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

This is the transcript of Day 38 of the trial, May 2, 2001.

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

                                                                    5391

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

       3   UNITED STATES OF AMERICA

       4              v.                           S(7) 98 Cr. 1023

       5   USAMA BIN LADEN, et al.,

       6                  Defendants.

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

       8
                                                   New York, N.Y.
       9                                           May 2, 2001
                                                   10:00 a.m.
      10

      11

      12   Before:

      13                       HON. LEONARD B. SAND,

      14                                           District Judge

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5392

       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

                                                                    5393

       1            (Trial resumed, jury not present)

       2            THE COURT:  Everyone here?  Any reason not to bring

       3   in the jury?  Please tell them to bring the jury in.

       4            MR. RICCO:  Your Honor, at the end of all the

       5   evidence in the case the defense neglected to formally make

       6   the Rule 29 motions and we would like to do it at the end of

       7   the day, just so the record is complete.

       8            MR. DRATEL:  Yes, we join that.

       9            (Jury present)

      10            THE COURT:  Good morning.  Mr. Karas, as soon as the

      11   jury is seated you may begin.

      12            MR. KARAS:  Thank you, your Honor.  Good morning

      13   again.

      14            What I would like to do this morning is take up three

      15   items from yesterday that I would like to clarify.  The first,

      16   we showed you a letter that made clear that Ibrahim Eidarous

      17   had been put in charge of the London cell, the EIJ group.  We

      18   had showed you 1520 and that was not the document to show you.

      19   The document was 1516-T.  This is one of the documents that

      20   was found in the trunk of Eidarous's car.

      21            What you see there at the top, dated June 28, 1998,

      22   you may remember that in October of 1997, Eidarous had written

      23   Zawahiri, the leader of the EIJ, please tell the brothers in

      24   London who is in charge.  In this letter Eidarous complies,

      25   and he says, dear brothers, number 1, brother Ibrahim is the

                                                                    5394

       1   one in charge in London, and the brothers must listen and obey

       2   him.  Any brother who doesn't act accordingly will be subject

       3   to having the group take a stand against him as it happened to

       4   other brothers before, which warning will be the last one

       5   concerning this issue.

       6            So you see that Zawahiri makes clear that Eidarous is

       7   in charge, and Eidarous is the one who will be involved in

       8   helping to disseminate the claims for responsibility for the

       9   bombings from London.

      10            The second thing you see there is that there is an

      11   element of discipline within EIJ, and you saw it with respect

      12   to Al Qaeda and their concerns regarding Abu Fadhl al Makkee

      13   and their concern that he was cooperating with the Americans.

      14   So that's the first item from yesterday.

      15            The second item from yesterday concerned two

      16   exhibits, Government's Exhibit 310-74A, and this is one of the

      17   documents that is found on the disks found in El Hage's house

      18   during the search in August of 1997 that Agent Coleman

      19   testified about.  We went through this document yesterday, and

      20   one of the things that I had mentioned, I read you a quote

      21   regarding Somalia was not being limited to merely the training

      22   of groups who want to fight and the fight is over and the

      23   quote went on, we are not a relief organization.  That quote I

      24   attributed to Government's Exhibit 710-96T.  710-96T are the

      25   tape letters that were found in Odeh's house.  That

                                                                    5395

       1   attribution was incorrect, ladies and gentlemen.  That quote

       2   that I read you was from the disk document 310-74AT.  Just so

       3   we are clear, the quote that I read, our goal in Somalia was

       4   not limited to merely the training of groups who want to fight

       5   and the cause is over, however, our goals are bigger than

       6   that.  We are not a relief organization which comes every now

       7   and then to assist the victims and leave.  That quote is from

       8   310-74AT, the document that is taken from run one of the disks

       9   found in El Hage's house, not the tape letter from the

      10   defendant Odeh.

      11            The third matter was the one we ended on yesterday,

      12   which was the Khalid Saleh Muslim Bin Rasheed passport that

      13   the defendant Mohamed Al-'Owhali had.

      14            MR. COHN:  Excuse me, Mr. Karas.  I am sorry.  We are

      15   having difficulty hearing you.

      16            MR. KARAS:  OK.  System on?

      17            MR. COHN:  Doesn't seem to be.

      18            MR. KARAS:  I will try to speak up.

      19            Yesterday you I told you if you look in the passport

      20   you will see the entries for Al-'Owhali's arrival in Pakistan

      21   on the 18th of May 1998, and it is in there and displayed on

      22   your screen.

      23            The other thing that I would remind you, during his

      24   statement to Agent Gaudin the defendant Al-'Owhali himself

      25   told Agent Gaudin that he did go back from Yemen to Pakistan,

                                                                    5396

       1   and it was after he got back to Pakistan and then Afghanistan

       2   that he first learned of his mission to attack American

       3   targets.  As Judge Sand instructed you yesterday and during

       4   the testimony of the statements given by these defendants, and

       5   as the judge will instruct you at the end of our closing

       6   statements, the statements given by the defendants to the

       7   agents are only evidence against those defendants.  So when

       8   Mohamed Al-'Owhali said to Agent Gaudin that he went to

       9   Pakistan a few months before the bombing, that statement is

      10   admissible only against defendant Mohamed Al-'Owhali.  But

      11   what you see here is evidence in the passport that also shows

      12   that he went to Pakistan on May 18, 1998, just a few months

      13   before the bombing.

      14            So that is where we left off yesterday, May 18, 1998,

      15   about two and a half months before the day of the bombings the

      16   next date we get to is May 28, 1998, and that is the day that

      17   Usama Bin Laden gives another interview, and this one is to

      18   ABC News.  By way of stipulation you know that the interview

      19   was given on May 28, 1998, in Afghanistan, and you may

      20   remember you saw the video and you can see the interview take

      21   place in one of the caves, if you would, in Afghanistan where

      22   Bin Laden was working, and you saw some of the people around

      23   him that had some of the machine guns, and you actually

      24   witnessed the interview.

      25            You also may remember we talked yesterday about that

                                                                    5397

       1   person Tarik Hamdi to whom the battery pack was sent for the

       2   satellite phone, and he was part of the ABC News team that

       3   went to Pakistan and he sent the fax saying we're here and

       4   everybody is fine.  So all that is going on in May 1998.

       5            The transcript of the interview is Government's

       6   Exhibit 81T, and if we turn to the bottom of the second page

       7   of 81T, Bin Laden repeats the fatwah that he gave in February,

       8   and he says to the person from ABC News, we do not

       9   differentiate between those dressed in military uniforms and

      10   civilians.  They are all targets in this fatwah, especially

      11   since American officials have stated after the Khobar bombing

      12   that there was a lack of information and all American

      13   civilians were asked to gather information on Muslims and

      14   observant Muslim youth and to convey to the security section

      15   in the embassy, the fatwah is general and includes all that

      16   share or take part in killing of Muslims, assaulting holy

      17   places or those who help the Jews occupy Muslim land.

      18            Ladies and gentlemen, you know that by May 28, 1998,

      19   that the operation in East Africa is under full steam, and Bin

      20   Laden, as we now can figure out after the fact, is saying to

      21   the American public, everybody is a target, and in particular

      22   your embassies are targets because we know that the Americans

      23   have invited their civilians to provide information about us

      24   to the security section of their embassies.

      25            If we go to the fifth page of the transcript, at the

                                                                    5398

       1   very top once again Bin Laden is blunt.  We predict a black

       2   day for America and the end of the United States as united

       3   states, and will be separate states, and they will retreat

       4   from our land and collect the bodies of its sons back to

       5   America, Allah willing.

       6            Ladies and gentlemen, as we go through these

       7   statements that Bin Laden gives, I ask you to bear in mind

       8   that on August 250, 1998, 13 days after the embassies were

       9   bombed, Agent Miranda told you that he interviewed the

      10   defendant Wadih El Hage, and Wadih El Hage told Agent Miranda

      11   that Bin Laden would not have carried out the bombings of

      12   Nairobi because he was a humanitarian, and that's what the

      13   humanitarians said.

      14            At the bottom of the page Bin Laden goes on to say,

      15   this does not make a difference -- and he is referring to the

      16   Saudi government wanting the American military in the gulf --

      17   since American oppression, boastfulness and greed still

      18   exists.  They came by the approval of government.  It does not

      19   make a difference if the government wants you to stay or leave

      20   because you will not leave by their words.  You will leave

      21   when the youth send you the wooden boxes and the coffins, and

      22   you will carry in it the corpses of the American troops and

      23   the American civilians.  This is when you will leave.  The

      24   decision-makers beyond taking you out are the Muslim masses in

      25   the Muslim world who are defending the Muslim lands, Allah

                                                                    5399

       1   willing, we will win.  That is what the humanitarian warns the

       2   United States.

       3            On the very next page, page 6, Bin Laden next talks

       4   about the situation in Somalia, and what he says at the very

       5   top, after Allah honored us with victory in Afghanistan and

       6   justice prevailed and the killings of those who slaughtered

       7   millions of Muslims in the Muslim republics, it cleared from

       8   the Muslim minds the myth of superpowers.  The youth ceased

       9   from seeing America as a superpower.  After leaving

      10   Afghanistan they headed for Somalia and prepared for a long

      11   battle, thinking that the Americans are like the Russians.

      12   But they were surprised when the Americans entered with 30,000

      13   troops and collected more troops from the world, 5,000 from

      14   Pakistan, 5,000 from India, 5,000 from Bangladesh, and also

      15   Egypt, Senegal, and others like Saudi.  The youth were

      16   surprised at the low morale of the American soldiers and

      17   realized more than before that the American soldier is a paper

      18   tiger.  And after a few blows he ran in defeat, and America

      19   forgot all the hoopla and media propaganda after leaving the

      20   Gulf War and destroying infrastructure, destroying baby

      21   formula factories, all civilian factories bridges and damns

      22   that help planting food.  America presented itself as the

      23   world leader and the leader of the new world order, and after

      24   a few blows they forgot about this title and left dragging

      25   their corpses and their shameful defeat and stopped using such

                                                                    5400

       1   titles.  And the politicians in America learn that this is

       2   larger than them and that they were not fit for it.  When this

       3   took place I was in Sudan and this great defeat against

       4   America pleased me very much, the way it pleased all Muslims.

       5   Allah willing, the next victory will be in Hijjaz and Najd.

       6   Saudi Arabia will make the Americans forget the horrors of the

       7   Vietnam and Beirut.  There you see Bin Laden talking about the

       8   work of these people, the Mujahideen who you know from the

       9   other evidence are connected to Al Qaeda and Bin Laden's

      10   group, saying that they were in Somalia.  But again, he is not

      11   saying they were the ones who fired the rockets and shot the

      12   guns, but he is accepting responsibility on behalf of the

      13   Mujahideen of the youth who were there participating in

      14   Somalia.

      15            The other thing he is once again saying is that the

      16   lesson he learned from Somalia, he believes, is that the

      17   Americans will leave if they are attacked.  So to him that

      18   justifies the attacks against America, because remember, the

      19   thing he wants more than anything else is to see the Americans

      20   leave Saudi Arabia, and he believes the Americans will leave

      21   if they are attacked.  So he is predicting a dark day.  He is

      22   predicting he will send people home in body bags and in

      23   coffins.  As you know, ladies and gentlemen, his implementers

      24   are carrying out that plan as he is giving this interview.

      25            Down on the page, Bin Laden makes explicit his

                                                                    5401

       1   definition of who is innocent and who is not, and he explains

       2   why it is that even American civilians are not innocent.  He

       3   is asked explicitly, many Americans believe that fighting army

       4   to army like what happened in Afghanistan is heroic for either

       5   army, but setting off bombs, killing civilians and incidents

       6   like the World Trade Center is terrorism.  Bin Laden responds

       7   by saying, they don't according to the standards he is making.

       8   After our victory in Afghanistan and defeating the Russians,

       9   the world media lead by the American media started a campaign

      10   against us that is still going on until today.  Despite the

      11   fact that the Russians left in 1989, almost 10 years ago, they

      12   have been carrying out this campaign accusing us of being

      13   terrorist.  Without any action being taken by the Mujahideen

      14   against the real terrorists, the Americans, this on the one

      15   hand.  On the other hand, American policy does not admit to

      16   differentiate between civilians, military, child, human or

      17   animal.

      18            On the next page, Bin Laden continues.  The crusaders

      19   continued their slaughter of our mothers and children, and

      20   America every time takes a decision to support them and

      21   prevent weapons from reaching the Muslims, leaving the Serbian

      22   butcher to slaughter Muslims.  And then Bin Laden says, you do

      23   not have a religion that prevents you from carrying out these

      24   actions and therefore you do not have a right to object to

      25   like treatment.  Every action solicits a reaction.  It is a

                                                                    5402

       1   punishment that is equally inflicted.  At the same time, our

       2   primary target are military and those in its employment.  Our

       3   religion forbids us to kill innocent children, women who are

       4   not combatants.  However, women soldiers who place themselves

       5   in the battle trenches receive the same treatment as fighting

       6   men.

       7            Remember what imam Siraj Wahhaj said, no religion

       8   kills innocent people.  The implicit assumption is that that

       9   includes civilians and women and children.  But Bin Laden says

      10   that he thinks there is a double standard and he thinks that

      11   because the American people are responsible for what he

      12   considers to be a tax on civilians, and he gives the example,

      13   among others, of Hiroshima and Nagasaki, that all American

      14   civilians are not innocent.  They are in his eyes combatants.

      15   They are in his eyes legitimate targets.

      16            Again you know that while he is giving this

      17   statement, the people in his organization, the people who are

      18   part of the conspiracy charged in Count 1 are getting the bomb

      19   factories ready, they are getting the bomb trucks, and they

      20   are going to carry out the attack on people that they don't

      21   consider to be innocent, people they consider to be legitimate

      22   targets because of their nationality.

      23            Bin Laden says down at the bottom, the very bottom of

      24   page 7, the presence of Americans in the land of al Haramain,

      25   Saudi Arabia, supports the Jews in the prophet's Holy Land,

                                                                    5403

       1   peace be upon him, and gives him a safe back.  The American

       2   government at the time there are millions of Americans living

       3   on the street and living below the standard of living and in

       4   stricken poverty, we find the American government turning

       5   towards helping Israel and occupying our land and building

       6   settlements in the prophet's Holy Land.  The American

       7   government is throwing away the lives of Americans in the land

       8   of al Haramain and other places for the interests of the Jews.

       9   The Jews are a people that Allah cited in his holy book the

      10   Koran, a people who didn't abstain from killing God's

      11   prophets.

      12            Skipping down, he says they believe that all humans

      13   are animals to be exploited by them and found that Americans

      14   are the best created beings for that use.  The American

      15   government is driving America to destruction and rational

      16   people have no doubt that America will not be a superpower at

      17   the turn of the next century.

      18            So we it will the American people, and we tell the

      19   mothers of soldiers, and American mothers in general, if they

      20   value their lives and those of their children to find a

      21   nationalistic government that would look after their interests

      22   and not the interests of the Jews.  The continuation of the

      23   repression will bring the fighting to America, like Ramzi

      24   Yousef and others.  This is my message to the American people

      25   to look for a serious government that looks out for their

                                                                    5404

       1   interests and does not attack others, their lands or their

       2   money.

       3            So now Bin Laden looks into the camera and he says

       4   notwithstanding the fact that the religion doesn't allow the

       5   killing of women and children, says to the mothers of America.

       6   Before he said if you're concerned about your sons, when he

       7   was interviewed by CNN.  Now he says if you are concerned

       8   about your own life in addition to the life of your children,

       9   then you will change your government.  He says to the American

      10   mothers, you are now targets of this fatwah, you are not

      11   innocent.  In Bin Laden's view he says that American mothers

      12   can be attacked.  In the very next answer, Bin Laden says the

      13   reaction is increasing fast and I am sure of our victory with

      14   Allah's help against Americans and the Jews.  We see this then

      15   in the strength of the reaction, that every day the Americans

      16   delay their departure, for every day they delay they will

      17   receive a new corpse from Muslim countries to America.

      18            And then on page 9 Bin Laden once again brings up the

      19   subject of Omar Abdel Rahman, and what he says there, we place

      20   total responsibility on the American government for any attack

      21   against Muslims and its supportive regimes in our countries

      22   against the best interests of the people.  We also hold them

      23   responsible for its attacks on Islamic symbols, sheik Omar

      24   Abdel Rahman, who is considered one of the most prominent

      25   Islamic scholars, who Allah gave the courage to speak the

                                                                    5405

       1   truth.

       2            You remember what the witness Jamal al-Fadl told you,

       3   that later way back when the group learned that Omar Abdel

       4   Rahman had been arrested, there were people who wanted to

       5   retaliate and some who left because they didn't think the

       6   retaliation came soon enough.  Here you have Bin Laden

       7   confirming what al-Fadl told you.  They were very angry and

       8   they would take their time to retaliate when they want.

       9            Another piece of evidence that you saw during this

      10   trial that confirms what Jamal al-Fadl told you, and also what

      11   Bin Laden is saying there, is Government's Exhibit 367A.  This

      12   is a document that was found during the search of Ali

      13   Mohamed's house in California.  Again, Ali Mohamed is the

      14   person who Kherchtou knew as Ali Mohamed al Amriki, the person

      15   who conducted the surveillance training, the person who came

      16   to Nairobi in late 1993 with Anas al Liby and their photo

      17   equipment and the cameras and the computers.  What you see

      18   here is, this is a letter, and you see it is a reference to

      19   the case United States v. Omar Abdel Rahman and it is a

      20   discussion of some information that is being provided.  Down

      21   at the bottom, including a list of unindicted

      22   coconspirators -- and the judge gave you an instruction what

      23   that means -- is handwritten Haydara.  Haydara is one of the

      24   nicknames for Ali Mohamed.  What he says there, to supervisor,

      25   hi, please deliver the five pages to the supervisor by hand.

                                                                    5406

       1   So Ali Mohamed, one of the people who has worked with some of

       2   the people in this conspiracy -- and Haydara is one of the

       3   aliases for Ali Mohamed -- he is monitoring what is going on

       4   in this case with Omar Abdel Rahman, the same witness that

       5   Jamal al-Fadl told you he was concerned about and angry about

       6   and the same person Bin Laden just mentioned in the ABC

       7   interview.  Ali Mohamed, who is there to do the surveillance

       8   in 1983, he is sending a document connected to the Omar Abdel

       9   Rahman case to the supervisor and he wants it hand-delivered

      10   from Haydara in California.

      11            One other thing to bear in mind about the ABC

      12   interview is that Mohamed Al-'Owhali told Agent Gaudin that he

      13   was there when Bin Laden gave his interview, and he was there

      14   when Bin Laden made these statements that we just went through

      15   about attacking American targets and attacking in particular

      16   American civilians.

      17            The next event is May 29, the very next day, and this

      18   is a document that was read to you during the trial.  It is

      19   Government's Exhibit 1610-T.  This is a document that is found

      20   in the residence of Khalid al Fawwaz, one of the three people

      21   in London at 94 Dewsbury Road, and this is the document that

      22   was titled the endorsement of the nuclear bomb of Islam, and

      23   it is a statement by Bin Laden where he says, among other

      24   things, it is the duty of the Muslims to prepare as much force

      25   possible to terrorize the enemies of God.  So the day after

                                                                    5407

       1   Bin Laden predicts a dark day for America and American

       2   civilians, Bin Laden endorses a nuclear bomb that he says is

       3   needed to terrorize the enemies of God.

       4            Next we turn to June 1998, and one of the things that

       5   happens during the summer of 1998 is what Mohamed Al-'Owhali

       6   told Agent Gaudin, that at some point during the summer he

       7   gets instructions to go to Nairobi and he is told that the

       8   target will be an American target.  We will talk a little bit

       9   more about some of the things that Al-'Owhali did before he

      10   went to Nairobi.

      11            On June 9 the defendant Khalfan Khamis Mohamed

      12   purchases the white Suzuki Samurai with the person depicted in

      13   Government's Exhibit 124, Fahad Mohamed Ally Masalam.  We will

      14   call him Fahad Mohamed to make it simple.  Government's

      15   Exhibit 60 is a stipulation that related to the contract, some

      16   of the records found from the Department of Motor Vehicles.

      17   You will see Government's Exhibit 1410 is a picture of the

      18   white Suzuki that Khalfan Khamis Mohamed purchased.

      19   Government's Exhibit 1420 is the contract for the sale.  You

      20   see at the top there it says 9/6/198.  Again, transposing

      21   those numbers, it is June 9, 1998.  You see there the contract

      22   and the buyer listed, K.K. Mohammed, and then one of the

      23   witnesses down there at the very bottom is Fahad M. Ally.

      24   Government's Exhibit 1461 is the summary chart that relates to

      25   the fingerprint testing that was done on the items related to

                                                                    5408

       1   the bombing in Dar es Salaam, and you see down there at the

       2   bottom there is a fingerprint on that contract for Fahad

       3   Mohamed Ally, and three fingerprints and a palm print from

       4   Khalfan Khamis Mohamed.

       5            Khalfan Khamis Mohamed told Agent Perkins that the

       6   Suzuki was used to transport the components of the bomb, the

       7   TNT, the cylinders and so forth, but there is other evidence

       8   that tells you that.  Amina Rasheed was the person who worked

       9   at 15 Amani.  She did the cleaning and the cooking.  She told

      10   you how she saw the person Mohamed and the person she knew as

      11   Hussein, and she described Mustafa Fadhl, and where Khalfan

      12   Khamis Mohamed lived, and she saw Hussein driving around in

      13   the Suzuki.  But you also know from Government's Exhibit 1462,

      14   second page of 1462.  This is a summary chart of the results

      15   of the chemical work that was done on the Suzuki, and you see

      16   a listing of the swabbings and some of the items that were

      17   taken from the Suzuki, and you see on the right-hand side,

      18   almost across the board, items testing positive.  It is as if

      19   someone took the Suzuki and dipped it in TNT.  You can see

      20   this was the utility vehicle that Khalfan Khamis purchased,

      21   that the group used to collect the components for the bomb.

      22            Six days later, June 15, 1998, Khalfan Khamis

      23   Mohamed, and again Hussein, Mustafa Fadhl, rent the residence

      24   at 213 Ilala.  You know that a number of ways.  First you know

      25   from the lease itself.  You may remember that Khalfan Khamis

                                                                    5409

       1   Mohamed told Agent Perkins that there was an older skinny

       2   gentleman involved in the transaction and you heard from

       3   Mohamed Solimani, who told you that he was the broker.  What

       4   Mohamed Solimani told you was, he remembered Mohamed and

       5   Hussein coming to him and they were looking for a place that

       6   had high walls and a driveway for a vehicle.  He showed them a

       7   couple of places that they didn't like and eventually they

       8   settled on the place known as 213 Ilala, and Solimani told you

       9   about the lease and he said that Khalfan signed it and Hussein

      10   signed it.  That's Mustafa Fadhl.  From Government's Exhibit

      11   1461 -- actually, if you want to focus on the bottom -- you

      12   see there Khalfan Khamis, and one of the witnesses, Hassan

      13   Ali.  Solimani told you he saw them sign that lease.

      14            Government's Exhibit 461 is the summary chart

      15   relating to the fingerprint analysis that was done.  You see

      16   Khalfan Khamis Mohamed's fingerprint is on the lease,

      17   Government's Exhibit 1353.

      18            Ladies and gentlemen, this residence is the bomb

      19   factory in Dar es Salaam.  It is the equivalent to 43 Runda

      20   Estates that Harun had rented, where his fingerprints were

      21   found, and the place that tested positive for the TNT, PETN,

      22   and the aluminum powder.  If you look at Government's Exhibit

      23   1350A, this is an exterior photograph of 213 Ilala, and it is

      24   precisely what the group wanted to build its bomb.  It is a

      25   high wall, and we will take a look at some of the pictures on

                                                                    5410

       1   the inside, to construct the bomb, bring the bomb there, store

       2   it and load up the bomb into the truck.

       3            Next, if we look at 1351F, this is along the side of

       4   the house.  You see the red gate, so we are looking from

       5   behind the red gate.  You see the wooden frame along the wall

       6   opposite the house.  You may remember that Khalfan Khamis

       7   Mohamed told Agent Perkins that Hussein had built an extra

       8   gate, a barrier to shield the bomb from the public's view, and

       9   you see the remnants in that picture.

      10            Let's look next at 1352, and this is the overhead

      11   sketch, if you will, the bird's eye view.  You see on the top

      12   left there, that orange part marked garbage pit.  You remember

      13   that the agents described how they went and searched some of

      14   the items in the garbage pit, and of course they went around

      15   the house.  You saw some of the items that they found.

      16   Government's Exhibit 1355 is the detonator.  Agent West, he

      17   was the explosives expert who testified about some of the

      18   items in Dar es Salaam.  This is the detonator that they found

      19   on a window sill at 213 Ilala.  There were several detonators

      20   that were put in these wooden boxes that the TNT was stored

      21   in.

      22            Government's Exhibit 1357B is one of the three broom

      23   whisks that was found at 213 Ilala, and one of the many items

      24   in 213 Ilala that tested positive for explosives.

      25   Government's Exhibit 1372 is a burlap bag, and you may

                                                                    5411

       1   remember that Khalfan Khamis Mohamed described how the TNT was

       2   stored in what he called a rice bag, something that wouldn't

       3   allow one to see inside.  This was one of the many items found

       4   at 213 Ilala.

       5            Government's Exhibit 1358 is a yellow razor found by

       6   the sink, and I think you saw some of the photographs of the

       7   sink.  There is a stipulation that this yellow razor was

       8   tested for DNA, and one of the things found on this was a DNA

       9   match for Hamdan Khalif Alal.  You may remember, and we will

      10   discuss this later, that the suicide truck driver in Dar es

      11   Salaam was known as Ahmed the German, because of his blond

      12   hair.  The DNA taken off this razor confirms that this person

      13   was from Egypt, and there is a stipulation that that same

      14   person called to his family in Egypt on August 6, 1998, the

      15   day before the bombing, and wanted the family to assemble the

      16   next morning because he was going to tell the family that he

      17   was leaving this life.

      18            Government's Exhibit 1374 is some rope, some twine.

      19   You may remember that Khalfan Khamis Mohamed told Agent

      20   Perkins that was one of the ways they secured the oxygen

      21   tanks, and you have some exemplars here, Government's Exhibits

      22   1165 and 66, and Khalfan Khamis Mohamed described for you tall

      23   and short that were used, they used some rope to secure them

      24   along the wall of the truck, and you see some of it left over

      25   at 213 Ilala.  Government's Exhibit 1375 is some wiring left

                                                                    5412

       1   over, and of course Khalfan Khamis Mohamed described that they

       2   had wired the bomb, they had to wire the batteries to the back

       3   up to the front of the truck so that the suicide driver he

       4   knew as Ahmed could detonate the bomb.  1365 is some black

       5   tape.  Then, I think it is 1376 -- and I would lift it up but

       6   I would probably hurt myself -- is this very heavy metal rod.

       7   This was found at 213 Ilala.  You remember the welder of the

       8   truck, Julius Kisingo, who described for you some of the work

       9   that he had done, and he specifically remembered that he

      10   recognized some of these pellets along the side, and this was

      11   some of the work that he had been asked to do on the truck

      12   along the side.  Precisely what it was he described he had

      13   done and the person he identified, by the way, is this person,

      14   Sheik Ahmed Salim Swedan, the same person we will talk about

      15   in a moment who locked the truck in the Nairobi bombing.

      16   Julius Kisingo told you that this person came by and asked him

      17   to do some of the welding in the back of the truck, and one of

      18   the pieces was later found at 213 Ilala.

      19            The other thing that happens during the summer in Dar

      20   es Salaam, and again, Amina Rasheed, the person who worked at

      21   15 Amani Street, Government's Exhibit 1300, she described

      22   meetings that summer involving Ahmed Khalfan, who she knew as

      23   Ahmed, and she identified his picture as being the person who

      24   lived there, and she said he had his own room and it was

      25   locked and she never had access to it, and she described

                                                                    5413

       1   people who came that summer to have meetings.  She described

       2   this person as being Hussein, and Fahad, the same person that

       3   Khalfan Khamis Mohamed bought the Suzuki with, and this being

       4   the person, Government's Exhibit 117, who he rented 213 Ilala

       5   with.  She said Ahmed told her that he was leaving and she

       6   last saw him two weeks before the bombing.  Then you learned

       7   by way of stipulation that there was a search of 15 Amani, and

       8   the FBI found another detonator, Government's Exhibit 1305;

       9   passport photographs of Ahmed, Government's Exhibit 1306A, a

      10   number of passport photographs; and then Government's Exhibit

      11   1306E-P, passport photograph of the defendant Khalfan Khamis

      12   Mohamed that was found at 15 Amani Street.  You know from

      13   Government's Exhibit 1461, which again is the summary chart of

      14   the fingerprints, that Khalfan Khamis Mohamed's fingerprints

      15   are found on two other items that were located at 15 Amani.

      16   It was a passport application in the name Zahran Nassor

      17   Maulid, and several of his fingerprints are on that.  The

      18   other thing that they found was records for a mobile telephone

      19   number, 328848.  328848.  You see up on the screen there, one

      20   of the pages lists the subscriber of that mobile phone as

      21   Ahmed Khalfan, P.O. Box 15577.  Government's Exhibit 1459C is

      22   a summary chart of some of the outgoing calls from that phone,

      23   and on June 13, 1998, you see a call from that mobile phone to

      24   a number we talked about yesterday, 512430.  If you look on

      25   the far right you see the subscriber for that is 43 Runda

                                                                    5414

       1   Estates, the bomb factory in Nairobi.  So by June, telephone

       2   contact between the two bomb factories.

       3            You may remember that Khalfan Khamis Mohamed told

       4   Agent Perkins that he remembered that Hussein, Mustafa, had a

       5   mobile phone that he thought that Ahmed had gotten for him.

       6            June 19 is the next date we will look at, and if you

       7   take a look at Government's Exhibit 902, 902 is a passport

       8   that is found in the Comoros in Harun's house, and that is a

       9   passport for somebody who is identified as Jihad Ali.  This is

      10   the suicide driver of the bomb truck in Nairobi.  If we go

      11   through the passport we will see that on the 19th of June

      12   Assam leaves Pakistan, and if we take a look at the next page

      13   of the passport we will see that he enters into Kenya on the

      14   19th.  So by mid-June the suicide driver of the truck in

      15   Nairobi is in Nairobi.

      16            Towards the end of June you know from a witness you

      17   heard, Said Salim Omar, who described for you how he lived in

      18   Mombasa, and he had a truck, a Toyota Dyna, and that he sold

      19   the truck to somebody he knew.  He identified Sheik Ahmed

      20   Salim Swedan.  Government's Exhibits 583A through D are some

      21   of the documents that Said Salim Omar had with the Dyna.  He

      22   described this conversation about how he joked for selling the

      23   truck for $10,000, and Swedan jumped on it and said I'll take

      24   it.  Eventually they worked out a deal, and Said Salim Omar

      25   said he has never seen him ever since.  He was never able to

                                                                    5415

       1   get the paperwork, but he did say that he saw the truck after

       2   he sold it, and there was one change, that the flatbed had

       3   originally been uncovered and when he saw it later, it was

       4   covered.  They had modified the truck to hide the bomb before

       5   they delivered the bomb.

       6            Ladies and gentlemen, the evidence is overwhelming

       7   that this is the bomb truck that the defendant Mohamed

       8   Al-'Owhali drove in on the morning of August 7.  First you

       9   know that the same person bought both the Toyota Dyna for the

      10   Nairobi bombing and the Nissan Atlas for the Dar es Salaam

      11   bombing.  But the other thing you know is from Agent

      12   Sachtleben, who talked to you about some of the vehicle parts

      13   that were found in the vicinity of the embassy in Nairobi, and

      14   he described for you a couple of parts in particular that he

      15   could identify based on the damage to them were from the

      16   actual bomb truck.  On the screen you see Government's Exhibit

      17   840, which is the parts that were identified by both Agent

      18   Sachtleben and Mr. Miyagi, who was the expert from Toyota.

      19   Government's Exhibit 815 is the right front frame part -- if

      20   you look at the documents, they have the chassis number, BU61,

      21   and it lists the rest of the number.  Agent Sachtleben told

      22   you that based on the damage to the metal he could tell this

      23   was from the actual vehicle.  Mr. Miyagi told you that he

      24   could tell this was from a Toyota truck part.

      25            Government's Exhibits 822 and 823 are the rear axle

                                                                    5416

       1   pieces, and Agent Sachtleben described for you how he could

       2   tell there was a significant force that came down from the top

       3   of the axle piece, and he described for you the damage that

       4   was done, and he could tell based on that damage that this

       5   axle piece sat right underneath the bomb as it went off.

       6   These pieces, you remember, were found in that railway yard

       7   that were hundreds of yards away from the bomb, hundreds of

       8   yards away.  Mr. Miyagi, you may recall, designed the pieces

       9   for the Toyota, told you that this was the rear axle piece for

      10   a Toyota Dyna.

      11            One of the other pieces was the Pitman arm,

      12   Government's Exhibit 826.  You remember the damage on the one

      13   side, and the side that faced the back of the truck.  Agent

      14   Sachtleben told you that was consistent with being right near

      15   the bomb.  Mr. Miyaga told you exactly what that piece did and

      16   where it was oriented.  This was that was the piece where the

      17   bomb blast came from the one side.

      18            The defendant Odeh described to the FBI a meeting he

      19   had with somebody he identified as Ahmed the German 40 days

      20   before August 6.  That puts it into roughly late June.  What

      21   Odeh told the FBI is that Ahmed the Egyptian came to him and

      22   delivered --

      23            MR. RICCO:  Objection, Judge.

      24            MR. KARAS:  -- a message that Sheik Hassan from

      25   Somalia wanted to meet with Bin Laden, and that Odeh, Ahmed

                                                                    5417

       1   the Egyptian -- and we will make clear that Ahmed the Egyptian

       2   is not the same person as Ahmed the suicide driver in Dar es

       3   Salaam, if that's the issue -- and Mustafa Fadhl, Odeh, Ahmed

       4   the Egyptian or Mustafa Fadhl, had to export this person Sheik

       5   Hassan from Somalia to go see Bin Laden.  But the other thing

       6   that Odeh told the FBI was that Ahmed the Egyptian also said

       7   that Bin Laden had new plans to fight and that Odeh would have

       8   to travel to confer with Bin Laden about these new plans to

       9   fight.

      10            Now we move to July.  By July, Khalfan Khamis Mohamed

      11   told you that he and Mustafa Hussein and Hussein's wife and

      12   children, Anas and Yousef, moved into the house -- ladies and

      13   gentlemen, one thing to think about, you have Hussein, Mustafa

      14   Fadhl, in a bomb factory where he and others are going to

      15   construct a bomb.  They are going to have TNT and detonators,

      16   and Mustafa Fadhl is a family man, and he brings his wife and

      17   two children with him every step of the way.  You will see

      18   that he brings them with him when they flee East Africa to go

      19   to Afghanistan before the bombing.  Terrorists do have

      20   families, ladies and gentlemen, and Mustafa Fadhl is living

      21   proof of that.

      22            What Khalfan Khamis Mohamed described for you --

      23   excuse me, to Agent Perkins -- was that Ahmed Khalfan and

      24   Fahad were responsible for getting some of the components of

      25   the bomb.  They were responsible for getting the detonators,

                                                                    5418

       1   they were responsible for getting the TNT.  You saw the

       2   detonator that was found in Ahmed Khalfan's room at 15 Amani.

       3   Late July, somewhere between July 24 and July 30, the bomb

       4   truck for Dar es Salaam is purchased, and one of the witnesses

       5   you heard from was Mohamed Sultan.  He was the very first

       6   witness you heard from that day, all the people that came from

       7   Tanzania, and he described for you that Mohamed Sultan had a

       8   truck, that he wanted to sell the truck, and he went through

       9   and he described for you a transaction that took two days.

      10   What he said was that one person he thought was the tall one,

      11   and he identified the picture of Swedan, the same person who

      12   bought the truck, the Dyna, and another person he described as

      13   Fupi, the short one -- Ahmed Khalfan was the picture that he

      14   identified, who Khalfan Khamis Mohamed said was responsible

      15   for getting some of the components for the truck.

      16            In fact, Mohamed Sultan identified a picture,

      17   Government's Exhibit 1175, as looking like the truck that he

      18   sold to these two individuals.  One of the things he told you

      19   was that they went looking for this person Fupi one day, and

      20   he identified the picture Government's Exhibit 1300 which was

      21   15 Amani, the place where the passport photo and the passport

      22   application with the fingerprints of Khalfan Khamis Mohamed

      23   was found.  What Mohamed Sultan told you was that the

      24   transaction actually took place at the Al Noor Hotel in Dar es

      25   Salaam, and in particular he identified the room, room 24

                                                                    5419

       1   within the Al Noor Hotel.  Remember he said there was a

       2   meeting and they were haggling back and forth about how much

       3   money they had, and there was a knock on the door, and this

       4   mysterious third person showed up with the rest of the money,

       5   and just like the transaction involving the Nairobi bomb

       6   truck, there was no paperwork.  There was no contract.

       7   Mohamed Sultan never got the rest of the paperwork.  You may

       8   remember Fabid Sadaalli was the hotel clerk, and one of the

       9   things he identified was the guest register book, Government's

      10   Exhibit 1457.  If you look inside there, you see at the top

      11   right, 24/7/98.  You will see, if we can go ahead and

      12   highlight that example, there is an entry for Sheik Ahmed, and

      13   you see at the far right, room 24, just like Mr. Sultan

      14   described for you.  Fabid Sadaalli identified this photograph,

      15   Government's Exhibit 123, as Sheik Ahmed, and he remembered

      16   Sheik Ahmed getting visited by Ahmed Khalfan Galani.  As I

      17   mentioned earlier, there was Julius Kisingo, the welder who

      18   did the work, and he identified the picture of Swedan as the

      19   person who asked him to do the welding.  If you look at

      20   Exhibit 1178A on the screen, that is an overhead view of the

      21   diagram of the back of the truck that Julius Kisingo described

      22   for you.  You remember how he took the frame and he described

      23   the two sides that he built along the side of the wall.  He

      24   described the metal shack that we saw, Government's Exhibit

      25   1366, that went along the side of the wall.  What he said was,

                                                                    5420

       1   the person he identified as Swedan told him that he wanted

       2   Kisingo to make these frames in the back for fish and that

       3   Mr. Kisingo remembered seeing a spot where a refrigerator unit

       4   of the truck had been but the unit was no longer there but he

       5   could tell that it was once a refrigerator truck.  The other

       6   thing Julius Kisingo described for you was a large battery

       7   frame that he was asked to make.  That is Government's Exhibit

       8   1178B.

       9            One thing to bear in mind, if we can put up on the

      10   left side Government's Exhibit 1178A and if we could rotate

      11   it.  During his interview with the FBI, Khalfan Khamis Mohamed

      12   walks one of the FBI agents through a diagram as it was being

      13   described by Khalfan Khamis as the back of the truck.  Khalfan

      14   Khamis Mohamed described the diagram on the right, 1054, as an

      15   accurate diagram.  If you compare it to the diagram of Julius

      16   Kisingo, you can see, one of the things Julius Kisingo told

      17   you about the holes in the back of the truck, they were marked

      18   before he was asked to do any work and he drilled the holes

      19   where he was told to do so.  You will see that Khalfan Khamis

      20   Mohamed agreed with the agents in that diagram that the

      21   batteries that were used, no doubt the batteries used to

      22   detonate the bomb, were in the back of the truck, and there

      23   was wiring, which of course explained the holes in the back of

      24   the truck, that had to go all the way up to the cab so the

      25   suicide driver could detonate the bomb.

                                                                    5421

       1            Just like what the forensic evidence told you about

       2   the bomb truck in Nairobi, the forensic evidence told you the

       3   same thing about the bomb truck in Dar es Salaam.  The right

       4   front chassis, which had the number 4H0, identified as a part

       5   from the Nissan Atlas.  You had just like the bomb truck in

       6   Nairobi, the bomb truck in Dar es Salaam, Government's Exhibit

       7   11.  Mr. Suby was the expert connected with the Nissan

       8   company.  Then you had the tire rim, Government's Exhibit 1119

       9   that we have before you here, which Agent West also described

      10   as consistent with part of the bomb truck.  That is the bomb

      11   truck that Khalfan Khamis Mohamed and the others loaded the

      12   components, that Khalfan Khamis Mohamed got in on the morning

      13   of August 7 with Ahmed, the suicide bomber.  That is the bomb

      14   truck that delivered the bomb that murdered 11 people at the

      15   embassy in Dar es Salaam on the morning of August 7.

      16            What Khalfan Khamis Mohamed described to Agent

      17   Perkins was that when they got the components of the bomb, he

      18   and the others used a grinder, and he identified a photograph

      19   of it, and it was found during a search that was introduced to

      20   you by way of stipulation, Government's Exhibit 1440, this

      21   piece of machinery that was used to grind the TNT.  Ladies and

      22   gentlemen, we don't have a picture of Khalfan Khamis Mohamed

      23   and the others grinding the TNT and putting together the

      24   components of the bomb.  That is something you are going to

      25   have to picture.  You picture Khalfan Khamis Mohamed and

                                                                    5422

       1   Mustafa Fadhl and the others, with Mustafa Fadhl's children

       2   somewhere in the house, grinding the TNT, putting together the

       3   components of what they know is going to be a massive bomb,

       4   that they know is planned to be delivered at the doorstep of a

       5   building filled with people, and who knows how many people

       6   around that building.  That's what went on in 213 Ilala, the

       7   house that Khalfan Khamis Mohamed rented in the summer of

       8   1998.

       9            One of the other things that Khalfan Khamis Mohamed

      10   described was that they used these cylinder tanks, and you

      11   know from some of the items that were obtained from the crime

      12   scene that fragments of cylinder tanks were found, and there

      13   are a couple of representative samples.  Government's Exhibit

      14   1132, you can see some wood, it's actually jarred in, very,

      15   very heavy pieces.  Khalfan Khamis Mohamed described that they

      16   used a number of these, and you heard from Kathleen Lundee,

      17   the metallurgist who did some metallurgy analysis, using the

      18   ICP process, and she was able to determine, based on a

      19   chemical position, and you see the chart there, she could

      20   determine that there were at least 19 different cylinders used

      21   in the back of the truck.  Again, there is no video of the

      22   bombing, but imagine these flying around the vicinity on the

      23   morning of August 7.

      24            Next we move to July 28.  On July 28, Khalfan Khamis

      25   Mohamed gets a Yemeni visa for his passport.  Look at

                                                                    5423

       1   Government's Exhibit 1451.  There you see Khalfan Khamis

       2   Mohamed's photo at the top of the application, and he doesn't

       3   apply for it in his own name but Zahran Nassor Maulid, the

       4   same name as the passport application found in 15 Amani.

       5   There you see additional information and he puts down his

       6   profession as businessman.

       7            (Continued on next page)

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5424

       1            MR. KARAS:  (Continuing) July 27 through July 30, we

       2   pull up Government Exhibit 594-27, and 594 is the minutes used

       3   on the satellite phone that we talked about yesterday, and

       4   between the 27th and 30th of July you see down there at the

       5   bottom, 27th through the 29th, there are eight calls to a

       6   number 994, which is the country code for Azerbaijan, the

       7   country we talked about yesterday -- at the top of this map

       8   here, just north of Iran -- and then you see the local number

       9   there is 6880488.  That is the number that you are going to

      10   see called on the eve of the bombing and the morning of the

      11   bombing.  And from that number, ladies and gentlemen, there

      12   are records from Azerbaijan that are going to show an

      13   operator-assisted call to The Grapevine in London, the place

      14   where the Scotland Yard officers found one piece, one page of

      15   the claim of responsibility about a month after the bombing.

      16            At the bottom of that page, you see a telephone call

      17   from the satellite phone on July 29th, 1998 to that number

      18   2084411, and the 4411 number is one of the three numbers that

      19   belongs to Khalid al Fawwaz.  Then if we go to Government

      20   Exhibit 593, these are some of the records from O'Gara

      21   Satellite Networks where Ziyad Khalil, the person who

      22   purchases the minutes, you see on July 30th, the day after the

      23   telephone call goes from the satellite phone to Khalid al

      24   Fawwaz, he's in such a rush he takes an old minutes order, he

      25   scratches out April 13th, he puts July 30th.

                                                                    5425

       1            And you may remember that Marilyn Morelli, the person

       2   from O'Gara Satellite Networks, says the one thing she

       3   remembered about Khalid was when he was purchasing minutes, he

       4   was always in a rush.  Normally, it would take a day or two,

       5   but he wanted it that day.

       6            And you see the telephone call, the satellite phone,

       7   the Jihad phone we talked about yesterday, they know they're

       8   going to be busy the next few days, so they're going to get

       9   stocked up on minutes.  They call Khalid al Fawwaz.  He calls

      10   his man in the United States.  They get 400 more minutes

      11   purchased on the satellite phone, which you see on the next

      12   page of the records in Government Exhibit 593.  And there you

      13   see the add minutes transaction order and you see the date at

      14   the top there, 7/30/98.

      15            July 31st, the very next day, if we take a look at

      16   Government Exhibit 901, this is the passport that the

      17   defendant Mohamed Al-'Owhali used.  And if we go ahead and

      18   rotate this and focus, you see an exit from Pakistan on 31

      19   July, 1998.

      20            Now, what Mohamed Al-'Owhali told Agent Gaudin was

      21   that when he was in Afghanistan, when he returned from Yemen

      22   after getting his fake passport, he made a video, a video that

      23   was supposed to celebrate his martyrdom in the operation that

      24   they expected to carry out a few months later.  And in that

      25   video Mohamed Al-'Owhali gave the name of the organization

                                                                    5426

       1   that was going to claim credit for this bombing after it took

       2   place.

       3            And you'll see, and we'll go through and compare the

       4   wording, but the wording of the organization that Mohamed

       5   Al-'Owhali gave to Agent Gaudin matches almost verbatim with

       6   the name of the organization that al Qaeda sent the claims of

       7   responsibility through to London.  Months before the bombing,

       8   they even know the fictitious name of the organization they

       9   are going to use to claim credit for the bombing to advertise

      10   what they had done.

      11            Now we get to August 1st.  August 1st at the Hilltop

      12   Hotel.  If we take a look at Government Exhibit 518, this is

      13   the registry book for the Hilltop Hotel in Nairobi, and what's

      14   being displayed for you on the screen are the two sides or the

      15   two pages that make up the entry for August 1st, 1998.

      16            What's being magnified for you is an entry on August

      17   1st, and Abubakar Khalfan, Box 15577, and it says D, looks

      18   like SA, Dar es Salaam, Tanzania, and on the next line,

      19   another businessman.  Abubakar Khalfan is Ahmed Khalfan

      20   Ghailani.

      21            There's a passport he gets, a Tanzania passport in

      22   the name that's very similar to that.  And P.O. Box 1577 you

      23   may remember is the same P.O. Box that those telephone records

      24   for that mobile phone 328848 that we looked at just a few

      25   minutes ago, the telephone records that are found in 15 Amani,

                                                                    5427

       1   the place which Amina Rashid says Ahmed was living during the

       2   summer of 1998.

       3            With respect to the defendant Odeh, the defendant

       4   Odeh tells the FBI that on August 1 he runs into Saleh and

       5   Fahad and that there is conversation where Saleh is actually

       6   yelling at Odeh to get his passport which Odeh says he doesn't

       7   have.  And there's a meeting later on that night where there

       8   is discussion about giving Odeh an expired Yemeni passport,

       9   and they agree they're going to get a visa to go with that

      10   passport on August 2nd.

      11            Then there's another meeting between Odeh and Saleh

      12   alone where Saleh told Odeh that the others were leaving that

      13   day and that he, Odeh, had to get his affairs in order.  The

      14   other thing that Odeh said to the FBI was that Mustafa told

      15   him that he, Mustafa, and two others were ordered to leave,

      16   that something big was going to happen.

      17            Let's stop for a moment and consider what has

      18   happened regarding what the defendant Odeh has admitted to the

      19   FBI and then what the other evidence shows.

      20            By the 1st of August, defendant Odeh, according to

      21   what he admitted to the FBI, knows about Bin Laden's fatwahs.

      22   He's had meetings with Saleh and Mustafa where they discuss

      23   these fatwahs about how Bin Laden has a new plan.

      24            There are meetings with Mustafa and Saleh, according

      25   to what Odeh is willing to admit to the FBI, where the group

                                                                    5428

       1   is told to leave Kenya for a number of different reasons are

       2   given, and that Odeh is supposed to go and see Bin Laden.

       3            Then, on August 1, as we just went through, he's

       4   supposed to get a passport, and others are leaving and there's

       5   a big operation.

       6            Now, the other evidence shows you that by August 1,

       7   Odeh is still a fully sworn member of al Qaeda, fully paid

       8   member of al Qaeda; that he's been a member of al Qaeda since

       9   1992; that he's been part of the East Africa cell of al Qaeda

      10   since 1993, 1994; that he's fully trained in explosives, and

      11   that by the time he leaves his house in Witu and goes to

      12   Mombasa on August 1st.  And he does not go back to Witu, he's

      13   left behind some sketches in his house, Government Exhibit

      14   704-2, I think it is, or P2, those two sketches that Agent

      15   Leadbetter found in Odeh's house in Witu.

      16            We'll talk more about these sketches later on, ladies

      17   and gentlemen, but I submit to you that those sketches are

      18   independent physical evidence that will establish for you what

      19   Odeh's role was in this bombing -- technical advisor with the

      20   others that carried out the bombing.

      21            August 2nd.  August 2nd is the day, according to what

      22   Mohamed Al-'Owhali told Agent Gaudin, that he gets to

      23   Nairobi -- remember, he got there a day later than he was

      24   supposed to, so he told Agent Gaudin that he missed a meeting

      25   in Mombasa and he said that he gets to Nairobi and he goes to

                                                                    5429

       1   the Ramada Hotel and he gets in contact with the person he had

       2   been in touch with who told him to wait and that somebody

       3   would come to pick him up.

       4            And what Mohamed Al-'Owhali told Agent Gaudin was the

       5   person who came to pick him up was Harun, and he identified

       6   Harun's picture from the video of the ferry accident.  And on

       7   August 2, Harun took Al-'Owhali to what he knew to be Harun's

       8   house and that's where Al-'Owhali would stay until the day of

       9   the bombing.

      10            Now, what the defendant Odeh told the FBI that he did

      11   on August 2nd was he was ordered to get his affairs in order,

      12   that he got a phone call from the person that he identified as

      13   Fahad, it was an angry phone call, wanting to know where Odeh

      14   was and telling him, Odeh, that Saleh wanted to see Odeh.  So

      15   Odeh went to try to find Saleh in Mombasa but was unable to do

      16   so.  Saleh was gone.

      17            The other thing that happens on August 2nd is the

      18   first group of people involved in the bombing leave.  If we

      19   take a look at Government Exhibit 541A, you see there that is

      20   a ticket for Pakistani International Airways, PIA, Flight 744,

      21   and it's a ticket for Sheik Ahmed Salim Swedan, the person

      22   pictured in Government Exhibit 123, the person who bought the

      23   two bomb trucks for Nairobi and Dar es Salaam.  And you see,

      24   by the way, the departure is on 2 August and they go to

      25   Karachi, which is in Pakistan.  It's not on the map but it's

                                                                    5430

       1   in Pakistan.

       2            Government Exhibit 541F, a ticket that's purchased on

       3   August 1, you see on the top right, a ticket for Pakistani

       4   International Airways, Flight 744, on 2 August for El Baji,

       5   which is one of the aliases for Mustafa Fadhil.  He's the

       6   person who approached Khalfan Khamis Mohamed about doing the

       7   Jihad job.  He's the person Khalid that carried out the new

       8   policy that Wadih El Hage brought back from Bin Laden in 1997.

       9   He leaves.  He doesn't leave alone.  Government Exhibit 541H

      10   is a ticket for Anas, his son, and 541I is a ticket for Yusr,

      11   his daughter, and there's also a ticket for his wife.

      12            August 3rd.  This is the day, according to what the

      13   defendant Al-'Owhali told Agent Gaudin, that he had meeting

      14   with Saleh and Saleh told Al-'Owhali that there were going to

      15   be two bombings, one in Nairobi and one in Dar es Salaam on

      16   the morning of August 7th, and he said somewhere between 10:30

      17   and 11.

      18            And they reviewed photographs of the embassy and they

      19   reviewed drawings of the embassy, and what I remind you of is

      20   what Kherchtou told you about what Abu Mohamed al Amriki and

      21   what Anas were doing in Nairobi in 1983 when Anas al Liby had

      22   a camera 500 meters away from the embassy where they were

      23   developing photos.

      24            And it was on August 3rd, according to what

      25   Al-'Owhali told Agent Gaudin, that he got his specific

                                                                    5431

       1   mission.  He was to use a gun to get the bar up to get the

       2   bomb truck as close as possible to the embassy.  He was

       3   supposed to use stun grenades to scatter people out of the

       4   area, and that Mohamed Al-'Owhali would carry with him keys to

       5   the back of the truck.  If for some reason, the detonator in

       6   the front part of the truck didn't work, then he would use the

       7   keys to open up the back part of the truck, throw those

       8   grenades and try to detonate the bomb.

       9            Al-'Owhali described for Agent Gaudin what the bomb

      10   truck looked like.  It's was a beige truck with two wheels in

      11   front and four wheels in back, which you know is actually

      12   correct from what Mr. Miyagi told you about what the Dyna

      13   was -- that was the NGDT and it had to deal with how many

      14   tires there were in the back; that the bomb was supposed to be

      15   made of TNT with aluminum powder in wooden boxes and

      16   everything was connected with wires to batteries in the back

      17   of the truck.

      18            The other thing that Saleh told Mohamed Al-'Owhali

      19   was that there was going to be the bombing in Dar es Salaam,

      20   and he mentioned there was only going to be one person in that

      21   truck and said that the person was going to be known to

      22   Al-'Owhali as Ahmed the German.  Just so we're clear, that's a

      23   different Ahmed than Ahmed the Egyptian Mohamed Odeh talked

      24   about with the FBI.  And what Al-'Owhali told Agent Gaudin was

      25   he knew the person who was going to carry out the bombing in

                                                                    5432

       1   Dar es Salaam and that he was sorry he missed the meeting

       2   earlier in the week because he wanted to say good-bye.

       3            Saleh told Al-'Owhali that the truck in Dar es Salaam

       4   was going to be a refrigerator truck.  Saleh bragged about how

       5   they got the bomb together in Dar es Salaam in about ten days.

       6   The bomb in Dar es Salaam was going to involve oxygen tanks

       7   for fragmentation and that they changed the location of the

       8   delivery of the bomb truck to take it further away from the

       9   French embassy.

      10            And you may recall that Ambassador Lange talked about

      11   after the bomb, he got through the fence and he met the French

      12   ambassador and he went across the street to the French Embassy

      13   briefly before he went back to the American Embassy.

      14            On August 3rd, according to what Odeh told the FBI,

      15   Fahad picked up Odeh and they went to the immigration office,

      16   and from there Fahad took care of the visa for the passport

      17   that Odeh had received and then Fahad and Odeh went to a

      18   travel agency to buy tickets.  And then Fahad told Odeh to go

      19   to Nairobi and to meet up with the rest of the group at the

      20   Hilltop Hotel.

      21            And what Odeh told the FBI was that they in fact did

      22   that through the night and arrived at the Hilltop Hotel the

      23   morning of August 4th.  And if we look at Government Exhibit

      24   518, which again is the registry for the Hilltop Hotel which

      25   we looked at just a few minutes ago that had the entry for

                                                                    5433

       1   Ahmed, Khalfan Ghailani, you see at the very top there, if we

       2   pull up both parts of the page and magnify it, an entry for

       3   Abdel Basit, which we'll see in a minute is the name on the

       4   passport that the defendant Odeh used when he fled Nairobi the

       5   night before the bombing.  So, on August 4th, Odeh, the Kenyan

       6   resident, checks in to a Kenyan hotel using a fake name, Abdel

       7   Basit, and he too is a businessman.

       8            Now, according to what Odeh told the FBI, he took a

       9   nap in the room that he was given, Room 102B, and that he

      10   later ran into Saleh and Harun, who were leaving the hotel;

      11   that Saleh gave Odeh a razor and a pair of pants and told Odeh

      12   to use the razor to shave his beard so he wouldn't look like a

      13   Muslim.  Odeh also said that on the 4th, Harun and Saleh told

      14   Odeh they were going to go out to do a small job, and we'll

      15   talk about how that was described later on.

      16            And then Odeh ran into Abdel Rahman, the person who

      17   was one of his trainers at the Sadeek Camp that we talked

      18   about yesterday, where Odeh was taught how much and what type

      19   of explosive to use to do an operation.  He told the FBI he

      20   ran into his former bomb instructor, Abdel Rahman, and that

      21   Abdel Rahman mentioned that he had been at the hotel for the

      22   preceding two months.

      23            At some point that day, Saleh and Harun returned and

      24   Odeh mentioned to the FBI that Harun drove a white pickup

      25   truck.  And Odeh remembers Saleh reading a magazine and saying

                                                                    5434

       1   a prayer, indicating that he was worried, and that Odeh said

       2   he stayed the night the Saleh's room.

       3            Meanwhile, on August 4th, what Al-'Owhali told Agent

       4   Gaudin on August 4th he did was that he and Saleh went to the

       5   American Embassy, and Saleh showed Al-'Owhali where the bomb

       6   was supposed to go.  And Al-'Owhali and Saleh had a discussion

       7   about where Al-'Owhali thought the bomb should go, and at the

       8   end of the day Saleh told Al-'Owhali what the plan was.

       9            Meanwhile, in Dar es Salaam, if you take a look at

      10   Government Exhibit 1459E, and this is a summary chart of phone

      11   calls that are made from that mobile phone, 328848, the mobile

      12   phone, the records of which were found in 15 Amani, and if you

      13   look at the 4th of August at 7:16 p.m., you see a call for two

      14   minutes to a number in Egypt.  And remember from the razor and

      15   from the stipulation I talked about, the suicide driver of the

      16   bomb truck in Dar es Salaam is from Egypt.  So by the 4th of

      17   August, the suicide driver is in place in Dar es Salaam.

      18            Meanwhile, halfway around the world in London, on

      19   August 4th, if you take a look at Government Exhibit 1558-P,

      20   there is dated the document, and we can look at the fax

      21   header, The Grapevine, and there it has the number for The

      22   Grapevine, 3727415, August 4, 1998.  And if we take a look at

      23   the translation -- you may remember we read you this

      24   document -- this is the document where EIJ, the partner in the

      25   joint venture with al Qaeda, is talking about how angry it is

                                                                    5435

       1   about what it perceives happened to some of its members.

       2            And in the fourth paragraph, EIJ and it says the

       3   information office of the Jihad group in London writes, "we

       4   would like to inform the Americans that, in short, their

       5   message has been received and that they should read carefully

       6   the reply that will, with God's help, be written in the

       7   language that they understand."

       8            Now, this document is found in the office at 1A

       9   Beethoven Street in London, and the Scotland Yard officers who

      10   did the search in that place for a number of days, you may

      11   remember this is the place where they also found the claims of

      12   responsibility, a copy of the claims of responsibility for the

      13   bombings.

      14            They also found an envelope with an address label for

      15   Khalid al Fawwaz, the al Qaeda person in Nairobi who Wadih El

      16   Hage replaced, who then goes to London and is involved in

      17   getting the satellite phone and in getting the various fatwahs

      18   and declarations of Jihad published and disseminated.

      19            And it's an office that you know by way of

      20   stipulation was leased by that third person in London I

      21   mentioned to you, Adel Abdel Bary, and it was earlier leased

      22   by Khalid al Fawwaz.  Take a look at the leases, you will see

      23   they sort of rotate who is actually the person renting the

      24   Unit 5 at 1A Beethoven Street.

      25            Now we move to August 5th.  Al-'Owhali told Agent

                                                                    5436

       1   Gaudin that on August 5th, Abdel Rahman shows up to do the

       2   final wiring for the bombing.  And the other thing you know

       3   from Government Exhibit 340, which is a summary chart based on

       4   telephone records for calls from 43 Runda Estates -- and

       5   remember, this is the bomb factory, and the telephone there

       6   Harun asked the landlord, Ms. Ratemo, to get special

       7   permission to make international calls.

       8            On August 5th at 11:11 p.m., there is a

       9   six-and-a-half-minute call from Khalid Salim, the alias that

      10   Al-'Owhali is using, to a number in Yemen, and we'll just call

      11   this the 0578 number from here on out.  Al-'Owhali told Agent

      12   Gaudin that he did speak to his friend Ahmed and he called

      13   from Runda Estates.

      14            Now, on August 5, Odeh tells the FBI that what he did

      15   that day was he woke up and he saw Harun eating breakfast with

      16   a Saleh, and he mentioned that they were wearing the same

      17   clothing that they had been wearing the night before; and that

      18   Odeh had a conversation with Saleh where he asked him, Saleh,

      19   to pick up some socks and a shirt for Odeh.  Saleh told Odeh

      20   to wait for Abdel Rahman and that Odeh mentioned that on that

      21   day he took a walk along Moi Avenue and he bought some items,

      22   a shirt and some books and that, once again, Saleh and Harun

      23   stayed out all night.

      24            By the way, you may remember there was a latent

      25   fingerprint lift in the Room 107B that was identified as

                                                                    5437

       1   belonging to the defendant Odeh.

       2            Now, Khalfan Khamis Mohamed described for Agent

       3   Perkins a situation in Dar es Salaam where the bomb truck got

       4   stuck in the sand and that he and Ahmed, the suicide driver,

       5   had to work to try to get the truck unstuck from the sand and

       6   they were able to do that.

       7            Khalfan Khamis Mohamed said to Agent Perkins that

       8   Ahmed, the driver, had that mobile phone and he remembered

       9   Ahmed, the driver, using that phone to call the brothers.  And

      10   if we take a look at 1459E, which is again the summary chart

      11   for calls from that mobile phone, what you will see is on

      12   August 5th, three telephone calls to the Hilltop hotel, the

      13   same hotel that the registry records show you that Ahmed

      14   Khalfan Ghailani checked into on August 1 and the same hotel

      15   that the hotel records show that Abdel Basit, the alias for

      16   Odeh, checked into.

      17            August 6th.  What Odeh said to the FBI about August

      18   6th is he remembers that Ahmed from Tanzania and Fahad showed

      19   up and that they were staying at another hotel; that Saleh and

      20   Harun returned to the Hilltop again dressed in the same

      21   clothes as they had been wearing the night before; that Saleh

      22   was in a good mood, and that on August 6 Saleh told Odeh that

      23   he spoke with the people in Kandahar -- remember we looked at

      24   the map yesterday and Kandahar is a province in Afghanistan --

      25   he spoke to the people in Kandahar and that the people had

                                                                    5438

       1   been evacuated because they were expecting retaliation from

       2   the United States Navy.

       3            Odeh said that on that day he went shopping again and

       4   got a towel and he got a bag, and that he went back to the

       5   hotel and he met up with Fahad and that Fahad told Odeh that

       6   Saleh and Abdel Rahman had left Kenya and that he and Fahad

       7   had dinner, got their shoes shined, and went to the airport.

       8            So now we have another five or six days since we last

       9   sort of went through what it is that Odeh admitted to and what

      10   the evidence showed you.  Since before August 1, Odeh admitted

      11   to the FBI he knew about the fatwahs, he knew everybody had

      12   been ordered to leave, and what he learned, according to what

      13   he told the FBI, between the 1st and the 6th is that he was

      14   given orders to leave, in fact, I mentioned it earlier, but

      15   everyone had to be out by August 6th; that he met up with

      16   Saleh and Harun at the Hilltop Hotel; that he saw his bomb

      17   trainer, Abdel Rahman; that he knew that Saleh and Harun said

      18   that they were going to do a small job on one of those days;

      19   that Saleh was happy after being up all night for the second

      20   consecutive night; that the United States was expected to

      21   retaliate against the people in Kandahar, Afghanistan; and

      22   that everybody else was leaving that night.

      23            Now, according to what Al-'Owhali told the FBI, what

      24   he did on August 6th, he once again made some telephone calls.

      25   And if we look at 340, Government Exhibit 340, this is the

                                                                    5439

       1   summary chart, you see two calls again from 43 Runda Estates,

       2   the bomb factory, to the 0578 number, 12:37 for a little over

       3   four and a half minutes, and 8:44 in the evening, a little

       4   over 7 minutes.

       5            Meanwhile, on August 6th, if you take a look at the

       6   records for the satellite phone, there is a call on August 6th

       7   from the satellite phone to -- there are two calls to that

       8   688048 number in Baku, Azerbaijan, the same call that's going

       9   to call The Grapevine the day of bombings -- The Grapevine,

      10   the place that received the claims of responsibility.

      11            We know by way of stipulation that Hamdan Khalif

      12   Allah, the name of the person who was the suicide driver in

      13   Dar es Salaam, calls his family in Egypt and asks everybody to

      14   be by the phone the next day.  And you know from Government

      15   Exhibit 1459E that the mobile phone is used to call a number

      16   in Egypt on August 6th.

      17            And you see down there at, I think it's the next page

      18   at the top, you see two calls to Egypt on August 6th.  August

      19   6th is the day that Khalfan Khamis Mohamed gets his visa to go

      20   to South Africa.  You will see that in the passport.  And on

      21   August 6th, on Kenya Airways Flight 310, Saleh using the name

      22   Abdallah Ahmed Abdallah, Ahmed Khalfan using the name Abu Bakr

      23   Khalfan Ahmed, fly out of Nairobi on a Kenya Airways flight to

      24   Karachi, and that Fahad and the defendant Odeh fly out on

      25   Pakistani International Airways Flight 746 from Nairobi to

                                                                    5440

       1   Karachi, Pakistan.

       2            THE COURT:  We will take our midmorning break at this

       3   point.

       4            (Recess)

       5            (Jury present)

       6            THE COURT:  We're turning down the air conditioning.

       7   I know it's cold.

       8            MR. KARAS:  Thank you, your Honor.

       9            We left off before the break with the defendant Odeh

      10   and Fahad and others flying from Nairobi on the evening of

      11   August 6th into the morning of August 7th, heading to Pakistan

      12   on the escape path to Afghanistan.

      13            Now, ladies and gentlemen, we get to August 7th,

      14   1998, the eighth anniversary of when President Bush sent the

      15   American troops to Saudi Arabia.  And the first thing that you

      16   know that happens on the morning of August 7th is the claims

      17   of responsibility are sent as early as 4:45 in the morning,

      18   and you saw the fax header to the claim of responsibility that

      19   was found at The Grapevine in London and the three other

      20   claims of responsibility, the three other pages between 4:53

      21   a.m. and 4:56 a.m. on the morning of August 7th, 1998, and

      22   those claims of responsibility to be later released so that

      23   the members of this conspiracy could take credit for the

      24   bombings in Nairobi and Dar es Salaam.

      25            From here on out, the times I'm going to mention to

                                                                    5441

       1   you are in East African time in Nairobi and Dar es Salaam.

       2            The next event that happens is at approximately 5:30

       3   in the morning, and that is when the defendant Odeh, in his

       4   attempt to escape and go to Afghanistan, is caught at the

       5   airport in Karachi, Pakistan.

       6            At 8:54 in the morning, Ahmed the German, the suicide

       7   driver in Dar es Salaam, calls his family in Egypt to say he's

       8   leaving this life.  Government Exhibit 1459E, you see the call

       9   being placed from that mobile phone in Dar es Salaam.

      10            At 9:14, at 9:23 a.m., the satellite phone, the

      11   satellite phone in Afghanistan, calls that number 688048 in

      12   Baku Azerbaijan.  From that number, later on there will be a

      13   call to London to the mobile phone of Ibrahim Eidarous and a

      14   call to The Grapevine in London.

      15            At 9:19 a.m., the defendant Al-'Owhali calls his

      16   colleague Ahmed in Yemen at the 0578 number.  There you see it

      17   in the chart, Government Exhibit 340.

      18            At 9:29 a.m., just ten minutes later, the mobile

      19   phone in Dar es Salaam calls from Dar es Salaam into Mombasa.

      20   That is the last telephone call that is made from the phone

      21   that Khalfan Khamis Mohamed told Agent Perkins he last saw in

      22   the hand of Ahmed, the suicide driver, when he went off to do

      23   the bombing.

      24            At 9:45 a.m., the bomb truck leaves 43 Runda Estates

      25   in Nairobi, led by Harun driving a white pickup truck.  Just

                                                                    5442

       1   15 minutes later, the bomb truck leaves 213 Ilala, the bomb

       2   factory in Dar es Salaam.  In this bomb truck is Ahmed, the

       3   suicide driver, and the defendant, Khalfan Khamis Mohamed.

       4            Now, soon after getting into the truck and riding in

       5   it for a brief time, Khalfan Khamis Mohamed gets out of the

       6   truck, goes back to the bomb factory, and he begins his

       7   prayers for Ahmed, the suicide driver.

       8            Just before 10:30 in Nairobi, Frank Pressley, the

       9   communications officer, is speaking with his friend Michelle

      10   O'Connor and Jay Bartley Jr.  Pininah Muhoho is waiting for

      11   the bus outside the embassy in Nairobi, and in Dar es Salaam,

      12   Edward Rutahesherwa, the security guard, is being replaced for

      13   his midmorning break.  Both ambassadors in Nairobi and Dar es

      14   Salaam are attending meetings.

      15            At just a few minutes before 10:35 in the morning,

      16   Al-'Owhali arrives with Azzam in the bomb truck in the back

      17   parking lot of the American Embassy in Nairobi.  He has the

      18   gun in his jacket and he has the four grenades he's going to

      19   use in an effort to get the bomb truck as close to the embassy

      20   as possible.  Harun, who had been leading the bomb truck in

      21   his white pickup truck, stopped outside at a roundabout or

      22   circle near the embassy.

      23            Inside the parking lot, Al-'Owhali gets out of the

      24   truck.  Forgetting his gun in the jacket, he uses those stun

      25   grenades to try to scare the guards to open the gate so the

                                                                    5443

       1   truck can get as close to the embassy as soon as possible.

       2   His partner, Azzam, begins shooting outside the window of the

       3   driver's side of the truck.

       4            After Al-'Owhali throws his flash grenades, he comes

       5   to the decision that there's no point in his dying.  His dying

       6   will not be a martyrdom operation, it will be suicide.  So he

       7   runs.

       8            At 10:35, ladies and gentlemen, at 10:35, Azzam

       9   detonated the bomb and, in a flash, he killed hundreds, he

      10   wounded thousands, but just before he detonated that bomb,

      11   Al-'Owhali was able to turn the corner, and in so doing he was

      12   able to do something that 213 other people did not do that

      13   morning, and that's survive the bomb that he helped deliver,

      14   leaving behind chaos, death, injury and horror.

      15            Ambassador Bushnell described for you the two

      16   different times she thought she was going to die that morning.

      17   George Mimba, the information systems manager at the embassy

      18   who had just been speaking to Julian Bartley just before the

      19   bomb went off, described how there was smoke and he couldn't

      20   see and he crawled out to an open space and he was going to

      21   jump so his father could find his body.

      22            To buy so he ten I don't see, the commercial

      23   specialist, he said, "I thought it was the end of the world."

      24   And before the dust could even begin to settle in Nairobi, at

      25   10:39 a.m. in Dar es Salaam, Tobias Otieno is attending a

                                                                    5444

       1   meeting and he sees the lightening flash and then the loud and

       2   long boom that she described for you.

       3            Liz Slater was in a meeting with Cynthia Kimble, and

       4   she told you that it just went pitch black.  "There was a

       5   feeling, a strange smell, a kind of oily, gritty feeling in

       6   the air.  The walls were on top of me.  I could see the sky."

       7   Cynthia Kimble was screaming and people were trying to figure

       8   out what happened.

       9            Meanwhile, back in Nairobi, the defendant Al-'Owhali,

      10   having survived his own bomb attack, went to the M.P. Shah

      11   Hospital in Nairobi to be treated for his wounds, to be

      12   treated in the same hospital that would treat the others that

      13   he injured.

      14            From there, and before he leaves -- remember, he

      15   leaves behind the bullets and the keys and then Al-'Owhali

      16   goes to the Ramada Hotel, where he convinces the clerk to let

      17   him check in and he gets some more clothing.

      18            Meanwhile, back in Dar es Salaam, while the rescue

      19   efforts are under way and people like Liz Slater are making

      20   their way out of the embassy, seeing that poor man whose skin

      21   had been ripped off, so much pain she said she wished he would

      22   die, Khalfan Khamis Mohamed is back at the bomb factory,

      23   searching for news on the radio and the television to see if

      24   the bomb happened.  And when he learns that it did, he was

      25   happy.  He was happy that the bomb had gone off, and what he

                                                                    5445

       1   left behind, ladies and gentlemen, what he was happy about you

       2   see in Government Exhibit 1103D.

       3            While the rescue efforts were going on, Harun, who

       4   had volunteered to stay behind to clean up the evidence that

       5   would link the group to the bombing, he cleans up the bomb

       6   factory in Nairobi.  And Khalfan Khamis Mohamed, who had

       7   agreed to stay behind, he begins the clean up efforts in Dar

       8   es Salaam.  He cleans the house and he attempts to rid the

       9   house of some of the instruments that were used to build the

      10   bomb, telling his nephew, "Clean this machine because it has

      11   been used for unclean things."

      12            The Baku phone, the 6888048 phone, is in touch with

      13   Ibrahim Eidarous in London and is sending the facsimiles to

      14   The Grapevine to be picked up by Ibrahim Eidarous and Adel

      15   Abdel Bary.  All of that happened on August 7th, 1998.

      16            On August 8th and August 9th, 1998, the defendant

      17   Al-'Owhali decides he needs to leave Nairobi, but because he

      18   was supposed to die in the bombing, he doesn't have his

      19   passport, he doesn't have any identification and he is without

      20   money.  So he calls the number in Yemen, the 0578 number, as

      21   seen in Government Exhibit 342.  He calls both on the 8th and

      22   the 9th, several times to Yemen.

      23            And while he's doing this, while Al-'Owhali is

      24   looking out for himself, while he's attempting to escape the

      25   damage and the horror that he has done, Samuel Nganga is

                                                                    5446

       1   trapped underneath the rubble of what used to be the Ufundi

       2   House with a bone protruding out of his body, speaking to

       3   Rose, a woman he was communicating with who was also trapped

       4   underneath the rubble.  And during these two days, during

       5   those two days that Al-'Owhali tried to run, Samuel Nganga

       6   waited and waited to be rescued.  He was, but Rose wasn't.

       7            Khalfan Khamis Mohamed, he's going to flee, too.  He

       8   takes his passport in the other name and he runs to South

       9   Africa, leaving behind death and destruction, and he goes to

      10   South Africa and he applies for political asylum, saying that

      11   he left Tanzania because of problems.

      12            And while Khalfan Khamis Mohamed does that, while he

      13   runs in from Tanzania, the other members of this conspiracy

      14   send out the claims of responsibility, the claims of

      15   responsibility that announce that the Islamic army for the

      16   liberation of the holy places hereby takes credit for the

      17   bombing in Nairobi and the bombing in Dar es Salaam.

      18            And the bombing in Nairobi is called the Holy Ka'ba

      19   operation, one of the reasons that Bin Laden said that

      20   American civilians had to be killed.  The bombing in Dar es

      21   Salaam is called the Al-Aqsa Mosque operation, the other

      22   reason that Bin Laden said that Americans had to be killed.

      23   And the claim of responsibility announced to the world is that

      24   two men from Saudi Arabia carried out the Nairobi bombing and

      25   that one man from Egypt carried out the Dar es Salaam bombing,

                                                                    5447

       1   which you know from the evidence is exactly what happened.

       2            Now, on August 10 to the 12th, Al-'Owhali is still

       3   attempting to flee, still trying to reach out to that number

       4   in Yemen to get money and to get assistance.  And at the same

       5   time, the group in Afghanistan, the al Qaeda headquarters,

       6   using that satellite phone, is doing what it can to rescue

       7   Al-'Owhali.  In Government Exhibit 343, you see telephone

       8   calls from the satellite phone to the 0578 number.  Those are

       9   the only calls that are made to that 0578 number from the

      10   satellite phone in its entire existence.

      11            August 14th, that is the day that Harun flees Kenya,

      12   having finished up his clean-up effort, he leaves Kenya and he

      13   goes to the Comoros, and from there he follows the al Qaeda

      14   escape route to Pakistan and then into Afghanistan.  And you

      15   know that by way of stipulation.

      16            And what Harun does is he fulfills his mission, just

      17   like Khalfan Khamis Mohamed tried to do, by cleaning up any

      18   evidence connecting the group to the bombing.  And he takes

      19   with him clothes that he had and he takes with him

      20   Al-'Owhali's fake passport, the Yemen passport, Government

      21   Exhibit 901.

      22            He takes with him the passport for Azzam, Jihad Ali,

      23   Government Exhibit 902.  He takes his own passport, his own

      24   Comoros passport.  He has the fake vaccination card for

      25   Al-'Owhali, Government Exhibit 9304, and he has Al-'Owhali's

                                                                    5448

       1   ticket, his Gulf Air ticket that got him into Nairobi at the

       2   beginning of August, 1998.  And he has Azzam's Saudi driver's

       3   license.

       4            All items that he took from Nairobi that he couldn't

       5   bring with him to Pakistan and Afghanistan, left behind, and

       6   he took them because Al-'Owhali and Azzam were supposed to die

       7   in the bombing.

       8

       9            (Continued on next page)

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5449

       1            MR. KARAS:  (Continuing) But unaware that Al-'Owhali

       2   had survived, he took these items and he brought them home.

       3   Ladies and gentlemen, the clothing that Harun had with him,

       4   the boots, they tested positive for explosive residue, another

       5   refrain that you see throughout this case.  He also had what

       6   the FBI agents found to be some bomb manuals that had in

       7   English written the word explosive, what appeared to be timing

       8   devices.  Harun also left behind that white pickup truck, the

       9   white pickup truck that had a rear view mirror on it that had

      10   Harun's fingerprints, the white pickup truck that had an

      11   insurance card for Mohamed Fahad Ally Salim, whose

      12   fingerprints, ladies and gentlemen, are on that grinder, that

      13   machine of death that they used to construct the bomb in Dar

      14   es Salaam.

      15            August 20, 13 days after the bombs go off and after

      16   hundreds are dead, the FBI goes to interview the defendant

      17   Wadih El Hage.  Wadih El Hage was asked if he knew anybody in

      18   Kenya who was associated with Bin Laden.  He said no.  Wadih

      19   El Hage said that Bin Laden would not have been involved in

      20   the bombing because he's a humanitarian, and he would have

      21   done better intelligence to deal with the fact that Nairobi

      22   was a congested city.  Harun, according to Wadih El Hage, was

      23   just somebody who worked for Tawhil, or Ahmed Sheik Adam, and

      24   he was somebody who was good at getting information about

      25   Somalia.  But according to Wadih El Hage, he didn't know

                                                                    5450

       1   whether or not Harun worked for Bin Laden.  Wadih El Hage said

       2   he didn't know anybody in the United States who worked for Bin

       3   Laden, and he claims that the only reason he knew about Bin

       4   Laden's secret meetings was a ledger that he saw when he

       5   worked for Bin Laden in Khartoum.  Wadih El Hage was asked

       6   about whether or not he knew the defendant Odeh, the defendant

       7   Odeh that the evidence tells you was in the East African cell,

       8   that the evidence, including tape recorded conversations,

       9   shows that El Hage and Odeh communicated with each other.

      10   Wadih El Hage said that he didn't personally know him, that he

      11   just recognized his picture from the news.  Once again, Wadih

      12   El Hage denied any recent contacts with Bin Laden, with the

      13   chief Al Qaeda military commander Abu Hafs.

      14            September 10, 1998, Ali Mohamed, the person known as

      15   Abu Mohamed al Amriki, who provided the surveillance training

      16   and came to Nairobi in December 1993.  Ali Mohamed testified

      17   before the grand jury, and you know by way of stipulation that

      18   there is a portion of the transcript of that testimony, and

      19   Ali Mohamed lied to protect the conspiracy.  Ali Mohamed lied

      20   by saying that the only training he had ever done was against

      21   the Russians, never admitting the training he had done to help

      22   others learn how to do surveillance of targets.

      23            Six days later, the defendant Wadih El Hage again

      24   testifies before the grand jury here in New York, a little

      25   over a month after the bombings have taken place, and once

                                                                    5451

       1   again Wadih El Hage chose Bin Laden over America, denying

       2   recent contacts with Bin Laden, denying contacts with other Al

       3   Qaeda members and associates, such as Ihab Ali, such as Ali

       4   Mohamed, and of course Abu Hafs and Abu Ubaidah, and he did

       5   this, ladies and gentlemen, for the same reason he lied to the

       6   grand jury in 1997.  He did it as his contribution to the

       7   conspiracy, to protect the conspiracy from discovery by

       8   American government officials.  He did it so the conspiracy

       9   could survive another day and carry on the mission that the

      10   conspirators had agreed they would achieve.  In so doing,

      11   ladies and gentlemen, Wadih El Hage didn't share in the

      12   tragedies of the embassy bombings, he merely added to it.

      13            That's the chronology.  That's the chronology of what

      14   the evidence tells you from beginning to end that this

      15   conspiracy involved, from back in Afghanistan in the late

      16   1980's, up here to New York, September 16, 1998.

      17            Now what I would like to do, ladies and gentlemen, is

      18   to talk to you about the indictment.  First some general

      19   comments about the indictment.  The indictment contains four

      20   conspiracy counts, as I briefly mentioned yesterday.  All four

      21   defendants are included in the first two conspiracy counts and

      22   the fourth conspiracy count.  Defendants Odeh, Al-'Owhali, and

      23   Khalfan Khamis Mohamed are in the third conspiracy count.  We

      24   will go through each one of these.  There are then substantive

      25   counts relating to the bombings in Nairobi and Dar es Salaam.

                                                                    5452

       1            Just so we are clear, the defendant El Hage is not

       2   included in any of the substantive counts that relate to the

       3   embassy bombings.  The defendants Odeh and Al-'Owhali are only

       4   included in the counts related to the Nairobi bombing and the

       5   defendant Khalfan Khamis Mohamed is only included in the

       6   counts that relate to the Dar es Salaam bombing.  We will go

       7   through this again as we go through these counts.

       8            Finally, the indictment contains numerous perjury

       9   counts that only include the defendant Wadih El Hage.  Let's

      10   talk for a moment about the conspiracy counts.  There are four

      11   conspiracy counts, as I mentioned.  The first one that

      12   includes all four defendants is a conspiracy to murder US

      13   nationals.  The second is a conspiracy to murder United States

      14   government officers and employees.  This count also charges

      15   all four defendants.  The third conspiracy, which, as I

      16   mentioned, only includes Odeh, Al-'Owhali and Khalfan Khamis

      17   Mohamed, charges conspiracy to use weapons of mass destruction

      18   against United States nationals.  And the fourth conspiracy

      19   count is a conspiracy to destroy United States government

      20   property and buildings.

      21            At the end of the closing statements by all the

      22   lawyers, ladies and gentlemen, Judge Sand will instruct you on

      23   the law, and it is those instructions that you should follow.

      24   But briefly, a conspiracy is simply an illegal agreement

      25   between two or more people to break the law.  To prove a

                                                                    5453

       1   conspiracy count, the government must show you beyond a

       2   reasonable doubt the agreement to violate the law, each

       3   defendant's membership and participation in that agreement,

       4   and an overt act, something that was done by somebody in the

       5   conspiracy in furtherance of the conspiracy.  A conspiracy is

       6   different than a substantive crime.  The goal of the

       7   conspiracy need not be achieved.

       8            With that brief background, let's talk about the

       9   first count, conspiracy to murder United States nationals.

      10   The first thing is whether or not there was such a conspiracy

      11   in this case.  In going through the chronology we have covered

      12   a lot of the evidence that lays out for you the existence of

      13   the conspiracy involving these defendants and others to murder

      14   nationals of the United States.  As I mentioned to you

      15   earlier, there is not a videotape of a meeting where there was

      16   a contract signed where everybody says this is what we are

      17   going to do.  Remember, this is a secret conspiracy.  The way

      18   you learn about what the conspiracy's goals are, how it is

      19   that conspiracies are carried out, are by the actions of the

      20   people involved in the conspiracy.

      21            One other thing that I think is very important to

      22   note about conspiracy.  Membership in Al Qaeda by way of

      23   swearing bayat is not a requirement for guilt of conspiracy.

      24   Membership by bayat in Al Qaeda is also not by itself

      25   membership in the conspiracy that is charged in this case.

                                                                    5454

       1   The defendants Al-'Owhali and Khalfan Khamis Mohamed, there is

       2   no evidence that they swore bayat to Al Qaeda.  The evidence

       3   is, however, that they joined in a conspiracy with others,

       4   including some who swore allegiance to Al Qaeda, as part of

       5   the conspiracy to murder United States nationals.

       6            What is the evidence that there was a conspiracy to

       7   murder United States nationals?  There is the testimony of

       8   Jamal al-Fadl, who told you as far back as when the American

       9   military forces arrived in the Saudi gulf, right after Al

      10   Qaeda got to the Sudan in 1992, 1993, Al Qaeda targeting the

      11   United States.  Jamal al-Fadl told you that they targeted the

      12   United States when American forces were sent to Somalia.

      13   Jamal al-Fadl told you that even as of 1996 he said that Al

      14   Qaeda was targeting the United States even to the point that

      15   they might target American embassies.  And he told you about

      16   some of the prominent members that were part of this idea, of

      17   this conspiracy, including Usama Bin Laden, including Abu

      18   Hafs, Abu Ubaidah, Abu Hajer, defendant Wadih El Hage.

      19            The witness Kherchtou told you about how as far back

      20   as 1992 that Al Qaeda viewed the United States as the enemy of

      21   Islam.  Kherchtou told you that he understood in 1993 that Al

      22   Qaeda was targeting the United States because of the operation

      23   in Somalia, and he mentioned some of the people who figured

      24   prominently in this growing conspiracy.  He mentioned Abu

      25   Hafs, he mentioned Saleh, he mentioned Harun, and one of the

                                                                    5455

       1   people he mentioned who was in Somalia, who was a member of Al

       2   Qaeda, was the defendant Odeh, as far back as 1993.

       3            You have evidence of the existence of this conspiracy

       4   to murder US nationals from the numerous Bin Laden statements

       5   that we went through.  Al-Fadl told you about the private

       6   statements to Al Qaeda, but you have seen some of the public

       7   statements:  The August 1996 declaration of jihad, the March

       8   1997 CNN interview, of course the February 1998 fatwah, and

       9   the May 1998 ABC News interview.

      10            You know that there was a conspiracy to murder US

      11   nationals because of the way that the members of the

      12   conspiracy responded to the presence of the Americans in

      13   Somalia, that Abu Hafs went there, that Saleh went there, that

      14   Harun went there, that Kherchtou helped facilitate the efforts

      15   of some others who went into Somalia.  The defendant Wadih El

      16   Hage regarding the Stingers and the transportation of the five

      17   people that we talked about yesterday.  All of those actions,

      18   as I said, reflect what the mind set was, reflected that the

      19   common goal of the conspiracy was to attack nationals of the

      20   United States.  And, of course, the carrying out of the

      21   embassy bombings.  Yes, they are substantive crimes.  They are

      22   concrete acts.  But they also reflect, again, the agreement of

      23   people to pursue a common goal, to kill nationals of the

      24   United States, again, regardless of membership in Al Qaeda.

      25   The question is membership in the conspiracy.

                                                                    5456

       1            The defendant Al-'Owhali told Agent Gaudin that he

       2   was trained by Al Qaeda camps, that he asked Usama Bin Laden

       3   for a mission, that he was sent to Africa to carry out attacks

       4   on an American target.  Khalfan Khamis Mohamed, not a sworn

       5   member of Al Qaeda but trained at camps in Afghanistan, worked

       6   with people like Mustafa Fadhl, another prominent member of

       7   this conspiracy.

       8            You have the claims of responsibility as evidence of

       9   the existence of the conspiracy, the claims of responsibility

      10   that go through Baku, Azerbaijan, to numbers called by the

      11   satellite phone to headquarters in Afghanistan, to the people

      12   in London, where Khalid al Fawwaz is there to help disseminate

      13   the claims of the conspiracy, an act in furtherance of the

      14   conspiracy, because as I mentioned, one of the things that Al

      15   Qaeda did was to try to publicize its activities as a method

      16   of terrorizing people and as a method of recruitment.

      17            What about membership in this conspiracy, in

      18   conspiracy to murder people simply because they were United

      19   States nationals?  In addition to the defendants, and we will

      20   talk about the defendants, the evidence overwhelmingly shows

      21   that Usama Bin Laden was a member of this conspiracy.  He's

      22   the leader of Al Qaeda.  He is somebody to set the agenda for

      23   Al Qaeda and for others to target the United States.  You saw

      24   the reasons, the various reasons he gave why the United States

      25   neat needed to be targeted, why American military officers

                                                                    5457

       1   needed to be killed, American civilians needed to be killed.

       2   He is the person who lays out the goals of the conspiracy.

       3   Harun is a member of this conspiracy.  Harun is somebody who

       4   went to Somalia in Mogadishu where the American forces were,

       5   and he told Kherchtou about what it is that they tried to do.

       6   Harun is the person who worked as Wadih El Hage's deputy,

       7   somebody who was the communications officer, who went through

       8   all those efforts to try to figure out how the group was going

       9   to deal with the response to the cooperation of Abu Fadhl al

      10   Makkee with the Americans.  Harun carried out the bombing in

      11   Nairobi.  Harun rented the bomb factory.  Harun cleaned out

      12   the bomb factory and brought all of those items back down to

      13   his house in the Comoros before he fled to the Al Qaeda

      14   headquarters in Afghanistan.

      15            Mustafa Fadhl is in this conspiracy.  Mustafa Fadhl

      16   is another person who was part of the East African cell of Al

      17   Qaeda.  Mustafa Fadhl carries out the new policy that Wadih El

      18   Hage brought back with him on his visit to Bin Laden in

      19   February of 1997.  Mustafa Fadhl is the person who brings

      20   Khalfan Khamis Mohamed into the jihad in March of 1998.

      21   Mustafa Fadhl helps rent the bomb factory, and Mustafa Fadhl

      22   flees with his wife and children to Afghanistan just five days

      23   before the bombing.

      24            Saleh is a member of this conspiracy.  Saleh is one

      25   of the people who went into Mogadishu, Somalia, to attack the

                                                                    5458

       1   Americans.  Saleh is one of the people who left on August 6,

       2   1998, the night before the bombing, the same night that the

       3   defendant Odeh fled before the bombing.

       4            I mention those people, ladies and gentlemen, because

       5   when you see how these four people, among many others -- and

       6   we have been through many names and I don't mean to limit the

       7   membership list to this conspiracy just to the names that I

       8   have listed for you.  But when you see how just those four

       9   people worked with these defendants as part of the conspiracy,

      10   it becomes clear beyond a reasonable doubt the membership of

      11   these four defendants in the conspiracies in which they are

      12   charged, including Count 1.

      13            Wadih El Hage.  As we talked about yesterday, Wadih

      14   El Hage is the person who facilitates the activities of Al

      15   Qaeda.  Every organization needs a facilitator, somebody who

      16   takes care of the logistics.  Wadih El Hage's participation in

      17   this conspiracy dates back to when Wadih El Hage was in the

      18   Sudan, when Al Qaeda was targeting the United States in

      19   Somalia and had issued private fatwahs at meetings that El

      20   Hage attended, saying that Americans had to be attacked

      21   because of their presence in the gulf.  He is in charge of the

      22   Al Qaeda payroll.  He makes efforts to get Stingers

      23   transported from Pakistan to Afghanistan.  He transports some

      24   people from Sudan to Kenya at a time when the Americans are

      25   targeting the Americans in Somalia.

                                                                    5459

       1            And then you know that his membership in the

       2   conspiracy took a new form when El Hage was transferred,

       3   effectively, from Sudan to Kenya in 1994, when he replaced

       4   Khalid al Fawwaz as one of the leaders of the Nairobi cell of

       5   Al Qaeda.  That is a critical moment, ladies and gentlemen,

       6   because you learned that El Hage replaced Khalid al Fawwaz

       7   from Kherchtou.  But there is other evidence that shows that

       8   El Hage was the replacement.  This was not a career move that

       9   Wadih El Hage made because he was tired of Sudan.  This wasn't

      10   a coincidence that soon after Khalid al Fawwaz left to take

      11   the heat off the group somehow Wadih El Hage decided that

      12   instead of being involved in bicycles and sesame seeds in

      13   Sudan, that he wanted to now start this charitable

      14   organization, this German-run charitable organization in

      15   Nairobi.  That wasn't coincidence, that wasn't happenstance.

      16   That was part of the conspiracy.  Nairobi was a base.  It was

      17   a critical base of operations for Al Qaeda both before El Hage

      18   arrived with respect to Somalia and then afterwards, as you

      19   see from the new policy and of course the carrying out of the

      20   embassy bombings.  El Hage filled that role.  He was the one

      21   who came in to work with the cell, to work with people like

      22   Mustafa Fadhl, to work with people like Harun, to work with

      23   people like the defendant Odeh.  And you saw the evidence of

      24   him working with precisely those people.  He lived with Harun

      25   and he worked with Harun, and he had telephone conversations

                                                                    5460

       1   with Odeh, and of course there is evidence of other meetings.

       2   He met with Abu Hafs, according to what Kherchtou told you.

       3   He met with Abu Ubaidah, the military commander, people he

       4   would lie about to protect later when the American government

       5   would ask about these Al Qaeda members.

       6            El Hage traveled to see Bin Laden in 1997 twice, well

       7   after the war against America was public, and brought back

       8   with him a policy that would militarize the cell in Somalia

       9   dealing with Ethiopia, but the same cell once militarized,

      10   after it was militarized, that would carry out the bombings.

      11   And when his house was searched and when he was approached by

      12   the Americans, he did exactly what Khalid al Fawwaz did.  He

      13   left Kenya to take the heat off of the Al Qaeda cell in Kenya.

      14   And then when he testified before the grand jury he made plain

      15   his membership in this conspiracy by lying to protect the

      16   conspiracy, by protecting the conspirators from detection by

      17   the United States so that they could carry on with the

      18   activities that were part and parcel of the Al Qaeda

      19   operation, both in East Africa and elsewhere, including in

      20   Afghanistan.

      21            You know that Wadih El Hage helped to get fake

      22   passports for other people in Al Qaeda.  We went through the

      23   telephone conversations and we saw the letters, the coded

      24   letters and the coded communications where El Hage and Harun

      25   worked to get these passports, the life blood that we talked

                                                                    5461

       1   about on behalf of Al Qaeda.  Fake passports that if done

       2   right, help people like the defendant like Al-'Owhali to get

       3   out of countries or, if not done right, leave it to defendants

       4   like Odeh to get caught and unable to escape after

       5   participating in terrorist activities.

       6            You saw the coded letters that El Hage had.  You saw

       7   the coded references that he had in his address book, and we

       8   will talk about some of them in connection with the perjury

       9   counts.  But Khalid al Fawwaz is not listed as Khalid al

      10   Fawwaz, 94 Dewsbury Road, London, England, it is 94 Dewsbury

      11   Road, Arlington, Texas.  We will see some of those address

      12   book references in his address book, with P.O. Boxes in

      13   Khobar, Saudi Arabia, for a person that he knows lives in the

      14   United States.  There are any number of coded references for

      15   Ali Mohamed, the surveillance trainer and the person who

      16   himself had lied to protect the conspiracy in September of

      17   1998.  All of that is evidence of El Hage's participation in

      18   the secret conspiracy, in the conspiracy that targets and at

      19   the same time fears the United States, that requires people to

      20   facilitate, to carry out the logistics, and, yes, if

      21   necessary, requires the members of the conspiracy to lie to

      22   investigating officials who are looking to uncover both the

      23   membership and the existence of the conspiracy.

      24            We talked about this briefly yesterday, but the fact

      25   that Wadih El Hage engages in gem transactions and the fact

                                                                    5462

       1   that he may have been involved in the purchase of bicycles is

       2   not to the exclusion of his participation in Al Qaeda.  That's

       3   exactly what Usama Bin Laden does.  When he was in Sudan he

       4   made roads, had a transportation business.  He had other types

       5   of business.  But, as we talked about, it is precisely that

       6   business that is part of the conspiracy.  It finances the

       7   activities and it provides a cover.

       8            what I submit to you, ladies and gentlemen, is that

       9   Wadih El Hage was to the gem business what Bin Laden was to

      10   the sesame seed business, what the defendant Odeh was to the

      11   fishing business.  Those were things they did maybe to make

      12   money, but those were things that Al Qaeda set them up in to

      13   protect the conspiracy and to advance the conspiracy.  What

      14   motivates Wadih El Hage, what motivates Bin Laden, what

      15   motivates Mohamed Sadeek Odeh is not the success of their

      16   business but the pursuit of the common goal, to defeat the

      17   number one enemy, the United States.

      18            Again as we talked about, membership by way of bayat

      19   is nowhere going to be found in the judge's instructions, so

      20   that the question of whether or not Wadih El Hage took the

      21   bayat is not a question that has to be answered.  The question

      22   is whether or not he was a member of the conspiracy.

      23   Remember, the bayat is something that is very private.  It

      24   involves a handful of people.  The evidence of membership in

      25   the conspiracy does not come from the bayat, it comes from who

                                                                    5463

       1   people trusted to work with and to speak with and to be

       2   around.  The witness Kherchtou explained it as such.  He said

       3   it was obvious.  You can't say to a member who is working with

       4   you in the same company are you from this company or not.  I

       5   mean, the question you can talk about all the issues about Al

       6   Qaeda among us, discussing whatever.  Kherchtou and the others

       7   knew that they could trust Wadih El Hage.  Kherchtou and the

       8   others knew that they could have meetings with Wadih El Hage.

       9   They could talk about Al Qaeda business with Wadih El Hage.

      10   He was trusted in the operation of jihad.  And not because he

      11   wore a T-shirt that said I took bayat, but because everybody

      12   knew who they could trust and who they couldn't.  Remember the

      13   story he told you about Abu Hafs, the military commander?  Abu

      14   Hafs' military command told Kherchtou and Wadih El Hage he

      15   trusted them to take care of his travel arrangements that

      16   involved his alias and fake passport, but he didn't even trust

      17   Abu Mohamed al Amriki, the person that the group trusted to

      18   train others in surveillance.  That type of operational

      19   connection, that type of association, ladies and gentlemen, is

      20   powerful evidence of a person's membership in a secret

      21   conspiracy like Al Qaeda.

      22            The defendant Odeh.  The evidence clearly establishes

      23   that the defendant Odeh was an Al Qaeda member as far back as

      24   1992.  The witness Kherchtou told you that he knew that Odeh

      25   was a member of Al Qaeda.  And, by the way, not because he was

                                                                    5464

       1   there for the bayat.  You know from what Odeh himself admitted

       2   to the FBI that he was a member of Al Qaeda, that he was

       3   trained in Al Qaeda's camps, in ideas like explosives,

       4   learning how to calculate how much and what type of explosives

       5   to carry out an operation.  And Kherchtou told you that the

       6   defendant Odeh, who he knew as Marwan -- again, the aliases

       7   and the codes are all evidence of the existence of the secret

       8   conspiracy -- was a member of Al Qaeda who went to Somalia.

       9   Remember, he described some of the other members that went to

      10   Somalia, such as Harun and Saleh.  You know that Odeh himself

      11   admitted to the FBI that he went to Somalia because he was

      12   ordered to by Usama Bin Laden, and that he was there to train

      13   a group that was ideologically aligned with Al Qaeda.

      14   Ideologically aligned, which Odeh told the FBI meant that the

      15   group was concerned that the United Nations was going to take

      16   away their power, the same group that Odeh told the FBI got

      17   into a fire fight with the United Nations.  And Odeh was in

      18   Somalia and met with Abu Hafs right after Abu Hafs had come to

      19   an understanding with Farid, the warlord in Somalia, to work

      20   with the group to attack Americans, which lines up exactly

      21   with what the witness Jamal al-Fadl told you about Abu Hafs

      22   going to Somalia and trying to work with the local groups, the

      23   local tribes there.

      24            Like many prominent members in Al Qaeda, the

      25   defendant Odeh was given a business.  He told the FBI that Abu

                                                                    5465

       1   Hafs, the military commander, set him up in that business.

       2   But it was an Al Qaeda business, the fishing business that he

       3   had in Kenya.  Remember the testimony of Mr. Mjitta, the

       4   person who worked in the fisheries industry?  He remembered

       5   the name of the boat, al Mandera, which is actually one of the

       6   names in the records that you see in Wadih El Hage's files,

       7   and that they were offloading at night, which was unusual and

       8   forbidden, and that the defendant Odeh had a license to move

       9   but not to catch fish.  Again, a perfect cover to carry out

      10   jihad operations.

      11            The intercepted telephone calls show that the

      12   defendant Odeh was in touch with El Hage immediately after El

      13   Hage returned from his trip to see Bin Laden in February 1997.

      14   And there was discussion in that conversation about how

      15   Mustafa Fadhl, the other member in this conspiracy we talked

      16   about, was going to come up and meet with El Hage.  And then

      17   you see the documents thereafter where they implement the new

      18   policy to militarize the cell.  And you saw the document that

      19   we talked about yesterday and this morning, about how this was

      20   not part of a relief organization, this was part of the jihad.

      21            One of the other things that Odeh mentioned to the

      22   FBI was that, like the others in Al Qaeda, Odeh had heard

      23   discussion about Abu Fadhl al Makkee cooperating.  The

      24   evidence makes crystal clear, ladies and gentlemen, including

      25   even from what Odeh was willing to admit to the FBI, that Odeh

                                                                    5466

       1   was well aware of the fatwahs that Bin Laden had issued,

       2   calling on people to kill American citizens.  Here the bayat

       3   and Odeh's membership in Al Qaeda, while again not alone

       4   sufficient to establish membership in the conspiracy, is

       5   powerful evidence of membership in the conspiracy, being a

       6   member of the group that is at the core of this conspiracy,

       7   and being in particular a member of the cell of the group that

       8   is at the core of this conspiracy, the same cell, the

       9   implementers that Harun described, that carried out the

      10   bombings, that the bombings that Odeh participated in.

      11            We will discuss at greater length Odeh's

      12   participation, but just remember what it was that Odeh was

      13   willing to admit to the FBI.  Even he admitted to the FBI that

      14   there were several meetings as far back as March 1998, with

      15   Saleh, with Ahmed the Egyptian, with Harun, about how there

      16   had been a change in policy, about how people have to leave.

      17   As time gets closer to the bombing, what Odeh claims to the

      18   FBI is, he is told there is a big operation, that there is an

      19   unprecedented order to get out of Kenya by August 6, and then

      20   he is told that the Americans are expected to retaliate on

      21   August 6.  What does he do?  He goes to Nairobi, he checks

      22   into the hotel that you saw calls to, that he saw other people

      23   who were involved in the conspiracy check into, and he checks

      24   in in a fake name.  He shaves his beard, he takes his fake

      25   passport, and he goes by way of the others to Afghanistan.

                                                                    5467

       1            THE COURT:  Mr. Karas, can you raise the microphone?

       2            MR. KARAS:  Is that better?

       3            Something we haven't talked about yet and we will

       4   talk about more, remember the clothing that Odeh was caught

       5   with in Pakistan that tested positive for TNT and PETN.  And

       6   remember those diagrams that you saw earlier that we will

       7   discuss later on.  All of that is not only evidence of Odeh's

       8   guilt of participating in the Nairobi bombing but is also

       9   powerful evidence, very powerful evidence of his membership,

      10   of his participation in the conspiracy to kill Americans.

      11   Because you know that the operation against the American

      12   Embassy in Nairobi was part of the Bin Laden, Harun, Saleh,

      13   Fadl conspiracy, and others, to kill Americans.

      14            The defendant Al-'Owhali.  What is the evidence of

      15   his membership in the conspiracy to kill Americans?  He

      16   admitted it.  He told Agent Gaudin that he was involved in the

      17   bombings.  He told him exactly what he did.  And he told him

      18   why it was that the American Embassy was targeted, why it was

      19   that he wanted Americans to be killed, what it is that it

      20   would take for him and others to stop killing Americans.  He

      21   admitted that he was trained in Afghanistan at the Al Qaeda

      22   camps, that he asked Bin Laden for the mission.

      23            What is very interesting is what he said to Agent

      24   Gaudin about his decision not to swear bayat to Al Qaeda, and

      25   it is this that underscores the point that I was making about

                                                                    5468

       1   the bayat.  Remember what Jamal al-Fadl said, if you take the

       2   bayat you have to do whatever they tell you as long as it is

       3   Islamically correct as they define it.  That means if you are

       4   a doctor and they ask you to wash the car, you wash the car.

       5   Mohamed Al-'Owhali told Agent Gaudin he knew that if he took

       6   the bayat he could be given any role in Al Qaeda, including an

       7   administrative role.  But what he wanted to do was carry out

       8   military operations.  He wanted to kill.  He doesn't want to

       9   enter the contract that will deny him the opportunity to do

      10   what he wants to do.  He doesn't want to wash cars, he wants

      11   to deliver bombs.

      12            Mohamed Al-'Owhali's membership, I submit to you, is

      13   proven by the most significant overt acts in the conspiracy,

      14   by making the video, by getting the fake passport, by

      15   traveling to Nairobi and meeting the others, conducting the

      16   last-minute surveillance of the embassy, and, yes, going in

      17   the truck and throwing those flash grenades in an effort to

      18   get the bomb truck closer to the embassy so that more

      19   Americans can die.

      20            Al-'Owhali specifically told Agent Gaudin -- by the

      21   way, remember, he knew about the Dar es Salaam bombing ahead

      22   of time as well.  There is no question that Al-'Owhali knew

      23   that the target was American and that it was the American

      24   Embassy.  He told Agent Gaudin that he believed it was part of

      25   a bombing mission.  One of the things that Al-'Owhali told

                                                                    5469

       1   Agent Gaudin was that the American Embassy was targeted

       2   because the American Embassy in Nairobi covered the Sudan.

       3   You may remember that Usama Bin Laden in the March 1997 CNN

       4   interview talked about, he complained about the diplomatic

       5   pressure that America put on Sudan, and one of the things he

       6   specifically mentioned was that the Americans use their

       7   embassy from Sudan and moved it to Nairobi.  That's what

       8   Al-'Owhali told Agent Gaudin was one of the reasons that the

       9   American Embassy was hit.

      10            The other thing Al-'Owhali told Agent Gaudin was they

      11   wanted to strike targets outside the United States to weaken

      12   the United States and then allow for attacks in the United

      13   States, and that the reason for attacking the United States

      14   was to get the Americans out of Saudi Arabia, to get the

      15   United States to stop supporting the enemies of Islam, and to

      16   get the United States to stop supporting the imposition of

      17   Islamic law as he and others defined it.

      18            The other piece that shows you the direct connection

      19   between Al-'Owhali and the conspiracy is the connection

      20   between the telephone calls that Al-'Owhali made to get out of

      21   Nairobi and the telephone calls made from the satellite phone

      22   that we talked about to the same number in Yemen, to rescue

      23   Al-'Owhali.  Al Qaeda is trying to get, not literally one of

      24   his own because he didn't swear bayat, but one of the members

      25   of the conspiracy back to the other members of the conspiracy,

                                                                    5470

       1   to safety, as they view it, in Afghanistan.

       2            Khalfan Khamis Mohamed's membership in the

       3   conspiracy.  He also admitted it.  He admitted he was trained

       4   in Afghanistan as far back as 1994, and one of the people that

       5   he told Agent Perkins that he met up with there was Fahad.  He

       6   received basic and advanced explosives training, and that was

       7   corroborated by Khalfan Khamis Mohamed's friend Abdullah

       8   Hamisi, who told you that he told him he got training, that it

       9   was financed by Bin Laden and that it was focused on jihad.

      10            The other thing that Khalfan Khamis Mohamed admitted

      11   was that his views towards America were formed back in

      12   Afghanistan when he received the training.  Of course Khalfan

      13   Khamis Mohamed admitted in detail his roles in the bombing of

      14   the American Embassy in Dar es Salaam.  He obtained the

      15   Suzuki.  He rented the house.  He participated in the grinding

      16   of the TNT.  He described it in ways that are corroborated by

      17   the physical evidence.  The Suzuki purchase is corroborated by

      18   other evidence, including the contract.  The rental of the

      19   bomb factory, 213 Ilala, is corroborated by the broker and by

      20   the lease and by Hamed Muslim Salun.  He was brought to the

      21   house at 213 Ilala, and remember what he told him, my friends

      22   are going to be leaving soon, and find some replacements and

      23   make sure they look like them.  One of his roles is to try to

      24   make sure there is no trail of evidence that leads back to the

      25   group.  He cleaned 213 Ilala, or tried to.  He tried to

                                                                    5471

       1   discard some of the evidence, and he fled, using a fake

       2   passport.

       3            Although Khalfan Khamis Mohamed claimed he had never

       4   met Bin Laden or was a member of Al Qaeda, he acknowledged

       5   that Bin Laden was, as he said, our leader in jihad.  And he

       6   told Agent Perkins about how he talked about Hussein, Mustafa

       7   Fadhl, one of the other prominent members we talked about,

       8   about Bin Laden, and about how Mustafa Fadhl said he had met

       9   Bin Laden in Afghanistan and respected him.  Khalfan Khamis

      10   Mohamed knew that Bin Laden was against Americans, and Khalfan

      11   Khamis Mohamed knew that the target of the bombing was the

      12   American Embassy.  In fact, Khalfan Khamis Mohamed told Agent

      13   Perkins that he carried out the bombing because he thought it

      14   was his obligation and duty to kill Americans.  And he talked

      15   about how the reason he felt this way was because of American

      16   policy, and one of the things he mentioned was the American

      17   presence in Saudi Arabia.  He said that the first duty was to

      18   kill the troops but that since that was a difficult duty to

      19   carry out, the next duty would be to attack American

      20   government facilities, which is precisely what he did.

      21            One of the other things I mentioned about a

      22   conspiracy is, there have to be overt acts in furtherance of

      23   the conspiracy.  It can't just be an agreement between two or

      24   more people.  Somebody has to do something to further the

      25   conspiracy.

                                                                    5472

       1            The indictment, you will see, contains many, many

       2   over acts, about five dozen overt acts that are alleged to

       3   have been committed in furtherance of the conspiracy.  The

       4   evidence, I submit to you, establishes many, many other overt

       5   acts were carried out.  The overt acts discussed in the

       6   indictment cover a wide range of conduct that we talked about

       7   in going through the chronology:  The use of businesses and

       8   charity organizations as a cover for Al Qaeda activities.  The

       9   issuance of the fatwah, both publicly and privately, within Al

      10   Qaeda and to others, by Bin Laden, by Abu Hajer, and some of

      11   the other scholars within Al Qaeda, and you have seen evidence

      12   of those.  The accumulation or attempted accumulation of

      13   weapons.  For example, we talked about the efforts of Al Qaeda

      14   to get nuclear weapons.  The training and recruiting of Al

      15   Qaeda.  The overt acts specifically include the training of

      16   the defendant Odeh, the training of the defendant Al-'Owhali,

      17   and the training of the defendant Khalfan Khamis Mohamed.  All

      18   of the meetings and the various correspondence and the

      19   telephone communications.  The meetings involving Wadih El

      20   Hage and Abu Ubaidah, the former military commander, Abu

      21   Ubaidah and Abu Hafs, the current military commander.  The

      22   efforts to get the satellite phone.  The coded letters between

      23   Wadih El Hage and others in Al Qaeda, including Nawawi.  The

      24   dissemination of the new policy.  And some of the telephone

      25   conversations that you saw the transcripts of.  The efforts

                                                                    5473

       1   aimed at Somalia.  The fatwahs that were issued with respect

       2   to Somalia.  The evidence about the defendant Odeh and Harun

       3   and Saleh and others going to Somalia while the Americans were

       4   there as part of the peace-keeping mission.  And of course the

       5   many, many acts to carry out the embassy bombings.  The rental

       6   of the bomb factory, 43 Runda Estates in Nairobi.  The

       7   purchase of the bomb trucks in Nairobi and Dar es Salaam.

       8   That was done, you remember, by the coconspirator Swedan.  The

       9   final preparations, the surveillance, the making of the flight

      10   arrangements.  The obtaining of fake passports.  The bombings

      11   themselves.  The efforts to flee, including the telephone

      12   calls to Yemen, and the flight to Pakistan, Afghanistan and

      13   South Africa.  And yes, the lies by Wadih El Hage in the grand

      14   jury in 1997 and 1998, and the lies by Ali Mohamed in the

      15   grand jury in 1998.

      16            The second count charges conspiracy to murder

      17   officers and employees of the United States government.

      18   Largely, ladies and gentlemen, the evidence that we talked

      19   about with respect to Count 1 relates to Count 2.  Remember

      20   al-Fadl and Kherchtou talked about targeting American military

      21   personnel in the Saudi gulf and in Somalia, and of course the

      22   Bin Laden statements make specific references to people in the

      23   government, people who work at embassies, people who report

      24   information to embassies, and the membership is the same.

      25   Again, some of the common members -- Bin Laden, Harun, Mustafa

                                                                    5474

       1   Fadhl, and Saleh.  And the membership to the conspiracy is the

       2   same.  The goals that were established by some of the leaders

       3   in this conspiracy were as broad as every American national,

       4   but they also included American employees and American

       5   government facilities, to include military facilities and

       6   military personnel.  Same reasons we talked about earlier

       7   about the defendant El Hage being somebody who worked in the

       8   inner sanctum of Al Qaeda, who attended the meetings, who

       9   facilitated, who moved to Nairobi, who carried out the policy

      10   and lied to protect the policy, a conspiracy to kill American

      11   employees.  Same with the defendant Odeh.  Defendant

      12   Al-'Owhali, in addition to what we talked about earlier,

      13   specifically mentioned that one of the reasons the American

      14   Embassy in Nairobi was targeted was because the ambassador was

      15   a woman.  Their plans came down to even facts about the

      16   ambassador, about one of the American government employees.

      17            The other thing Al-'Owhali told Agent Gaudin was that

      18   embassies have other government representatives, like

      19   intelligence representatives.  Khalfan Khamis Mohamed told

      20   Agent Perkins, as I mentioned earlier, that while he thought

      21   it was his duty to kill American soldiers, he thought if he

      22   couldn't carry out that duty, his duty was to go after United

      23   States government buildings, and we know that included the

      24   embassy.

      25            The overt acts in furtherance of the conspiracy, the

                                                                    5475

       1   same overt acts we talked about above -- all the coded

       2   communications, the training, the weapons, the callings for

       3   murder and the fatwahs.  Remember that manual that we looked

       4   at, the manual that was found in Manchester, that belonged to

       5   the person Anas al Liby, with the camera on Moi Avenue, that

       6   specifically said target embassies.

       7            Count 3, which only relates to the defendants Odeh,

       8   Al-'Owhali and Khalfan Khamis Mohamed.  Conspiracy to use

       9   weapons of mass destruction against United States nationals.

      10   Well, the existence of the conspiracy, again, is the same

      11   evidence.  Remember here, of course, Al Qaeda trains people in

      12   the use of bombs, specifically TNT, the explosive that was

      13   used to carry out the bombings in East Africa, and the efforts

      14   by Al Qaeda to obtain components of nuclear weapons, and

      15   remember Bin Laden's endorsement of what he called the Islamic

      16   nuclear bomb.  This is an organization that while it trained

      17   its people in assassination techniques, ladies and gentlemen,

      18   the method they were going to use to carry out attacks against

      19   their number one enemy was weapons of mass destruction.  It

      20   was bombs.  And of course the evidence of membership in a

      21   conspiracy and the overt acts is the same as we discussed

      22   before.

      23            That brings us to Count 4, conspiracy to destroy

      24   buildings and property.  Again, it's the same as above.  Bin

      25   Laden is calling and has been calling for attacks against

                                                                    5476

       1   American facilities, military facilities, specifically

       2   mentioned embassies, in '97 and '98, and we talked about what

       3   it is that Khalfan Khamis Mohamed and Mohamed Al-'Owhali

       4   admitted to the FBI about.  You may recall, of course, again

       5   in addition to the Manchester manual, some of the documents we

       6   saw in Ali Mohamed's computer about the surveillance of

       7   buildings, about reports on buildings, that lines up with what

       8   the witness Kherchtou told you about the training that he and

       9   the others received about how to target buildings and other

      10   stationary targets.  This is also something that was

      11   personalized.  And of course we talked about the method they

      12   would do that in was by the use of bombs.

      13            THE COURT:  We will break for lunch and we will

      14   resume at 2:15.

      15            (Luncheon recess)

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5477

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

       2                            2:15 p.m.

       3            (In open court; jury present)

       4            THE COURT:  Good afternoon.  Mr. Karas, you may

       5   continue.

       6            MR. KARAS:  Thank you, your Honor.

       7            We left off with the conspiracy counts, the four

       8   conspiracy counts, and as I mentioned to you earlier, the next

       9   part of the indictment involves the substantive counts, the

      10   counts that relate directly to the bombings of the embassies.

      11            Yesterday I had mentioned that the number of counts

      12   reflected the number of victims, and so Counts 5 through 284

      13   are what are covered by the substantive counts.  Again, I

      14   remind you what I said earlier today:  The defendant El Hage

      15   is not charged in any of the substantive counts that relate to

      16   the embassy bombings.  The defendants Odeh and Al-'Owhali are

      17   charged only in connection with the counts that deal with the

      18   Nairobi bombing, and the defendant Khalfan Khamis Mohamed is

      19   charged only with the counts that relate to the Dar es Salaam

      20   bombing.

      21            Now, before we go through the specific counts, all of

      22   which feed off of the evidence that shows the participation of

      23   the respective defendants for their participation in the

      24   respective bombings, what I am going to do is I am going to

      25   outline for you what the evidence is very briefly that there

                                                                    5478

       1   were bombings, but then, more particularly, what the evidence

       2   shows that each defendant did to carry out and participate in

       3   the bombings, and then once we go through that evidence, we

       4   will go through some of the counts and talk about some of the

       5   particular elements that are required to be proved.  Then we

       6   will finish up with the perjury counts.

       7            Now, the evidence, ladies and gentlemen, that the

       8   embassies were bombed is overwhelming.  You heard from the

       9   explosives experts.  You saw the summary charts that showed

      10   that TNT was used.  You saw the evidence that told you about

      11   the vehicle used that helped to deliver and transfer the TNT,

      12   and you saw the evidence that showed how the TNT was made, how

      13   the bomb was put together, and then you saw the evidence about

      14   the trucks that were used to deliver the bombs.  And you even

      15   heard about the damage and you saw the photographs that showed

      16   the damage that supported the conclusions that both embassies

      17   were destroyed by a very large quantity of a high explosive.

      18            Now, with respect to what the evidence shows

      19   regarding each defendant:  Let's begin with the defendant

      20   Odeh.  As I mentioned to you, what the evidence shows is that

      21   the defendant Odeh served as a technical advisor and that that

      22   is how it is he participated, how it is that he contributed to

      23   the bombing of the American Embassy in Nairobi.

      24            And the evidence that establishes Odeh's role comes

      25   from his statement to Agent Anticev, the evidence regarding

                                                                    5479

       1   Odeh's flight from Kenya just the night before the bombing

       2   with the others, the physical evidence found on Odeh when he

       3   arrived and was caught in Pakistan to include his fake

       4   passport and the Nike bag, the Nike bag that had some of the

       5   clothing which tested positive for TNT and PETN, and finally,

       6   other physical evidence that was found in Odeh's house and, in

       7   particular, the tape letter that we talked about yesterday and

       8   the diagrams.

       9            Let's begin with Odeh's statement.  We talked a

      10   little bit this morning and yesterday in terms of the

      11   chronological order about what it is that Odeh admitted to the

      12   FBI agents.  You may remember that what Odeh said was that he

      13   was in Mombasa on a furniture business with his brother-in-law

      14   when he ran into Saleh and that this was in March of 1998, and

      15   that there was a meeting involving Saleh, involving Harun, and

      16   Ahmed the Egyptian; that Mustafa was supposed to be there but

      17   he was not, and that was, according to what Odeh admitted to

      18   the agent, when Saleh said that he had come back from

      19   Afghanistan and the people had to get their affairs in order

      20   and to leave.  Then Odeh said that in April there was another

      21   meeting with Mustafa, where, among other things, they

      22   discussed the February 1998 fatwah.

      23            In June, as we talked about earlier, there's the

      24   meeting with Ahmed the Egyptian, and there's the discussion

      25   about Sheik Hassan and the other message from Bin Laden to

                                                                    5480

       1   join the fight and there was discussion about Odeh going to

       2   see Bin Laden.

       3            And then you know what it was that Odeh admitted to

       4   the agents regarding what happened in August, the meetings in

       5   Mombasa, getting the fake travel documents, getting the

       6   tickets out of Africa with Fahad, learning that there was a

       7   big operation about to take place, going to the hotel in

       8   Nairobi and checking in in the name Abdel Basit, which you

       9   saw, and that the hotel records verified, and the name that is

      10   in the passport that Odeh was caught with in Pakistan,

      11   Government Exhibit 526A, the Yemen passport in the name Abdel

      12   Basit, and that before he left with the others, Odeh was told

      13   that the Americans were expected to retaliate, the United

      14   States Navy.  That's just some of the chronology.

      15            Now I would like to go in a little bit more detail

      16   about some of the things that Odeh said, and what we've done

      17   here is we have enlarged portions of the report that is in

      18   evidence as Government Exhibit 6, the report of the statements

      19   that Odeh gave to the FBI.

      20            Now, ladies and gentlemen, what I submit to you as we

      21   go through this statement is that what you are going to see is

      22   Odeh tap dancing with the truth.  He explicitly denies having

      23   a role in the bombing, but he talks all around the bombing and

      24   he talks all around the meetings that take place, the meetings

      25   that he was willing to admit to the agent, the meetings with

                                                                    5481

       1   the other people who told him the things that preceded the

       2   bombing.  He's playing a tap dance with the truth and putting

       3   it into the context of where he is at the time and where he

       4   has been beforehand.

       5            Remember, he is caught fleeing Kenya the night before

       6   the bombing in Karachi at the gateway to Afghanistan and he's

       7   caught with a fake passport, and he's caught on August 7th,

       8   1998 and then he finds himself on August 15, 1998 back in

       9   Kenya speaking to the American FBI and to Kenyan officials.

      10            And what you are going to see Odeh do is give up as

      11   much information as he thinks he can to convince the Americans

      12   that he wasn't involved, to make his story sound credible, and

      13   what I submit to you is, in the course of doing that, you will

      14   see precisely how it is that he was involved in this bombing.

      15            He borrows from the truth, but he doesn't give the

      16   complete truth.  And you may remember during the trial Mr.

      17   Cohn asking the question of a witness about the best lies

      18   being partly true.  We will go through the statement and then

      19   we will compare the statement and show you that, in

      20   conjunction with the other evidence in this case, you know

      21   beyond a reasonable doubt what it is that Odeh did that makes

      22   him guilty of participating in these bombings.

      23            Now, the first enlargement that we have here, which,

      24   for your notes, is from page 13 of Government Exhibit 6, Odeh

      25   talked to Mustafa about Bin Laden declaring war against

                                                                    5482

       1   American people in his last two fatwahs.  They discuss if al

       2   Qaeda was right in doing this.  They were concerned if they

       3   were ready to face such an enemy.  Mustafa stated that the

       4   mujahadeen in Sudan were against attacking U.S. targets, they

       5   feared the U.S. was too powerful.  Even al Qaeda in

       6   Afghanistan was questioning Bin Laden, but they still wanted

       7   to be ready to back up Bin Laden's fatwah.  They still wanted

       8   to back up Bin Laden's fatwah.  They were not happy about Bin

       9   Laden's first fatwah from one and a half years ago because Bin

      10   Laden was all alone, but they don't say anything about the

      11   second fatwah.

      12            And what this statement right here tells you is that

      13   Odeh has an explicit conversation with Mustafa.  This again,

      14   remember, this is what he admits to the agent.  And the

      15   discussion is not about whether or not it is improper or

      16   incorrect or immoral to attack the Americans, the discussion

      17   is whether or not al Qaeda is ready to take on this fight so

      18   openly, so overtly.  And you bear that in mind as you see Odeh

      19   have additional meetings with the people who were part of this

      20   plot.

      21            The next enlargement is from page 11 of the report.

      22   Odeh stated that three months prior to his leaving Kenya he

      23   was told by Mustafa that Saleh got a message from Usama Bin

      24   Laden that people in al Qaeda must get ready to travel soon.

      25   Odeh assumed that it would also include his wife and child.

                                                                    5483

       1   He was told to get his travel documents in order.  Later on,

       2   Odeh left his home in Witu from Mombasa to ask Saleh the

       3   details.  Saleh told Odeh that he had to be out of Kenya by

       4   August 6th, 1998.

       5            Odeh stated that for all the time he had been a

       6   member of al Qaeda, something that urgent had never happened

       7   to him before.  Odeh stated that he knew of the February 1998

       8   Bin Laden fatwah calling for all Islamic groups to make a

       9   front against the Americans.

      10            Now, this --

      11            THE COURT:  Excuse me.  Can you see the chart?

      12            A JUROR:  I can see.

      13            MR. KARAS:  Thank you, your Honor.

      14            If anybody can't see anything just, please let me

      15   know and we'll make sure it's visible.

      16            What you see here, ladies and gentlemen, is what it

      17   was we talked about earlier -- that Odeh has a meeting with

      18   Mustafa and Saleh, and what he tells the FBI is that people

      19   are supposed to get ready to travel soon.  And then he tells

      20   the FBI a little bit later that he is told -- and he's never

      21   heard this before -- everybody in al Qaeda has to get out on

      22   August 6th, 1998.

      23            That's the story that Odeh gives to the FBI, and what

      24   he says is that he thought he was going to be allowed to bring

      25   his family with him and he says nothing else.  And there's

                                                                    5484

       1   nothing else in there about this conversation, about any

       2   inquiry as to why people were going to have to leave by

       3   August, 1998.  And this conversation about al Qaeda having to

       4   leave takes place in the context of discussions regarding the

       5   fatwah against Americans.

       6            Here, Odeh is going to describe another message.

       7   There was also a message, page 12, that Bin Laden had new

       8   plans to fight and Odeh had to travel to confer with Bin

       9   Laden.  Odeh stated that during conversations with Mustafa and

      10   Saleh, Mustafa stated he likes Kenya and would not do an

      11   operation in Kenya, whereas Saleh disliked Kenya and wanted to

      12   do an operation in Kenya.

      13            Here are two things about this comment that Odeh

      14   made.  The first is there is an explanation being given here

      15   that the reason that Odeh is going to have to travel to see

      16   Bin Laden is because Bin Laden had new plans to fight.  Again,

      17   put this in the context of the other conversations where Odeh

      18   and Mustafa are talking about the February 1998 fatwah, and

      19   then a different part of his statement where he says that the

      20   reason that people had to go to Afghanistan was because Bin

      21   Laden wanted people to come back to Afghanistan.

      22            It's a very vague explanation, and now the

      23   explanation that is given is that Bin Laden has new plans to

      24   fight and that Odeh has to travel to confer with Bin Laden

      25   about these plans.

                                                                    5485

       1            MR. RICCO:  Your Honor, I object.  That is a

       2   mischaracterization of that exhibit.

       3            THE COURT:  Well, the jury has the exhibit before it

       4   and it's for the jurors to determine whether or not that is an

       5   accurate or inaccurate characterization.  It is a fair

       6   argument which counsel is permitted to make.

       7            MR. KARAS:  Thank you, your Honor.

       8            The other thing you know is that Odeh admits that

       9   there is some discussion of some possibility of an operation

      10   in Kenya, and you know that because he reported to the FBI

      11   that Mustafa said that he likes Kenya and he wouldn't do an

      12   operation there.  And Saleh, according to what Odeh said to

      13   the FBI, didn't like Kenya and he wanted to do an operation

      14   there.

      15            So Odeh, Mustafa and Saleh are talking about some

      16   idea of an operation in Kenya, and what Odeh tells the FBI is

      17   what Mustafa thinks and what Saleh thinks.  This is from page

      18   10, and now Odeh here is giving an explanation along the lines

      19   of the chronology.  Odeh stated that on August 1, 1998 Saleh

      20   ordered him to leave and told him to be out of Kenya by August

      21   6th, 1998.

      22            Odeh asked Mustafa Fadhil why they were leaving.

      23   Fadhil responded that there was an emergency and that there

      24   may be a need for them to return to Afghanistan.  Saleh gave

      25   Odeh $1,000 to travel to Karachi, Pakistan and that someone

                                                                    5486

       1   would meet him there.  Odeh traveled with Fahad to Karachi.

       2   Odeh got caught by the Pakistani authorities and Fahad was

       3   able to get through.

       4            So what Odeh tells the FBI here is that Mustafa told

       5   him five days before they leave that they have to be out by

       6   August 6, and that when Odeh, according to what he told the

       7   FBI, inquired of Mustafa as to why they were leaving, what

       8   Mustafa Fadhil told them -- and remember, Mustafa is one of

       9   the people in this conversation about operations -- responded

      10   that there was an emergency and that there may be a need for

      11   them to return to Afghanistan, and then he gives the

      12   explanation about being given money and being told that they

      13   will be met by somebody in Pakistan.

      14            On page 11, Odeh then provided more detailed

      15   information concerning his final days in Nairobi.  Odeh

      16   arrived in Nairobi from Mombasa on August 4, 1998 at 7:30

      17   a.m., after traveling all night alone.  He then proceeded to

      18   the Hilltop Hotel, which was the prearranged meeting point.

      19            Saleh and Abdel Rahman were already there.  Odeh went

      20   to sleep until noontime.  When Odeh got up, he met Saleh and

      21   Harun as they were leaving.  They stated that they were going

      22   out to do a small job and would be right back and for Odeh to

      23   stay behind and rest.  Odeh indicated that the small job did

      24   not mean something trivial as shopping.  And again, here you

      25   see the dance with the truth.

                                                                    5487

       1            Abdel Rahman, you may remember, is the person that

       2   Odeh, during the statement, said was his ohm trainer.  And the

       3   story that Odeh gives to the FBI is that he goes there by

       4   himself, he checks in, and there is a discussion with Saleh

       5   and Harun and all they want him to do is rest.  And they tell

       6   him they are going to go do a small job, and what Odeh told

       7   the FBI is what it didn't mean was something trivial as

       8   shopping.  That's what it didn't mean.

       9            We talked a little bit about this before.  Page 23,

      10   on August 6, 1998, while at the Hilltop Hotel, Saleh told Odeh

      11   that the people in Kandahar have already relocated in order to

      12   avoid retaliation from the Americans.  Odeh asked Saleh what

      13   he meant, to which Saleh referred to the possibility of the

      14   U.S. Navy sending in war planes or missiles to retaliate.

      15            Odeh stated that he did not pursue or follow up on

      16   Saleh's statement.  Remember, this is the Saleh that Odeh told

      17   the FBI that was involved in this conversation about going

      18   back to Afghanistan because Bin Laden wanted to have people

      19   come back as far back as March 1998 to get their affairs in

      20   order.  And now, on August 6, what Odeh tells the FBI is he is

      21   told by Saleh, he's told by Saleh that they are expecting the

      22   United States to retaliate, but what Odeh claims to the agent

      23   is he didn't ask why the United States was expected to

      24   retaliate.

      25            Ladies and gentlemen, as I mentioned to you earlier,

                                                                    5488

       1   the full report is in evidence, and you should read the full

       2   report from beginning to end and go through precisely what it

       3   is that Odeh states.  And if you take exactly what it is that

       4   even he was willing to admit, by the time Odeh gets on that

       5   plane on the night of August 6, even he is willing to admit to

       6   meetings with other people in al Qaeda as far back as March of

       7   1998 and that there is discussion about the need to go to

       8   Afghanistan and that eventually he learns from these people

       9   that they're going to have to leave by a certain date, August

      10   6; that there's a big job, a big operation that's going to

      11   take place and that they are supposed to get a fake travel

      12   document and that he's instructed to go to Nairobi to meet at

      13   the Hilltop Hotel with others.

      14            And you know that he checks in to that hotel -- a

      15   Kenyan resident checks into that hotel -- using a fake

      16   passport; that he meets up with his bomb instructor at that

      17   hotel; that he knows that Saleh and Harun are going off to do

      18   a small job, which he knows isn't to do shopping; that he

      19   knows that they have to leave by August 6; that he knows the

      20   Americans are supposed to retaliate, that that is what the

      21   people in Kandahar are expecting; and then he gets on that

      22   plane with Fahad, who you know from other evidence is involved

      23   in the bombing in Dar es Salaam, and he goes on his way to

      24   Afghanistan.

      25            Now, ladies and gentlemen, common sense tells you

                                                                    5489

       1   that there is much more to that story.  But we don't have to

       2   go down and figure out exactly how much Odeh left out, because

       3   when you look at the statement in conjunction with the other

       4   physical evidence, you see precisely what it is that makes

       5   Odeh guilty.

       6            As I mentioned to you, the first thing to think about

       7   is the flight:  Why it is that he leaves; when it is that he

       8   leaves, how it is that he leaves -- by going through the al

       9   Qaeda play book and getting the fake passport, shaving the

      10   beard, as they are trained to do so they don't draw suspicion,

      11   and get back to Afghanistan.

      12            But the other physical evidence, ladies and

      13   gentlemen, is also compelling.  Consider the clothes.

      14   Remember the Nike bag that Odeh was found with when he got

      15   caught in Pakistan, Government Exhibit 529.  And you remember

      16   Agent Whitworth described for you about how he went through

      17   the bag and he picked out some of the items based on how it

      18   was that they looked, that they were soiled, that they had an

      19   odor.  And I have in my hand here the shirt, which I think is

      20   Government Exhibit 535C, the jeans, and then what has been

      21   referred to as the sheet and so forth, 535B, 535C.

      22            And Agent Whitworth picked out those items from among

      23   the others that were in the bag and he also did a swabbing of

      24   the bag and the handles of the bag.  And he picked out a few

      25   other items -- a green jacket, a towel, he picked out some

                                                                    5490

       1   glasses -- and he sent them back to the lab.

       2            And Kelly Mount came here and told you that she

       3   tested those items, all the items that Agent Whitworth picked

       4   out, and the t-shirt and the sheet and the jeans tested

       5   positive for TNT and PETN, two of the same types of explosives

       6   that you know from the other evidence were used to make the

       7   bomb that blew up the embassy in Nairobi.  You may remember

       8   the items that tested for TNT and PETN from the bomb factory

       9   at 43 Runda Estates.

      10            Now, not everything tested positive.  The swabbings

      11   of the bag, the swabbings from the handle of the bag, the

      12   vacuuming of the bag and the handles of the bag tested

      13   negative.  The flight magazine tested negative.  The green

      14   jacket tested negative.  And the question is, when did that

      15   TNT and PETN get on the clothes and how did it get on the

      16   clothes?

      17            What I submit to you, ladies and gentlemen, is that

      18   explosive residue got on Odeh's clothing before he got on that

      19   plane on August 6th, 1998.  And there's been a great deal of

      20   discussion about, a great deal of inquiry about the

      21   possibility of taint, about the possibility that when the

      22   agents took the bag and put the clothes on the table at that

      23   person's office at Kenyan CID headquarters, that there may

      24   have been taint; there may have been taint in Pakistan, that

      25   there may have been taint because people came back from the

                                                                    5491

       1   crime scene with TNT and PETN residue on their clothing and

       2   that that's how those clothes tested positive.

       3            What I submit to you, ladies and gentlemen, is that's

       4   not what the evidence tells you.  Because, remember, not

       5   everything tested positive, not even the bag.  So if the

       6   agents are running around with TNT-laden hands and they're

       7   holding the bag, the bag should test positive, the inside of

       8   the bag should test positive, the other items that Agent

       9   Whitworth tested should test positive or selected should test

      10   positive, and they didn't.  It was the articles of clothing,

      11   precisely the kinds of things you would expect would get TNT

      12   when you are working around TNT and PETN.

      13            And remember what Dr. Lloyd said.  Dr. Lloyd said

      14   that Kelly Mount should have tested all of the other items in

      15   the bag, and what you heard about the other day by a

      16   stipulation is she did.  And they tested negative.

      17            And ask yourself about the wisdom of what Agent

      18   Whitworth did, the basis upon which he selected these items.

      19   Remember, they were soiled, they smelled, he didn't think they

      20   had been washed in a while, and three of the five or six items

      21   he picked out in fact tested positive for TNT and PETN.  And

      22   if the taint was as horrible as it was made out to be, then

      23   more things should have tested positive, and they didn't.

      24            And consider something else.  There's been a great

      25   deal of focus on the TNT.  There was one positive swabbing

                                                                    5492

       1   from the crime scene in Nairobi for TNT, but there was not one

       2   positive swabbing at the crime scene for PETN and it is TNT

       3   and PETN that is found on Odeh's clothing.

       4            And it didn't come from the crime scene.  What it

       5   came from was Odeh working as part of this bomb plot, and it

       6   got on his clothes before he got on that flight.  Yes, as

       7   Kelly Mount and Dr. Lloyd told you, there is always the

       8   possibility of taint, but that doesn't mean, ladies and

       9   gentlemen, that from the evidence and from the circumstances

      10   you can't determine that those clothes tested positive before

      11   or would have tested positive before he left.

      12            That residue was on there beforehand.  And remember

      13   what Kelly Mount said:  TNT residue comes from TNT.  There's

      14   no question that that residue comes from the same explosive

      15   that was used to make the bomb in Nairobi.

      16            How did it get there?  Did the defendant work with

      17   the TNT in the bomb factory?  Did he work with it somewhere

      18   else?  Ladies and gentlemen, the evidence doesn't tell you

      19   exactly how it got there.  But what it does tell you, what it

      20   does tell you, when you look at all the evidence, is that it

      21   got there before he left.  That is powerful evidence, ladies

      22   and gentlemen, of the defendant Odeh's involvement in this

      23   bombing.

      24            Now, the other thing we talked about yesterday in our

      25   chronology which puts into context Odeh's views about

                                                                    5493

       1   participating in an operation was the tape letter that he sent

       2   to his wife in September of 1997.  And remember we talked

       3   about this.  This is about a month after Harun is sending out

       4   the panic alarm:  The Americans are on to us.

       5            They're worried about Abu Fadhl al Makkee.  They're

       6   worried about what they saw, the arrest of the five people in

       7   Kenya that they blamed the American intelligence for.  It's

       8   Government Exhibit 300A-T.  And if we could go to the second

       9   page of that and if you look at the third paragraph -- we read

      10   this yesterday -- this is where Harun, the communications

      11   person, is writing to the high and wise command after he just

      12   gets done explaining that the Americans are on to us because

      13   they know about al Qaeda's involvement in Somalia, and he's

      14   going to explain a little bit later about how the Americans

      15   now have Abu Fadhl al Makkee cooperating with them.  Harun

      16   also says that "the Americans are pressuring the Kenyans to

      17   come after us as well."

      18            And Harun is the person, you may remember we went

      19   through in February, he's the one who keeps in touch with

      20   everybody in the East Africa cell to let everybody know, for

      21   example, that Wadih El Hage is in Afghanistan.  And in the

      22   earlier part of this letter, you remember that what Odeh says

      23   is Harun also gave good news.  Odeh talked about the bad news

      24   that was going to keep them in Somalia longer than they had

      25   planned, but at the bottom of this Harun also said "good news

                                                                    5494

       1   about you" and so forth.

       2            So Harun is the person who is sharing whatever it is

       3   that the group considers a security threat that's going to

       4   keep them in Somalia, which is Harun's job.  And in this

       5   letter, in September of 1997, even before the February '98

       6   fatwah that Odeh admits to knowing about, at the end he says,

       7   "This time may have been theirs, but not all time will be

       8   theirs.  We will never allow that, and may God, the master of

       9   the universe (unintelligible) to respond 20-fold to one of

      10   theirs.  Thank God we are still alive and we are still capable

      11   of giving and resisting, but of course the matter will require

      12   time, preparation and thinking."

      13            "The matter will require time preparation and

      14   thinking."  And from the perspective of the East Africa cell

      15   of al Qaeda, where they have now come to believe that the

      16   Americans have figured out not only al Qaeda's involvement in

      17   Somalia, but that Kenya was the gateway, was the gateway

      18   according to what Harun had said, their concern is what the

      19   Americans have done to them.  And, "The matter will require

      20   time, preparation and thinking to respond 20-fold to one of

      21   theirs."

      22            That was found in Odeh's Witu house.  The other thing

      23   that was found in his house was the sketches that we talked

      24   about, the book, the Crown exercise book that had the sketch.

      25   And if we could pull up 704P-2, there you have it.  We looked

                                                                    5495

       1   at this this morning.

       2            Of course, the question is, well, what are these

       3   sketches of?  If we pull up Government Exhibit 252, what you

       4   see on the right is one of the sketches, the sketch that was

       5   on the right-hand side of the Crown exercise book, and what

       6   you see on the left is a diagram of the vicinity of the

       7   American Embassy, the corner that the American Embassy is on.

       8   Remember, on the right of the diagram, the Arabic writing that

       9   is down there on the bottom, that says "south."  And that's

      10   the direction below the roundabout there, and the roundabout

      11   appears in both the diagram on the left and the diagram on the

      12   right.

      13            The road that runs north/south you can see in the

      14   diagram near the embassy, and the road that runs east/west you

      15   can see both in the diagram in the sketch on the right and the

      16   diagram on the left.  And you can see the square at the top

      17   and you can see the square, the red U.S. Embassy, and then of

      18   course there's the access road that is contained in the sketch

      19   on the right and the diagram on the left, the access road that

      20   leads to the back parking lot of the American Embassy where

      21   the truck bomb was driven by Azzam, accompanied by the

      22   defendant Al-'Owhali.

      23            That's a sketch that was sitting in Mohamed Odeh's

      24   residence in Witu, and the page next to that sketch we see in

      25   Government Exhibit 253.  What you have on the right is that

                                                                    5496

       1   other page, and what you have on the left is a closeup diagram

       2   of the back part of the American Embassy, the ramp that leads

       3   down into the garage.  And what you see below the arrow which

       4   points to the embassy is some kind of a generator with the two

       5   circles on top of it, and then you look at the sketch on the

       6   right and you see part of an outline of that same object.

       7            Now, one other thing is you can see if you sort of

       8   look at it sideways, you can see the number 3 that's on top

       9   there, the number 3 that's on top of what I submit to you is a

      10   reflection of the bomb truck.  And you may remember that

      11   Mr. Miyagi, the person from Toyota who helped construct the

      12   Dyna, told you that the back, the truck bed of the Dyna was

      13   three meters long.

      14            And remember, Odeh is the person who has received the

      15   advanced training in explosives.  He is the person who has

      16   been taught about what type and how much of explosives to

      17   carry out an operation, and he is somebody who is an architect

      18   and an engineer.  And the drawing that comes out the back of

      19   that truck, ladies and gentlemen, that's the blast cone.  And

      20   what the diagram reflects is that the plan is to back the

      21   truck up against the embassy to maximize the damage to the

      22   embassy, back the truck up as close to the embassy as

      23   possible.

      24            And remember when I told you that when Odeh gave his

      25   statement, he tap danced with the truth but that in so doing

                                                                    5497

       1   he would reveal his role, and now we have -- we'll get you the

       2   page number -- another enlargement.  Odeh was angry and

       3   disappointed at the performance of the al Qaeda leader Saleh.

       4   Odeh stated that if they couldn't get the pickup truck into

       5   the garage of the embassy, then the occupants of the truck

       6   must die trying.  They should not have left the truck there to

       7   explode and kill so many people.

       8            Odeh stated that nobody, even Bin Laden himself,

       9   could be happy with the results of the bombing.  Odeh stated

      10   that the operation conducted against Khobar was 100 times

      11   better than Nairobi.  Odeh further stated that the position of

      12   the pickup was a mistake, and the back of the truck where the

      13   explosives were held should be facing the embassy.

      14            Odeh stated that if the cab of the pickup was between

      15   the explosives and the embassy, at least 60 percent of the

      16   shock wave would be diverted.  Odeh stated that the errant

      17   shock wave hit the wrong building.  Odeh stated that he

      18   accepts responsibility for the bomb because he is part of the

      19   group and that it was a big mistake and Saleh blundered.  Odeh

      20   again stated that the truck had to back up to the embassy in

      21   order to prevent the cab from acting as a hindrance to the

      22   shock wave, therefore preventing the surrounding buildings

      23   from being pounded.

      24            Odeh is in a room with an FBI agent and with people

      25   from the Kenyan police, and he understands what the plan was

                                                                    5498

       1   supposed to be because it's reflected in a sketch in his

       2   house.  The truck was supposed to back up into the embassy,

       3   and judging by what he believes happened, because of the

       4   incredible number of Kenyans who passed away, who died in that

       5   bombing, he believes that the people who carried out the plan

       6   that he was a part of made a mistake and that the truck must

       7   not have backed up into the embassy and that more Kenyans were

       8   killed than he wanted to be killed.

       9            He's not saying that he is unhappy about the

      10   Americans who were killed, what he is telling the FBI, what he

      11   is telling the FBI is that that was not the plan.  But the FBI

      12   doesn't have this diagram at the time.  Just like I said, when

      13   he gives the statement, the statement is partly true just as

      14   it sits there, and the complete truth comes when you compare

      15   that statement to this diagram.

      16            Now, there has been cross-examination about

      17   pressurization waves and how blast damage goes out at 360

      18   degree angles, and of course that is not reflected in the

      19   diagram.  That's what Agent Sachtleben talked to you about.

      20   That's what Agent West talked to you about.

      21            And what I suggest to you, what Agent Sachtleben

      22   suggests happens when a bomb goes off isn't the point any more

      23   than it's the point about whether or not Bin Laden's views are

      24   Islamically correct.  What matters is what kind of physics the

      25   defendant believes in, and the kind of physics the defendant

                                                                    5499

       1   believes in is contained in that statement and reflected in

       2   that diagram, in that sketch.

       3            He believes that if you back the truck up, just like

       4   it's in the sketch, that the cab of the truck will block the

       5   blast damage and the glass damage won't go away from the

       6   embassy and kill other people near the embassy, that the blast

       7   damage will be directed towards the embassy.  That's what he

       8   believes.

       9            And Agent Sachtleben and Agent West are highly

      10   trained.  They have attended conferences, but they never went

      11   to the Sadeek Camp and they were never trained by Abdel Rahman

      12   in the al Qaeda camps like Odeh was.  Though their physics may

      13   not be right, the fact that he knows or believes what the

      14   physics was supposed to be and what he believes happened tells

      15   you exactly what the plan was supposed to be, the plan that

      16   Odeh participated in.

      17            And when you put it all together, when you put the

      18   sketches, both individually and collectively, and you compare

      19   them to the diagrams, and then you compare them to this tap

      20   dance, ladies and gentlemen, and you think about the letter in

      21   September of 1997, "time, preparation and thinking," and you

      22   think about how this is a man who was trained in al Qaeda, he

      23   swore to follow Islamically correct orders in al Qaeda, he was

      24   part of the East African cell that was the implementers for

      25   Bin Laden in East Africa, that he flies away the night before

                                                                    5500

       1   with the others who carry out the bombing, that he checks into

       2   a hotel using a fake passport, the same one he's going to use

       3   to flee so that somebody knows where he was in Nairobi, and

       4   when you think about how he was even willing to admit a little

       5   bit about those meetings, meetings that tell you a tidbit

       6   about the kinds of conversations they were having, the

       7   possibility of an operation in Kenya at a time when they know

       8   that the number one target is America, you piece all of that

       9   together, ladies and gentlemen, and the only conclusion is

      10   that Odeh's role in this was not to drive the truck, it was

      11   not to throw the flash grenades, he was one of the people who

      12   was going to plan the operation.

      13            And by doing the tap dance, by saying those many

      14   Kenyans shouldn't have died, Odeh is saying exactly what the

      15   plan was supposed to be.  And if you go through the report and

      16   you read it from beginning to end, you will not see in there

      17   once a statement of remorse about the dead Americans.  That's

      18   not what's bothering Odeh.

      19            MR. RICCO:  Your Honor, I'm going to object and I

      20   would like to be heard.  I'll be heard at a break.

      21            THE COURT:  We'll take it up during the mid afternoon

      22   recess.

      23            MR. KARAS:  For your notes, ladies and gentlemen,

      24   this is from page 25 of the report.

      25            What is it that Odeh is talking about?  If you take a

                                                                    5501

       1   look at Government Exhibit 806I, that's the damage that the

       2   cab of the truck was supposed to stop.  The cab of the truck

       3   was supposed to deflect the blast wave, the blast shock, the

       4   blast to make sure that maximum force was applied to the

       5   American Embassy and that the explosive damage would not

       6   extend to the area outside the embassy.  As we know from Agent

       7   Sachtleben and Agent West, actually it goes 360 degrees.  And

       8   when you put a bomb in a crowded city like that, that's what

       9   happens -- hundreds of people die.

      10            So, ladies and gentlemen, what the evidence shows is

      11   that Odeh's role was to be a planner, a technical advisor,

      12   somebody who aided and abetted in the criminal venture, in the

      13   venture, in the operation to bomb the American Embassy.  That

      14   was his role.  And the evidence of his role, as I said, is

      15   reflected in the statements, in his actions, in his flight, in

      16   the fake travel documents, in the September '97 letter, in his

      17   role, his membership in al Qaeda, in those sketches combined

      18   with his statements.  That was the role that Odeh served.

      19            The defendant Al-'Owhali, his role was different.

      20   The evidence of his role comes from his statements to what

      21   eyewitnesses told you they saw and from physical evidence.  As

      22   you know, ladies and gentlemen, Agent Gaudin testified that he

      23   interviewed Al-'Owhali on August 22nd, the day before he

      24   showed Al-'Owhali telephone records and he made Al-'Owhali

      25   aware of this bomb factory and Al-'Owhali had been picked out

                                                                    5502

       1   in an identification lineup.

       2            On August 22, Al-'Owhali tells Agent Gaudin that if

       3   he is allowed to face his enemy, if he is given a guarantee

       4   that he will be sent to the United States to face his real

       5   enemy, which he says is America and not Kenya, then he will

       6   tell everything.

       7            And you heard the testimony about the agreement and

       8   the best efforts and it wasn't enough, and then Al-'Owhali

       9   decided it was enough and he was advised of his rights.  And

      10   in one swoop from beginning to end, as Al-'Owhali requested,

      11   without interruption, he laid it all out.

      12            He laid out the training we talked about.  He laid

      13   out the meeting with Bin Laden where he asked for the mission.

      14   He laid out knowing about the fatwahs being at the ABC News

      15   interview.  He laid outgoing to Yemen to get the passport in

      16   the fake name.  He laid out the video that he made.  He laid

      17   out arriving in Nairobi, meeting up with Harun, going to the

      18   bomb factory, going through pictures and diagrams of the

      19   American Embassy.

      20            He laid out what his role was, what he knew about the

      21   Dar es Salaam bombing in terms of how many people were going

      22   to carry it out, how it was going to be carried out, and then

      23   he laid out what he did.  He got out of the truck that

      24   morning, he threw the flash bangs and then he ran.  He laid

      25   all of that out in one statement in detail.

                                                                    5503

       1            And one of the things that's interesting, ladies and

       2   gentlemen, and it relates to what we talked about this morning

       3   with respect to the conspiracy, Al-'Owhali laid out -- and he

       4   told Agent Gaudin there were some things he wasn't going to

       5   tell Agent Gaudin, but he laid out what it was he did.  And

       6   one of the things about conspiracies that we talked about is

       7   it's two or more people entering into an illegal agreement.

       8            Well, all of the people who were part of the

       9   conspiracy don't have to know one another to be part of the

      10   same conspiracy.  And Al-'Owhali didn't mention Mustafa

      11   Fadhil, the person who was involved in the Dar es Salaam

      12   bombing and who fled in early August 1998, he didn't mention

      13   Swedan, the person who got the bomb trucks in the two cities,

      14   but what he laid out was his role, and he laid it out in

      15   detail.  And he also described the phone calls to Yemen and

      16   going to the M.P. Shah Hospital and trying to get out of

      17   Nairobi before he was caught.

      18            By the way, he laid out the name of the organization

      19   that the video claimed credit for the bombing:  The Army of

      20   Liberating Islamic Holy Lands, very similar to the claims of

      21   responsibility that actually were sent to Islamic Army for the

      22   Liberation of the Holy Lands.

      23            There is other evidence that establishes Al-'Owhali's

      24   guilt and evidence which also corroborates precisely what it

      25   was he told Agent Gaudin.  Mr. Muwaka Mula, who worked at the

                                                                    5504

       1   embassy, who was working at the embassy on the morning of

       2   August 7, he described for you seeing a truck coming towards

       3   the gate of the back embassy and he said that the passenger of

       4   the truck got out.  And he described what he sort of knew as

       5   headphones, it looked like sort of the headphones that were

       6   used at airports, and how he saw Al-'Owhali throw these, what

       7   he described as headphones, which are the flash bangs, towards

       8   the guard.  He saw the truck, and then when he realized

       9   something bad was going to happen, he ran.  But he said that

      10   he saw Al-'Owhali run in the other direction.

      11            And in this courtroom, Mr. Muwaka Mula, from that

      12   witness stand, identified the defendant Al-'Owhali as the

      13   person he saw getting out of the truck, and he told you that

      14   he identified him in an identification parade.

      15            And, ladies and gentlemen, if there's any suggestion

      16   that Mr. Muwaka Mula was coached on where Al-'Owhali was

      17   sitting, remember the testimony of Amina Rashid, the person

      18   what was at 15 Amani, the person who, when asked to identify

      19   Khalfan Khamis Mohamed, she stood up and she looked at you

      20   first, and then she went around the courtroom.  And she stared

      21   for a while over there and she didn't pick anybody out, but

      22   you saw by her reaction when asked, look around the courtroom

      23   and see if you find anybody, her first instinct was to look to

      24   the people closest to her.

      25            Mr. Muwaka Mula described what happened that morning

                                                                    5505

       1   the way Al-'Owhali described it to Agent Gaudin, and he picked

       2   out the defendant Mohamed Al-'Owhali as being the person who

       3   got out of the truck and threw those grenades.

       4            Al-'Owhali checked in to the M.P. Shah Hospital, and

       5   you know that from Government Exhibit 550.  This is a card, a

       6   patient card, a patient receipt, if you will, M.P. Shah

       7   Hospital.  This is found on Al-'Owhali when he is arrested,

       8   and you see on the top there, M.P. Shah Hospital.  And the

       9   bottom you see 7 August, 1998, Khalid Saleh, the alias that

      10   Al-'Owhali was using at the time, the alias that's in that

      11   fake passport he got when he was in Yemen.

      12            And we won't display it, but Government Exhibit 579A

      13   and B are the patient records from the M.P. Shah Hospital, and

      14   the patient records show that Khalid Saleh was treated at M.P.

      15   Shah Hospital, just like Al-'Owhali told Agent Gaudin.

      16            The other thing that Al-'Owhali said was that before

      17   he left M.P. Shah, he realized he still had the bullets and

      18   the keys, the bullets that were supposed to go with the gun

      19   that he was supposed to use to try to get the truck closer to

      20   the embassy and the keys to the back of the truck that, in

      21   case for some reason the detonation device didn't work, he was

      22   supposed to use the keys to open up the back of the truck and

      23   throw the flash bangs in there to detonate the bomb.

      24            And you heard from Mr. Wangi, who was the custodian

      25   at M.P. Shah Hospital, working in the men's room that day, and

                                                                    5506

       1   he's cleaning up above there and he said these things came

       2   down.  And then he said that what he did was he gave them to

       3   the security guard, Opiyo.  And you heard from him, and

       4   Mr. Opiyo identified 559, the bullets, and 558, the keys, the

       5   items that he got from Mr. Wangi on the 8th, just like

       6   Al-'Owhali described.

       7            And then you heard from Agent Casper from the FBI,

       8   and he was the person that did the analysis on the gun slide,

       9   Government Exhibit 838, that was found in the vicinity of the

      10   embassy bombing.  And Agent Sachtleben testified before you

      11   and he described for you how he could tell that that slide had

      12   been near the bomb itself because of the damage and how half

      13   the slide had been ripped off.

      14            And what Agent Casper told you is that first he was

      15   able to determine that that mangled slide was from a Baretta

      16   1934.  Then what he did was he compared it to a picture he

      17   had, 839-P, and then what he did was he looked at these

      18   bullets, Government Exhibit 559, and what he said was that

      19   these bullets were probably not originally made for the .9

      20   millimeter that was the Baretta, but that they had been

      21   shaved, they had been altered to fit a .9 millimeter.  So the

      22   bullets that Al-'Owhali had that he left at the M.P. Shah

      23   Hospital were altered to fit the gun that matches the slide

      24   that was found in the vicinity of the embassy.

      25            You saw, we went through this morning, the summary

                                                                    5507

       1   charts for the phone records reflecting the calls both from 43

       2   Runda Estates, the bomb factory that Al-'Owhali talked about,

       3   the calls to his cohort in Yemen, and then the calls from some

       4   of the other pay phones in the vicinity of the Ramada Hotel

       5   afterwards, when Al-'Owhali was trying to escape and trying to

       6   flee because he doesn't have his passport and his money.  And

       7   then we also took a look at the summary chart that showed that

       8   at the same time the satellite phone in Afghanistan is calling

       9   the same number in Yemen, that the al Qaeda headquarters is

      10   trying to rescue Al-'Owhali, trying to extract him from Kenya

      11   and get him to Afghanistan before he is caught.

      12            The other person you heard from was Ismail Ali, and

      13   he's the person that ran, and runs, the money exchange place

      14   known as Dihab Shil.  And you saw Government Exhibit 580-15

      15   and then 580-117 -- excuse me, 115 and 117.  And this was the

      16   ledger, and there was much to do over the Whiteout and

      17   everything else.

      18            And then what you saw was Government Exhibit 580A,

      19   and you see, by the way, exactly what Al-'Owhali described.

      20   On the 11th of August, there's a wire transfer of $1,000 from

      21   Yemen.  The instructions are that the person who is supposed

      22   to pick up the money doesn't have I.D., which you know.  And

      23   there you see the receipt, the payment receipt.  You see on

      24   the right, 11/8/98, Khalid Salim Bin Rashid, $1,000, at the

      25   Dahab Shil office.  And there was the receipt that you heard

                                                                    5508

       1   Ismail Ali testify to you about.

       2            Finally, ladies and gentlemen, there's the clothes

       3   that Al-'Owhali had.  Government Exhibits 552 to 556, the

       4   clothes he had when he was arrested on the 12th of August.

       5   They testified positive.  And you take a look at Government

       6   Exhibit 572, PETN and TNT.  PETN and TNT.

       7            Khalfan Khamis Mohamed, what's the evidence of his

       8   involvement in the Dar es Salaam bombing?  And now we're

       9   talking about Dar es Salaam.  The evidence comes from his

      10   statement to Agent Perkins, by witnesses who put him in places

      11   like the bomb factory and buying other or participating in

      12   other activities of a part of the plot and physical evidence.

      13            First, with respect to the statements, again, Khalfan

      14   Khamis Mohamed was advised of his rights, and what he said was

      15   there was no point in not telling the FBI, no point in not

      16   talking to them because from his perspective, since the FBI

      17   found them, they already knew everything.

      18            And you remember Agent Perkins said that twice when

      19   asked, "Where do you want to go?,"  Khalfan Khamis Mohamed

      20   said, "Take me to America.  Take me to America."  And he said

      21   that he wanted to make the point that he was not part of a

      22   bunch of crazy people who were wielding guns for no reason,

      23   that there was a purpose to what it is that they were doing.

      24   And he, too, gave a detailed explanation of what it was that

      25   he did.

                                                                    5509

       1            He talked about the training.  He talked about when

       2   it was he met people like Fahad and Mustafa.  He talked about

       3   when it was that Mustafa came to him and approached him about

       4   the Jihad job in March of 1998.  He talked about how he bought

       5   the Suzuki was his role, the Suzuki that was used to transport

       6   the components.  How he rented the place at 213 Ilala, and you

       7   remember he signed pictures and copies of the documents that

       8   Agent Perkins showed him.

       9            He described the bomb; it was involving TNT, which

      10   you know is true.  He described, he gave the drawing of the

      11   detonator and the back of the bomb truck which we compared

      12   earlier to the other diagram.  He mentioned that the bomb

      13   included batteries, and we saw the battery casing that Julius

      14   Kisingo talked about, the welder.

      15            He talked about how he and the others loaded the bomb

      16   on the truck.  He talked about how they used that cell phone

      17   that you saw the records of that calls up to the Hilltop, and

      18   there were no calls until after about an hour before the

      19   bombing.  He talked about the roles of the others, Mustafa and

      20   Fahad and Sheik, as he knew him, the person who purchased the

      21   truck.

      22            He talked about how he and Ahmed, the suicide driver,

      23   got the truck out of the sand, how he delivered a package for

      24   Ahmed to Egypt, about how he got a fake visa, a visa in a fake

      25   name.  He talked about a Mr. Nico.  Remember there was a card

                                                                    5510

       1   he had on him that was somebody he could go to if he needed

       2   fake travel documents.

       3            And he mentioned that he was happy that the bomb went

       4   off; that the fact that not Americans died was part of the

       5   business and Allah would take care of those who died.  He

       6   mentioned that Abdel Rahman came to wire the bomb with all

       7   confidence; that he got out of Tanzania the day after the

       8   bombing after he made efforts to clean out the bomb factory.

       9            Well, the independent evidence establishes his guilt

      10   and it corroborates precisely what it was that Khalfan Khamis

      11   Mohamed told Agent Perkins.  You know that he lived at 22

      12   Kidigalo Street with Mustafa Fadhil because the next door

      13   neighbor and the landlord told you.  You know that he rented

      14   the bomb factory because Mohamed Selemani, the broker, told

      15   you that.

      16            You know from Ahmed Salum, the brother of Khalfan

      17   Khamis' brother-in-law, that Khalfan Khamis was trying to

      18   discard some of the items from the bomb factory, 213 Ilala,

      19   and that he wanted to have other people come in and rent the

      20   place when they left.  You know from Abdallah Hamisi, Khalfan

      21   Khamis Mohamed's friend, that he got training in Afghanistan;

      22   that it was financed by Bin Laden and it was focussed on

      23   Jihad.  And finally, you heard from Zahran Nassar, Mauldin,

      24   the person whose name Khalfan Khamis Mohamed used in that

      25   passport to get the visa to flee to South Africa.

                                                                    5511

       1            The physical evidence, Government Exhibit 1462, is a

       2   summary chart, and in addition to the other items we talked

       3   about at 15 Amani and 232 Kidugalo and at 213 Ilala, some of

       4   the items that Khalfan Khamis Mohamed had on him in South

       5   Africa tested positive.

       6            If we can go to the next.  Government Exhibit 1015 is

       7   a vaccination card in the name of Zahran Nassar, Mauldin.  And

       8   here's the passport I mentioned to you, Government Exhibit

       9   1018, another fake passport used, and the skull cap,

      10   Government Exhibit 1017, items that tested positive as

      11   reflected on the summary chart, 1462.

      12            That is the evidence, ladies and gentlemen, of the

      13   precise role of the three defendants who were charged with the

      14   respective bombings.  Now what I would like to do is just go

      15   through the counts briefly and lay out for you what some of

      16   the proof is that's unique to those specific counts.

      17            We can break here, your Honor.

      18            THE COURT:  All right, we'll take our mid afternoon

      19   break.

      20            (Jury not present)

      21            THE COURT:  Mr. Ricco, you had an objection?

      22            MR. RICCO:  Yes, your Honor.  I objected reluctantly

      23   because I believe what the government has done in connection

      24   with its argument against Mr. Odeh is that it has pandered to

      25   the patriotism of the Americans and the jury, consciously

                                                                    5512

       1   disregarding the words that were used in the exhibit.

       2            Judge, as the Court is aware, Mr. Odeh is not an

       3   American citizen, and what the government has done with

       4   respect to the evidence against him has totally disregarded

       5   the testimony and the exhibit itself and made an argument to

       6   appeal to them as Americans.  And I will be specific with

       7   respect to that.

       8            Page 25, the exhibit that was in front of the jury --

       9   in fact, it's blown up right here, the Court can probably see

      10   it.

      11            THE COURT:  I can't, but I would like to.

      12            MR. RICCO:  Judge, you can use mine.

      13            THE COURT:  GS6, page?

      14            MR. RICCO:  25.

      15            THE COURT:  Page 25.

      16            MR. RICCO:  That would be, yes, that would be this

      17   exhibit that was displayed prominently before the jury.  And

      18   in this exhibit the government argued twice to the jury that

      19   Mr. Odeh was not concerned that Americans were killed, he was

      20   concerned only with the Kenyans.  And he made that argument

      21   twice.

      22            I objected the second time.  I objected because the

      23   document itself says that, and I quote, "They should not have

      24   left the truck there to explode and kill so many people."

      25   That says nothing about them being American or Kenyan.  Now

                                                                    5513

       1   one --

       2            THE COURT:  But the consequences --

       3            I'm sorry.

       4            MR. RICCO:  Would one would think that's fair

       5   argument from them --

       6            THE COURT:  May I interrupt you for a moment so we

       7   can focus on this?

       8            MR. RICCO:  Yes, your Honor.

       9            THE COURT:  The context is, is it not, that if the

      10   truck had gotten into the embassy, the force of the explosion

      11   would have been to the embassy, which was the focal point for

      12   the Americans; that the consequence of that not occurring was

      13   that there was havoc in the surrounding area, in the

      14   neighborhood buildings and the streets where the Kenyans were.

      15   And so it seems to me that --

      16            MR. RICCO:  Judge, can I --

      17            THE COURT:  Excuse me.

      18            -- "they should not have left the truck there to

      19   explode and kill so many people," if the truck had been in the

      20   embassy, it would have killed many people, but they would have

      21   been different people.  Is that not a fair argument to be made

      22   from this exhibit?

      23            MR. RICCO:  I don't disagree with that, except now

      24   you have to compare that to the trial testimony.  And at page

      25   1748 --

                                                                    5514

       1            THE COURT:  But this is an exhibit in evidence.

       2            MR. RICCO:  Your Honor, what I am suggesting to the

       3   Court is that what the government has done is disregarded the

       4   trial testimony to make that argument in front of the jury

       5   intentionally, because the trial testimony says as follows:

       6            "Did he ever indicate that he was concerned or upset

       7   that Americans in the embassy had been killed?"  Which was the

       8   argument made.  And the witness Anticev said at page 1747,

       9   "No."

      10            That was the last question asked on his direct

      11   testimony.

      12            The first question asked on cross-examination was:

      13   "Q.  Mr. Fitzgerald just asked you a question as to whether or not he expressed any concern that Americans were killed.  Isn't it a fact that Mr. Odeh didn't make any distinction between Americans or Kenyans?  He was upset that people were killed;
      14   that correct?

      15   "A.  I don't know what he was thinking when he made that

      16   statement.

      17   "Q.  Made what statement?  That he was concerned that many

      18   people were killed?

      19   "A.  I truly believe that he was concerned that people were

      20   killed, innocent people were killed.

      21   "Q.  So my question is a simple question:  He never made a

      22   distinction to you that he was concerned because they were

      23   only Kenyans and not Americans, did he?  That was never said

      24   by him, was it?

      25   "A.  No.  He never specifically said that he broke it down,

                                                                    5515

       1   that I'm upset Americans are killed and Americans are or are

       2   not."

       3            And the government made just the opposite argument to

       4   the jury.  They did it here this afternoon.  They said it

       5   twice, in the face of the testimony to the contrary.  And

       6   because of that, I ask for a mistrial on behalf of Mr. Odeh

       7   and, if not, I ask for an instruction from the Court that is

       8   the testimony in this case that controls and not the argument

       9   of the government about that testimony.

      10            THE COURT:  Well, the last point is true, certainly,

      11   without having any question that it's the --

      12            MR. RICCO:  And the government also said that

      13   Mr. Odeh made that statement, that Americans were killed

      14   without any remorse, and that's nowhere to be found in the

      15   record.

      16            MR. KARAS:  Your Honor, the charge is that the

      17   defendant sought to kill Americans, so there can't be any

      18   pandering to the jury that the evidence shows that the

      19   defendant tried to kill Americans.

      20            The statement that Mohamed Odeh makes here about why

      21   he thinks the bomb went off, it may or may not be that Agent

      22   Anticev didn't think that Odeh distinguished between Americans

      23   or non-Americans in that statement, but elsewhere in the

      24   report, which is in evidence as Government Exhibit 6, Odeh was

      25   asked a series of hypothetical questions and one of the

                                                                    5516

       1   hypothetical questions he was asked is whether or not he could

       2   participate in an operation against the U.S. building in

       3   Kenyans if no Kenyans could be killed, and he said no, because

       4   he likes Kenyans and Kenya.  Odeh was then asked if he would

       5   participate in an operation to bomb a U.S. building outside of

       6   Kenya in a place such as Tanzania if only Americans were

       7   killed.  He stated would consider it if Islamically correct.

       8            So elsewhere in the statement, your Honor, and I

       9   think this is argument, Odeh is willing to make a distinction

      10   between where it is he might carry an operation out against

      11   Americans and where it is he might not.  And he seems much

      12   more willing to do it not because Americans may or may not get

      13   killed, but because of who else might be killed in the

      14   operation.

      15            And what we argue is that in combination with the

      16   statement that Mr. Ricco just focused on combined with the

      17   diagram expresses how it is that Odeh wanted the operation to

      18   be carried out.

      19            THE COURT:  The objection is denied.  The motion for

      20   a mistrial is denied.

      21            I'm debating whether it would be helpful to remind

      22   the jury that when they deliberate they will have physically a

      23   copy of the indictment and of the charge and a verdict form.

      24   I am concerned that when you start getting into 180 counts, I

      25   think I will remind them of that so that we don't have anyone

                                                                    5517

       1   writing down the names of all of the victims.

       2            We'll take a five-minute recess.

       3            (Recess)

       4

       5            (Continued on next page)

       6

       7

       8

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25

                                                                    5518

       1            THE COURT:  Mr. Ruhnke, I take it that your letter

       2   with respect to Brady and possible later phase of this case

       3   should await a response from the government.

       4            MR. RUHNKE:  I should think the government would want

       5   to respond, your Honor.

       6            MR. GARCIA:  Yes, your Honor.

       7            MR. COHN:  Your Honor, the record should reflect that

       8   we join in that.

       9            THE COURT:  Mr. Garcia, when can I expect a response

      10   from the government?

      11            MR. GARCIA:  Friday?  Thank you.

      12            THE COURT:  I am told there is a juror on the

      13   telephone and they will be a moment or two.

      14            (Jury present)

      15            THE COURT:  Ladies and gentlemen, I want to remind

      16   you that when you begin your deliberations, throughout your

      17   deliberations, you will have with you three documents.  You

      18   will have with you a copy of the indictment.  You will have a

      19   copy of the court's instructions.  You will have that orally

      20   but you will also have it in writing.  And you will also have

      21   a verdict form which will tell you exactly what questions you

      22   have to answer.  So that there are a great many counts and a

      23   great many issues, but understand that you will have those

      24   guides during your deliberations.

      25            MR. KARAS:  We left off, we were about to get into

                                                                    5519

       1   the actual counts themselves in the indictment.  What you will

       2   see is that the counts are similar in terms of what crimes

       3   they charge.  There is one charge that may relate to the

       4   Nairobi bombing and then the equivalent charge that relates to

       5   the Dar es Salaam bombing.  For example, Counts 5 and 6 charge

       6   the defendants Odeh and Al-'Owhali in connection with the

       7   Nairobi bombing of using an explosive to damage or destroy a

       8   US government building, and then Count 6 charges the defendant

       9   Khalfan Khamis Mohamed with the same conduct in connection

      10   with the Dar es Salaam bombing.  The elements of that crime

      11   are the use of an explosive, and we have talked about that,

      12   and then whether or not the subject, the target of the attack

      13   was a US government facility.  Government's Exhibit 41 is a

      14   stipulation that relates to Government's Exhibit 713, which is

      15   the lease to the United States government for the property in

      16   Nairobi.  And Government's Exhibit 57 is a stipulation that

      17   relates to the lease for the Dar es Salaam embassy,

      18   Government's Exhibit 1106.  So the evidence is that each of

      19   the embassies was property of the United States.

      20            Counts 7 and 8 deal with the use of a weapon of mass

      21   destruction against United States nationals.  Count 7 deals

      22   with Nairobi and Count 8 deals with Dar es Salaam.  The issue

      23   there is the use of a weapon of mass destruction, and Judge

      24   Sand will give you an instruction that defines what that term

      25   means, but it basically means a bomb.  Again, the count

                                                                    5520

       1   involves either US nationals or US property.  There is a

       2   stipulation that we read to you and that we will discuss a

       3   little bit more about the nationality of some of the victims,

       4   and of course the leases that we mentioned earlier.

       5            Counts 9 through 232 are the individual murder

       6   counts.  They reflect the murder of each victim.  Counts 9 to

       7   221 are the murder victims in Nairobi, and Counts 222 to 232

       8   are the murder counts in Dar es Salaam.  So there, the

       9   government is required to prove beyond a reasonable doubt that

      10   each defendant charged killed a victim as charged, and that

      11   the victim was killed during the course of an attack on

      12   federal property, and of course that the defendant acted

      13   intentionally and so forth.

      14            The victims for the Nairobi bombing and the cause of

      15   death is discussed in Government's Exhibit 39, which is the

      16   stipulation that lists all the victims in Nairobi, and you

      17   will see that that list tracks each count in the indictment,

      18   and the stipulation is that the cause of death was as a result

      19   of the attack on the embassy in Nairobi.  So each one of those

      20   counts is proven up by the stipulation.  And there is a

      21   stipulation that reflects the 11 victims in Dar es Salaam,

      22   Government's Exhibit 54.

      23            Counts 233 through 273 charge, again, individual

      24   murder counts for each of the US government employees that

      25   were killed in Nairobi, and there the stipulation is

                                                                    5521

       1   Government's Exhibit 42, which lists the US government

       2   employees that were killed as a result of the attack in

       3   Nairobi, and the stipulation for the employees that were

       4   killed in Dar es Salaam, which are Counts 275 and 276, that

       5   stipulation is marked as Government's Exhibit 55.

       6            Throughout these counts the government must prove

       7   beyond a reasonable doubt that the defendants acted

       8   intentionally and unlawfully, and sometimes there is a

       9   separate requirement that there be proof that the defendants

      10   acted out of premeditation.  I submit to you that the evidence

      11   does show premeditation in connection with all the murders in

      12   Nairobi and Dar es Salaam.

      13            Count 274 charges attempted murder of US government

      14   employees in Nairobi.  Count 277 charges attempted murder of

      15   US government employees in Dar es Salaam.  The same evidence

      16   that shows that each of the defendants charged respectively

      17   with the two different bombings, that they bombed the

      18   embassies in Nairobi in the case of Odeh and Al-'Owhali and

      19   Dar es Salaam in the case of Khalfan Khamis Mohamed, was an

      20   attempt to murder the employees who worked at the US

      21   embassies.  We talked a little bit earlier about what

      22   Al-'Owhali and Khalfan Khamis Mohamed said in their statements

      23   in connection with what they felt the reasons and their

      24   obligations were regarding United States government employees.

      25            Counts 278 and 279 charge the defendants Odeh and

                                                                    5522

       1   Al-'Owhali with murder of internationally protected persons.

       2   There is a stipulation that lists the victims who are

       3   internationally protected persons.  That is something that is

       4   defined by both the applicable statutes and treaties, and that

       5   is Government's Exhibit 40, which lists the persons who were

       6   internationally protected persons that were killed of the

       7   bombing in Nairobi.

       8            Count 280 charges Khalfan Khamis Mohamed with the

       9   attempted murder -- excuse me.  Count 280 is the attempted

      10   murder of internationally protected persons in Nairobi and 281

      11   is the murder of internationally protected persons in Dar es

      12   Salaam.  Among the people who are internationally protected

      13   persons are ambassadors, for example, and there are other

      14   ranking diplomats.

      15            Count 282 charges the defendants Odeh, Al-'Owhali and

      16   Khalfan Khamis Mohamed with the use and carrying of an

      17   explosive, and what it specifically charges is the use and

      18   carrying of an explosive in connection with Count 1, the

      19   conspiracy to carry nationals, in furtherance of another

      20   violent felony, and the violent felony referenced in 282 is

      21   the first count that I mentioned, the conspiracy to murder US

      22   nationals.  The violence charged in that conspiracy count is

      23   the conspiracy to murder United States nationals.  The

      24   explosive, of course, is the bomb that was used in connection

      25   with each of the bombings in Nairobi and Dar es Salaam.

                                                                    5523

       1            Count 283 charges the use and carrying of a

       2   destructive device in connection with the Nairobi bombing.  So

       3   that includes the defendants Odeh and Al-'Owhali.  Count 284

       4   charges the same, use and carrying of a destructive device in

       5   connection with the Dar es Salaam bombing.  In this case, what

       6   these relate to is Count 283.  Because it relates only to the

       7   Nairobi bombing it incorporates Count 5, which is the bombing

       8   of the embassy in Nairobi.  That is the charge that is

       9   contained in Count 5.

      10            Count 284 charges Khalfan Khamis Mohamed with using

      11   and carrying a destructive device, a bomb, in connection with

      12   Count 6, which is the bombing of the American Embassy in Dar

      13   es Salaam.  As Judge Sand mentioned, you will have the

      14   indictment and you will see that in order to find each of the

      15   defendants guilty of those two charges you would first have to

      16   find the defendants guilty of participating in the bombing as

      17   charged in Count 5 with respect to Nairobi and Count 6 with

      18   respect to Dar es Salaam.

      19            Lastly, ladies and gentlemen, we get to the perjury

      20   counts.  The perjury counts go from 285 to Count 302.  There

      21   the government must prove beyond a reasonable doubt first that

      22   the defendant was under oath, and in this Government's Exhibit

      23   189 is a stipulation that Wadih El Hage was under oath when he

      24   testified in the grand jury in both 1997 and 1998; second,

      25   that the testimony was false as set forth in the indictment,

                                                                    5524

       1   and we will go through that in a moment; third, the matters to

       2   which the testimony was false was material to the grand jury's

       3   investigation, and we will talk about that as well; and that

       4   the false testimony was given knowingly and intentionally,

       5   that is, that it was not a mistake.

       6            With respect to materiality, there is a stipulation,

       7   Government's Exhibit 172, that describes for you in detail,

       8   and I invite you to look at it during your deliberations, as

       9   to what the grand jury was focused on in the investigation.  I

      10   will give you some of the things that are described in that

      11   stipulation:  That as of September 1997, the grand jury's

      12   investigation was focused on, among other things, the

      13   structure and operational status of Al Qaeda, the targets of

      14   Al Qaeda's terrorist activities, including American interests,

      15   the relationship between Wadih El Hage and others in the Al

      16   Qaeda organization, including Usama Bin Laden, Abu Ubaidah al

      17   Banshiri and Abu Hafs; the nature and timing of various

      18   statements made by Usama Bin Laden, both public and private;

      19   the identities and code names, aliases and whereabouts of Al

      20   Qaeda members and associates; the nature and extent of Wadih

      21   El Hage's contacts with Bin Laden, Khalid al Fawwaz, Ali

      22   Mohamed and Abu Ubaidah; the role played by Usama Bin Laden

      23   and the role of associates in Al Qaeda in 1993; the nature of

      24   the work conducted by Fazhul Abdallah Mohamed -- that's

      25   Harun's real name -- Ali Mohamed Khalid al Fawwaz or Usama Bin

                                                                    5525

       1   Laden, as well as the identities of the persons with whom

       2   Wadih El Hage met during trips to Afghanistan and Pakistan in

       3   1997.

       4            There is a separate listing for what it was that was

       5   material to the grand jury's investigation as to additional

       6   items that the grand jury was focused on in the time of 1997,

       7   and this includes, for example, the February 1998 fatwah

       8   issued by Bin Laden, subsequent television threats issued by

       9   Bin Laden in 1998, the bombings in Dar es Salaam and in

      10   Nairobi on August 7, the meaning of certain documents

      11   recovered in searches conducted in Nairobi in August 1998, and

      12   then there is a listing of some of the particular individuals,

      13   using Nawawi, known as Ali Sulieman, Ihab Ali, the nature of

      14   the relationship between Wadih El Hage and Mohamed Odeh, the

      15   relationship between Wadih El Hage and Khalid al Fawwaz, the

      16   relationship between Wadih El Hage and Fazul Abdallah Mohamed.

      17            What I am going to do, ladies and gentlemen, we are

      18   going to go through these counts not in numerical order but in

      19   the order of the subjects that they occur.  Counts 285 and

      20   291 -- 285 deals with 1997 and Count 291 deals with 1998

      21   regarding Wadih El Hage's relationship with Bin Laden.  For

      22   example, 285 charges that on September 24, 1997, Wadih El

      23   Hage, having taken an oath to testify, made false material

      24   declarations and then gave the following underlined testimony.

      25   This is an enlargement of how the indictment reads.  Each one

                                                                    5526

       1   of these letters here in parentheses is a specification of

       2   what it is that is alleged to be false, what it is that Wadih

       3   El Hage is alleged to have lied about, intentionally.  You can

       4   see, for example, D, did you get any messages from Usama Bin

       5   Laden on either trip when you went back to Pakistan in 1997,

       6   and the underlying answer is what you focus on in determining

       7   whether or not the answer is false and whether or not Wadih El

       8   Hage lied as is alleged in the indictment.

       9            What I will do is, Count 285 -- I realize that not

      10   all of you can see this at once.  I will go through them and

      11   then we will go through the evidence, and we have on the

      12   screen what we will display for you is just for exhibition

      13   purposes only, the exhibits that are in evidence that

      14   establish how it is that the government has proved beyond a

      15   reasonable doubt that El Hage lied in connection with this

      16   count.

      17            Count 285 -- I will put 291 down here, and I will

      18   read it out and we will talk about it.  Count 285, which is

      19   the testimony on September 2, the question is when is the last

      20   time you saw Usama Bin Laden in person?  Answer, 1994.  Then

      21   question, under oath your testimony is that you have not seen

      22   Usama Bin Laden in 1995, 1996 or 1997, is that correct?

      23   Answer, yes.

      24            Then if you go down to specification D.  Did you get

      25   any messages from Usama Bin Laden on either trip when you went

                                                                    5527

       1   back to Pakistan in 1997?  Answer, no, no messages.  Question,

       2   regarding 1994, that is the last time you have seen him?

       3   Answer, yes.  Then you see specification number 6:  I haven't

       4   seen him anywhere after I left Sudan -- referring to Bin

       5   Laden.  And then you see down in specification G, and you have

       6   not told anyone that you have seen Usama Bin Laden anywhere in

       7   the world in 1995, 1996 or 1997?  Answer, yes.

       8            There are similar answers that are given in Count 291

       9   relating to the last time as to when it is that Wadih El Hage

      10   saw Usama Bin Laden.

      11            How is it that you know beyond a reasonable doubt

      12   that those answers were intentionally false?  If you take a

      13   look at Government's Exhibit 210A-T, this is a conversation,

      14   an intercepted conversation on February 4, 1997 -- 210A-T?  If

      15   we go to the third page and if we go about halfway down, this

      16   is a telephone conversation involving Wadih El Hage and Harun,

      17   and El Hage says yeah, the telephone you gave me the other day

      18   is always closed.  I get recorded messages that says it is off

      19   now.  And Harun says until now I got tired, I tried but it

      20   would not.  And El Hage says anyhow in case they call, in case

      21   they call me tell them this, the Executive House, that's it,

      22   and then he gives you a number.

      23            We reviewed this a little bit earlier and showed you

      24   Government's Exhibit 646, which was the document from the

      25   hotel, the Executive Guesthouse that showed that that was in

                                                                    5528

       1   Peshawar.  We looked at the map.  Peshawar is the border town

       2   in Pakistan.  The telephone you gave me is always closed.  You

       3   may remember the records for the satellite phone show no calls

       4   for this time period.  So Usama El Hage is trying to get hold

       5   of Bin Laden and he is trying to make sure that Harun gets a

       6   message back to Bin Laden, and this is during the February

       7   1997 trip, of course.

       8            If you go to Government's Exhibit 211A-T, about two

       9   thirds of the way down on page 2, this is a conversation on

      10   February 7, and this is Harun talking to Mustafa Fadhl, and

      11   Harun says, about a few days ago your friend over there had

      12   called, the big one.  He said your friend had arrived.  He is

      13   with me now.  Mustafa says yeah, whatever God intends.  Then

      14   Harun says yes, yes, he called especially for that purpose.

      15   He said don't worry and I didn't take him from the hotel.  So

      16   this is Harun talking again about El Hage's trip in Pakistan

      17   in February 1997.

      18            Then you see the documents that show exactly what it

      19   is that El Hage did when he went to Pakistan in February 1997,

      20   and the first evidence of that is Government's Exhibit

      21   310-74AT, and this is one of the documents found on one of the

      22   disks that Agent Coleman seized from El Hage's house in August

      23   1997.  You see in the very first paragraph when Abdel Sabbour

      24   arrived on 22/2/1997, he contacted Khaled directly and asked

      25   him to come to Nairobi.  When he arrived and met with Abdel

                                                                    5529

       1   Sabbour, he informed him about the status of the young men and

       2   the Hajj and that they were fine and he received from him the

       3   trusts, and he informed him also that the Hajj has a new

       4   policy pertaining to the region.  Abdel Sabbour is Wadih El

       5   Hage.  We know he got back in February 1997.  We saw the

       6   stamps in his passport.  And you see the document labeled top

       7   secret, for Al Qaeda only, describes a meeting between Abdel

       8   Sabbour, Wadih El Hage and Bin Laden, known as the Hajj, and

       9   that Bin Laden gave Wadih El Hage the new policy that we saw

      10   this document and other documents describe.

      11            Then in Government's Exhibit 632B, this is a letter

      12   from Wadih El Hage to Abu Khadija.  You remember this is the

      13   Abu Khadija in Germany, not the other one.  El Hage says I

      14   went to visit Hajj and he sends his regards, the people that

      15   work with him send their regards.  As a matter of fact, their

      16   situation over there is very good.  They are very good on the

      17   contrary of what we read or hear in the newspapers and

      18   magazines.  The owners of the land are cooperating with them

      19   and they welcome them.  I shall send a report about the latest

      20   situation in the few days, God willing.  The report he is

      21   talking about is the report regarding the Taliban that was

      22   issued under the name of Abu Hafs.  Government's Exhibit

      23   310-BT is a document pulled from El Hage's computer.  That is

      24   the document that has Abu Hafs, the military commander, the

      25   chief lieutenant, and Government's Exhibit 245-T, which is a

                                                                    5530

       1   translation of the report without Abu Hafs at the bottom.

       2   That is the report that Wadih El Hage refers that he is

       3   sending to Abu Khadija.  Remember, this is the same Abu

       4   Khadija that speaks to Harun in August 1997 about being scared

       5   about Abu al-Fadl al Makkee cooperating with the Americans.

       6   So El Hage is talking with another person about his trip to

       7   see Bin Laden, that the landowners, the Taliban are treating

       8   them very well, them being Bin Laden and the other members of

       9   the high and wise command, and he will send a report which you

      10   know comes from Abu Hafs.

      11            Government's Exhibit 615A-C is a fax on February 26,

      12   1997, and this is from Ihab Ali, Nawawi.  I have here

      13   Government's Exhibit 4, I think it is 11 or 12.  This is Ihab

      14   Ali.  Ihab Ali writes, if we highlight that after the first

      15   asterisk there, in reply to the DR's request, please inform

      16   him that I am always ready to help out, however, and then he

      17   goes on down, and he says I'd like to know what would be

      18   expected of me immediately after graduation, please let him

      19   tell you, in parentheses, in detail if possible, in a letter

      20   and you can thus send it to me.  Please understand, I cannot

      21   overstress this enough.  I must have continuous hands-on

      22   experience.  February 26, 1997 is right after El Hage gets

      23   back from his trip to Pakistan and the DR is a reference to

      24   Bin Laden, the director.  What Ihab Ali is saying is that he

      25   is happy to do what he is asked but he has some conditions.

                                                                    5531

       1            He goes on to say on the next page, at any rate, I'm

       2   glad to hear that the DR, director, is doing well and secure,

       3   please give him my Salaam, as well as everyone far and near.

       4   PS.  Is there any way you can find out, and he goes on to

       5   describe about somebody else.  Then what he says is, please be

       6   advised, he is talking about a trip, and I will be waiting

       7   your slash director's supply before then.  You see subsequent

       8   communication between El Hage and Nawawi, where they are

       9   talking about Nawawi's concern about how the DR is doing in

      10   light of what the Americans are doing with respect to Bin

      11   Laden.

      12            Government's Exhibit 219A-T.  That is a conversation,

      13   July 15, 1997.  Wadih El Hage is getting ready to go on his

      14   next trip to see Bin Laden, and on the fourth page, this is El

      15   Hage talking to an unidentified male, the UM there.  El Hage

      16   is talking about, down towards the bottom -- above that, all

      17   of them are sitting before me, it's the story time, and down

      18   the third line from the bottom, El Hage says listen, I will be

      19   going to see El Hage after two days.  The unidentified male

      20   says really?  El Hage says yes, with God's will.

      21            What is instructive about this conversation, Wadih El

      22   Hage changes the topic of the conversation.  He says I'm going

      23   to say al Hajj.  The unidentified male doesn't say who?  Who's

      24   al Hajj.  He says really?  El Hage says yes, with God's will.

      25   The next half, the unidentified male knows exactly what he is

                                                                    5532

       1   talking about.  Well, are you going to stay long or what?  Al

       2   Hajj, H-A-J-J, is a reference to Bin Laden that you see

       3   repeatedly, both from Wadih El Hage and others working around

       4   Wadih El Hage.  That is one of the names that the group uses

       5   to call Bin Laden.  A good example of that, at the bottom of

       6   page 3 of Government's Exhibit 300A-T.  This is, for lack of a

       7   better phrase, the Harun report, where he is talking about the

       8   security situation in the group.  Down at the bottom of that

       9   page, this is where Harun is talking about how he didn't burn

      10   the files because he didn't have authority since Wadih El Hage

      11   wasn't around.  He says, we did not burn them since they

      12   belong to engineer Ali Sabbour, who may have a different

      13   opinion.  He arrived to the Hajj and he is on his way to us

      14   and he will probably arrive next week, God willing.

      15            So there you have Wadih El Hage's deputy, Harun, is

      16   communicating to the high and wise command, remember, and he

      17   is explaining why it is they didn't burn the files, because

      18   Wadih El Hage is with the Hajj, Bin Laden.  So clearly when

      19   Wadih El Hage tells the grand jury under owed oath that he did

      20   not have contact with Usama Bin Laden from 1994 to 1997, that

      21   is clearly not true.  It's a lie.

      22            Government's Exhibit 621C-113.  I have made reference

      23   to the telephone records, but just to show you an example,

      24   this is the mobile phone number that we have talked about, the

      25   712, 02219.  This is a page from a bill that discusses

                                                                    5533

       1   international calls made on 20 April 1997, and you see a call

       2   made from the mobile phone that Wadih El Hage uses.  This is

       3   the mobile phone, by the way, that Harun told Mustafa Mohamed

       4   Odeh couldn't use.  Then a number, 682505341.  It says Indy

       5   ship.  You remember that was the Indian Ocean region, and you

       6   have the mobile phone calling the satellite that we have all

       7   talked about.

       8            Government's Exhibit 594 is the calls used by the

       9   satellite.  If you look at the O'Gara records, that is a call

      10   to the company that issued the phone.  The very first

      11   nonUnited States call that is made on the satellite phone is

      12   to 411, Khalid al Fawwaz's number.  If you go three more calls

      13   down, you see the next three numbers are to the 820067 number

      14   in Kenya, which is Wadih El Hage's number at Fedha Estates,

      15   one of the very first calls made from the Bin Laden

      16   headquarters phone to El Hage.  There are additional calls, if

      17   you look at 594-3, a call on January 30, and there is another

      18   call on April 20 which actually lines up with the call we just

      19   looked at from the mobile call back to the satellite phone.

      20            Government's Exhibit, if we could, 358.  This is a

      21   letter that is found in the California home of Ali Mohamed,

      22   and we talked about some of the other documents that were

      23   found off the computer at Ali Mohamed's house.  Here is a

      24   letter written to dear Haydara, which is one of the aliases in

      25   the coconspirator list.  Received your letter and was glad to

                                                                    5534

       1   hear from you.  However, your letter was sent to me here as I

       2   am presently staying in Alexandria.  I have been staying here

       3   during the past two months.  I tried several times to contact

       4   you and only after several letters do I realize that you have

       5   changed address.  At any rate, please give my best regards to

       6   your friend O Sam and his copartner and tell him, Sam, that I

       7   apologize that I couldn't finish what he requested of me --

       8   the letter was explaining, in admittedly bad code, that O Sam,

       9   referring to Abu Hafs, for personal reasons persons he

      10   couldn't do it.  He goes on to say as far as Mr. Wadih, he is

      11   presently staying in Texas.  He filled me in on his

      12   social/business life.  He to told me that after having met

      13   with and finishing a business deal with Mr. Sam and while

      14   returning home he was contacted by one of the opposition

      15   company called, another coded reference here, food and

      16   beverage industry, FBI you can see of course bolded, based in

      17   the US.  He was given an extensive interview.  This interview

      18   was given in East Africa, after which he decided to return

      19   home and settle this Texas.  There was more of a discussion

      20   about how his phone line wasn't working presently.  Nawawi is

      21   talking to Ali Mohamed in this letter, reflecting the fact

      22   that he had been in touch with Wadih El Hage.  There is no

      23   even reference to El Hage here.  There is O Sam and his friend

      24   Abu Hafs, and that is found in, of all places, California.

      25            If you go to the next page, then there is basically a

                                                                    5535

       1   reference to contact numbers, and of course the other thing

       2   about this letter is, it tells you what we talked about

       3   yesterday, that El Hage is making sure people know that the

       4   Americans had come to him.  This message is being passed on

       5   from Ihab Ali to Ali Mohamed.

       6            So that covers, ladies and gentlemen, the Counts 285

       7   and 291.  One thing, by the way, the last specification --

       8   there are a couple of things.  First, there is not only

       9   whether or not El Hage had any contact with Bin Laden but also

      10   whether or not he told anybody that he had contact with Bin

      11   Laden, and he said no, and also whether or not he passed any

      12   messages to Bin Laden, and he said no, and you know from the

      13   new policy that all those answers were lies.

      14            Now we get to -- we are still on the general subject

      15   of Bin Laden, Count 300.  One question:  Have you ever heard

      16   him called the Hajj?  Have you ever heard of Usama Bin Laden

      17   referred to as the Hajj?  Answer, no.

      18            You know that this isn't true because first of all,

      19   ladies and gentlemen, in Government's Exhibit 400 -- this

      20   count covers the testimony in 1998.  If we go back to

      21   Government's Exhibit 400 at page 158, this is Wadih El Hage's

      22   testimony before the grand jury in 1997.  Question, is Usama

      23   Bin Laden sometimes referred to as the Hajj?  Answer,

      24   sometimes.  Then later on, the question, what other names is

      25   he known by besides Usama Bin Laden and the Hajj?  Answer, the

                                                                    5536

       1   big boss.  Which you saw in some of the correspondence and the

       2   phone conversations.  So Wadih El Hage, having forgotten what

       3   he said before, no, I have never heard of him called the Hajj.

       4   So we know from some of the documents and conversations that

       5   we went through, 219A-T, the telephone conversation in July

       6   1997 with the unidentified male, and he says I will be going

       7   to see the Hajj, is a conversation involving Wadih El Hage on

       8   July 13, 1997, and a person by the name of Tawfiq.  On page 3,

       9   Tawfiq asks how many days.  El Hage says by God, it will be a

      10   long trip because I will go to the Hajj first and then he will

      11   send me for another job.  It could have been almost a month.

      12   A month?  Yes, approximately.  There is no confusion about who

      13   it is that Wadih El Hage is talking about, describing the trip

      14   in August 1997 that you know he takes.

      15            Government's Exhibit 300A-T we looked at.  El Hage's

      16   deputy uses the same phrasing, the same code for Bin Laden as

      17   does Wadih El Hage.

      18            Then Government's Exhibit 220A-T, this is another

      19   intercepted telephone conversation, and in this conversation

      20   an unidentified male is asking Harun if he can use the mobile

      21   phone.  Harun says this phone with Wadih is for special phone

      22   calls with Hajj.  Harun says no, you understand, and they go

      23   on.  That lines up with what you know Harun and Mustafa Fadhl

      24   talked about before, about the gem salesman using the phone

      25   because it is reserved for phone calls with the Hajj, and we

                                                                    5537

       1   saw the phone record for April 1997, for example.

       2            The next two counts we are going to talk about are

       3   Counts 286 and 282, and the subject matter of these counts is

       4   contact between Wadih El Hage and Abu Hafs and some of the

       5   aliases that Abu Hafs used.  Count 286, this is 1997 and Count

       6   2 is the 1998 testimony.  A, did you speak with him in 1994,

       7   1995, 1996 or 1997?  Answer, no.  Then there is, did you

       8   communicate with Abu Hafs, listing through 1997, and in 1994,

       9   just before I left Khartoum, and at the bottom, after you left

      10   Khartoum did you ever communicate with Abu Hafs el Masry by

      11   phone, Internet, by mail or by fax?  Answer, no.  Did you see

      12   Abu Hafs when you went back to Pakistan in 197?  No.

      13            Then there is a question about who is Taysir?

      14   Answer, I don't know Taysir.  Turning to 92, there is another

      15   question about Abu Hafs as Taysir.  There is specific

      16   reference to a document that was shown to El Hage.  The

      17   question off the document is, when this letter was written by

      18   Harun to Abu Suliman, he is saying that you have taken a trip

      19   with Taysir.  Answer, I don't know what he is talking about.

      20   Specification C, do you have any idea as you sit here today

      21   who Taysir might be?  Answer, I can't recall.  You have no

      22   idea who Taysir is?  Answer, I have no idea, no.

      23            The thrust of these two counts is whether or not

      24   Wadih El Hage had any contact with Abu Hafs and whether or not

      25   he knows him by some of the other aliases.

                                                                    5538

       1            Kherchtou told you that he saw El Hage and Abu Hafs

       2   together in Kenya twice, and he specifically remembered a trip

       3   that Abu Hafs and El Hage took to Mombasa.  Remember, we

       4   talked about this, that they wouldn't even tell Kherchtou what

       5   the purpose of the trip was.  There was then the story about

       6   how Abu Hafs trusted Kherchtou and El Hage but he wouldn't

       7   trust Abu Mohamed al Amriki.

       8            Government's Exhibit 611-T is a letter, this is a

       9   letter that is found among the files, Wadih El Hage's files in

      10   the MIRA office in Nairobi, Kenya, in 1998.  Dear Mr. Nawawi,

      11   how are you and how is your family?  Hope things are all right

      12   with you all.  There is a discussion about Ramadan.  Then if

      13   you go down to the next half, right at the very top, Taysir

      14   and his friends are still hiking.  They enjoy it very much.

      15   They called me yesterday and greeted us for Ramadan.  They

      16   called from a place they were having a curry meal.

      17            They are talking about a part of the world where the

      18   evidence plainly shows that Bin Laden and Abu Hafs have

      19   reestablished the Al Qaeda headquarters.  Then there is more

      20   of a discussion.  You will see a discussion, and we will come

      21   back to this later, sincerely, Norman.  This document has

      22   Wadih El Hage's fingerprints on it.

      23            Government's Exhibit 632A, if we just take a look at

      24   the original of that first, this is a document, you see the

      25   date February 21, '97, and you see it is a combination of

                                                                    5539

       1   Arabic and English, written at the bottom, I am waiting for

       2   your reply, and it is signed Wadih in English, and the

       3   translation is above turning to the translation, 632A-T, dear

       4   Mr. Abu Suliman, peace be upon you.  I pray you are all well

       5   and doing fine.  We are all fine here.  I was very happy to

       6   receive your last letter.  I arrived yesterday as I was on a

       7   business trip and met with Dr. Atef.  He and his friends say

       8   hello to you.  Harun told me he gave you the telephone number

       9   of the furniture and textile company.  Etc., etc.  We know

      10   Dr. Atef is Abu Hafs.  We reference the conversation with

      11   Wadih El Hage giving the satellite telephone number because

      12   Dr. Atef has moved the clinic and Harun might want to move his

      13   family there.  So there you have what is specifically an

      14   attempted coded reference to Abu Suliman that he was on a

      15   business trip and met with Dr. Atef, and to assure that

      16   Dr. Atef and others in the headquarters in Afghanistan say

      17   hello.

      18            Then you have Government's Exhibit 3B-T, the Taliban

      19   report found on El Hage's computer.  It discusses all the

      20   dynamics of the Taliban in Afghanistan.  On El Hage's computer

      21   you see a document that is signed there your brother Abu Hafs.

      22   Then Government's Exhibit 245-T is a translation of the report

      23   that was sent out that we know from that letter to Abu

      24   Khadija.  You see the report is identical in substance but

      25   there is no Abu Hafs at the bottom, because El Hage wants to

                                                                    5540

       1   make sure if for some reason there is a headache that somebody

       2   may get, nobody can connect him to Abu Hafs or Khadija or

       3   anybody else.

       4            Government's Exhibit 611 is the letter we just read,

       5   and that's the letter that Taysir and his friends are still

       6   hiking.  One of the references to Abu Hafs, we know al Hajj is

       7   Bin Laden.  Then Government's Exhibit 438A, this is an Arabic

       8   letter and 438B is the translation.  What you see in this

       9   letter, and this is from Harun to Ihab Ali, Abu Suliman

      10   Nawawi, and Harun says, there is a greeting and he says at the

      11   bottom of the first page, the fish people are doing all right.

      12   However the project has failed and they are now reorganizing

      13   things to start a new business trip.  So there is a reference

      14   from Harun talking about the fish people in the Al Qaeda cell

      15   in East Africa.  He says Wadih went on a trip, he is with

      16   Taysir, and their situation is very comforting.  They are

      17   doing well and in good health.  They live in their own old

      18   town.  Hyatabad, Kherchtou talked about Hyatabad.  It is in

      19   Pakistan, on the border.  So you have Harun keenly aware where

      20   El Hage is.  He is not going to say the military command of Al

      21   Qaeda, and he says Taysir, and of course Ihab Ali knows who it

      22   is.

      23            Other references, and now we will go to the phone

      24   books and some of the phone records.  El Hage's phone book,

      25   the pop-up phone book, Government's Exhibit 304, page 27 of

                                                                    5541

       1   that.  There is a reference right there.  It will be under

       2   listing T.  Taysir, 272177.  We will see again, looking at the

       3   mobile phone records for the special phone that is supposed to

       4   be used for El Hage -- this is Government Exhibit 621C.  You

       5   see a call from a number in Pakistan, and this is on 3

       6   February 1997, just before El Hage goes on his trip to

       7   Pakistan, and then the 521, the country and city code, 372177,

       8   and you see it says Pakistan.  So looking at just the listing

       9   in El Hage's own address book, when he says I don't know

      10   Taysir, it's impossible to square that with what is in his

      11   address book and the telephone records when he is calling the

      12   person he says is Taysir right before he goes to visit Bin

      13   Laden in February 1997.

      14            The wiretap calls.  Government's Exhibit 205A-T.

      15   This is a conversation that takes place November 12, 1996.  At

      16   the bottom of page 1, Saif al Islam and El Hage speaking to

      17   one another, and Saif al Islam says do you have any news for

      18   me from our brother Taysir?  At the top of the second page, El

      19   Hage doesn't say, as he did in the grand jury, I don't know

      20   Taysir, he says no, by God, it's over three months, Suliman

      21   sent us a fax in which he said everything was good and their

      22   situation was good.

      23            Government's Exhibit 207C-T, and this is a

      24   conversation on December 17, 1996 there is something

      25   important, you can decide it, Saad interrupts and says he is

                                                                    5542

       1   here, and El Hage doesn't say who, he says but the people

       2   concerning the project, the project's money, and they go on to

       3   talk about whatever it is that the project is, and of course

       4   it involves Dr. Atef, one of the aliases, you know, for Abu

       5   Hafs and Taysir.  Then Government's Exhibit 218-T, we won't go

       6   through it again.  There is the conversation with El Hage.

       7   That's the satellite phone.  Government's Exhibit 209A-T, this

       8   is a conversation between April El Hage and Abu Khadija, and

       9   we know that Abu Khadija, as per witness Kherchtou, one of the

      10   aliases for Abu Hafs, and we know that after that conversation

      11   April El Hage, after dialing again and again, tells Wadih El

      12   Hage, Abu Khadija called the other one.

      13            Government's Exhibit 594 shows the call that we just

      14   looked at did originate from the satellite phone.  If you line

      15   up what is on the satellite phone records with what is on that

      16   conversation that is intercepted, you see that call came from

      17   the satellite phone to Bin Laden headquarters phone.

      18            Finally, Government's Exhibit 221A-T, this is a

      19   conversation on September 18, 1997, one week before El Hage

      20   testifies in the grand jury, and the caller says Abu Hafs says

      21   when he is coming here, April Hage says I don't know.  The

      22   unidentified male says you don't know.  And then down at the

      23   bottom, unidentified male, fourth line from the bottom, says

      24   fine, tell him Abu Hafs called you.  April El Hage says OK, if

      25   God willing, Mohamed Atef.  That makes the link between Abu

                                                                    5543

       1   Hafs and Mohamed Atef.

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

       3   day.  Have a good evening.  We are adjourned until 10 a.m.

       4   tomorrow.

       5            (Jury excused)

       6            THE COURT:  Mr. Karas, how are you doing on your

       7   timetable?

       8            MR. KARAS:  Your Honor, we will probably need only

       9   about another hour or so in the morning.

      10            THE COURT:  So you will finish before the mid-morning

      11   break tomorrow?

      12            MR. KARAS:  I believe that is correct.

      13            THE COURT:  So after the mid-morning break we will

      14   have a closing statement on behalf of El Hage, who has

      15   requested three to four hours.

      16            MR. RICCO:  Your Honor, that should take us through

      17   the balance of the day.  Should we be prepared for Monday

      18   morning?

      19            THE COURT:  Balance of the day.  Tomorrow is

      20   Thursday?

      21            MR. RICCO:  Yes.

      22            THE COURT:  Yes.

      23            MR. RICCO:  The only reason I mention it --

      24            THE COURT:  I won't make you start at 4:00.

      25            MR. RICCO:  That's all right, but I had mentioned to

                                                                    5544

       1   you that I had an appointment tomorrow.

       2            THE COURT:  Anything further?

       3            MR. WILFORD:  Your Honor, there were some objections

       4   to Mr. Karas's summation that I wanted to put on the record.

       5            THE COURT:  Haven't the objections and the rulings

       6   been on the record?

       7            MR. WILFORD:  Not these.

       8            THE COURT:  Go ahead.

       9            MR. WILFORD:  We didn't want to interrupt his

      10   summation.

      11            THE COURT:  These are objections that I will be

      12   hearing for the first time?

      13            MR. WILFORD:  Yes.  Your Honor, the first objection

      14   deals with the government's argument, which appeared to almost

      15   be an inverse Pinkerton argument, which they couched in the

      16   state of mind, talking about the existence of the conspiracy,

      17   and Mr. Karas intimated to the jury that existence of the

      18   conspiracy could be proven by the fact that there was in fact

      19   a bombing of the embassy.

      20            THE COURT:  I don't recall that.  Tell me what

      21   portion --

      22            MR. WILFORD:  Yes.  When he was talking, when

      23   Mr. Karas was discussing with the jury Count 1, and he was

      24   talking about the existence of the conspiracy.

      25            THE COURT:  Yes.

                                                                    5545

       1            MR. WILFORD:  It was this morning, during his

       2   presentation during the morning portion of the day's

       3   proceedings.

       4            THE COURT:  He was dealing with Count 1, was he not,

       5   which is the conspiracy?

       6            MR. WILFORD:  Yes, the existence of the conspiracy.

       7            THE COURT:  And you are saying that the fact that

       8   there was a bombing is irrelevant to the existence of the

       9   conspiracy?

      10            MR. WILFORD:  Not irrelevant, that it proved the

      11   existence of the conspiracy.

      12            THE COURT:  You will have to give me -- I don't

      13   recall him ever saying in substance you know that because the

      14   embassy was bombed that there was a conspiracy to bomb, but

      15   that would be a reverse Pinkerton.  If that was said, I must

      16   say I didn't draw that inference.

      17            MR. WILFORD:  I will get the exact page reference to

      18   your Honor.

      19            Additionally, Mr. Karas indicated that association

      20   was a basis for membership.  That was an argument that was

      21   being made.  He said that the intersection of various people

      22   proved the existence of the conspiracy, and the court is going

      23   to charge just the opposite, that mere association does not

      24   prove the conspiracy.  That was an argument that the

      25   government put forth to the jury and I think at the very least

                                                                    5546

       1   we ought to have a curative instruction on that.

       2            THE COURT:  Let's deal with these one at a time.  The

       3   jury will be charged, because it is the fact, that mere

       4   association without participation does not make one a

       5   conspirator.  But that does not mean that association is

       6   irrelevant, and it certainly doesn't mean that association

       7   during periods of time when material which is regarded as

       8   secret and important and to be shared only with fellow members

       9   is not important.  Mere association is not enough, and, as you

      10   know, because you have seen my charge and it is standard

      11   language, the jury will be told that association without more

      12   is not enough.  But certainly it was relevant to the existence

      13   of a conspiracy of who met and what were the topics discussed

      14   when they met and in front of which persons the conversations

      15   took place.

      16            Overruled.

      17            MR. WILFORD:  Your Honor, the other objection is that

      18   the government has constantly during its argument blurred the

      19   lines between Al Qaeda and the conspiracy charged in Count 1.

      20   Count 1 specifically charges Al Qaeda along with other groups

      21   and other people known and unknown contributed to the

      22   conspiracy, and several times Mr. Karas blurred that line and

      23   said the Al Qaeda conspiracy, and seemed to indicate to the

      24   jury that Count 1 was an Al Qaeda conspiracy, and that is

      25   simply not what is charged and that is simply not the case

                                                                    5547

       1   here.

       2            THE COURT:  The indictment says from in and about

       3   1989 until the present a group called itself Al Qaeda --

       4            MR. WILFORD:  That is in the background portion, your

       5   Honor, but specifically in Count 1 it says Al Qaeda along with

       6   other groups.

       7            THE COURT:  Yes, and?

       8            MR. WILFORD:  The argument that seemed to be advanced

       9   by the government was that Al Qaeda was the conspiracy in

      10   Count 1, and that is simply not the case.

      11            THE COURT:  I think the jury was clearly told by the

      12   government that it did not take the position that Al Qaeda and

      13   the conspiracy were coterminus and that membership in Al Qaeda

      14   made you a member of the conspiracy or vice versa.  Again, you

      15   have to show me specific statements that were made.

      16            Mr. Karas, is that something that you said?

      17            MR. KARAS:  Your Honor, I made very clear that

      18   membership by way of bayat was not sufficient to put one in

      19   the conspiracy.

      20            MR. WILFORD:  Your Honor, tomorrow I will have the

      21   transcript and citations to support my position.

      22            THE COURT:  Very well.  Anything else?

      23            Mr. Ricco, do you really not want to make a motion?

      24            MR. RICCO:  Oh.  I'm sorry, your Honor.  At the end

      25   of all the evidence in the case, I don't think any of us

                                                                    5548

       1   made -- your Honor, on behalf of the defendant Odeh we make a

       2   Rule 29 application.  What we ask the court to do is to

       3   readopt the substantive arguments that were advanced in

       4   connection with that Rule 29 that was made at the close of the

       5   government's case and ask the court to adopt those arguments

       6   now at the end of all the evidence.

       7            MR. DRATEL:  Your Honor, we do the same --

       8            THE COURT:  I assume that is on behalf of all the

       9   defendants and it is denied.  The significance of its being

      10   made at this procedural stage will be for someone else to

      11   determine.

      12            Anything else?  We are adjourned until tomorrow

      13   morning.

      14            (Adjourned until 10:00 a.m., Thursday, May 3, 2001)

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