carrying out the bombing.  So to the extent that the jury were

       3   to find that he were involved in the bombing counts as they

       4   relate to Nairobi, then they would find that he used and

       5   carried a firearm, a bomb, in connection with the first count

       6   in the indictment.

       7            THE COURT:  Yes.  Is it correct to say that the crime

       8   in which the defendant used and carried bombs was conspiracy

       9   to murder as distinguished from murder?

      10            MR. KARAS:  Yes, that's -- in terms of Count 284, the

      11   predicate offense in the conspiracy to murder is the

      12   conspiracy to murder.

      13            THE COURT:  Denied.

      14            Mr. Dratel?

      15            MR. DRATEL:  Thank you.  Your Honor, with respect --

      16            THE COURT:  You have seen, I take it, with respect to

      17   the perjury counts, you have seen the government's brief?

      18            MR. DRATEL:  Yes, your Honor.  I think there are two

      19   counts in which they withdrew specifications.

      20            THE COURT:  Specifications.

      21            MR. DRATEL:  292 and --

      22            MR. KARAS:  287.

      23            MR. DRATEL:  With respect to the conspiracy counts,

      24   the government in both it's April 5th letter and again in

      25   today's letter has yet to provide any evidence of the

                                                                    3935

       1   agreement by Mr. El Hage to join in the conspiracy to kill

       2   Americans.  There's a lot of association and there's a

       3   presence, but there is no evidence of any agreement.  And they

       4   can stand inference upon inference, but they don't get there.

       5   This is not a negligence standard.

       6            THE COURT:  Yes.  Yes.  But it's a cliche that

       7   agreement doesn't require that two or more persons sit around

       8   a table and form the agreement that they're going to be

       9   conspirators, that the jury can draw inferences from the facts

      10   and circumstances.

      11            Mr. El Hage talks with his wife on the telephone in

      12   code.

      13            MR. DRATEL:  But the question is how -- when he talks

      14   in code to his wife about money in Kenya, we don't even know

      15   what the money is for, 1996 or '97, having nothing to do with

      16   the United States, when -- just to point out the two examples.

      17   The government talks about two trips to Pakistan in 1997, yet

      18   the two documents that come back from Pakistan have nothing to

      19   do with the United States.  One is about the Taliban and one

      20   is about Somalia.  So it's not even an explained context.  The

      21   context has nothing to do with the United States.  Even on its

      22   plain contact the cases say that is not enough.

      23            THE COURT:  Let me just say that I have read very

      24   carefully your submission on the conspiracy counts as well as

      25   the submission on the others and I am satisfied.  Of course,

                                                                    3936

       1   it's entirely circumstantial and given the nature of the

       2   alleged conspiracy, the sophistication of the conspirators

       3   vis-a-vis conspiratorial activity, the fact that the case is

       4   circumstantial is hardly surprising.  But the motion to

       5   dismiss Count One as to El Hage is denied.

       6            MR. DRATEL:  Your Honor, we'll rest -- we submitted

       7   sufficient paper, but with respect to the perjury, it did make

       8   it into our papers, there is a Pinkerton argument on the

       9   multiplicity, to renew our multiplicity argument, and the

      10   basis for that is that in addition to the fact that it was

      11   really the same question, as we argued pre-trial, and now the

      12   evidence is in.  In fact the government in its response groups

      13   them in a certain -- in three groups, in the Bin Laden counts,

      14   the Abu Hafs counts and Ali Mohamed.  They group them together

      15   because they really are together.

      16            What the government hasn't established is any proof

      17   that there was separate harm for that second Grand Jury, which

      18   is a predicate for allowing that second question to be a

      19   separate count.  In fact, they haven't -- what the government

      20   hasn't also proved is that there's any difference as to the

      21   question as to 97 and the question as to 98.

      22            THE COURT:  I thought you were talking about multiple

      23   conspiracies.

      24            MR. DRATEL:  Multiplicity of the perjury counts.

      25            THE COURT:  Multiplicity of the perjury counts.

                                                                    3937

       1            MR. DRATEL:  With respect to that, your Honor, they

       2   have grouped them together, as I noted.

       3            Also, there's no proof of the separate harm in the

       4   second grand jury that would allow the government in the

       5   course of what is really -- and the government concedes in the

       6   pretrial motion -- what is really one Grand Jury broken up

       7   into two appearances, to allow them to make that second

       8   question a separate count.

       9            In fact, the evidence is exactly the same.  There is

      10   no evidence of any -- just to give your Honor an example, with

      11   respect to contacts with Bin Laden, it all pre-dates the first

      12   Grand Jury appearance.  There's no evidence of any contact

      13   between the first Grand Jury and the second Grand Jury.

      14            So what you really have is all questions reverted

      15   back to the interceding -- intercedes the first Grand Jury

      16   appearance.  The same is true with contact with Abu Hafs.  It

      17   all pre-dates the first Grand Jury.  So there is nothing new

      18   between the first Grand Jury appearance and the second Grand

      19   Jury appearance that would create a separate harm, and they

      20   simply haven't established anything.

      21            The same thing is true with Ali Mohamed.  There is no

      22   evidence of any contact between Mr. El Hage and Ali Mohamed

      23   between the first Grand Jury and second Grand Jury.  Those are

      24   three separate groups of counts that one of them should be

      25   dismissed.  The government should elect which one it wants,

                                                                    3938

       1   the first one or second one, but it should not be permitted to

       2   pursue both.

       3            THE COURT:  Government wish to respond?

       4            MR. KARAS:  Two things, your Honor.  First is that

       5   our arguments have already been resolved, we think, by the

       6   Court last year.  The second point is the difference in the

       7   harm is between '97, September '97 and September '98, there

       8   was a bombing and, as it's alleged in the indictment, the

       9   focus of the Grand Jury therefore expanded to cover the

      10   bombing.

      11            So of course it makes sense that there would be a

      12   different harm on questions relating to Bin Laden, who is

      13   believed to be involved in the bombing, and questions about

      14   Ali Mohamed, who were also suspected of being involved in the

      15   bombing.  It's alleged in the indictment and common sense

      16   indicates that would be the difference in the harm.

      17            MR. DRATEL:  Still all the evidence they were looking

      18   for still all pre-dates the first Grand Jury appearance.

      19   There hasn't been any proof in the record that there was a

      20   second and separate harm.  The rest is in our papers.

      21            THE COURT:  Except to the extent to which the

      22   government has consented in its April 12th filing to the

      23   deletion of various specifications, the El Hage motions

      24   addressed to the perjury counts are denied.

      25            Let me just throw out some questions, which I do not

                                                                    3939

       1   need answers now, but in the El Hage motion at a number of

       2   places there's a reference to court instructions, the court

       3   should instruct the jury, for example, with respect to

       4   recantation, page 41 of your brief, and I believe there's some

       5   other --

       6            MR. DRATEL:  Withdrawal, your Honor?

       7            THE COURT:  Withdrawal.  Withdrawal and recantation,

       8   those are the two matters.  If you want such an instruction,

       9   you should submit one, although the language of those

      10   instructions is a bit standard.  But is it your position that

      11   the record in its present state would warrant the granting of

      12   either of those?

      13            MR. DRATEL:  Certainly recantation, just based on the

      14   two Grand Jury appearances and the way the questions and

      15   answers are asked and answered, we are not -- your Honor, this

      16   is something we can address at the charge conference as to

      17   whether we are addressing specific instructions in that

      18   regard.  I also notice that the court's proposed instruction

      19   does have language with respect to both, so we can address

      20   that.

      21            THE COURT:  Is there anything else anybody wants to

      22   raise now?  I understand there's some other matter, whatever

      23   that is, that is unresolved.

      24            MR. WILFORD:  Yes, your Honor.  Just with respect to

      25   venue on behalf of Mr. Odeh, with respect to Counts One

                                                                    3940

       1   through Six, it's our position that the government has not

       2   proven that the coconspirators were first brought to and

       3   arrested in the United States.  I believe that that's the

       4   conjunctive that's required, and it said "and," first brought

       5   to and arrested.

       6            And there's been testimony that some people were

       7   arrested, most of them were arrested outside of the United

       8   States, outside of the Southern District based on the

       9   testimony that was elicited from the agents that were called

      10   by the government, and I do not believe they have established

      11   the conjunctive with respect to all or any one of the alleged

      12   coconspirators.

      13            MR. KARAS:  Your Honor, it may be Mr. Wilford is

      14   reading from the indictment, but the statute that I'm reading

      15   from, 3238 says that trial of all defense begun shall be in

      16   the district in which the offender or any of two or more joint

      17   offenders is arrested or is first brought.

      18            THE COURT:  That's the standard.  The section says

      19   "or" and the indictment says "and" and it's the standard

      20   treatment.  I wondered why some of your cross-examination

      21   alerted me to the fact that you were raising that.  I think

      22   the reasonable question as to venue that I had was the one I

      23   previously addressed.

      24            MR. DRATEL:  Your Honor, just while some of the

      25   issues do not pertain to Mr. El Hage, he's not charged in some

                                                                    3941

       1   of these counts, we would join the other motions by the other

       2   defendants to the extent just as the one Mr. Wilford just made

       3   and any others that relate to the counts, there's multiple

       4   conspiracy, things like that, other arguments that counsel

       5   have made in the papers as well.

       6            THE COURT:  The government has conceded that

       7   specifications B, D, F of Count 292 should be dismissed.

       8   Specification C of 292 refers to question B and the question

       9   is whether, with respect to 292, is that going to be -- if C

      10   is left in, did anyone tell you Abu Hafs had drowned in that

      11   third accident?  No.  Is that self-sufficient?

      12            MR. FITZGERALD:  Yes, Judge.  There's earlier

      13   testimony in the Grand Jury testimony where he's asked if he

      14   went to Lake Victoria after a ferry accident and he said yes.

      15            THE COURT:  All right.

      16            MR. DRATEL:  Your Honor, our argument is that it

      17   refers back to the previous question which talks about the

      18   summer of '96, which is why the other specifications have been

      19   withdrawn, because in fact it was the spring of 1996 when the

      20   ferry accident occurs.

      21            The next question C following B, which is that ferry

      22   accident, the ferry accident that is referred to in the

      23   previous question talks about the summer of '96.  That's why

      24   we moved to dismiss that.

      25            THE COURT:  Denied.

                                                                    3942

       1            With respect to venue, the government had requested a

       2   venue predicated on an alternate to where the conspiracy took

       3   place, and again I think that the basis for the venue is clear

       4   enough so that that alternate theory is a redundancy and

       5   confusing.

       6            MR. KARAS:  Just so I'm clear, your Honor, are you

       7   talking about the conspiracy counts and venue resting under

       8   the 3237?

       9            THE COURT:  Yes.

      10            MR. KARAS:  Your Honor does not intend to charge as

      11   an alternative theory to 3238 on the conspiracy counts?

      12            THE COURT:  Yes.  I'm not as conversant as you with

      13   the numbers, but I think what you are saying is right.  It

      14   will be reflected in the draft that you have.

      15            All right, Mr. Wilford.

      16            MR. WILFORD:  Yes, your Honor.  It was not in our

      17   letter, I'm sorry and I apologize to the Court for that, but

      18   the defendant Odeh would move to dismiss the following overt

      19   acts:  J, M, N, P --

      20            THE COURT:  E?

      21            MR. WILFORD:  No, P.

      22            THE COURT:  P, as in Peter.

      23            MR. WILFORD:  As in Peter.  Q, Y, 2C -- that's double

      24   C, I'm sorry, double Z and quintuple, five, R.

      25            THE COURT:  And the reason for that and what they

                                                                    3943

       1   have in common is what?

       2            MR. WILFORD:  Specifically, your Honor, the N, P, Q

       3   and Y relate to Somali.  Y is the murder of the 18 servicemen.

       4   I don't believe there is any proof or testimony or anything in

       5   the case regarding that whatsoever and I would ask that that

       6   count be dismissed.  It's just not there.

       7            THE COURT:  I think nothing with respect to Somali,

       8   because I didn't know what the Somali stipulation was going to

       9   be.  Is the Somali stipulation relevant to these overt acts?

      10            MR. FITZGERALD:  Yes, Judge.  What I might suggest is

      11   since we may be pruning overt acts, perhaps knowing what the

      12   list is from Mr. Wilford, after we have pruned them, whatever

      13   is left that he is attacking, we then address at that time.

      14            MR. WILFORD:  Very well.

      15            THE COURT:  Anything else anybody wants to bring up?

      16   I wish everybody a happy holiday.

      17            MR. SCHMIDT:  Your Honor?

      18            THE COURT:  Your spoliation issue.

      19            MR. SCHMIDT:  Spoliation.  I thought it was

      20   spoilation, but it's spoliation.

      21            THE COURT:  Yes.  Yes.  Is there anything you want to

      22   add to your papers on that?

      23            MR. SCHMIDT:  Yes.  There is some things I could do

      24   on the record in the public forum and some that would require

      25   doing it in camera.

                                                                    3944

       1            THE COURT:  We're going to be having a session in the

       2   robing room on some matters.

       3            MR. SCHMIDT:  Some things we still can do in the

       4   public venue, if your Honor wishes me to go into those issues.

       5            THE COURT:  Yes.  And is there anything you want to

       6   add to what is in your papers?

       7            MR. SCHMIDT:  Yes.

       8            THE COURT:  What is it you want to add to what is in

       9   your papers.

      10            MR. SCHMIDT:  The information that I can raise in the

      11   public meeting is, for example, the government -- one of the

      12   major problems is when we learned that these tape recordings

      13   were not preserved was during trial, not before.  The

      14   government, for example, presented their chart of telephone

      15   calls to Pakistan.  Included in those telephone calls to

      16   Pakistan from Mr. El Hage's telephone number was an October

      17   6th telephone call of 1996.

      18            Now, from the view of the material that we received

      19   that had been declassified that included that appeared to be

      20   translations of facsimiles that were not preserved was a

      21   facsimile from Harun to Mohamed Atef, also known as Abu Hafs,

      22   that appears to cover one exact telephone call from Mr. El

      23   Hage's telephone to Pakistan, which is a specific contact

      24   between Harun and Mohamed Atef.

      25            The other, a number of other telephone calls that

                                                                    3945

       1   occurred in September of 1996 and November of 1996, which were

       2   the majority of those telephone calls, those contacts, there

       3   are no preserved telephone conversations nor preserved

       4   facsimiles that cover that period.  And it is our belief that

       5   these calls originated by --

       6            THE COURT:  There are neither the transcripts nor the

       7   calls themselves?

       8            MR. SCHMIDT:  There's neither the transcripts, the

       9   calls themselves, summaries or faxes for most of those, most

      10   calls, and almost all of them are very short.  Some of them

      11   are the same amount of time as that short facsimile was.  Some

      12   of them are even shorter where the phone calls didn't go

      13   through.

      14            There appears to be one or two longer calls that

      15   appear to be conversations, and the government has presented

      16   that as evidence against Mr. El Hage, that these contacts to a

      17   telephone number that Mr. Atef can be reached coming from his

      18   home is evidence of contact and, therefore, evidence of

      19   perjury and of participation in the conspiracy.

      20            THE COURT:  You are saying regardless of what was

      21   said, it indicates that there is a relationship between the

      22   two which led to communications?

      23            MR. SCHMIDT:  Well, it didn't --

      24            THE COURT:  Are these the record references that the

      25   government has offered to strike?

                                                                    3946

       1            MR. SCHMIDT:  No, your Honor.  That's another issue

       2   that we need to do on the 806 and Brady issue.  No, they did

       3   not.  Of course we learned about this --

       4            THE COURT:  Get to the bottom line.

       5            MR. SCHMIDT:  We want to offer substitute evidence.

       6   We want to offer evidence, for example, of the notes of the

       7   U.S. agency of the facsimile that was sent during that period

       8   of time with direction that that is that phone call --

       9            THE COURT:  For what purpose?

      10            MR. SCHMIDT:  So show that it is Harun that is

      11   contacting Mohamed Atef and not Mr. El Hage.  The government

      12   has been --

      13            THE COURT:  Is that what you want?  You just want to

      14   know who the participants in that conversation were?

      15            MR. SCHMIDT:  That's an example of the prejudice that

      16   we suffered by the government loss of that material and that

      17   we were not informed of that until March 2nd.

      18            There are a number of other telephone conversations

      19   that appear to be exculpatory, for example, and where the

      20   agency taking down notes or translations of those telephone

      21   calls obviously don't take very many notes of the calls that

      22   they think are not relevant to a possible contact --

      23            THE COURT:  You want a stipulation that every

      24   telephone conversation made between the numbers did not

      25   contain inculpatory material?

                                                                    3947

       1            MR. SCHMIDT:  No, I don't think we're entitled to

       2   that and that's not what I'm asking.  I'm asking to be able to

       3   put in substitute evidence with the indication of that --

       4            THE COURT:  Substitute evidence, that is, you want

       5   discovery to obtain the material which you will use as

       6   substitute evidence?

       7            MR. SCHMIDT:  No, we have some of the material

       8   already as substitute evidence.  We have summaries that were

       9   prepared by government agents.

      10            THE COURT:  Do you want a ruling from the court that

      11   the best evidence rule will permit you to introduce that

      12   material because the originals no longer exist?

      13            MR. SCHMIDT:  No, we want your Honor to sanction --

      14   to remedy the government misconduct.

      15            THE COURT:  By doing what?

      16            MR. SCHMIDT:  To allow us to present this evidence in

      17   lieu of the original evidence that has been destroyed by the

      18   government.

      19            THE COURT:  What is the difference between what you

      20   just said, other than some pejorative terms, and what I said?

      21            What you want is the Court to say that since the

      22   originals have been destroyed, through no fault of Mr. El

      23   Hage, those documents constitute the best evidence and are

      24   admissible.

      25            MR. SCHMIDT:  That is correct with one proviso.

                                                                    3948

       1            THE COURT:  Yes.

       2            MR. SCHMIDT:  That is that the government, because of

       3   their conduct, as a sanction, cannot produce as best evidence

       4   the summaries produced by government agents as well because

       5   the government --

       6            THE COURT:  What are you seeking to discover other

       7   than the summaries by the government?

       8            MR. SCHMIDT:  I'm not asking for anything other than

       9   what your Honor said.  I'm satisfied with what your Honor

      10   said.  The government has indicated that they wish then to

      11   say, well, if I'm putting in these summaries that were made by

      12   government agents who had a certain view of this matter, that

      13   they also should be allowed to put in the summaries of those

      14   agents as a result.

      15            THE COURT:  Isn't the purpose to try and put the

      16   parties as near as may be to the position that they would

      17   occupy had the tapes not been destroyed?  Isn't that what the

      18   Court should seek to do?

      19            MR. SCHMIDT:  The Court should seek to do that to the

      20   party that was injured by the other party's failure to

      21   preserve it.  It should not seek to put the other party in

      22   better position than they would have been if they had not

      23   destroyed the evidence.

      24            THE COURT:  But you want to put them in a worse

      25   position.  You want to put them in a position where you can

                                                                    3949

       1   put in those portions of the transcripts which you think are

       2   helpful but preclude the government from putting in other

       3   material of equally probative value but with different

       4   content.

       5            MR. SCHMIDT:  I'm not --

       6            THE COURT:  Suppose I hear from the government.

       7            MR. FITZGERALD:  Let me make it very simple, Judge.

       8   35 faxes that were recovered at the time were not preserved

       9   but they were typed up what the contents of the faxes were at

      10   the time.  Mr. Schmidt would like us, and we're willing to

      11   agree, to authenticate all 35 faxes.  He wants to put in the

      12   25 transcripts of the faxes that are largely irrelevant,

      13   "hello, happy holiday," and keep out the 10 where Wadih El

      14   Hage is contacting his co-conspirators, sending them fake

      15   passports and providing them the address of the person he

      16   denies knowing.  What he is basically saying is because the

      17   government wasn't looking to preserve this as evidence at the

      18   time, this could now mislead the jury.

      19            THE COURT:  I will permit the defendant El Hage to

      20   offer in evidence transcripts of those faxes which, because of

      21   the destruction of the originals, will constitute the best

      22   evidence.  I will permit the government to introduce

      23   transcripts of other faxes which have the same probative value

      24   as the faxes which the defendant wishes to introduce.  I see

      25   no basis --

                                                                    3950

       1            MR. SCHMIDT:  Your Honor --

       2            THE COURT:  Let me finish.

       3            I see no basis in anything that is presented to me to

       4   conclude that there has been any bad faith on the part of the

       5   government or deliberate destruction by the government or

       6   anything which would lead to the imposition of sanctions or

       7   enable El Hage to skew what the facts are.

       8            I think what the defendant is entitled to, and I

       9   grant it, is the right to introduce those faxes in evidence

      10   and, since that will be predicated on a finding that the

      11   transcripts are authentic and accurate, permit the government

      12   as well to introduce other similar transcripts.

      13            MR. SCHMIDT:  Your Honor, that takes the transcripts

      14   of the faxes -- they're not transcripts of the faxes, they are

      15   translations of the faxes.

      16            We also come now to the summaries of conversations of

      17   that.

      18            THE COURT:  Yes.

      19            MR. SCHMIDT:  For example, we have a different

      20   problem.  On WEH71, there is a brief summary of the

      21   conversation there where there is a conversation where they

      22   talk about how Wadih El Hage and Harun are talking, they're

      23   discussing some work Harun is doing for Wadih.

      24            Now, that's all it is, and this is being taken by

      25   some agent of the government.  It doesn't say what the work

                                                                    3951

       1   is, so it could be work that the government my allege is part

       2   of the conspiracy.  It could be work related to the

       3   non-governmental organization or it could be work related to

       4   his business.  I don't know.  But that makes it clear to me

       5   that if it was related to something bad, that they would have

       6   had a long transcript or a long summary of about what that

       7   work was.  That alone shows the bias.

       8            THE COURT:  What is it that you want with respect to

       9   that?

      10            MR. SCHMIDT:  I want to be able to put in, then,

      11   information of either better summaries that the government may

      12   or may not have, or I want to be made whole, where --

      13            THE COURT:  Does anybody have any better summary?

      14            MR. SCHMIDT:  In the beginning, your Honor, it shows

      15   the bias --

      16            THE COURT:  One moment, please.

      17            Does the government have any other summaries of those

      18   conversations?

      19            MR. FITZGERALD:  No, Judge.  Let me tell you what we

      20   have.

      21            THE COURT:  No.  Okay, so the answer to that is there

      22   aren't any.

      23            When you say you want to be made whole, what does

      24   that mean?

      25            MR. SCHMIDT:  It is clear that the agents who are

                                                                    3952

       1   taking this down have a certain bias and so they --

       2            THE COURT:  What do you want?  Tell me specific --

       3            MR. SCHMIDT:  Because of their bias, what they write

       4   down is not necessarily accurate for the benefit of El Hage.

       5            THE COURT:  What do you want?

       6            MR. SCHMIDT:  I want to be able to put the ones in

       7   that, even with the bias of the agents, the obvious bias of

       8   the agents, that are relevant to our defense, without allowing

       9   the government to put in summaries of telephone conversations

      10   that these obviously biased agents write down that look, would

      11   look worse in their summaries than are actually true in the

      12   telephone conversations.

      13            THE COURT:  Denied.

      14            MR. SCHMIDT:  One other point, your Honor.

      15            THE COURT:  Denied.

      16            MR. SCHMIDT:  One other point.  You made clear that

      17   this was not done by the government in bad faith, right, and

      18   that very well may be so.  However, we did not learn of the

      19   missing tapes until March 2nd, 2001, and efforts --

      20            THE COURT:  The Court did grant a request for the

      21   hiatus between the close of what was virtually all of the

      22   government's case and the 16th.  There's a limit to how much

      23   mileage you can get out of that.

      24            MR. SCHMIDT:  I'm not asking for mileage.  If we had

      25   known this prior to trial, your Honor -- and there was no way

                                                                    3953

       1   that we would be able to reach a resolution that we felt was

       2   proper for Mr. El Hage -- we would move to preclude all of the

       3   statements.  The government was able to put in three-quarters

       4   of their telephone conversations before the jury before we

       5   found out that the other ones were missing, and we believe

       6   that they would not be allowed to do that if we were aware of

       7   that prior to that.

       8            THE COURT:  Let's take the picture in the best

       9   conceivable light.  Best conceivable light is that there is

      10   nothing incriminatory, nothing inculpating in those telephone

      11   conversations as to which there is no recordings or

      12   transcript.

      13            MR. SCHMIDT:  No, the best is that they are

      14   exculpatory.

      15            THE COURT:  Such as?

      16            MR. SCHMIDT:  Such as discussions explaining his

      17   conduct with individuals which show that it is either

      18   business-related or related to non-governmental organizations,

      19   humanitarian purposes, or other matter that doesn't relate to

      20   criminal conduct against the United States.

      21            THE COURT:  But there is no suggestion, is there,

      22   that there's a selective destruction and selective retention

      23   of these messages?

      24            MR. SCHMIDT:  Yes, to some extent, to some extent,

      25   there --

                                                                    3954

       1            May I have a moment, your Honor?

       2            MR. FITZGERALD:  Your Honor, I think we can prove

       3   there was no selective destruction by two facts:  There was a

       4   conversation admitted in evidence where Ahmed the Egyptian,

       5   who is known as Shuaib, who turns out to be a key player in

       6   the conspiracy, his voice was not identified until months ago,

       7   reviewing evidence for trial.  It was viewed as just an

       8   unknown male calling his wife.

       9            The people who don't have a bias, there are great

      10   calls that are missing.  I'll give one example.  Mr. El Hage,

      11   in his legitimate enterprise efforts, passed license plate

      12   numbers to somebody else and when you take the license plate

      13   numbers and you put them together, you get the phone number of

      14   a terrorist overseas.  We would love to have that telephone

      15   call.  We don't.

      16            The calls, we gave them the tapes we have.  We gave

      17   them the transcripts we have.  We have been trying to marry up

      18   transcripts to tapes.  We would love to find some of those

      19   conversations.  We don't.  There's a bias -- I don't think

      20   there's a bias.  Whoever listened to the tapes did not know

      21   what we all know today, which is what some people had done,

      22   what some phone numbers meant.  There is no selective

      23   destruction.

      24            MR. SCHMIDT:  Your Honor, there is a bias in what

      25   these people are listening for and how they are writing down

                                                                    3955

       1   their summaries.  That is clear from the summaries that

       2   they --

       3            THE COURT:  What is it that you want by way of

       4   redress?  What is it that you ask?

       5            MR. SCHMIDT:  I'm asking that I be allowed to put in

       6   some of the summaries of the telephone conversations that

       7   counteract the telephone calls that the government has put in

       8   already.

       9            THE COURT:  What does that mean?

      10            MR. SCHMIDT:  There are allegations that have been

      11   made --

      12            THE COURT:  What does that mean, "counteract"?  What

      13   does that mean?

      14            MR. SCHMIDT:  Well, a perfect example, I gave the

      15   example of the fax.  The government submitted to the jury a

      16   chart of telephone calls from Mr. El Hage's home to Pakistan.

      17   We have a fax from Harun that affirmatively proves by the

      18   handwriting of the government agent taking it down that it was

      19   Harun sending a fax.  I would like to put that one in.  That

      20   one --

      21            THE COURT:  No problem.  No problem.

      22            MR. SCHMIDT:  I do not believe that opens the door

      23   for the government then to select other faxes to put them in.

      24   I don't think that they should be allowed to do it because if

      25   I was in a position of knowing all this information before

                                                                    3956

       1   they offered the evidence, I would have been more clear to

       2   your Honor saying they should not be allowed to make these --

       3   present this evidence because it is misleading as it stands,

       4   because I'm being precluded from showing proof that this

       5   conversation did not come from Mr. El Hage.

       6            THE COURT:  The Court has already ruled you may offer

       7   in evidence documents to demonstrate who the caller or who the

       8   recipient of a particular message is.  So there is nothing --

       9            MR. SCHMIDT:  So that he opens the door with

      10   summaries and writings of government agents who I am not able

      11   to cross-examine, who I am not able to show that the tapes

      12   are -- the summaries or the translations are not accurate.  I

      13   have to accept the government's version.  They are another

      14   party.

      15            THE COURT:  Why would the introduction of a document

      16   for the sole purpose -- assuming these facts -- the sole

      17   purpose to show that a particular telephone call listed by the

      18   government on its chart was in fact between someone other than

      19   El Hage, why would that open the door to the government

      20   presenting the contents of some other similarly recorded

      21   conversation?

      22            MR. FITZGERALD:  If Mr. Schmidt wants to tee up what

      23   he wants, we'll be fair in response.  If he wants to chart out

      24   from what faxes have been lost whether or not El Hage was also

      25   in those lost faxes, which he is, on the charts in evidence,

                                                                    3957

       1   we'll agree to that.  If he can show us a conversation

       2   reflected on the chart and it shows that Harun is in touch

       3   with Abu Hafs, Mohamed Atef, and also where we show that the

       4   faxes show Wadih El Hage was in touch with people, we'll

       5   stipulate.  That's the facts.

       6            If we're saying that these transcriptions or

       7   translations of faxes are accurate, let's put them before the

       8   jury, and the ones that he wants to put before the jury which

       9   talk about irrelevant matter or what he purports is business

      10   matter and the ones where he's talking about sending false

      11   passports should all be before the jury.  There is no

      12   misconduct.  Mr. El Hage sent faxes.  He didn't keep them

      13   either.

      14            THE COURT:  The scope, in other words.  In other

      15   words, another way to phrase this is that the extent to which

      16   the door will be opened is a function of what it is that the

      17   defendant seeks to introduce.  If the defendant seeks to

      18   introduce matters which simply reflect the fact that the

      19   participants in telephone conversations or faxes which the

      20   government has listed in its chart were persons other than El

      21   Hage, then obviously all that would open the door to would be

      22   the government showing from the same source of material the

      23   number of conversations in which El Hage was a participant.

      24            If El Hage wants to introduce a fax or a transcript

      25   or summary which says my jam tray is very slow because I have

                                                                    3958

       1   not been able to get the sources, or something of that sort to

       2   show that he was engaged in legitimate business activity, and

       3   the government has a similar document which shows that that's

       4   code language or that it was really for some other purposes,

       5   then the door has been opened to permit that to happen.  Okay.

       6            MR. SCHMIDT:  That makes it clearer, and I can then

       7   see what the final of the faxes of the conversations that I

       8   wish to propose.

       9            One other issue that we should raise --

      10            THE COURT:  Just so the record is clear, the

      11   application for the imposition of sanctions against the

      12   government is denied because the Court finds the absence of

      13   any basis to assume that there was bad faith on the part of

      14   the government.  Indeed, as the government has indicated, it

      15   has not been advantaged but disadvantaged by virtue of the

      16   failure to preserve this material which was initially

      17   recorded, the government says, not in connection with a view

      18   to criminal prosecution but for intelligence purposes.

      19            MR. SCHMIDT:  The 806 issue, which also relates to

      20   the Brady issue?

      21            THE COURT:  Yes.

      22            MR. SCHMIDT:  The government, after the witnesses

      23   testified, has now given us material which impacts on the

      24   declarants' statements to by certain witnesses.

      25            THE COURT:  Yes.

                                                                    3959

       1            MR. SCHMIDT:  And they have offered to redact some of

       2   the declarants' statements but not all of the three

       3   declarants' statements instead of giving us the 806 material.

       4            One, we oppose that because should the 806 material

       5   that we're entitled to impact on the credibility of those

       6   declarants for some statement, it certainly impacts on the

       7   declarant's credibility for all of the statements made by the

       8   declarant.  So the government should not be in a position to

       9   select which declarant's statements should come out.

      10

      11            (Continued on next page)

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                                                                    3960

       1            THE COURT:  What is --

       2            MR. SCHMIDT:  We want material.  We don't want them

       3   to offer to redact.

       4            THE COURT:  You want the material.  I received and I

       5   have not yet seen some CIPA material.  Does that deal with

       6   this issue?

       7            MR. FITZGERALD:  Yes, Judge.  As to some declarants,

       8   all statements were withdrawn.  As to one declarant, there was

       9   an ex parte submission upon notice to El Hage.

      10            THE COURT:  I have not had an opportunity to review

      11   this material, and we can take it up, if you like, at 9:00

      12   a.m. on Monday.

      13            MR. SCHMIDT:  There is one other related issue to

      14   that.  It appears that the government makes a decision of

      15   which person's statement they want to accept, whether the

      16   declarant's statement, which they have now withdrawn, or the

      17   witness's statement of what the declarant says.

      18            Let me start over again.  A witness testifies that X,

      19   the declarant, says this to him, says Y to him.  The

      20   government now wishes to withdraw statement Y because it is

      21   determined that instead of giving us the material they will

      22   withdraw Y.  However, the material that they have that impacts

      23   on the credibility of declarant X very likely also impacts on

      24   the witness who is testifying.  It is a choice between

      25   believing the witness who is testifying and the declarant,

                                                                    3961

       1   they choose to believe the witness who is testifying.  I

       2   believe that that is Brady material because I don't

       3   necessarily believe the witness who was testifying.

       4            THE COURT:  The relief that you want from the court

       5   is what?

       6            MR. SCHMIDT:  Is something that the declarant might

       7   have said in the nature of I never said those things.

       8            THE COURT:  Tell me what you want the court to do.

       9            MR. SCHMIDT:  I want to know the impeachment material

      10   that the government is obligated to give us because that

      11   impeachment is not only impeachment against the declarant, it

      12   is clearly impeachment against the witness.

      13            THE COURT:  I will review the matter submitted by the

      14   government and we will take up the matter at 9 a.m. on Monday.

      15   9 a.m. on Monday.  Promptly at 9 a.m. on Monday.

      16            MR. FITZGERALD:  Speaking of Monday, we are in the

      17   position where we think the government will rest by 10:30 and

      18   then the defense case.  I understand the El Hage case will be

      19   a week to three weeks.  We have received no Jencks Act

      20   material, and in order not to have delays, I think we ought to

      21   know what witnesses are coming, what the Jencks Act material

      22   is.

      23            THE COURT:  Is there any objection to Mr. El Hage's

      24   case being the last of the four defendants' cases?

      25            MR. COHN:  May we have time to think about that,

                                                                    3962

       1   Judge?

       2            THE COURT:  I tell you what I am not going to do.  I

       3   am not going to bring this jury back on Monday and send them

       4   home.  Will I bring them back and send them home after three

       5   of the defendants have rested because a day's work has been

       6   done?  Yes.

       7            MR. COHN:  It is not unreasonable.  We don't have to

       8   accept anything.  I am trying to consider a request from the

       9   court to see if we can do what the court requests and I want

      10   time.  I don't know why I get snapped at for that.

      11            THE COURT:  If I didn't snap at you from time to time

      12   and if you didn't make sarcastic jokes from time to time, life

      13   wouldn't be as we know it and love it.

      14            MR. COHN:  I am trying to keep the Times from being a

      15   liar.  They said I am sarcastic so it must be true.

      16            THE COURT:  Should we take a recess now?

      17            MR. COHN:  We are going to talk in the back about

      18   something, I will talk to counsel, and we will try and resolve

      19   it, Judge.

      20            THE COURT:  Mr. Schmidt, are you able to be more

      21   specific with respect to your estimate of one to three weeks

      22   for the defendants' case, assuming that all your discovery

      23   requests and are granted?

      24            MR. SCHMIDT:  The Somalia issue presents a big

      25   unknown.  Other than that, I would guess -- and I use that

                                                                    3963

       1   word judiciously -- that we have over a week of testimony

       2   without Somalia, and it could stretch to two weeks.

       3            THE COURT:  That is helpful.  Just so that I don't

       4   rely on faxes which seem sometimes to not fully communicate,

       5   we have on one day the motion to quash the subpoena.  Mr.

       6   Baugh --

       7            MR. BAUGH:  I will get the answer to the motion

       8   tomorrow afternoon.  I thought it was going to be argued

       9   Monday first thing.

      10            THE COURT:  One of the points made repeatedly in

      11   their papers is that they have been unable to communicate to

      12   you.  That is a matter which I think you might very easily

      13   consensually resolve.

      14            MR. BAUGH:  Yes.

      15            THE COURT:  We also have oral argument on Monday on

      16   the severance of the penalty phase.

      17            MR. RUHNKE:  Your Honor, your Honor had given us

      18   until tomorrow to reply to the government's -- we intend to

      19   reply tomorrow.

      20            MR. HERMAN:  With regard to scheduling on Monday, we

      21   have a witness who is only available on Monday, an expert

      22   witness, probably an hour of testimony at the most.  We have

      23   gotten permission from the El Hage group if we can present

      24   that witness out of turn.  It was not our intention to

      25   complete our defense on Monday.  Unless there is something

                                                                    3964

       1   else that changes for the rest of the day, that would be the

       2   only disruption we anticipate.

       3            THE COURT:  We will adjourn at least in open court

       4   and we will take up in the robing room the Somalia issue?  Is

       5   that what we are dealing with?  Anything else?  I again wish

       6   you a good holiday weekend.

       7            (Sealed conference filed separately)

       8            (Adjourned until 9:00 a.m., Monday, April 16, 2001)

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