12 March 2001
Source: Digital file from the Court Reporters Office, Southern District of
New York; (212) 805-0300.
This is the transcript of Day 16 of the trial, 12 March 2001.
See other transcripts: http://cryptome.org/usa-v-ubl-dt.htm
2228
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA
4 v. S(7)98CR1023
5 USAMA BIN LADEN, et al.,
6 Defendants.
7 ------------------------------x
8
New York, N.Y.
9 March 12, 2001
9:45 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
2229
1 APPEARANCES
2 MARY JO WHITE
United States Attorney for the
3 Southern District of New York
BY: PATRICK FITZGERALD
4 DAVID KELLEY
KENNETH KARAS
5 PAUL BUTLER
Assistant United States Attorneys
6
7 SAM A. SCHMIDT
JOSHUA DRATEL
8 KRISTIAN K. LARSEN
Attorneys for defendant Wadih El Hage
9
ANTHONY L. RICCO
10 EDWARD D. WILFORD
CARL J. HERMAN
11 SANDRA A. BABCOCK
Attorneys for defendant Mohamed Sadeek Odeh
12
FREDRICK H. COHN
13 DAVID P. BAUGH
LAURA GASIOROWSKI
14 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali
15 DAVID STERN
DAVID RUHNKE
16 Attorneys for defendant Khalfan Khamis Mohamed
17
18 (In open court; jury not present.
19 THE COURT: Good morning. Everybody be seated,
20 please. Are there any matters which should be addressed
21 before bringing in the jury? Any reason not to bring in the
22 in the jury? The witness is here?
23 MR. KARAS: Yes, Judge.
24 THE COURT: All right. Let's bring in the jury.
25 MR. RUHNKE: Your Honor, there is one question we'd
2230
1 like to ask the jury. There was publicity over the weekend
2 about another terrorist trial in the State of Washington and
3 we just ask your Honor if the jury read anything about a trial
4 in Washington or words to that effect. It mentioned Bin Laden
5 and in the interview it says Cole. There was a lot of
6 publicity about it over the weekend. They may not have seen
7 it as being this case.
8 THE COURT: All right.
9 MR. FITZGERALD: Your Honor, for purposes of clarity,
10 that trial is in California because the venue has shifted, but
11 it involves the State of Washington.
12 THE COURT: All right, West Coast.
13 MR. FITZGERALD: West of the Hudson.
14 DONALD SACHTLEBEN, resumed.
15 (Jury present)
16 THE COURT: Good morning, ladies and gentlemen. I
17 hope everybody had a pleasant weekend. Has anybody read or
18 seen anything in the media about this case?
19 I'm advised that there has been some coverage in the
20 media with respect to a case on the West Coast involving
21 alleged terrorists. Has anybody read or seen anything about
22 that?
23 (No response)
24 I would ask if you see the word terrorist or
25 terrorist trial or anything of that sort, regardless of
2231
1 whether it's this case or not, please avoid reading it. There
2 may be a lot of media attention given to matters allegedly
3 related to terrorists besides this case. Please just avoid it
4 all.
5 I want to also remind you that I've asked you not to
6 discuss the case even amongst yourselves.
7 Agent Sachtleben, the Court reminds that you your
8 still under oath. The government may proceed.
9 MR. KARAS: Thank you, your Honor.
10 DIRECT EXAMINATION (continued)
11 BY MR. KARAS:
12 Q. Good morning.
13 A. Good morning.
14 Q. Now, Agent Sachtleben, you recall describing last week the
15 process that was in place for the collection of items from the
16 crime scene near the embassy in Nairobi?
17 A. Yes, sir.
18 Q. Before those pieces were collected and brought back to the
19 United States, did you have a chance to review each piece?
20 A. Yes, sir, I did.
21 MR. KARAS: Your Honor, may I ask that Mr. Sachtleben
22 be allowed to step down?
23 THE COURT: Yes.
24 (Witness left stand)
25 Q. Now, Agent Sachtleben, if you could take a look at the
2232
1 pieces collected here on this middle table and begin with
2 Government Exhibit 830. If you can tell us what that is?
3 A. I recognize this piece here to be a portion of the fence
4 that was a security fence that was around the United States
5 embassy in Nairobi.
6 Q. Could you point on the model that's marked as Government
7 Exhibit 800 where that fence is?
8 A. The security fence on the model is represented by a,
9 they've done it on the model here, it's this clear plastic
10 fence. You can see that the modelmakers have actually drawn
11 some black lines on that clear plastic. The vertical black
12 lines represent these pieces of the fence.
13 Q. And could you describe for us what conclusions you drew
14 from your analysis of that piece?
15 A. Well, when I saw this at the scene in Nairobi or what I
16 recognized, first of all, was that this piece of metal had
17 gone through a significant impact by high explosive charge.
18 Q. What in particular led to you that conclusion?
19 A. Well, first of all, the shape. As you look at this piece,
20 this is a fairly heavy piece of metal, and I recognized again
21 that this is a piece of fence, and I saw that at the, on the
22 security fence in the areas that were not affected by the
23 explosion they were nice and straight.
24 This piece is twisted almost into a corkscrew
25 fashion. Then there is also a number of impact marks here
2233
1 which I recognize to be what I would call high explosive
2 effects.
3 Q. And is that piece damaged on both sides?
4 A. There is some damage on this side of the piece, but mostly
5 what I see on this side of the piece is where the explosive
6 effects have actually gone completely through the piece. So
7 the vast majority of the damage is on this side, which I
8 believe was facing the explosion.
9 Q. Thank you, Agent Sachtleben. If you want to put that
10 piece down.
11 If you could look at the piece that's marked as
12 Government Exhibit 833. Can you tell us what that is?
13 A. This is a portion of a what I would refer to as a bollard
14 or I guess more commonly you think of it as a post. These
15 were part of the security perimeter of the embassy in Nairobi.
16 Q. Again, if you could use the model and point out where
17 those bollard posts were?
18 A. The posts are these little short black pieces of doweling
19 that you see around the perimeter here of the embassy.
20 They're fairly similar to what you see around this courthouse
21 here out on the street. They're just maybe about two or three
22 feet high, made for some fairly heavy metal, and in Nairobi I
23 believe that these were also filled with concrete to make them
24 more resistant to say vehicles being driven up on to the
25 sidewalk around the embassy.
2234
1 Q. What can you tell us about the damage to that piece?
2 A. Well, first thing I noticed was again how it had been
3 almost crushed and flattened. That again tells me that this
4 was hit by a high explosive shock wave. Secondly, I can see
5 the what I would call here the pitting or cratering. I think
6 on Thursday I may have referred to some of the effects from
7 high explosives. The hot gases and the hot particles of
8 unconsumed explosive will strike this at very high rate of
9 speed, and make these impact marks on the metal. There is
10 also some evidence of melting.
11 The temperature that we would typically see from a
12 large quantity of high explosives could be as high as five
13 thousand degrees, and when something like this is very close
14 to that amount of explosives, when they detonate, you can
15 actually get a little bit of this melting along the edges
16 here.
17 Q. Now, with respect to the item marked Government Exhibit
18 838 which I believe is right in front of you there.
19 A. Yes, it is.
20 Q. If you can tell us what that is?
21 A. I recognize this piece to be a fragment, that is a portion
22 of a pistol slide. This is, on a pistol this is the portion
23 that rests along the top and houses the barrel and the
24 chamber.
25 Q. What can you tell us about the damage to that piece?
2235
1 A. Well first of all, it's not intact. That is there should
2 be more to it. So there's almost a half of this pistol slide
3 that's missing. Secondly, it's twisted somewhat like this
4 piece was twisted, and there are a couple of impact marks on
5 it. I would say that this piece had been very close to a very
6 large explosion.
7 MR. KARAS: Your Honor, may we share this piece with
8 the jury?
9 THE COURT: Yes.
10 Q. If you could just hand it up to Juror No. 1 at the end
11 there. Thank you, Agent Sachtleben.
12 Now, the other pieces that are on this table and for
13 the record marked as Government Exhibits 829, 831, 832, and
14 834 through 837, can you just generally tell us what those
15 pieces are?
16 A. Generally what we have on the table here with the
17 exception of one piece which is Government's 831, these are
18 portions of the embassy security fence that are similar to the
19 item that I described previously which is government's 830.
20 Government's 831 would appear to me to be another portion of
21 the bollard posts.
22 Q. Now, Agent Sachtleben, did you also find that there were
23 what appeared to be vehicle parts in the vicinity of the
24 American Embassy?
25 A. Yes, I did.
2236
1 Q. And if you could go to the table to your left there, and
2 if you could begin with Government Exhibit 821. It should be
3 on the left part. Yes. If you could describe that piece for
4 us?
5 A. Government Exhibit 821 here I recognize this to be the
6 portion, a portion of a frame of a truck.
7 Q. What can you tell us about the damage to that piece?
8 A. Well, first of all, this piece is, the frame of a vehicle
9 is one of the strongest parts of a vehicle from my experience,
10 and this piece here is almost completely folded over on
11 itself. There is quite a bit of corkscrewing or twisting of
12 the metal. To me these are all indications that this piece
13 was extremely close to a very large explosion.
14 Q. And with respect to Government Exhibits 816 and 817 if you
15 could tell us about the damage to those pieces and what they
16 are?
17 A. Okay. Government's 816 which is this piece here and
18 Government's 817 which is this piece here I recognize these to
19 be parts of the chassis of a truck and both of these parts
20 have been twisted, torn, pitted. Once again they appear to me
21 that they were in very close contact with a large quantity of
22 explosives that detonated.
23 Q. If you could take a look at Government Exhibit 815 which I
24 think is just to the right of where your hand is now, and if
25 you could tell us what that is?
2237
1 A. Government's 815 is again I recognize this to be
2 consistent with a portion of a frame of a truck and this piece
3 here has some of those same damage that I noticed on the other
4 pieces.
5 Q. Are there any markings on that piece?
6 A. Yes. On this piece I noticed that there was some letters
7 and a number that were stamped into the piece.
8 Q. For the record what is stamped in there?
9 A. I read the letters B as in Bravo, U as in Union, and the
10 number 6.
11 MR. KARAS: Your Honor, if we could have this piece
12 published to the jury as well?
13 THE COURT: Yes.
14 Q. Agent Sachtleben, if you could take a look at Government
15 Exhibits 822 and 823 and tell us what those are?
16 A. Collectively Government Exhibits 822 and 823 I recognize
17 these to be the fragments of a rear axle from a truck.
18 Q. Which piece do you have there in your hand?
19 A. I'm currently holding Government's 822.
20 Q. Now, with respect to Government Exhibit 823, can you tell
21 us about the damage to that piece?
22 A. Government's 823 when I saw this at the scene in Nairobi,
23 what I recognized here was a very directional type of damage.
24 That is, the metal that you see here, this is the axle
25 portion, that is the part that drives the wheels, and there is
2238
1 a housing over it, there is a metal housing that contains like
2 the gears, that is the differential that turns the axle and
3 what you can see here is that the metal has actually been
4 pushed down against this heavy rod here, pushed apart, folded
5 over and in some cases actually partially melted.
6 This would indicate to me that an explosive shock
7 wave had hit this very directly and from a very close
8 distance.
9 Q. From which direction?
10 A. From above.
11 Q. Thank you.
12 Now, with respect to the remaining pieces on that
13 table, and for the record Government Exhibits 818, through
14 820, 824 through 828, if you could just tell us generally what
15 those pieces are?
16 A. The remaining pieces on this table here are portions of a
17 truck. They range from the additional pieces of the chassis
18 such as Government's 824 which I recognize to be a front axle,
19 to portions of the engine of a vehicle.
20 For example, this piece here which is Government's
21 825, this is a crankshaft which is found inside the engine
22 block of a vehicle.
23 Q. And with respect to Government's 826 if you could tell us
24 what that is and what the damage to that piece was?
25 A. Government's 826 is this piece right here. I recognize
2239
1 this piece to be part of the steering assembly of a vehicle.
2 It's commonly referred to as the Pitman arm.
3 Q. And can you tell us about the damage to that piece?
4 A. Well, damage to this piece, first of all, I know that
5 Pitman arms when they're manufactured are generally straight.
6 So that's the first thing is that there is definite twist to
7 this piece. Second thing is that there is explosive damage,
8 that is, that there is extensive cratering and pitting to this
9 one side of the piece here.
10 The other side is largely intact. There is very
11 little damage to this side here, but this side has almost the
12 entire length of it has explosive damage.
13 MR. KARAS: Thank you. If you would want to resume
14 the witness stand.
15 (Witness resumed stand)
16 Q. Agent Sachtleben, did you undertake efforts to determine
17 what identity of the vehicle that goes with the vehicle pieces
18 you just describe?
19 A. Yes, I did.
20 Q. And what did you do?
21 A. Well, in the first instance while we were in Nairobi I
22 contacted representatives of various vehicle manufacturers
23 that were in Nairobi. Basically I went to the service
24 departments of several different vehicle manufacturers and
25 asked them to come take a look at these parts.
2240
1 Q. And what else did you do?
2 A. From talking to the service representatives, a Toyota
3 representative thought that he recognized these as being
4 Toyota parts. So when I got back to the laboratory with these
5 pieces I made contact with Toyota Motor Corporation in Japan.
6 Q. And did you actually meet with Toyota officials in Japan?
7 A. Yes, I did. I went to Nagoya, Japan in 1999, February of
8 1999, and I toured the assembly plant and met with various
9 representatives from Toyota.
10 Q. And did a representative from Toyota come to the
11 laboratory in Washington and review these pieces?
12 A. Yes. On two occasions in both 1999 and 2000 an official
13 from Toyota Motor Corporation, a Mr. Miyage, came to my office
14 to the laboratory and together we went through all of these
15 pieces.
16 Q. Did you go through all of the pieces, all the vehicle
17 pieces seized or just these pieces in particular you talked
18 about?
19 A. Right, yes. I'm glad you pointed that out. We actually
20 went through over six hundred pieces together looking at every
21 piece of metal that we had brought back from the scene in
22 Nairobi.
23 Q. Can you tell us approximately how many of those six
24 hundred pieces that Mr. Miyage reviewed were identified as
25 being Toyota pieces?
2241
1 A. The total number was roughly 50 to 60 pieces that he could
2 say with some degree of certainty came from Toyota. There
3 were quite a few other pieces that appeared to him as being
4 Toyota in origin, but because of the damage to them he really
5 couldn't come up with a definite conclusion as to their
6 manufacturer.
7 MR. KARAS: Now, if we could just show to the witness
8 and to counsel, Government Exhibit 840, please.
9 Q. Agent Sachtleben, I ask you to take a look at the screen
10 there on the left and if you could tell us what that is?
11 A. This is a photograph that I had, that I directed be taken
12 and these pieces here are the pieces that Mr. Miyage
13 identified to me as being from a particular type of Toyota
14 truck.
15 Q. Are some of the pieces that you've testified about earlier
16 today included in that picture?
17 A. Yes, all the pieces that are here on the table are
18 represented in the photograph.
19 MR. KARAS: Your Honor, we offer Government Exhibit
20 840.
21 THE COURT: Received.
22 (Government's Exhibit 840 received in evidence)
23 Q. Now, Agent Sachtleben, based on your surveillance of the
24 vicinity of the embassy and your review of these pieces, did
25 you draw any conclusion about the type of explosive that was
2242
1 used in this bombing?
2 A. Yes. My conclusion was that a very large quantity of high
3 explosives had been detonated in the parking area behind the
4 embassy.
5 Q. And did you draw any conclusions about the identity of the
6 vehicle that was used to deliver that bomb?
7 A. Yes. Based on my observation of the pieces here and my
8 conversations and meetings with the Toyota Motor Corporation I
9 came to the conclusion that it was a Toyota truck that had
10 carried these explosives to the bomb site.
11 Q. And, in particular, the pieces that you testified about
12 earlier today, can you tell us the relationship between those
13 pieces and the bomb delivery vehicle?
14 A. These pieces here, in particular the ones that I held up
15 for the Court, were specifically identified to me as a
16 variant, that is a type of Toyota truck that's known as the
17 Dyna, and a model of Dyna truck, and Dyna is D-Y-N-A, a model
18 of Dyna truck that is known to Toyota as the MDGT variant.
19 Q. And can you tell us what it is about these pieces versus
20 some of the other six hundred that led you to conclude that
21 these pieces were from the bomb delivery vehicle?
22 A. Well, these particular pieces here, these were the pieces
23 that exhibited the most noticeable, the most obvious explosive
24 damage. That is, these pieces in my opinion were very close
25 to, if not immediately touching the explosive charge, to the
2243
1 exclusion of say a vehicle that could have been as close as
2 ten or 15 feet away.
3 Q. Agent Sachtleben, did you have a chance to review where
4 some of these pieces were originally found?
5 A. Yes, I did.
6 Q. And based on your review of those pieces and their origin,
7 did you reach any conclusions about the general orientation of
8 the delivery vehicle when the bomb was detonated?
9 A. Yes, I did.
10 MR. KARAS: If we could display Government Exhibit
11 802C.
12 Q. Now, Agent Sachtleben, the piece that was marked as
13 Government Exhibit 815 that had the BU6 on it, could you tell
14 us what type of piece that is?
15 A. That piece, the piece with the BU6 on it is the part of a
16 frame on a Toyota Dyna that is located in the right front
17 portion of the frame.
18 Q. I believe there is a pen-like object on the screen. If
19 you could make a mark where it was that that piece was found
20 of the right front part of the vehicle?
21 A. Yes, it was located approximately here (marking) which is
22 the Pioneer House.
23 Q. And that appears to be north, northwest of the US Embassy?
24 A. Yes, it is.
25 Q. And roughly northeast of where it is indicated the bomb
2244
1 crater is?
2 A. That's correct.
3 Q. Now, can you tell us about where the two axle pieces were
4 found, Government Exhibits 822 and 823?
5 A. The two axle pieces were located on the other side of the
6 Kenya railway station, roughly 750 or so yards away. That
7 area is not depicted on this diagram, but if I could, I could
8 indicate the direction in which it is.
9 Q. Please.
10 A. (Marking) Pardon my feeble attempt at an arrow there, but
11 that is the going in largely a southeasterly direction away
12 from the embassy and the bomb crater.
13 Q. Those are pieces that belong to the rear axle of the
14 delivery vehicle?
15 A. Yes, that's correct.
16 Q. Now, based on where these pieces were found can you draw
17 for us in the back parking lot the orientation or general
18 sense of where the delivery vehicle was facing when the bomb
19 was detonated?
20 A. All right. I will draw an arrow and the point of the
21 arrow will be the general direction that I believe the front
22 of the truck was facing. So I've drawn an arrow that is
23 pointed in a northwesterly direction.
24 Q. And is your conclusion based on a specific 90 degree angle
25 of the Ufundi House, or is there a margin within which the
2245
1 orientation of the vehicle was situated?
2 MR. BAUGH: Objection, leading.
3 THE COURT: Overruled.
4 A. There is a certainly a range of angle that the, vehicle
5 angle that the vehicle could be facing. I believe that that
6 range of angle forms in effect a cone, if you will.
7 Q. Thank you. No further questions.
8 THE COURT: Mr. Wilford. On behalf of the defendant
9 Odeh.
10 CROSS-EXAMINATION
11 MR. KARAS: Your Honor, if I could just offer as an
12 exhibit what is on the screen now as marked by Agent
13 Sachtleben 802C-D1.
14 THE COURT: Yes, received.
15 MR. KARAS: Thank you, your Honor. (Marked
16 Government Exhibit 802-D.
17 (Government's Exhibit 802-D1 received in evidence)
18 MR. BAUGH: Excuse me. Will the agent's mark also
19 appear permanent on the exhibit that is filed?
20 MR. KARAS: We will print it out.
21 MR. BAUGH: Thank you.
22 MR. WILFORD: May I inquire, your Honor?
23 Q. Yes.
24 BY MR. WILFORD:
25 Q. Good morning, Agent Sachtleben. Am I pronouncing your
2246
1 name correctly?
2 A. Yes, sir.
3 Q. How you doing?
4 A. Very good, thank you.
5 Q. Now, when you conduct an investigation of an bomb crime
6 screen you'd like to have as uncontaminated an area as
7 possible, isn't that correct?
8 A. If we can, but unfortunately the nature of bombing scenes
9 makes that very difficult.
10 Q. But you want to get in as quickly as possible before
11 people move too much stuff around without some direction from
12 you and members of your team, isn't that correct?
13 A. Certainly.
14 Q. For example, when you investigated the Oklahoma City
15 bombing you were there rather quickly, or at least members of
16 your team were there rather quickly, isn't that correct?
17 A. That's correct.
18 Q. And when were you the team leader for the World Trade
19 Center bombing members of your team were there rather quickly,
20 isn't that correct?
21 A. That's correct.
22 Q. When we say rather quickly, we mean within minutes to
23 hours, isn't that correct?
24 A. Hours certainly, yes.
25 Q. Now, with respect to the bombing of the embassy in Kenya
2247
1 you didn't arrive until August 9th; is that correct, at about
2 2:30 in the morning, right?
3 A. That's right.
4 Q. You didn't do anything when you got there 2:30 in the
5 morning in terms of investigating, did you?
6 A. I did not.
7 Q. So you didn't start doing anything until about 7, 8
8 o'clock in the morning, right?
9 A. That's right.
10 Q. So you were already almost two full days time elapsed
11 before you got to commence your particular supervision of any
12 investigation related to the recovery of materials, isn't that
13 correct?
14 A. My supervision, that's correct. Of course there were
15 other people there before me.
16 Q. Well, who was there first?
17 A. Our legal attache, that is the agent who's assigned to the
18 FBI office in South Africa. I believe he arrived on the
19 afternoon of August 7th.
20 Q. But he's not a bomb expert, right?
21 A. I don't know his background. I know that he has had some
22 training in investigation like all FBI agents.
23 Q. I'm sure. But you are an expert in bombs and being able
24 to make determinations with respect to where you recover
25 stuff, isn't that correct?
2248
1 A. That's correct.
2 Q. He doesn't have the same qualifications you do, isn't that
3 correct?
4 A. That's correct.
5 Q. That's why they flew you over to Kenya because you have
6 this expertise, right?
7 A. Yes, sir.
8 Q. So until you got there no one was really conducting the
9 investigation from the same particular perspective of
10 expertise that you have, isn't that correct?
11 A. Perhaps with my depth of knowledge, but there were other
12 FBI personnel that were on the scene who had knowledge of
13 bombing investigations.
14 Q. Well, is it a fact that when you flew over you came over
15 with a whole team of experts?
16 A. I came over actually with a very small crew. The team
17 followed behind me, maybe by about eight hours or so.
18 Q. But all of the experts were being flown in, isn't that
19 correct?
20 A. Yes, for the most part, yes.
21 Q. Is it also true that you couldn't go close to the embassy
22 itself because the rescue and recovery operations were still
23 going on when you arrived and you said I believe on direct
24 that you started on a very far away perimeter and worked your
25 way in, isn't that correct?
2249
1 A. I actually went on to the rubble pile the day I arrived.
2 I looked at that, surveyed it and then directed personnel to
3 other locations.
4 Q. Took pictures of it?
5 A. I did not personally take pictures of it, but photographs
6 were being taken.
7 Q. Were you directing people at that point in terms of the
8 rescue and recovery operation as to perhaps putting rubble
9 that they moved in a particular place or was that not a
10 concern at all?
11 A. My concern was to stay out of their way, let them do their
12 job and be there to observe.
13 Q. Now, when you -- withdrawn. When there is in fact a
14 rescue operation, rescue-recovery operation, as you said, the
15 rubble is just being tossed around, right?
16 A. Yes.
17 Q. And things are being tossed around and there may be some
18 particular items which you would make a conclusion on that had
19 been moved that you didn't particularly find in the place
20 where they were, isn't that a fact?
21 A. That's correct.
22 Q. Now, I want to talk with you for a moment if I might about
23 the explosive device and the placement of it.
24 Is there a parking garage that goes underneath the
25 embassy?
2250
1 A. Yes, there is.
2 Q. And if you wanted to, for lack of a better word, blow up
3 the embassy itself, would you put this truck or bomb delivery
4 vehicle, whatever it may have been, underneath the embassy?
5 Wouldn't that have been optimum effect in terms of
6 blowing up the embassy?
7 A. That's a tough call, because it's going to depend very
8 much on the way the embassy was constructed and whether when
9 you put it in that garage if you put it at a point where it
10 would actually cause the structural supports to collapse. It
11 may or may not.
12 Q. Well, in the World Trade Center case, the bomb was placed
13 under the garage, under the World Trade Center, isn't that
14 correct?
15 A. Actually not under the World Trade Center, the bomb was
16 placed in the garage under the Vista Hotel.
17 Q. And it was an attempt to get under the World Trade Center
18 to effect the structural --
19 MR. KARAS: Objection.
20 THE COURT: Sustained.
21 Q. Sir, in this particular instance in your examination of
22 the embassy, if the bomb had been placed under the embassy
23 would that have any impact on the structure?
24 A. It may have. The embassy was built from extremely sturdy
25 construction and my observation, I'm certainly not an
2251
1 architect or an engineer, but my observation from seeing other
2 bombed-out buildings is that that embassy probably would have
3 withstood a fairly good sized blast without collapsing.
4 Q. When you say a fairly good sized blast one of the
5 magnitude of this one?
6 A. Possibly.
7 Q. But you can't say with any certainty, can you?
8 A. Oh, certainly not. That's just my estimation.
9 Q. Would be fair to say, sir, that if the bomb had actually
10 been placed under the embassy as opposed to on the south end
11 of it that the damage to the embassy itself would have been
12 greater than suffered in this particular damage?
13 A. That's possible. That one is pretty difficult to
14 speculate because, again, it's going to depend on where it
15 exactly is within the building.
16 Q. So you have no way of telling whether or not it would have
17 been greater or not?
18 A. I don't have any magic formula for that one, sir, no.
19 Q. Now, when you went through this recovery process with all
20 the items that are now on the table before the jury, that was
21 done with an intent to try to determine what type of explosive
22 was used, is that correct?
23 A. Not so much the type of explosive, because generically
24 we're just looking to classify it as say a low explosive
25 versus a high explosive, but as to the particular type of
2252
1 explosive, that's almost impossible to do, just from
2 observation.
3 Q. Well, I didn't mean just from observation. You collected
4 these items and in fact sent them back to the FBI lab so some
5 further forensic analysis could be done, isn't that correct?
6 A. But the type of forensic analysis that we did on these
7 pieces was not to identify the type of explosive used.
8 Q. Well, are you aware of whether or not any findings were
9 made as to the type of explosives?
10 A. I am aware that there were findings made to the type of
11 explosive.
12 Q. Sir, could you tell the jury what TNT is?
13 A. TNT is trinitrotoluene. It is a type of high explosive.
14 Q. And what forms does TNT come in?
15 A. TNT is generally manufactured by a casting process. That
16 is raw materials are mixed together, heated up until they're
17 form kind of a liquid slurry, soupy kind of a mixture and then
18 that material can be poured into molds and cast into blocks.
19 Q. Can TNT be ground up?
20 A. Certainly.
21 Q. What happens when it's ground up?
22 A. When it's ground up it becomes more of a powdery granular
23 type of material, but it retains most of its explosive power.
24 Q. That doesn't have the impact inn the manner in which the
25 explosive device will be utilized, does it?
2253
1 A. It could. When you start to grind up material, high
2 explosive, in particular high explosives need a particular
3 density for them to work. If you grind something up and make
4 it into too fine a powder, you can actually decrease the
5 sensitivity of it.
6 Q. And isn't it a fact that when the TNT is ground up that it
7 is dispersed into the air and it can get on clothing and other
8 objects that are in close proximity?
9 A. Certainly.
10 Q. Now, could you tell the jury what PETN is?
11 A. PETN is another type of high explosive. I probably have
12 to go back to my reference book to give you the exact spelling
13 of what the PETN stands for, but suffice it to say it is
14 another variant of high explosives.
15 Q. It's different from TNT?
16 A. Yes, it is.
17 Q. Now, C4, what is that, sir?
18 A. C4 is the designation that the United States government
19 has given to a type of plastic explosive.
20 Q. It's not a chemical explosive, is it? It's just a plastic
21 explosive, isn't that correct?
22 A. Well, all explosives are made from chemicals so certainly
23 C4 is made from a particular type of high explosive. It's a
24 type of high explosive. The main component is an explosive
25 called RDX.
2254
1 Q. The plastic explosives are they used in the detonation
2 devices?
3 A. Plastic explosives can be used like any other explosive.
4 The reason they're called plastic is because there is some
5 materials put into them known as plasticizers, that is it make
6 them pliable. It's kind of like Silly Putty is how it looks
7 and so you can mold it somewhat.
8 Q. Now, Agent Sachtleben, when the collection and evidence
9 gathering was going on were you aware that the Israelis also
10 had people involved in collection and gathering of evidence
11 with respect to the embassy bombing?
12 A. I don't know about gathering evidence. There was an
13 Israeli urban search and rescue team there. That is there was
14 a group of Israelis who had come down to assist the Kenyans in
15 the rescue of the wounded from the you Ufundi House.
16 Q. Are you aware, sir, that the Israelis conducted their own
17 analysis forensic analysis of materials recovered from the
18 bomb scene?
19 A. Yes, I'm aware that they took away some samples from the
20 scene.
21 Q. Did they share that information with you?
22 A. I've seen a report, yes.
23 Q. And are you aware of the results of the Israeli forensic
24 examination?
25 A. Yes. Generally I'm aware of it, yes.
2255
1 Q. Would you -- and you're also aware of the results of the
2 FBI forensic examination, isn't that correct?
3 A. Certainly.
4 Q. Are those results the same?
5 A. They're not exactly the same, no.
6 Q. Now, sir, when a high explosive device is detonated and
7 you have this explosion would it be fair to say that the
8 explosive material is dispersed and dissipated, it's not going
9 to remain in a large clump, isn't that correct?
10 A. Well, the explosive material isn't necessarily dissipated.
11 What happens during a detonation is that a solid material is
12 chemically changed from that solid into a gas, so that there
13 is actually a molecular change that takes place. Some times
14 material does not react. That is the explosive material
15 doesn't change into the gas. That material is sometimes
16 projected away from the explosion site.
17 Q. But in the recovery process then in this particular case
18 the items that you recovered they didn't have large amounts of
19 explosive material on them, did they?
20 A. I'm not aware that any of these items that are here had
21 any explosive material found on them.
22 Q. They just in fact gave an indication that some charring
23 and pitting had occurred to indicate that it was in fact an
24 explosion?
25 A. Yes. What I looked at was the physical characteristics,
2256
1 that is the appearance and the changes that I observed from
2 what I knew they looked like in their original states and from
3 what they looked like when I saw them at the crime scene.
4 Q. When you were conducting your investigation you also had
5 agents who were particularly assigned to do swabbing of
6 particular material, isn't that correct?
7 A. That's correct.
8 Q. And that swabbing was in fact to gather material to see
9 whether or not there were any traces of explosive devices in
10 that material that they were swabbing, isn't that correct?
11 A. That is correct.
12 Q. And would it be fair to say that that swabbing would not
13 reveal large amount of explosive devices, but what we call or
14 where you would call in your expertise a trace amount, is that
15 correct?
16 A. That is correct.
17 Q. Could you explain to the jury what a trace amount is?
18 A. Well, when an explosive reacts, when it changes from the
19 solid to the gaseous state it leaves very minute in some cases
20 microscopic particles of the chemicals that make up an
21 explosive. Those particles will actually adhere to other
22 surfaces. Very often they don't adhere to the pieces that are
23 the closest to the explosion because of almost a scouring
24 effect that you have on those pieces of metal there.
25 We typically fine those particles away from the scene
2257
1 where they've had a chance to kind of slow down if you will
2 and grab on to things.
3 Q. Because the whole process is that in order to change from
4 a solid to a gas gets heated up and the molecule starts moving
5 very fast, is that correct?
6 A. That's correct.
7 Q. And when it hits something it slows down the momentum and
8 maybe will convert back to a solid or adhere to that
9 particular surface, right?
10 A. That's right.
11 Q. Now, sir, how minuscule can the FBI or forensic analysis
12 go in terms of determining what you described as trace
13 evidence? How small can it go?
14 A. I'd have to probably defer to the chemists to give you
15 exact numbers. I'm aware that it is an extremely small
16 amount. It is certainly smaller than what could be seen with
17 the naked eye, and really we're talking microscopic levels.
18 Q. Even, and a high powered microscope at that, isn't that
19 correct?
20 A. Certainly.
21 Q. Now, sir, the items that are on this table that you
22 described as being from the truck, do those items contain the
23 entirety of the truck parts that you found?
24 A. Oh, no, this is a fairly small number of pieces
25 representative I have what we found.
2258
1 Q. Did you during the course of your investigation recover
2 parts of the truck that would allow you to associate them with
3 the cab of the truck?
4 A. Cab. I'm not -- perhaps you could define that a little
5 more closely?
6 Q. Okay. The cab would be the area where the person who is
7 driving the truck is.
8 A. Okay. Well, I found pieces that were identified to me as
9 for example the brake pedal which I would associate with the
10 cab of the vehicle.
11 (Continued on next page)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2259
1 Q. Where did you find the brake pedal?
2 A. I would have to look -- well, my recollection of the brake
3 pedal was that it was located -- in fact, I think it might be
4 on that table if I am not mistaken. It was located in what we
5 termed the rubble pile.
6 MR. WILFORD: Can we have 802-CDS up again, please.
7 Q. Agent Sachtleben, looking at that particular exhibit,
8 could you demonstrate for the jury where it was that you
9 recovered the brake pedal?
10 A. The best I am going to be able to do is give you the
11 general area of the rubble pile, but I must caution you and
12 say that I have to review the evidence tag on that piece to
13 say in fact that it was from the rubble pile. That is my
14 recollection at this point.
15 MR. WILFORD: Your Honor, with the court's
16 permission, can Agent Sachtleben step down and come to the
17 table?
18 THE COURT: Yes. Agent, tell us the exhibit number.
19 THE WITNESS: Yes, sir. I am referring here to
20 Government's Exhibit 818. This piece here was identified for
21 me as the brake pedal, and the location -- and I was mistaken
22 in my recollection. The location was not the rubble pile.
23 Generator building of American Embassy.
24 Q. Could you return to the witness stand and indicate on
25 802C-DS where that is.
2260
1 Are you OK?
2 A. Yes. The hazards of testifying.
3 If I may be permitted to mark on this.
4 MR. WILFORD: As long as the government has no
5 objection.
6 THE COURT: Go ahead.
7 A. I am going to circle -- this is a building that on this
8 diagram is not labeled, but my recollection is that that
9 square, if you will, is the generator house.
10 Q. This area right here on the exhibit?
11 A. Yes, sir.
12 Q. The container portion of the truck, Agent, did you find
13 any pieces of the container portion of the truck?
14 A. If you are referring to, say, the sheetmetal or the wood
15 or whatever form the rear area of the truck?
16 Q. Yes.
17 A. Not to my knowledge, no.
18 Q. None whatsoever?
19 A. None that could be identified as such. We certainly found
20 fragments of wood and sheetmetal, but none that we could say
21 to any degree of certainty came from this particular Toyota
22 truck.
23 Q. When you were discussing previously with Mr. Karas the
24 location for your estimation of the location of the vehicle,
25 you said that there was a range that it could have been in; is
2261
1 that correct?
2 A. Yes.
3 Q. Would you be kind enough to exhibit that range by drawing
4 it.
5 A. Certainly. What I am drawing is a curved line, and I will
6 put at either line an airhead -- I am attempting to put an
7 airhead -- to indicate that generally that swing could
8 represent the orientation of the vehicle.
9 Q. Of the vehicle?
10 A. Of the truck, yes. The rear end of the truck could very
11 well have been oriented to the either left as you are looking
12 at the diagram or right of that curved line with the airheads.
13 MR. WILFORD: Thank you. No further questions.
14 THE COURT: Mr. Baugh on behalf of the defendant
15 Al-'Owhali.
16 MR. BAUGH: Just a few.
17 CROSS-EXAMINATION
18 BY MR. BAUGH:
19 Q. Good morning, sir.
20 A. Good morning.
21 Q. The Ufundi House collapsed?
22 A. Yes, sir.
23 Q. And the American Embassy did not?
24 A. No, sir, it did not.
25 Q. Did you notice something in the difference of the
2262
1 construction that caused that to occur?
2 A. Again, I am not an architect or engineer but it appeared
3 to me that perhaps the American Embassy had some greater
4 substance to it.
5 Q. When you say substance, did you notice a difference in the
6 amount of reinforcement?
7 A. I never actually saw any of the internal structure of the
8 American Embassy because it was largely intact.
9 Q. What is over-pressure, by the way?
10 A. Over-pressure is the shock wave that is produced in an
11 explosion. If you wanted to perhaps visualize it, if you can
12 think of when you drop a pebble in a pond and you see those
13 ripples that come off when the pebble strikes the pond, that
14 is a kind of visualization of the pressure waves that come off
15 an explosion.
16 Q. Do the pressure waves come in all speeds from all
17 directions or can they be affected by being, for instance,
18 behind the cab of a truck?
19 A. The effect would be negligible based on that quantity of
20 explosives.
21 Q. To destroy the embassy, would it be better to put the
22 device as close to the embassy as possible?
23 A. Certainly.
24 Q. Under the embassy would have been the optimum place to
25 destroy the embassy?
2263
1 A. I don't think I am qualified to judge that. It is
2 possible but there are so many variables that I couldn't say
3 for certain.
4 Q. If the device had been situated under the American
5 Embassy, within these walls contained around here, would that
6 have lessened the damage to these other buildings?
7 A. It could have.
8 Q. Would it have been foreseeable to you, for instance, that
9 if the bomb was placed underneath the embassy, the Ufundi
10 House could have collapsed? Would that have been conceivable?
11 A. It would be possible but perhaps less likely.
12 Q. Would it minimize damage to others, placing the bomb under
13 the embassy?
14 A. Define others.
15 Q. Other than Americans. If you wanted to protect the lives
16 of Kenyans in these other buildings, the Cooperative House and
17 the Ufundi House, would the best place to have place a device
18 been within the walls of the embassy?
19 A. I don't know about the Kenyans in the American Embassy but
20 perhaps the people outside.
21 Q. But it would have helped these people in the other
22 buildings?
23 A. Possibly.
24 Q. Based on what you could observe of the three structures
25 here, would you say that the U.S. Embassy was a more durable
2264
1 building? Better made?
2 A. It held up better than the Ufundi House, and the damage to
3 the Cooperative Bank was similar.
4 THE COURT: Similar to the embassy?
5 THE WITNESS: Yes, sir, similar to the embassy.
6 Q. So the people in the U.S. Embassy would have been better
7 protected than the people outside the building and the people
8 in these other buildings?
9 A. Perhaps -- see if I can break that question down.
10 Q. Would the people inside the embassy building have been
11 better protected than the people standing outside?
12 A. Based on what scenario?
13 Q. The size of the explosion and where it was situated.
14 A. Yes, the people in the embassy were perhaps better
15 protected against, say, collapse but not against blast
16 pressure and the effect of breaking glass.
17 Q. In your training and experience, were you surprised to see
18 that the Ufundi building collapsed entirely?
19 A. Not particularly. Again, I am not an engineer so I can't
20 necessarily say what caused that building to collapse.
21 Q. Didn't you evaluate that in determining the size of the
22 device?
23 A. No, other than just coming to the conclusion that there
24 was a large quantity of explosives present in the parking lot
25 behind the embassy.
2265
1 Q. And the damage from this bomb would have radiated equally
2 in all directions?
3 A. Yes, sir.
4 MR. BAUGH: Thank you.
5 THE COURT: Anything further of this witness?
6 MR. WILFORD: Your Honor, I do have a question based
7 on the questioning.
8 THE COURT: Yes.
9 MR. WILFORD: Your Honor, I just need one second.
10 Your Honor, may I approach the witness with a blank piece of
11 paper?
12 THE COURT: Yes.
13 MR. WILFORD: Which we will mark Odeh AA for
14 identification.
15 CROSS-EXAMINATION
16 BY MR. WILFORD:
17 Q. With the court's permission, I would ask that Agent
18 Sachtleben draw a diagram of the pebble effect that he was
19 discussing with Mr. Baugh. Could you be kind enough to start
20 in the center of the page, Agent.
21 A. Certainly.
22 Q. Thank you.
23 A. What I will do is assume that this entire sheet of paper
24 would perhaps be representative of a pond, and I will draw a
25 circle in the center, put an X in it, and that would represent
2266
1 the pebble dropping into the pond.
2 Now I am going to draw the best I can a series of
3 circles around that, and for simplicity I will just do five,
4 and then I am going to draw some arrows in four directions,
5 leading away from the pebble in the center, if you will.
6 MR. WILFORD: Your Honor, I would ask if the
7 government has an objection to this item coming in.
8 MR. KARAS: No objection.
9 MR. WILFORD: I am offering it in. I would also like
10 to have it published to the jury.
11 THE COURT: It may be published.
12 MR. WILFORD: Subsequent to the publication, I have
13 no further questions.
14 MR. BAUGH: Nothing further.
15 THE COURT: Odeh AA.
16 (Defendant's Exhibit Odeh AA received in evidence)
17 MR. KARAS: Just one question, your Honor.
18 REDIRECT EXAMINATION
19 BY MR. KARAS:
20 Q. Agent Sachtleben, the shock waves you described, can they
21 bounce off those structures and sort of shock back, as it
22 were?
23 A. Yes. Perhaps if I could use one other brief analogy to
24 illustrate that. This, of course, what you see on the screen
25 here, is to the ripple effect. The only problem with this
2267
1 analogy is that we all think of the ripples of a pebble as
2 kind of benign. They gently go off and dissipate at the end.
3 Perhaps if you thought of it more as a billiard table and you
4 think about the rack, the triangle, the billiard balls, and
5 when you pack them very tightly together and you strike the
6 cue ball and the cue ball goes into that triangle and hits it
7 with some force, and those balls are broken apart and go off
8 in all directions, if you do it hard enough and you have a big
9 enough person doing this, they can come off with a great deal
10 of violence, and when they come to the rail of the tables,
11 they bounce and come back and strike each other again. That's
12 what is happening when you take the quantity of explosives,
13 you hit it with a shock wave and break that explosive apart
14 and release its energy.
15 So yes, this diagram here does show just the ripples
16 coming above but what it doesn't show is when they strike the
17 side of a building and bounce back into where the bomb is
18 located, now you have the force going in almost every
19 conceivable direction depending on the angles surrounding it.
20 MR. KARAS: Thank you. No further questions.
21 MR. WILFORD: Judge?
22 THE COURT: Yes.
23 RECROSS-EXAMINATION
24 BY MR. WILFORD:
25 Q. Agent Sachtleben, you are absolutely correct, the shock
2268
1 waves will bounce back, correct?
2 A. Yes.
3 Q. But we are talking about the point of ignition. When the
4 explosive device is ignited, when it first occurs, that is
5 what you are talking about from a pebble being dropped in the
6 stream and it goes out, expands in all directions.
7 A. Yes. It releases from the point of detonation. It may
8 not be the center. From where the explosives are detonated
9 the energy releases and goes out in a 360-degree pattern.
10 MR. WILFORD: Thank you very much.
11 THE COURT: Thank you, Agent. You may step down.
12 (Witness excused)
13 MR. KARAS: Your Honor, the government calls Junichi
14 Myagi.
15 JUNICHI MYAGI,
16 called as a witness by the government,
17 having been duly sworn, testified as follows:
18 (Eugene Nakada was duly sworn as the Japanese
19 interpreter)
20 DIRECT EXAMINATION
21 BY MR. KARAS:
22 Q. Good morning, sir. Can you tell us a little about your
23 education.
24 A. In 1966 I graduated from the University of Yamanashi.
25 Q. What did you study there?
2269
1 A. I studied mechanical engineering.
2 Q. Where did you first begin to work after you graduated from
3 the University of Yamanashi?
4 A. Immediately I was employed by the Toyota Motor
5 Corporation.
6 Q. That is in 1966?
7 A. Yes.
8 Q. For how long did you work for Toyota?
9 A. It has been about 32 years.
10 Q. Where do you work currently?
11 A. This January, I retired as the general manager, one of the
12 general managers, at the Toyota Motor Corporation. Since then
13 I was employed by the subsidiary of Toyota called Araco, where
14 I am general manager of the research and engineering
15 department.
16 Q. What type of work does Araco do? What type of business it
17 is it?
18 A. The Araco Company designs the body of Toyota vehicles that
19 are mounted on a Toyota chassis and frame. We also
20 manufacture the seats installed in the Toyota vehicles.
21 Q. While you worked for the Toyota Corporation, what did you
22 do?
23 A. As soon as I joined the Toyota Corporation, my job was to
24 design, I was assigned to the designing section of the Toyota
25 Dyna company.
2270
1 Q. What type of vehicle is a Toyota Dyna?
2 A. It's, roughly speaking, a 2-ton truck.
3 Q. Between 1966 and 2000, can you tell us about some of the
4 positions you have held within the Toyota company.
5 A. When I first started working I was designing part of the
6 Dyna. By 1975 I was the assistant manager in charge of the
7 overall design of the chassis and frame of the Dyna.
8 Q. Can you tell us -- I am sorry, go ahead.
9 A. By 1985 I was the manager in charge of the overall design
10 of the Dyna frame, plus five other vehicles of the Toyota
11 Corporation. In 1983, I became the manager and I was in
12 charge of the designing of Toyota Dyna as well as five other
13 vehicles. In 1991, I became the general manager responsible
14 for the designing of the frame and chassis of 10 vehicles,
15 including the Toyota Dyna.
16 Q. Can you tell us what exactly a chassis is.
17 A. A chassis is, using a human body as an example, it would
18 be like our leg.
19 Q. What function does it serve for the vehicle?
20 A. It enables the vehicle to be anal to able to run, stop,
21 turn, and that type of function.
22 Q. Can you give us some examples of what are considered
23 chassis parts?
24 A. Front axle, rear axle, steering mechanism, and the frame.
25 Q. Can you tell us what a frame is.
2271
1 A. It's the component that supports these chassis.
2 Q. Mr. Miyagi, are you familiar with a Dyna model known as an
3 MDGT?
4 A. Yes, I am aware of it.
5 Q. Did Toyota start to produce that model before or after you
6 began working for Toyota?
7 A. It is after I started work for Toyota.
8 Q. What role did you have in the production of the MDGT?
9 A. I was responsible for the designing of its chassis.
10 Q. Can you tell us what the M stands for within MDGT?
11 A. M refers to the manual transmission.
12 Q. What about the D?
13 A. It's the type of vehicle referring to -- the D stands for
14 deluxe.
15 Q. And the G?
16 A. It indicates that the truck bed is at a low level and that
17 it is lined with wood.
18 Q. It's a flat bed?
19 A. It's flat, yes.
20 Q. Finally, can you tell us what the T means.
21 A. It refers to the rear tire. It means that on one side
22 there are two wheels, so on the rear there would be a total of
23 four tires.
24 Q. Can you distinguish between the cab and the bed?
25 A. A cab is where the driver and his assistant would be
2272
1 sitting. It's that compartment. The bed would be where the
2 load is carried.
3 Q. In the mid-1980's, Mr. Myagi, can you tell us how much the
4 average MDGT weighed?
5 A. The vehicle itself weighed two tons. With a load it would
6 weigh four tons.
7 Q. Can you tell us in the mid-1980's how long the truck bed
8 was of the MDGT?
9 A. About 3,100 millimeters.
10 Q. Does that translate into approximately 3 meters?
11 A. That's right.
12 Q. Mr. Miyagi, did there come a time that you were asked to
13 go to Washington, D.C. and meet with officials from the FBI?
14 A. Yes, I met them.
15 Q. Do you remember when, approximately, that was?
16 A. The first time it was in June 1999. The second time was
17 also in June, year 2000.
18 Q. What did you do when you went to the FBI?
19 A. I extracted -- there were many parts laying around. From
20 there, my job was to identify and extract what belonged to a
21 Dyna.
22 Q. Were you able to find parts that you identified as being
23 from a Dyna?
24 A. Yes, I was able to.
25 Q. Can you tell us whether or not you were able to identify
2273
1 parts that were unique to an MDGT model of a Dyna?
2 A. Yes, there were.
3 MR. KARAS: If we could display Government's Exhibit
4 380, please, which is already in evidence.
5 Q. Mr. Myagi, if you could look to the screen there to your
6 left.
7 A. Yes.
8 Q. Do you recognize what is on the screen?
9 A. This is the Dyna parts that were identified among other
10 others, and were displayed.
11 Q. Can you tell us on which side of the picture are what
12 would have been front pieces of the Dyna appear.
13 A. It's on the right side.
14 Q. And the rear pieces?
15 A. It's aligned on the left side of the screen.
16 Q. Mr. Myagi, when you were involved in the design of the
17 chassis parts, were you also involved in the creation of
18 blueprints or diagrams of these parts?
19 A. Yes, I took part.
20 Q. Mr. Myagi, I would like to have you shown what has been
21 marked as Government's Exhibit 841A through 841F. Take a
22 moment to review each one.
23 A. Yes, I have recognized these.
24 Q. If you want to take a look at all of them and then I will
25 ask you some questions.
2274
1 A. Yes. Yes. Yes. Yes.
2 Q. Mr. Myagi, can you tell us what those exhibits are?
3 A. Those are the design drawings of parts of the Dyna.
4 Q. Does your name appear on those design drawings?
5 A. Yes, I see my signature.
6 Q. Are they fair and accurate depictions of the design
7 drawings that you participated in creating?
8 A. It's the same thing.
9 MR. KARAS: Your Honor, the government offers
10 Government's Exhibits 841A through 841F.
11 MR. WILFORD: No objection.
12 THE COURT: Received.
13 (Government's Exhibits 841A through 841F received in
14 evidence) kilo.
15 MR. KARAS: Your Honor, may I ask that Mr. Myagi be
16 asked to step down and approach the exhibit table?
17 THE COURT: Yes.
18 Q. Mr. Myagi, if you would like to put them on, there is a
19 pair of gloves there. Mr. Myagi, could you take a look at the
20 piece marked with little yellow stickers 816, which should be
21 towards the left side of the table.
22 A. Yes.
23 Q. Could you tell us what that part is.
24 A. This is a support assembly to support the rear spring
25 suspension on the rear.
2275
1 Q. Can you tell us whether or not that part is unique to the
2 Dyna MDGT model?
3 A. Yes.
4 Q. Did you help design that part?
5 A. Yes, I participated.
6 Q. And looking at the drawing that is marked as Government's
7 Exhibit 841A, if you could point to where that part appears,
8 on the diagram. The piece you just identified, is it on that
9 diagram?
10 A. This portion is drawn right in. This portion is right
11 there.
12 Q. Referring to the lower left-hand corner of the diagram.
13 A. This portion is reflected.
14 Q. If you could take a look at the piece marked as
15 Government's Exhibit 817, which should be near the piece you
16 just picked up.
17 A. Yes, I found it.
18 Q. Can you tell us what that piece is.
19 A. It's part of a support bracket that supports the spring
20 suspension assembly.
21 Q. Did you help design that piece?
22 A. Yes, I participated.
23 Q. If you could look at the diagram marked as 841B and point
24 to where that appears on the diagram.
25 A. Yes, it's reflected there.
2276
1 Q. By the way, does your name appear on that diagram marked
2 as 841B?
3 A. Yes, that's where it is written.
4 Q. Down at the bottom right, for the record.
5 A. Yes.
6 Q. Mr. Myagi, if you could put that piece down, and just
7 point to Government's Exhibits 822 and 823. I think 823 is
8 just to the right of the piece you just had.
9 A. Yes, I see.
10 Q. Can you tell us what those are.
11 A. This is portion of the Toyota Dyna rear axle assembly.
12 Q. Can you tell us whether or not those pieces are unique to
13 the MDGT model?
14 A. Yes.
15 Q. What is the distinguishing characteristic of those pieces
16 among the other Dyna rear axle pieces?
17 A. As you can see, this has only four holes to mount the
18 part. All others will have six holes to mount.
19 Q. Did you help design the rear axle piece for the MDGT?
20 A. Yes. It's my design.
21 Q. And if you look at the diagram that is marked as 841C, can
22 you point to the four holes in the diagram.
23 A. Yes.
24 Q. If you could just point to where they are on the diagram.
25 A. The four holes here are reflected there.
2277
1 Q. Mr. Myagi, if you could take a look at what is marked
2 Government's Exhibit 821, just to the right of the axles.
3 A. I found it.
4 Q. Can you tell us what that piece is.
5 A. This is part of a Toyota Dyna frame, the rear portion.
6 Q. Is that piece unique to the MDGT?
7 A. Yes.
8 Q. Does it appear on that diagram behind you?
9 A. Yes, it's drawn there.
10 Q. Which, for the record, is marked as 841D.
11 Mr. Myagi, could you take a look at the piece marked
12 as 815. What piece is that?
13 A. It is a fragment of the front portion of the Toyota frame,
14 Toyota Dyna frame.
15 Q. Can you tell us if it's the left or the right portion?
16 A. This belongs to the right side.
17 Q. How do you know that?
18 A. There is a frame number marked there. A frame number like
19 this is always stamped on the right side.
20 Q. Can you tell from the frame number if that's a Toyota Dyna
21 part?
22 A. Yes, I recognize.
23 Q. Just by your right hand there, if you could take a look at
24 the brake pedal marked as 818, and do you see the number 82
25 stamped on that part?
2278
1 A. Why, it's marked there.
2 Q. Can you tell us whether or not you recognize that as a
3 Dyna brake pedal?
4 A. It shows that it belongs to a Dyna with a right steering
5 wheel.
6 Q. And if you could take a look at what has been marked as
7 828, just by your right hand there.
8 A. Yes, I see.
9 Q. Can you tell us what that is?
10 A. This is part of a Toyota Dyna front axle.
11 Q. Is there anything about that part that tells you whether
12 that part was used in a right side or left side driver
13 vehicle?
14 A. On the vehicle it would be roughly in this position, and
15 facing the front, to my front would be the front. Therefore,
16 it can be said that this belongs to the right side.
17 Q. Are there any markings on that piece that tell you which
18 side the driver is on?
19 A. Yes. Here is stamped UR.
20 Q. Thank you. If you could take a look at what has been
21 marked as Government's Exhibit 826, which I believe is the
22 Pittman arm. Can you tell us what that part is used for.
23 A. It's attached to the steering gearbox. As the steering
24 wheel rotates, it moves back and forth.
25 Q. Could you, if you sort of face the table, show the jury
2279
1 how that piece is oriented, which is the front and which is
2 the back.
3 A. This is way up front of the vehicle. It's on the right
4 side. So the front of the vehicle will be in this way.
5 Q. Do you see any damage on that piece?
6 A. Yes, I see damage on that side.
7 Q. The side that you say you see damage on, which way would
8 that be facing? To the front of the truck or the back?
9 A. The vehicle when facing front, this would point to the
10 rear side of the front.
11 Q. Is that piece used in all Toyota Dyna trucks?
12 A. Just there is a letter P stamped right there. This
13 indicates that it is used only for power steering models.
14 Q. Do you see that part on the diagram marked as 841F?
15 A. That's the portion and that's where the letter P appears.
16 Q. Thank you. Do you see an engine block on that table?
17 A. I see one component that belongs to an engine.
18 Q. Can you tell us whether or not that type of engine block
19 was used in Toyota Dyna MDGT vehicles?
20 A. This is the component from a B type engine which is also
21 used in the --
22 Q. In MDGT vehicles?
23 A. Yes, it is being used.
24 Q. And I believe for the record that is Government's Exhibit
25 825.
2280
1 MR. KARAS: I have no further questions. Mr. Myagi,
2 if you would like to resume the witness stand.
3 MR. RICCO: Judge, can he stay there?
4 THE COURT: Yes, certainly. Would you ask the
5 witness to go back to the table. Cross-examination by Mr.
6 Ricco on behalf of defendant Odeh.
7 CROSS-EXAMINATION
8 BY MR. RICCO:
9 Q. Good morning, sir. Many parts that we see here are of
10 cast iron; isn't that correct?
11 A. Cast iron is only a portion of the displayed items.
12 Q. Yes, sir. And other pieces are forged steel; isn't that
13 correct?
14 A. Yes.
15 Q. The cast iron is used in the undercarriage of the vehicle
16 so that it can withstand great weight; isn't that correct?
17 A. Although only cast iron part would be shown right there,
18 yes, cast iron materials are down there.
19 Q. And this would be Government's Exhibit 827.
20 A. Yes.
21 Q. And other pieces that are here are forged steel; isn't
22 that right?
23 A. Most appear to be that way but there are some which are
24 already excluded in a board form.
25 Q. These materials are used so that they can withstand great
2281
1 weight and pressure over a long time period?
2 A. Yes.
3 Q. The destruction that we see to these parts, for example, a
4 car accident could not have caused this type of destruction;
5 isn't that correct?
6 A. That's correct.
7 Q. This was caused from a powerful force; isn't that right?
8 A. That's what I figure.
9 Q. Right. To get the crankshaft out of an engine, out of an
10 engine block, takes a great amount of power and force; isn't
11 that correct?
12 A. That's correct.
13 Q. The bed area of the truck, the Toyota truck, doesn't have
14 a covering, right?
15 A. Could you explain that portion, the cover.
16 Q. The design of the truck has a flat bed which is made of
17 wood, right?
18 A. Yes.
19 Q. Is the flat bed area covered?
20 A. Some have covers, others don't.
21 Q. Are you able to tell us whether or not this vehicle had a
22 cover or not?
23 A. No, I am not able to.
24 Q. Because there were no parts recovered from the cover that
25 Toyota makes that is present here; isn't that right? I will
2282
1 rephrase the question.
2 Toyota makes some trucks with a cover, but those
3 covers are used with a different type of material than the
4 materials we see here on the table; isn't that right?
5 A. That is correct.
6 Q. What type of material is used for the cover on the Toyota
7 truck?
8 A. There are so many different types of cover that I am not
9 able to generalize.
10 Q. And I don't want you to. But certainly the covers are not
11 made from cast iron and the type of heavy material and metals
12 that we see here.
13 A. That's correct.
14 (Continued on next page)
15
16
17
18
19
20
21
22
23
24
25
2283
1 MR. RICCO: I have no further questions. Thank you
2 very much.
3 THE COURT: Anything further of this witness? Any
4 redirect?
5 MR. KARAS: No, your Honor. Thank you.
6 THE COURT: Thank you, sir. We will take our
7 mid-morning recess.
8 (Witness excused)
9 (Jury excused)
10 THE COURT: We will take a recess.
11 (Recess)
12 (Continued on next page)
13 (In open court; jury present)
14 THE COURT: Ladies and gentlemen, I understand you
15 had some questions and I got a message from the jury
16 commissioner, Mr. Rogers, saying that he will see you at lunch
17 tomorrow when he distributes checks and he will be able to
18 answer those questions. I don't know what they were, but they
19 are not forgotten.
20 The government may call it's next witness.
21 MR. BUTLER: Your Honor the government calls Said
22 Salim Omar.
23 SAID SALIM OMAR,
24 called as a witness by the government,
25 having been duly sworn, testified as follows:
2284
1 DIRECT EXAMINATION
2 BY MR. BUTLER:
3 Q. Mr. Omar, how old are you, sir?
4 A. I'm thirty-one years old.
5 Q. Where do you live?
6 A. In Mombasa, Kenya.
7 Q. And how are you employed?
8 A. I was employed in warehouse company in Mombasa.
9 Q. And when did you cease being employed in a warehouse
10 company in Mombasa?
11 A. Last year, December.
12 Q. And were you employed there in 1998?
13 A. I was employed there as from 1993.
14 Q. And also in 1998?
15 A. Up to 2000.
16 Q. Are you involved in any other businesses?
17 A. Of course.
18 Q. What other business are you involved in?
19 A. Poultry farming.
20 Q. Were you involved in your poultry farming business in 1998
21 as well?
22 A. As from 1996 to date.
23 Q. And did there come a time when you purchased a truck in
24 connection with your poultry business?
25 A. Of course, yes.
2285
1 Q. And do you recall what kind of truck that was?
2 A. Yes.
3 Q. What kind of truck was it?
4 A. It was a Toyota Dyna truck.
5 Q. Approximately when did you purchase that truck?
6 A. It was early 1998, approximately May.
7 Q. Who did you purchase that truck from?
8 A. From Acca Insurance Company based in Mombasa.
9 Q. And could you just describe the truck for us, please? For
10 example, what color was the truck?
11 A. It was a beige color.
12 Q. And what did the back of the truck look like?
13 A. It was an open body truck with an open sides.
14 Q. And was it a flat bed truck in the rear?
15 A. It was a flat bed truck.
16 Q. What was the bed made out of?
17 A. It was made of wooden base, and sides were made of metal
18 sheets.
19 Q. And how many tires were in the rear of the truck?
20 A. Four tiers.
21 Q. And how many tires were in the front of the truck?
22 A. Two tires.
23 Q. And what side of the truck was the steering wheel on?
24 A. Right-hand drive.
25 Q. And approximately how long was the bed of the truck?
2286
1 A. Not less than ten feet.
2 Q. Just explain to the jury briefly, if you can, what types
3 of documents are exchanged when somebody buys a truck in
4 Kenya?
5 A. You first make a document with the person the truck of
6 possessing it from you. Then they transfer from that the
7 person normally signs. The transfer form is normally taken to
8 the registration office in Nairobi to change ownership of the
9 truck to the person possessing the truck.
10 MR. BUTLER: Your Honor, may I approach?
11 THE COURT: Gentlemen.
12 Q. I put before you Mr. Omar what has been marked as
13 Government Exhibits 583 A through D. Do you recognize those
14 documents marked Government Exhibits 583 A through D?
15 A. Yes, I do.
16 Q. And what are Government Exhibits 583A through D?
17 A. First one is a sale document, the second one is an
18 insurance receipt and the third one is an inspection check
19 form.
20 Q. You've only listed three. Let's start first. What's
21 Government Exhibit 583A?
22 A. What's that?
23 Q. What is Government Exhibit 583A?
24 A. This one is a sale document.
25 Q. And what is Government Exhibit 583B?
2287
1 A. It's an insurance form, receipt.
2 Q. And what is Government Exhibit 583C?
3 A. An inspection form.
4 Q. And what is Government Exhibit 583D?
5 A. Sorry. I couldn't see it here. It's an inspection form.
6 Q. Were these documents something that you prepared in
7 connection with your purchase of the vehicle?
8 A. Yes.
9 MR. BUTLER: Your Honor, I offer Government Exhibits
10 583A through D at this time.
11 MR. WILFORD: No objection.
12 THE COURT: Received.
13 (Government's Exhibits Government Exhibits 583A
14 received in evidence)
15 MR. BUTLER: If we could just publish to the jury
16 Government Exhibit 583A, please.
17 Q. Now looking at Government Exhibit 583A what date is listed
18 as the purchase of the vehicle?
19 A. 18 May '98.
20 Q. Going down the page, what is the make of the vehicle
21 listed there?
22 A. It's a Toyota DYNA pickup.
23 Q. Is that consistent with your recollection of the truck
24 that you purchased in May?
25 A. Yes, sir.
2288
1 Q. Now, looking at the chassis number, could you read off the
2 chassis number for the jury there?
3 A. BU61-0001636.
4 Q. And what was the registration number of the vehicle?
5 A. KAG662B.
6 Q. And how much did you pay to purchase this vehicle?
7 A. 240,000 Kenya shillings.
8 Q. Tell me what did you use this vehicle for?
9 A. I used it to, since I am a poultry farmer I used to carry
10 the poultry feed from the manufacturing company to my farm.
11 Q. Did there come a time that you sold this truck?
12 A. Yes.
13 Q. And approximately when did you sell the truck?
14 A. Approximately one and a half to two months from the date I
15 purchased the truck.
16 Q. So that would put it sometime in late June or early July,
17 1998 approximately correct?
18 A. Yes.
19 Q. And who did you sell the truck to?
20 A. I sold it to Mr. Sheikh Ahmed Swedan.
21 Q. Who is Sheikh Ahmed Swedan?
22 A. He's a businessman in Mombasa.
23 Q. And did you know Mr. Sheikh Ahmed Swedan?
24 A. Yes.
25 Q. And how long did you know him for?
2289
1 A. I knew him for a long because he's just our neighbor. He
2 lives three blocks from my father's house.
3 Q. If we could just show the witness just for identification
4 Government Exhibit 123, please.
5 Do you recognize that photograph?
6 A. Yes.
7 Q. Who is depicted in that photograph?
8 A. Is Sheikh Ahmed Swedan.
9 MR. BUTLER: Your Honor, I would offer Government
10 Exhibit 123 at this time.
11 THE COURT: Yes. Received.
12 (Government's Exhibit 123 received in evidence)
13 MR. BUTLER: Your Honor, at this point I think the
14 parties would like it if the Court could read the stipulation
15 to the jury.
16 THE COURT: Yes. May I see counsel at the bench,
17 please.
18 (At the sidebar off the record)
19 THE COURT: Ladies and gentlemen, the parties have
20 stipulated that the Sheikh Ahmed Swedan referred to by Mr.
21 Omar in his testimony is not the Ahmed Sheikh associated with
22 Mercy International relief agency who is referred to by the
23 government witness L'Houssaine Kerchtou during his testimony.
24 The full name of the Ahmed Sheikh referred to by Mr.
25 Kherchtou is Ahmed Sheikh Adan, and he is known also as Ahmed
2290
1 Tawil. The real name of the Sheikh Ahmed Swedan referred to
2 Mr. Omar is Sheikh Ahmed Salim Swedan and is also known as
3 Sheikh Ahmed Swedan and Sheikh Bahamadi.
4 Q. Mr. Omar, I believe you testified that Ahmed Sheikh Swedan
5 was a businessman in the Mombasa, correct?
6 A. Yes.
7 Q. Do you know what business he was involved in?
8 A. Transportation.
9 Q. And when you say transportation, what would he transport?
10 A. He used to transport cargos from the Mombasa port to some
11 warehouses within Mombasa and sometimes up country.
12 Q. And what types of vehicles would he use to do that?
13 A. Long trucks, open vehicles.
14 Q. Did there come a time when Ahmed Sheikh Swedan appearance
15 changed from how you previously knew him?
16 A. Yes, from the picture we see here he appeared changed.
17 Q. How did he change?
18 A. This time when he came to me he had long beard. He put on
19 a Pakistan way of clothing and he looked so religious.
20 Q. And when were you first contacted by Ahmed Sheikh Swedan
21 about possibly selling the truck to him?
22 A. I cannot remember the date, but it was one afternoon where
23 we had just left for afternoon prayers about to go to the
24 office, he came to me and asked me if I would sell the truck
25 to him.
2291
1 Then I jokingly said that if you pay me $10,000 I can
2 sell the truck to you. I never expected that man to just
3 agree with the price so easily as he did. He just asked me to
4 give him the key. I gave him the key of the truck. He went
5 around one of the Mombasa streets to test the truck. Then he
6 came back to me and told me fine. He wanted to pay me the
7 $10,000, but I refused that $10,000. I then asked him if he
8 can pay that Kenya shilling.
9 Q. Approximately in 1998 approximately how many Kenyan
10 shillings was $10,000?
11 A. Approximately 550,000 Kenya shillings.
12 Q. Did Ahmed Sheikh Swedan talk to you about any
13 specifications that he needed for the truck?
14 A. Yes. He first asked me what weight the truck could carry.
15 I then told him I normally carry feed up to three tons to
16 three and a half tons. He then asked me if that weight on the
17 truck if the truck could climb mountains. I told him I live
18 in Kilifi where it's so mountainous and I do it easily
19 everyday.
20 Q. And did you eventually, did you agree to sell the truck to
21 Mr. Swedan at that time?
22 A. Yes.
23 Q. And how were you paid?
24 A. I was paid cash.
25 Q. Who actually paid the money to whom?
2292
1 A. Ahmed Swedan because he wanted to pay me in dollars. I
2 then refused that money in dollars since I'm not used to the
3 dollars currency. I feared that it could be a fake some sort
4 of fake dollars. So I told him to go and change that into
5 Kenya shillings and pay to my brother, because I was going to
6 report to duty.
7 Q. Now, did you ever fill out any of the paperwork connected
8 with the sale of the truck?
9 A. It was very late and I was in a hurry going back to the
10 office. So since Sheik just lives three blocks from my
11 father's house I told him I'm going to make this agreement in
12 my office, then we come and meet here in the evening so that
13 we can have this agreement signed together with a transfer
14 form so as to enable us to change the ownership of the truck.
15 Q. And did you give the keys to the truck to Sheikh Swedan?
16 A. Yes, he did take the keys.
17 Q. And did you ever see him again after that day?
18 A. Up to date I have never seen him.
19 Q. And did anyone ever come back to fill out the paperwork
20 for the sale of the truck?
21 A. No one.
22 Q. Now, did you see the truck again?
23 A. Yes, I saw the truck two days later parked in front of a
24 mosque where we normally pray.
25 Q. And what did the truck look like then?
2293
1 A. It was just as the same as I sold it to him.
2 Q. And did you see the truck again after that?
3 A. Yes. Few days later I saw the truck on my way to my farm.
4 I just came across the truck driving on my way of driving.
5 Q. And what did the truck look like at that time?
6 A. This time it looked different.
7 Q. How did it look different?
8 A. It was covered by metal sheets, covered fully behind, and
9 the body was about one and a half, one to one and a half feet
10 longer than the cabin.
11 Q. And so the entire back of the bed was covered now?
12 A. Totally covered.
13 Q. And when you say that the bed was bigger, was it higher or
14 wider?
15 A. It was higher, not wider.
16 Q. Now, did you have any contact with anybody from Ahmed
17 Sheikh Swedan's family after this sale of the truck?
18 A. Yes. Some days later his brother send his son to my
19 father to collect the log book.
20 Q. And what's the log book?
21 A. It's a legal document showing the ownership of the truck.
22 Q. And did that occur before or after the bombing of the
23 American Embassy in Nairobi?
24 A. That occurred few days after the bombing.
25 MR. BUTLER: No further questions, your Honor.
2294
1 MR. WILFORD: May I, your Honor?
2 THE COURT: Yes. Mr. Wilford on behalf of the
3 defendant Odeh.
4 CROSS-EXAMINATION
5 BY MR. WILFORD:
6 Q. Good afternoon, Mr. Omar.
7 A. Good afternoon.
8 Q. How are you, sir?
9 A. All right.
10 Q. Now, Mr. Omar, the truck that you were talking about when
11 you owned it in fact had holes in the bed so that a container
12 could be placed on it, isn't that correct?
13 A. It's a very small truck that cannot carry containers.
14 Q. No. Let me try to make myself clearer.
15 The third time you saw the truck you indicated that
16 it was completely enclosed the bed of the truck and that it
17 was about an inch or two higher than the cab, is that correct?
18 A. That's correct.
19 Q. Now, that covering that was over the bed, when you owned
20 the truck, the truck was equipped so that the covering could
21 be placed on the bed, isn't that correct?
22 A. No, that is not correct.
23 Q. So it was just flat?
24 A. It was a flat with some side short about one foot, that
25 short side. I had made some holes on those sides so as to
2295
1 have a metal frame cover. In case of rain I used to put a
2 tarpaulin to cover whatever I was carrying to my farm.
3 Q. So you yourself drilled in the holes so a covering of some
4 sort could be placed on it?
5 A. Yes, of the framework.
6 Q. And the covering that you saw on the third time you saw
7 the truck, after you sold it, you said it was metal?
8 A. Yes, metal.
9 Q. And there was no glass on it?
10 A. No.
11 Q. Did you see any doors on it?
12 A. No. From behind?
13 Q. Yes.
14 A. Yes, I saw some doors.
15 Q. You saw doors?
16 A. Yes, there are two shutters.
17 MR. WILFORD: Thank you.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: No, your Honor.
20 THE COURT: Thank you. You may step down. Thank
21 you.
22 (Witness excused)
23 MR. BUTLER: The government calls to Tamarra Ratemo
24 formerly Kipignor.
25 TAMARRA RATEMO,
2296
1 called as a witness by the government,
2 having been duly sworn, testified as follows:)
3 DIRECT EXAMINATION
4 BY MR. BUTLER:
5 Q. Ms. Ratemo, you're doing it so far, but I just remind you
6 if you keep your voice up and speak into the microphone so
7 everybody can hear you. Thank you.
8 Where are you from?
9 A. I'm from Kenya.
10 Q. And where do you live?
11 A. I live in Nairobi.
12 Q. And how are you employed?
13 A. I work for the public service.
14 Q. And what branch of the public service do you work for?
15 A. I am a senior officer in the real estate section.
16 Q. Do you also earn income by leasing out real estate in
17 Kenya?
18 A. Yes, I do.
19 Q. Are you familiar with a house known as number 43 Runda
20 Estates in Nairobi?
21 A. Yes.
22 Q. Do you own that property?
23 A. Yes.
24 Q. How long have you owned that property?
25 A. Just over ten years now.
2297
1 Q. And about how far from Nairobi is the property?
2 A. 15 kilometers.
3 MR. BUTLER: May I approach, your Honor?
4 THE COURT: Yes.
5 Q. I'd like to show you some photographs that have been
6 marked as Government Exhibits 567A through G, and I'll just
7 ask whether you recognize these photos.
8 A. Yes, I do.
9 Q. And what is depicted in those photographs?
10 A. Please repeat the question?
11 Q. What is depicted in those photographs? Are those
12 photographs of your house at 43?
13 A. Yes, is the front of the house.
14 Q. And each one of those photographs a fair and accurate
15 depiction of your house at 43 Runda Estates?
16 A. Yes.
17 MR. BUTLER: I offer Government Exhibits 567A through
18 G at this time, your Honor.
19 (Government's Exhibits 567A through G received in
20 evidence)
21 MR. BUTLER: If we could publish 567A to the jury,
22 please.
23 Q. What is shown in 567A, Ms. Ratemo?
24 A. The front of the house, the front entrance.
25 Q. If you could tell the jury just approximately how big is
2298
1 the house at 43 Runda Estates?
2 A. It's about ten rooms in all including the kitchen and the
3 garage.
4 Q. How many bedrooms does the house have?
5 A. Four bedrooms.
6 Q. Where is the garage located?
7 A. Just before the entrance.
8 Q. Is the garage attached to the building or is it detached
9 from the building?
10 A. Detached.
11 Q. Detached. What's around the outside of the house at 43
12 Runda Estates?
13 A. The front or the back?
14 Q. The front of the house.
15 A. The front is the garage to the left and then there is an
16 entrance on the front is the kitchen.
17 Q. Before you enter the grounds what's at the front of the
18 house?
19 A. The gate.
20 Q. Is there anything next to the gate?
21 A. There is a small security guard house.
22 Q. And is there anything that is next to the guard house?
23 A. The parking.
24 Q. Why don't we go to 567B. What is shown in 567B?
25 A. That's the lounge.
2299
1 Q. Why don't we go to 567C. What's shown in 567C?
2 A. That is the entrance gate from outside.
3 Q. And is there a wall attached to that gate?
4 A. Yes. The whole house is surrounded by a perimeter wall.
5 Q. What can you see from outside the perimeter wall?
6 A. On this picture --
7 Q. Can you see into the house from outside the perimeter
8 wall?
9 A. No, not much.
10 Q. And where does the front of the house face in relationship
11 to the gate?
12 A. It's facing to the right.
13 Q. Is it on the same level as the gate or is it raised or
14 down from the gate?
15 A. It's slightly down.
16 Q. Why don't we go to 567D. What's shown in 567D,
17 Ms. Ratemo?
18 A. That is the back of the house showing the veranda from the
19 back.
20 Q. Let's go to 567E. What's shown in 567E?
21 A. That's the inside of the yard between the kitchen and the
22 domestic quarters.
23 Q. Is there, in the area inside is there like a courtyard
24 area?
25 A. Yeah, that's a courtyard. That's an open space between
2300
1 the domestic an the kitchen.
2 Q. Could we go to 567F, please. What's shown in 567F?
3 A. That's one view of the house from the back side behind,
4 from the garden side.
5 Q. Let's go to 567G. What's depicted in 567G?
6 A. Those are the two entrances of the garage.
7 MR. BUTLER: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. I am going to show you what has been previously marked as
10 Government Exhibit 582.
11 I ask you to take a moment to look at 582, and I'll
12 ask you whether that is a fair and accurate sketch of the
13 layout of the ground floor of 43 Runda Estates?
14 A. That's correct.
15 MR. BUTLER: I would offer Government Exhibit 582 at
16 this time, your Honor.
17 THE COURT: Received.
18 (Government's Exhibit 582 received in evidence.
19 Q. If we could display Grand Jury Exhibit 582 to the jury.
20 Now, if you could just briefly describe maybe starting at the
21 garage area, what is depicted on this sketch?
22 As you go through the garage where do you go to next?
23 A. From the garage there is a door to the open yard and from
24 the yard you can enter directly to the kitchen. It's one door
25 there. And from the kitchen you can go through. There are
2301
1 two doors in the kitchen, one to go to one room called the
2 family room, and to the dining. Down the hallway there's
3 another door to the lounge. And then at the end of it to the
4 far right is the guest room. And then in the open yard to the
5 left there is two domestic servants. So the total there eight
6 rooms.
7 Q. The courtyard that you spoke about before, where is that
8 located on the sketch?
9 A. Sorry? The --
10 Q. The courtyard that you identified before on the
11 photograph, where is that located on the sketch?
12 A. Between the double garage and the kitchen.
13 Q. And what is that area listed as on the diagram as the yard
14 area?
15 A. It's called a yard.
16 Q. Now, were you renting the property at 43 Runda Estates
17 back in early 1998?
18 A. Yes.
19 Q. In the beginning of 1998 who was your tenant?
20 A. There was a Mr. Bashir.
21 Q. And when did -- approximately when did Mr. Bashir begin
22 renting the house at 43 Runda Estates?
23 A. In mid '96.
24 Q. And directing your attention to about mid -- I'm sorry
25 withdrawn.
2302
1 Did there come a time when Mr. Bashir stopped being
2 your tenant?
3 A. Yes.
4 Q. And approximately when did that occur?
5 A. Mid-March.
6 Q. Of what year?
7 A. 1998.
8 Q. And was there a telephone in the premises at 43 Runda
9 Estates at this time?
10 A. Yes.
11 Q. What was the telephone number?
12 A. The number was 512430.
13 Q. Whose name was the telephone under at this time?
14 A. In the name of Mr. Bashir.
15 Q. Approximately how long had the phone been in the name of
16 Mr. Bashir?
17 A. About one year.
18 Q. When Mr. Bashir decided to end his tenancy what, if
19 anything, did you do about the telephone?
20 A. He went to the telephone company office and he wrote a
21 letter to transfer the number to my name.
22 Q. Approximately how long does it take for that to actually
23 happen after you request a telephone company to change it back
24 to your name?
25 A. About nine months.
2303
1 Q. And was that ultimately done?
2 A. By that time, no.
3 Q. Eventually did the phone go back to your name?
4 A. Yes, it did.
5 Q. About how long after you went to the phone company?
6 A. About nine months.
7 Q. Now, drawing your attention to April, 1998 did there come
8 a time when you were called by a potential tenant for 43 Runda
9 Estates?
10 A. Yes.
11 Q. And who called you?
12 A. There was a Mr. Fazul Abdullah.
13 Q. And was anybody else on the phone with you at that time?
14 A. Yes, there was Mr. Sikander.
15 Q. And had you ever spoken to these people before?
16 A. No.
17 Q. Could you tell us about your conversation with Mr. Fazhul
18 Abdallah and Mr. Sikander on that day?
19 A. They had seen the advert that the house was vacant so they
20 called, they expressed their interest that they wanted to rent
21 the house.
22 Q. And did you tell them how much it cost to rent the house
23 at that time?
24 A. Yes, I told them the amount, but they wanted to, they
25 thought it was too much.
2304
1 Q. How much were you charging to rent 43 Runda Estates at
2 that time?
3 A. I was charging about 55,000 Kenya shillings.
4 Q. Was that per month?
5 A. That's per month, yeah.
6 Q. And what happened after that conversation?
7 A. They said that they thought about it and call me again.
8 Q. Did you see them again?
9 A. They called again about three two to three days.
10 Q. Who called?
11 A. I think it was Mr. Sikander because of the language.
12 Q. You had difficulty communicating with --
13 A. Fazhul could not, I couldn't understand him.
14 Q. And what was discussed during that telephone call?
15 A. That they had agreed to pay the amount that I requested,
16 50,000.
17 Q. And did you see them again after this telephone
18 conversation?
19 THE COURT: When you say "see again," had you seen
20 these people?
21 THE WITNESS: No, I hadn't.
22 Q. I'm sorry. Did you have any further contact with them
23 after this telephone conversation?
24 A. No. They called again.
25 Q. They called again?
2305
1 A. They were willing to take the house at that amount. They
2 this agreed on the phone 50,000.
3 Q. Just so we can be clear, you had your first telephone
4 conversation, correct?
5 A. Yes.
6 Q. And then you spoke with Fazhul and Sikander, correct?
7 A. Yes.
8 Q. And then you had a second telephone conversation, correct?
9 A. Yes.
10 Q. And was it during the second telephone conversation that
11 they agreed to pay the amount for the lease?
12 A. Yes.
13 Q. When is the next time that you had contact with Fazhul and
14 Mr. Sikander?
15 A. During that second telephone conversation we made an
16 appointment to meet at the house.
17 Q. And --
18 A. This it was two, three days later or I don't remember
19 exactly.
20 Q. Did you eventually meet at the house?
21 A. Yes.
22 Q. And what happened at that meeting at the house?
23 A. I saw my prospective tenant, had asked them a few
24 questions, asked him a few questions, and we agreed that we
25 sign an agreement.
2306
1 Q. Did you sign the agreement at that meeting?
2 A. No. We made another appointment.
3 Q. And who did you understand was going to be the actual
4 tenant at 43 Runda Estates?
5 A. Mr. Fazhul.
6 Q. And how long did he want the lease for?
7 A. He wanted the house for a short length which was five to
8 six months.
9 Q. And was there any discussion of who would actually sign
10 the lease?
11 A. Yes.
12 Q. And who did you understand would actually sign the lease?
13 A. Mr. Sikander would. Mr. Fazhul told me Mr. Sikander would
14 sign the lease on his behalf because he was not a Kenya
15 citizen.
16 Q. And did Mr. Fazhul tell you anything about why he needed
17 such a large house?
18 A. Yes, he said he had a family and he had some business
19 people who would be coming to visit frequently.
20 Q. And what kind of business people?
21 A. He said the kind of people that are dealing with, they are
22 trading in gold and they would come from Dubai.
23 Q. I show you what has been admitted as Government Exhibit
24 110 into evidence. Do you recognize the person depicted in
25 that photograph?
2307
1 A. Yes.
2 Q. Who is that?
3 A. Mr. Fazhul Abdallah.
4 Q. Now, during this meeting at 43 Runda Estates did you, was
5 any money exchanged at that time?
6 A. No.
7 Q. And as a result of this meeting what did you do?
8 A. We made an agreement to meet, we agreed whereby the
9 agreement would be signed and they would pay.
10 Q. How long after that meeting at 43 Runda was the next
11 meeting supposed to take place?
12 A. It was within two to three days.
13 Q. Did that meeting occur?
14 A. Pardon me, please?
15 Q. Did you actually have that meeting?
16 A. Yes.
17 Q. Where did that meeting take place?
18 A. In my office.
19 Q. And who was at that meeting?
20 A. Mr. Sikander and Mr. Fazhul.
21 Q. And what took place at that meeting?
22 A. We signed the agreement and they paid 30 percent.
23 Q. And --
24 A. Two months deposit and one months rent.
25 Q. And how were you paid?
2308
1 A. He paid in cash.
2 Q. And in what, Kenya shillings?
3 A. Yes, Kenya shillings, yes.
4 Q. And during the course of the tenancy who paid the rent?
5 A. Mr. Fazhul.
6 Q. And how did he pay you?
7 A. In cash.
8 Q. And was that normal for you to be paid in cash?
9 A. I would say yes.
10 Q. Did Mr. Bashir pay you in cash?
11 A. No. It was a company leased to the company, paid me by
12 check.
13 Q. And how did you receive your rent from Mr. Bashir?
14 A. Through a company check.
15 MR. BUTLER: One moment.
16 (Pause)
17 Can I approach, your Honor?
18 THE COURT: Yes.
19 Q. I show you what has been marked as Government Exhibit 568.
20 Do you recognize Government Exhibit 568?
21 A. Yes.
22 Q. What's Government Exhibit 568?
23 A. The agreement, the lease we signed.
24 Q. And if you turn to the last page of Government Exhibit 568
25 does your signature appear there?
2309
1 A. Yes.
2 Q. And does anyone else's signature appear there?
3 A. Mr. Sikander.
4 MR. BUTLER: I would offer Government Exhibit 568 at
5 this time, your Honor.
6 THE COURT: Received.
7 (Government's Exhibit 568 received in evidence)
8 Q. Now, on the day that the lease was signed did Mr. Fazhul
9 indicate when he would be moving in?
10 A. Indicated that he, he explained that he would move in
11 immediately.
12 Q. And when was, what was the term of the lease for?
13 A. Six months.
14 Q. And beginning when?
15 A. The first day of May, 1998.
16 Q. And did Mr. Fazhul mention anything that he needed to do
17 before he moved in?
18 A. Yes. He said he wanted to go to Sudan to get his family
19 to get his wife who needed to travel accompanied because of
20 religious reasons.
21 Q. Now, did there come a time when you had some dealings with
22 Mr. Fazhul regarding the telephone service at the house?
23 A. Yes.
24 Q. And what happened regarding the telephone service at the
25 house?
2310
1 A. There was a phone in the house but he had problems ringing
2 international.
3 Q. And why did he ever problems ringing internationally?
4 A. Because the international facility was not provided.
5 Q. What does somebody need to have in order to make an
6 international call in Kenya at that time in 1998?
7 A. You needed, one needed special permission. One needed to
8 prove that you are the owner of the phone, and a special
9 written permission from the telephone service company to be
10 given authority to overseas.
11 Q. Were you contacted by Mr. Fazhul about this problem?
12 A. Yes.
13 Q. And what did you do as the result of that contact that you
14 had from Mr. Fazhul about the problem with the international
15 calling?
16 A. I went, collected him at the house, went to the telephone
17 company office and authorized in writing to he be given that
18 facility.
19 Q. And approximately when did that occur?
20 A. About mid May. Yeah, about around the 20th something.
21 Q. And did Mr. Fazhul mention whether he had been able to
22 make any international calls prior to your visit to the phone
23 company?
24 A. Yes, he did. He said he had talked to the post office,
25 the local post office employee to allow him to call and --
2311
1 Q. How long did Fazhul Abdallah actually stay at the house at
2 43 Runda Estates?
3 A. He stayed for three months.
4 Q. When did he leave the house at 43 Runda Estates?
5 A. He left on the 8th of August, '98.
6 Q. And how much contact did you have with him during this
7 period of time?
8 A. I had about three or four, we contacted him when he would
9 come to pay us, and then there was a visit to the house.
10 Q. Did there come a time when you met his wife and family?
11 A. Yes.
12 Q. When was that?
13 A. The first time I met the wife is when I went to fix the
14 phone, because I went to the house and picked him up. The
15 second is when they made an unexpected visit to my house.
16 Q. And when did that unexpected visit to your house occur?
17 A. Sometime in I think June, can't remember.
18 Q. And who came to your house?
19 A. Mr. Fazhul came to my house with the wife and two
20 children.
21 Q. And you had not been expecting him?
22 A. No, that is unexpected, and it was late at night, 8
23 o'clock, 8 p.m.
24 Q. Had you ever given him your home address before?
25 A. No.
2312
1 Q. And did you ever find out how he knew where your home
2 address was?
3 A. Yes, I did ask him how he came to know where I live and he
4 said he was just within the district.
5 Q. And did they come inside the house?
6 A. Yes.
7 Q. And what happened once they got inside the house?
8 A. When they came in to the house I opened the door. I led
9 them to the lounge we were watching television. And
10 apparently -- my brother was there -- and the wife was dressed
11 all in black including the eyes, and once she entered the
12 lounge, she had to run away because my brother was there.
13 Q. And was there some conversation about where Fazhul was
14 from during this visit?
15 A. Yes. My brother did ask him where he came from and he
16 said he came from Morocco, but according to my brother he
17 thought he came from Yemen.
18 Q. What did Fazhul do, if anything, when your brother said he
19 came from Yemen?
20 A. He was kind of caught in a surprise but he convinced him
21 he came from Morocco.
22 Q. Now, did you see what type of car Fazhul was driving
23 during the time of his visit to you?
24 A. Yes.
25 Q. And what type of car was that?
2313
1 A. He's driving a red car Mitsubishi old.
2 Q. How did you find out what kind of car he was driving?
3 A. This is because we escorted him out, I saw the car and in
4 my yard I have security lights so I was able to see. And he
5 couldn't start the car, so we had to help him to push, and
6 until the car started.
7 Q. And did you see him in that car on other occasions?
8 A. Yes. Noticed that the car was around when I went to the
9 telephone, the car was in the yard, in the yard at the house
10 in Runda.
11 Q. Now, did there come a time when you took a trip to Europe
12 during this period when Fazhul was renting the house at 43
13 Runda Estates?
14 A. Yes. Soon after we signed the agreement I traveled to
15 Europe around the 10th of March.
16 Q. Where did you go in Europe?
17 A. I went to London.
18 Q. And did you mention to Fazhul that you were going to
19 Europe?
20 A. Yes.
21 Q. And did he ask you for anything in connection with your
22 trip?
23 A. He asked me if I could buy him a computer part.
24 Q. And did he give you anything in connection with that?
25 A. He gave me a copy of that part, that item he wanted.
2314
1 THE COURT: I didn't get that. He asked you if you
2 would buy a what?
3 THE WITNESS: A computer part.
4 MR. BUTLER: May I approach, your Honor?
5 THE COURT: Yes.
6 Q. I show he you what has been previously marked as
7 Government Exhibit 586. Do you recognize Government Exhibit
8 586?
9 A. Yes, I do.
10 Q. What is that?
11 A. It's a copy of a Sharp adapter.
12 Q. How did you get that document?
13 A. He gave me the copy himself.
14 Q. Who gave that to you?
15 A. Mr. Fazhul.
16 MR. BUTLER: Offer Government Exhibit 586 at this
17 time, your Honor.
18 MR. BAUGH: No objection.
19 THE COURT: Received.
20 (Government's Exhibit 586 received in evidence)
21 Q. The handwriting that's on that document, whose handwriting
22 is that?
23 A. At the bottom of the photocopy that's the handwriting of
24 Mr. Fazhul.
25 Q. What does that handwriting say?
2315
1 A. He say is four pin.
2 Q. And the handwriting on the upper part of the document,
3 whose handwriting is that?
4 A. That's mine.
5 Q. What does that say?
6 A. Adapter.
7 Q. Do you recall what particular part Fazhul was looking for?
8 A. Pardon?
9 Q. Do you recall what particular computer part Mr. Fazhul was
10 asking you to get when you were in London everyone?
11 A. He told me it was an adapter for his computer. That's
12 what he told me. That's why I wrote it in my handwriting to
13 make sure, I get to know what it is.
14 Q. And did you actually pick up that item for him while you
15 were in Europe?
16 A. No.
17 Q. Now, do you recall the day that the United States Embassy
18 in Nairobi was bombed?
19 A. Yes, I do.
20 Q. And is there any particular reason why you remember that
21 day?
22 A. Yes.
23 Q. Why is that?
24 A. I lost a very close relative.
25 Q. And who was that?
2316
1 A. Brother-in-law.
2 Q. And where was he at the time of the bombing?
3 A. He was an employee of the American Embassy.
4 Q. And did you play any role in trying to determine what
5 happened to your brother-in-law during the day of the bombing?
6 A. Yes, I was communicating link because we were calling each
7 other every thirty minutes to get to know who is where and
8 what.
9 Q. And did there come a time on August 7, 1998 when you saw
10 Fazhul Abdallah?
11 A. Yes, he came to my house that night around 8 p.m. Nairobi
12 time.
13 Q. And was anyone with him?
14 A. Mr. Sikander was with him.
15 Q. What happened when Fazhul came to your house?
16 A. He came to tell me that he was vacating the house.
17 Q. And did he tell you why he was vacating the house?
18 A. Yes. He told me his father-in-law has been very ill, had
19 a terminal disease and therefore he have to go home.
20 Q. And what did you do after this meeting with Fazhul and
21 Sikander on August 7, 1998?
22 A. We made an appointment to meet at the house.
23 Q. And when was that appointment for?
24 A. The next day.
25 Q. And did you actually meet Fazhul at the house the next
2317
1 day?
2 A. Yes, he was at the house with Mr. Sikander.
3 Q. And what took place at the house on August 8, 1998?
4 A. We looked around the house to see what was missing or --
5 original tenant you have to leave the house the way you
6 occupied. So I check the house and it all was fine.
7 Q. Was there any furniture in the house at that time?
8 A. No, none.
9 Q. Did you ever see any furniture in the house during the
10 time Fazhul was renting the house?
11 A. There was no furniture at all.
12 Q. And after you checked the house to see if everything was
13 okay, what happened after that?
14 A. He give me my key, he return the key back to me, and there
15 was one key which was missing, so he told me to follow them
16 towards town up to a place where they would give me the other
17 key. That's what I did.
18 Q. Did you have any agreement with regard to the security
19 deposit?
20 A. Yes.
21 Q. What was that agreement?
22 A. The deposit which he left was to redecorate the house, and
23 if, if there was more than required, I would give the balance
24 to Mr. Sikander.
25 Q. When you say "redecorate," what exactly?
2318
1 A. To repaint.
2 Q. Did you see what kind of car Mr. Fazhul was driving that
3 day?
4 A. Yes.
5 Q. What kind of car was that?
6 A. It was a pickup 1200 white car.
7 MR. BUTLER: One moment, your Honor. No further
8 questions, your Honor.
9 THE COURT: Anyone else?
10 MR. SCHMIDT: May I have a moment, your Honor?
11 THE COURT: Yes.
12 (Pause)
13 CROSS-EXAMINATION
14 BY MR. SCHMIDT:
15 Q. Good afternoon. In what language did you communicate with
16 Mr. Fazhul?
17 A. In Swahili and a little French.
18 Q. Did you communicate with him at all in English?
19 A. Not much, not at all I can't remember.
20 Q. What language did you communicate with Mr. Sikander in?
21 A. English and Swahili.
22 THE COURT: Mr. Schmidt --
23 MR. SCHMIDT: Two minutes, that's all.
24 Q. The time in August 8 when they gave up the key, was any
25 other person with Mr. Fazhul at that time?
2319
1 A. Yes, Mr. Sikander was with him.
2 Q. Was there a woman with him as well?
3 A. No.
4 Q. Somebody's sister there?
5 A. Sorry?
6 Q. Was somebody's sister there?
7 A. Not where they give me the key, no.
8 Q. Did you meet Mr. Sikander's, one of Mr. Sikander's sisters
9 at any time?
10 A. Yes.
11 Q. When was that?
12 A. The first time they came to see the house.
13 Q. What language -- did you talk with her at all?
14 A. I did spoke English, the sister of Sikander.
15 Q. Do you recall her name?
16 A. No.
17 MR. SCHMIDT: I have no further questions.
18 THE COURT: Anything further of this witness?
19 MR. BUTLER: No.
20 THE COURT: Any redirect?
21 Thank you ma'am. You may step down.
22 (Witness excused)
23 THE COURT: The government may call the next witness.
24 MR. KARAS: Your Honor, the government calls Ron
25 Kelly.
2320
1 RONALD L. KELLY,
2 called as a witness by the government,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. KARAS:
6 Q. Good afternoon, sir. Can you tell us how you're employed?
7 A. I'm employed at the Federal Bureau of Investigation as a
8 chemist.
9 Q. For how long have you been a chemist at the FBI?
10 A. I've been employed in the FBI laboratory for over 22
11 years.
12 Q. Mr. Kelly, are you familiar with the term explosive
13 residue?
14 A. Yes, I am.
15 Q. Can you tell the jury what that is?
16 A. An explosive residue is a very small amount of material
17 which remains at a scene after an explosion or at a location
18 in which explosives may have been stored or handled.
19 Q. And can you tell us what methods are used to recover
20 explosive residue?
21 A. There are three basic methods we use. First we try to
22 recover an item, small items, package it and send it back to
23 the laboratory for analysis. Items that are too large to send
24 to the laboratory we have two techniques, vacuuming, and
25 swabbing. A vacuuming technique is simply a vacuum that you
2321
1 commonly use in your house with special attachments and
2 filters to trap explosive residues. The other technique,
3 swabbing, is simply a clean sterile cotton material used to
4 rub across surfaces to remove residues.
5 Q. Have you yourself taken swabbings?
6 A. Yes, I have.
7 Q. Can you tell us approximately how many in your career?
8 A. Many hundreds, if not thousands.
9 Q. And did there come a time that you were dispatched to
10 Nairobi in August of 1998?
11 A. Yes, there was.
12 Q. Did you take any swabbings of the surface of the American
13 Embassy there?
14 A. Yes, I did.
15 MR. KARAS: May I approach, your Honor?
16 THE COURT: Yes.
17 Q. Mr. Kelly, I've placed before you what has been marked as
18 mark Government Exhibits 842 and 843 and ask you to take a
19 look at them. Starting with 842, can you tell us what 842 is?
20 A. Yes. 842 is what is considered a control swabbing I did
21 at the scene there in Nairobi.
22 Q. Can you tell the jury what a controlled swabbing is?
23 A. A controlled swabbing can be several things. One, control
24 swabbing may just be a representative sample of the swabbing
25 material, the cotton that we used to do the swabbing. Control
2322
1 may also be that same material used to swab our hands and our
2 clothing of the search personnel where we may take a control
3 swabbing of containers or surfaces that evidence may be placed
4 upon.
5 Q. What is the purpose of using control swabbing?
6 A. The purpose of control swabbings is to remove any residues
7 and test them for samples in the laboratory to detect any
8 contamination that might be present prior to us collecting any
9 evidence.
10 Q. And that particular control swabbing, can you tell us what
11 that was, 842?
12 A. Yes, exhibit 842 was a control swabbing swab material and
13 I used it to swab the gloved hands prior to collecting
14 evidence that day.
15 Q. And can you tell us what exhibit 843 is?
16 A. Exhibit 843 is an actual evidence swabbing that was taken
17 from the, what I considered the south side wall of the US
18 Embassy.
19 Q. And can you tell us where that wall was facing?
20 A. Again, that wall, the south side would be the wall facing
21 the direction of the explosion that occurred that day.
22 Q. So that would be the wall that faces the large cooperative
23 house across the way?
24 A. That is correct.
25 Q. And can you tell us where along the wall of the American
2323
1 Embassy you took the swabbing that's Government Exhibit 843?
2 A. The swabbing was taken along the wall. Generally I take
3 them in the higher areas on the wall. Those are areas that
4 would be least likely to be contaminated, leaned against or
5 otherwise come in contact with foreign objects.
6 Q. How is it that you packaged these exhibits 842 and 843?
7 A. After taking the swabbing the swabbings themselves are put
8 into a glass file, sealed and labeled with the appropriate
9 identification markers, and then at a later time turned over
10 to our evidence control center that we had set up there.
11 Q. Did you initial those particular swabbings?
12 A. Yes, I did.
13 MR. KARAS: Your Honor, we offer Government Exhibits
14 842 and 843.
15 THE COURT: Received.
16 (Government's Exhibits 842 and 843 received in
17 evidence)
18 MR. KARAS: No further questions.
19 CROSS-EXAMINATION
20 BY MR. WILFORD:
21 Q. Good afternoon.
22 A. Good afternoon.
23 Q. How you doing, Mr. Kelly?
24 A. Pretty good.
25 Q. Now, Agent Kelly, when you were speaking about the
2324
1 explosives being stored or handled -- do you remember that on
2 direct at the beginning of your direct examination?
3 A. Yes.
4 Q. Would it also be true that if a person was handling the
5 explosive material and it got on to his clothes that would
6 remain on his clothes?
7 A. Yes.
8 Q. And when you talked about the embassy south side of the
9 embassy wall and you took your sample from high up on the
10 wall, because you didn't want to take a sample from an area
11 where someone had leaned against it --
12 A. That's correct.
13 Q. -- if someone leaned against that particular area, the
14 explosive material would also go on their clothes, isn't that
15 correct?
16 A. That would be a possibility that you could transfer
17 residues in that manner, yes.
18 Q. Now, the explosive residue that you're talking about,
19 could you give the jury some idea of quantitatively what we're
20 talking about in terms of amount?
21 A. Yes. The instruments in our laboratory are capable of
22 seeing quantities that you physically cannot even see as
23 residues, so there could be residue present here on this bench
24 right now you cannot see it, but, again, if I touched an
25 explosive and touched the surface, our instruments would be
2325
1 sensitive enough to identify the explosives that I deposited
2 there.
3 Q. Some sort of a number like a millionth of a part or
4 something like that is that accurate or smaller than that?
5 A. Usually what I equate to amount-wise is if you take a
6 typical aspirin tablet and you were to divide that into about
7 five billion pieces I could identify each and every one of
8 those five billion pieces. It's a very, very small quantity
9 that we can identify.
10 Q. Sir, isn't it a fact that explosive residue is or can be
11 transferred in all types of human contact?
12 MR. KARAS: Objection to form, your Honor.
13 THE COURT: Overruled. Do you understand the
14 question?
15 THE WITNESS: If he could try to rephrase it.
16 Q. Okay. If I handle explosive materials and I shake your
17 hand there could be a transfer during this handshake, isn't
18 that correct?
19 A. Yes, that would be a logical type of transfer. Physical
20 contact is usually what would be required on a solid material.
21 Q. I'm sorry. Did you finish your answer, sir?
22 A. Yes, I did.
23 Q. And if I had explosive material on my clothing and I
24 embraced you, then the explosive residue would, could be
25 transferred to your clothing, isn't that correct, sir?
2326
1 A. It could depending upon the original amount that was on
2 your clothing. Each transfer there's a significant reduction
3 in the amount of material that's transferred.
4 Q. But you could find those billions of pieces of the
5 aspirin, right?
6 A. It would be possible, yes.
7 MR. WILFORD: Thank you. Nothing further.
8 THE COURT: Anything further of this witness? Thank
9 you, sir, you may step down.
10 (Witness excused)
11 THE COURT: We'll take our luncheon recess and we'll
resume at 2:15.
12
13 (Luncheon recess)
14 (Continued on next page)
15
16
17
18
19
20
21
22
23
24
25
2327
1 AFTERNOON SESSION
2 2:20 p.m.
3 (Jury not present)
4 THE COURT: We are late getting started because I was
5 told the lunch for the jurors was 20 minutes late.
6 There is a note from a juror saying, "I need to be
7 off March 22, Thursday. I have important family business to
8 take care of that day." With your permission, I will ask that
9 juror what the nature of the family business is.
10 Also, the juror who was taking a civil service
11 exam -- that was supposed to be last Tuesday -- was unable to
12 take that exam because it was canceled due to weather. The
13 exam has been rescheduled for March 29, which is a Thursday.
14 MR. BAUGH: Judge, the interpreters are waving at
15 you.
16 MR. FITZGERALD: You were mute. I think you should
17 be live now.
18 THE COURT: That juror was trying to see whether the
19 exam could be rescheduled for a Friday, so we don't know
20 whether we will be able to sit on those days. March 22 is
21 also a Thursday.
22 Let me see if the jurors have finished their lunch.
23 (Jury present)
24 THE COURT: Good afternoon. The government may call
25 its next witness.
2328
1 MR. KARAS: Yes, your Honor. The government calls
2 Steve Casper.
3 STEVE CASPER,
4 called as a witness by the government,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. KARAS:
8 Q. Good afternoon, Mr. Casper.
9 A. Good afternoon.
10 Q. Can you tell us how you are employed.
11 A. I am employed as a special agent for the Federal Bureau of
12 Investigation.
13 Q. How long have you been a special agent for the FBI?
14 A. I have been a special agent for approximately 13 years
15 now.
16 Q. Can you tell us about your current assignment.
17 A. I am currently assigned as an examiner in the FBI
18 laboratories firearms and tool marks unit.
19 Q. Can you tell us bit about your education.
20 A. I have a BS degree, bachelor of science degree in biology
21 from Saint Vincent College in Latrobe, Pennsylvania.
22 Q. Can you tell us a little about the training you received
23 to become a qualified firearms and tool marks examiner.
24 A. Yes. The training, it was an extensive and lengthy
25 training program in the FBI laboratory that lasted
2329
1 approximately two years. During this period I read available
2 literature of the area of firearms and tool marks
3 identification. I visited firearms and tool manufacturing
4 facilities and ammunition manufacturing facilities to get a
5 better understanding of how these items are manufactured. But
6 the bulk of my training at the FBI laboratory to become a
7 firearms examiner was on the job type training process, where
8 I worked with the qualified examiners in our unit. During
9 this time I worked on hundreds of cases and I examined
10 thousands of items of evidence.
11 At the conclusion of my training I underwent a series
12 of six oral examinations, and it was the proficiency that I
13 showed in these examinations that led the laboratory to
14 believe that I was ready to work my own cases and to present
15 my findings in a court of law.
16 Q. Have you yourself conducted any lectures on firearms and
17 tool marks identification?
18 A. Yes, I have conducted a few lectures at schools that the
19 FBI puts on for examiners throughout the United States, in
20 local crime laboratories.
21 Q. For how many years have you been a firearms and tool marks
22 examiner?
23 A. I have been an examiner in the firearms and tool marks
24 unit for approximately eight years now.
25 Q. Did there come a time you were asked to examine some items
2330
1 that you understood to be originally taken from Nairobi,
2 Kenya?
3 A. Yes, there was.
4 MR. KARAS: Your Honor, may I approach?
5 THE COURT: Yes.
6 Q. Agent Casper, I have placed before you what have been
7 marked into evidence as Government's Exhibits 838 and 559.
8 Beginning with Government's Exhibit 838, can you tell us what
9 it is you were asked to do with respect to that exhibit?
10 A. I was given this exhibit, Government's Exhibit 838, and I
11 was asked to determine if in fact it is a firearm part, and if
12 I was able to determine that, from what type or make or model
13 firearm it was from.
14 Q. Can you tell us a little bit about the process you went
15 through to conduct your analysis.
16 A. I conducted a microscopic analysis of this piece.
17 Initially, or immediately, I recognized this piece as a part
18 of a slide from a pistol, from a semiautomatic handgun.
19 Then I wanted to determine who manufactured it, can I
20 determine the model, can I determine the caliber. I looked at
21 it microscopically, and I was able to notice a few letters on
22 the slide, which led me to believe that it was a Beretta type
23 slide. I did additional work in the laboratory, looking at
24 pictures of Beretta firearms and looking at the Beretta
25 firearms that we have in our collection, to try to determine
2331
1 the make and the model of this.
2 Q. Are you familiar with the phrase number restoration
3 process?
4 A. Yes, I am.
5 Q. Can you tell us what that is.
6 A. Number restoration is a simple process that we use in our
7 laboratory to try to determine a stamped number that was on a
8 firearms part that has been since obliterated by either
9 somebody obliterating it themselves, by grinding it away, or
10 just by wear and tear. It's a process where in the laboratory
11 you use certain types of acids. These acids will etch away
12 numbers that are stamped in the metal. When you stamp a
13 number in the metal, it pushes the metal down, compresses the
14 metal in that stamped area. The molecules in the metal are
15 becoming harder, far more compressed. When a number
16 restoration is conducted, the acids eat away at that
17 compressed area, and then under the proper lighting and a
18 microscope you can read those numbers that used to be stamped
19 there, that is, if the number wasn't destroyed to where all of
20 that compressed area is gone.
21 Q. Can you tell us whether or not number restoration was done
22 on Government's Exhibit 838?
23 A. Yes, number restoration was conducted on Government's
24 Exhibit 838.
25 Q. Did you see the results of that?
2332
1 A. Yes, I was present for that number restoration.
2 Q. What was turned up by the number restoration?
3 A. Upon the number restoration, we were able to read the --
4 of course, the manufacturer, which it did show up as Beretta.
5 We were able to read the model, from a Beretta model 1934,
6 which would have been originally made in 1934. And we were
7 able to read the caliber that this firearm was originally
8 manufactured, and it said on there 9 corto. 9 corto also
9 means .380 auto.
10 Q. .380 auto is a type of caliber?
11 A. Yes, .380 auto is a caliber of cartridge that was used in
12 this firearm.
13 Q. Do you have as samples a wide variety of firearms?
14 A. Yes, we do. We have a collection in our laboratory that
15 has over 5,000 firearms, approximately 3,000 handguns, 2,000
16 shoulder weapons.
17 Q. Were you able to find among that collection a Beretta
18 model 1934, 9 corto?
19 A. Yes, we did have a Beretta model 1934, 9 corto.
20 MR. KARAS: If we could show to the witness and
21 counsel only Government's Exhibit 839-P1.
22 Q. Agent Casper, can you tell us what is Government's Exhibit
23 339-P1?
24 A. Government's Exhibit 839-P1 is a photograph, a closeup
25 photograph of the Beretta model 1934 that we have in our
2333
1 laboratory. I had this photograph taken. It shows on there
2 the numbers, the letters of P Beretta, caliber 9 corto, the
3 model.
4 MR. KARAS: If we could also show to the witness and
5 counsel only Government's Exhibit 839-P2.
6 Q. Tell us what that exhibit is.
7 A. Government's Exhibit 839-P2 is a full one-to-one
8 photograph of the Beretta model 1934 that we have in our
9 laboratory that I had photographs taken of.
10 MR. KARAS: At this time we offer Government's
11 Exhibits 839-P1 and P2.
12 THE COURT: Received.
13 (Government's Exhibits 839-P1 and 839-P2 received in
14 evidence)
15 Q. Agent Casper, did you compare Government's Exhibit 838 to
16 839-P1 and 2?
17 A. Yes, I compared the remaining physical characteristics of
18 Government's Exhibit 838 to the firearm of Government's
19 Exhibit 839-P2.
20 Q. What was your conclusion based on that comparison?
21 A. Based on the comparison that this, as I mentioned before,
22 this piece of this slide would be from this type of firearm,
23 or this exact make and model firearm, so that what you are
24 seeing there, 839-P2, Beretta model 1934, that is what this
25 Government's Exhibit 838 represents, the slide portion, the
2334
1 top part of the firearm.
2 Q. If you could tell us what the ridges in 839-P2 are part
3 of?
4 A. In 839-P2 at the back of the firearm, and if you will
5 notice on 838, there are some ridges back of the slide. That
6 is so you can grip it and pull it backwards to manually load
7 the bullets back in the chamber.
8 Q. Can you tell us or describe for us what a Beretta slide
9 would look like if it was undamaged.
10 A. If this were undamaged, this would all be straight. It
11 wouldn't be bent upward. As you can see, this is only one
12 half. This is the left hand portion of that slide. The
13 right-hand portion of that slide is totally gone. What we are
14 seeing in the picture that you see, Government's Exhibit
15 839-P2, is the left-hand portion of a Beretta model 1934,
16 which we have here.
17 Q. Agent Casper, were you also asked to examine the items
18 that are contained in Government's Exhibit 559?
19 A. Yes, I was.
20 Q. Can you tell us generally what those are.
21 A. These are cartridges, and I received these three
22 cartridges, Government's Exhibit 559, and I was asked to
23 determine what is the caliber of these cartridges, who
24 manufactured them, and what information I could about them.
25 Q. Can you just tell us what the difference is between a
2335
1 cartridge and a bullet.
2 A. Certainly. If I can open Government's Exhibit 559,
3 Government's Exhibit 559 contains three cartridges, one of
4 which I pulled apart and broke down into its components in a
5 laboratory. A cartridge is basically a single unit of
6 ammunition. It contains the cartridge case and the bullet.
7 When taken apart, you have a cartridge case, a casing, that
8 portion which holds the gunpowder and the bullet at the top,
9 and then you have the bullet itself, that portion which is
10 fired down the barrel and exits the muzzle of the firearm.
11 MR. KARAS: May I approach the witness, your Honor?
12 THE COURT: Yes.
13 Q. Agent Casper, we are placing on the Elmo the bullets that
14 are contained within Government's Exhibit 559. Can you tell
15 us about the analysis that you did and the conclusions you
16 reached regarding these cartridges.
17 A. All right. When I received these cartridges, I noticed
18 immediately that they didn't look like a normal cartridge that
19 one would purchase, let's say at a local sporting goods store.
20 The sides of the cartridges appeared to have been sanded or
21 ground down. They had a lot of striated or sanding, grinding
22 type marks. And the bullet itself, the nose that is coming
23 out the front of the cartridge also appeared to have some
24 grinding type marks on that bullet.
25 One of the first things I did was, I looked at the
2336
1 head of the cartridge case or the back portion of that
2 cartridge case -- I wish I had a pointer here.
3 Q. If you want, Agent Casper, step down and turn the screen
4 around.
5 A. The cartridge here, which would be one unit of
6 ammunition -- we can see it a little bit larger. We have a
7 complete cartridge here. This would be the cartridge case
8 portion and the bullet here. At the head or the back of this
9 cartridge case, the portion -- you can't see, looking straight
10 at it if you could -- on the back there is some identifying
11 information stamped into the head of that cartridge case. The
12 manufacturer will sometimes stamp their name into it, like
13 Bremington or Winchester. They will stamp into the back or
14 the head of that cartridge case the caliber of that cartridge.
15 On the heads of these cases are stamped, I believe the number
16 21 on the top at 12:00, No. 54 at 6:00, and in about the 9:00
17 position I think it is a 4 on one, a 3 on the other.
18 The 21 tells us that that cartridge was manufactured
19 for Poland, the country of Poland. The bottom number, the 54
20 tells us that that cartridge case was manufactured in 1954.
21 And the numbers in the 9:00 position, the 4 and 3, 3 and 4,
22 let's say, would tell us they were manufactured in March
23 and/or April, the third and fourth month of the year.
24 Q. The effect of the shadings that you mentioned, what would
25 be the effect of the shadings on the cartridge?
2337
1 A. Upon my examination, and I notice that there were some
2 grinding marks, when I pulled these cartridge cases apart I
3 also noticed that there were cutting marks where the cartridge
4 had been shortened a little bit, the cartridge case portion
5 had been shortened. With this information, and since it was
6 cut down, I could not positively determine the original
7 caliber that these cartridges were.
8 Q. Did you try to put these cartridges in the barrel of a
9 Beretta 1934 that you had in your laboratory?
10 A. One of the first things I did prior to that was, I
11 measured all the measurements I could. I took a diameter
12 measurement, the length measurement, and determined that the
13 measurements of this cartridge and the cartridge case portion
14 are that of the same measurements that you would find in a
15 .380 auto caliber cartridge case, or a 9 corto -- same thing.
16 Q. After you determined that, what did you do?
17 A. After I determined that, I took the -- since I already
18 knew that in this case there was a Beretta model 1934 because
19 I had had this slide piece earlier, and I was asked if these
20 cartridges could fit into this firearm, I took the Beretta
21 model 1934 from our collection in our laboratory, and I fit
22 those cartridge cases into the chamber to see if they would in
23 fact properly chamber, and they do.
24 So what I gathered from that was, these cartridges
25 were originally a different caliber, a different type
2338
1 cartridge, that is, possibly a 9-millimeter Luger.
2 9-millimeter cartridge is just a little bit longer and just a
3 little bit wider in diameter. So someone had cut these
4 cartridge cases down in length a little bit, and then with the
5 grinding marks you see on the sides, they ground them down, or
6 filed or sanded the sides of these cartridges down so that
7 they would fit into the chamber of the .380 auto.
8 MR. KARAS: I have no further questions.
9 THE COURT: Anything?
10 Thank you, sir. You may step down.
11 (Witness excused)
12 MR. FITZGERALD: The government now calls Special
13 Agent John Hughes, H-U-G-H-E-S.
14 JOHN JOSEPH HUGHES, JR.,
15 called as a witness by the government,
16 having been duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. FITZGERALD:
19 Q. Tell the jurors what you do for living.
20 A. FBI agent for the last 18 years.
21 Q. Can you tell the jury what an evidence response team is in
22 the FBI.
23 A. Yes, sir. An evidence response team is made up of FBI
24 agents and other specialists specifically designed to respond
25 to catastrophes, kidnappings, bank robberies. We are trained
2339
1 to collect evidence in certain manners, ground radar,
2 identification of evidence, marking of evidence for court
3 purposes.
4 Q. Have you served on an evidence response team?
5 A. Yes, I serve in Philadelphia as a team leader on one of
6 the two field teams in Philadelphia. I have been on the
7 evidence response team for the last seven years for the
8 bureau.
9 Q. Let me direct your attention to 1998. To what office were
10 you assigned?
11 A. Philadelphia.
12 Q. Did there come a time when you were deployed to Nairobi,
13 Kenya, as an FBI agent?
14 A. Yes, sir, August 1998.
15 Q. Can you tell us what day you arrived in Nairobi.
16 A. I believe it was August 9, sir.
17 Q. What was your assignment in Nairobi?
18 A. I was with the Philadelphia evidence response team. I was
19 assigned to work on the embassy bombing in Nairobi, collect
20 evidence with other members of the team.
21 Q. Did you work for a good amount of time on the rubble pile
22 in Nairobi?
23 A. Yes, sir.
24 Q. Let me direct your attention to August 18 of 1998. Were
25 you given an assignment that day in your position as a leader
2340
1 of the evidence response team?
2 A. Yes, sir, I was.
3 Q. Can you tell the jury where you went.
4 A. That morning I was working at the embassy as assigned. I
5 was told by the supervisor on the scene that I was needed at a
6 search at a hotel in Nairobi. Myself, other agents from the
7 Philadelphia team responded to a hotel in Nairobi called the
8 Hilltop Hotel.
9 Q. Did there come a time when you entered the Hilltop Hotel?
10 A. Yes, sir, I did.
11 Q. What locations within the hotel did you search?
12 A. I was directed by the team leaders to search two rooms,
13 107A, and I believe 102B.
14 Q. Let me approach you what have been premarked as
15 Government's Exhibits 695A through 695J. I will ask you to
16 review those photographs briefly and I will ask you if you
17 recognize what they are?
18 A. Yes, sir. These are photos of the two rooms at the
19 Hilltop Hotel, and also photos of an area where I lifted
20 prints from one of the rooms in the hotel.
21 Q. We will go through them individually.
22 MR. FITZGERALD: First, your Honor, I would like to
23 offer in evidence Government's Exhibits 695A through J.
24 MR. WILFORD: Without objection.
25 THE COURT: Received.
2341
1 (Government's Exhibits 695A through 695J received in
2 evidence)
3 Q. If we could display on the screen 695A. Could you tell us
4 what is depicted on 695A.
5 A. Sir, that is a picture of the doorway to room 107. That
6 is in the Hilltop Hotel. It is the first room I searched. It
7 is a picture of the doorway and one of the beds in the hotel
8 room.
9 Q. If we could display 695B. What is depicted in B?
10 A. Sir, that's the desk in that hotel room 107.
11 Q. Where are the beds in relation to that desk?
12 A. On either side, sir.
13 Q. 695C. What does --
14 A. That is the hanging closet and shelves for clothing near
15 one of the beds in that room.
16 Q. 695D?
17 A. That is the second bed to the right of the room, the far
18 wall of the room on the other side of that desk.
19 Q. That bed has a pillowcase with red and blue colors.
20 A. Yes. The other would have orange and white.
21 Q. 695E?
22 A. That is a second picture of the room looking to the rear
23 to the desk, and one of the beds.
24 Q. 695F?
25 A. That is the shower in the room, sir.
2342
1 Q. G?
2 A. That's another look at the same room with the desk and the
3 second bed.
4 Q. H, 695H.
5 A. Again another photo of the desk looking out the window and
6 a bed to the left.
7 Q. Orange and white?
8 A. Orange and white one, yes.
9 Q. 695I?
10 A. Sir, that's the front door of 107 and those markings there
11 are where lifts were taken.
12 Q. You mentioned lift. Can you explain to the jury what a
13 left is?
14 A. A lift, ladies and gentlemen, is, when we go into a room
15 or we go into a location, we look and we are told to dust for
16 prints. We are looking for identifying prints. We go to the
17 common areas of the room where anyone would lay a print on, a
18 door handle, a desk, a closet. We go and we dust those areas.
19 We try to identify and bring up prints. By that I mean we
20 should be able to see prints, fingerprints on a door, on a
21 desk. Once we identify the prints, we have what we call
22 lifts. There are small lifts and large lifts, depending on
23 the area that we want to bring the print up from. In this
24 area we put dust on that area, brought up some fingerprints,
25 and used the lifts to bring those prints up so we could send
2343
1 them to the lab for identification.
2 Q. Do you recall how many lifts you took out of room 107 of
3 the Hilltop Hotel?
4 A. I believe six, sir.
5 Q. Why don't I approach you with what has been premarked for
6 identification as Government's Exhibit 696. I ask you if you
7 can take a look at what has been marked 696 and tell us if you
8 recognize what it is?
9 A. Yes, sir. That is one of the lifts that I lifted from
10 that room and that door in Nairobi, and I identified it by my
11 writing on the lift.
12 MR. FITZGERALD: Your Honor, I offer Government's
13 Exhibit 696 and the corresponding photograph, 696P, in
14 evidence.
15 MR. WILFORD: Without objection, your Honor.
16 THE COURT: Received.
17 (Government's Exhibit 696 and 696P received in
18 evidence)
19 Q. If we could briefly display 696P. Is that a picture of
20 the lift you described?
21 A. Yes, sir, it is.
22 MR. FITZGERALD: Thank you, Judge. I have nothing
23 further.
24 THE COURT: Anything further of this witness? Mr.
25 Wilford?
2344
1 MR. WILFORD: Just a few, Judge.
2 CROSS-EXAMINATION
3 BY MR. WILFORD:
4 Q. Good afternoon, Agent Hughes.
5 A. Good afternoon, sir.
6 Q. How are you doing, sir?
7 A. Fine, thank you.
8 Q. Sir, when you respond to a scene with your team, you have
9 a group of specially trained agents; is that correct?
10 A. Yes, sir.
11 Q. You are trained extensively to respond to catastrophic
12 situations; is that correct?
13 A. Yes, sir, I have gone to several.
14 Q. You have a certain protocol which you maintain in terms of
15 the collection, or attempted collection of fingerprints and
16 fingerprint lifts; is that correct?
17 A. Yes, sir, we do have a procedure that we follow.
18 Q. It's a little bit more extensive, your training, than,
19 say, the average FBI agent would receive?
20 A. Yes, sir, that is correct.
21 Q. When you take a lift, you put this powder on a particular
22 surface; is that correct?
23 A. Yes, sir. Depending on the surface, it would depend on
24 the type of powder that we use.
25 Q. The surface that you recovered 696 from, what type of
2345
1 surface is that, sir?
2 A. Looking at the photo, sir, it looks like a standard door.
3 I honestly couldn't say if it was wooden or plastic at this
4 time because I don't have the material, but it would be black
5 powder because of the white surface, sir. Black would bring
6 up the lift better.
7 Q. When you get a lift from a particular area and that
8 particular lift is matched to a particular individual's
9 fingerprints, that means that person had to have been in that
10 particular area; is that correct?
11 A. Sir, I am not a fingerprint expert. All I can testify to
12 is how I get the lifts. I can't analyze them. I know how to
13 identify them and bring them up, but I can't analyze if they
14 are matched up. The answer is that if I bring the print up
15 from that room, yes, that would be my belief. But I am not an
16 analyst. I wouldn't be able to match up the print.
17 Q. I am not asking you to match them up. I am asking, the
18 general theory is that if you take a lift from that room, the
19 person --
20 A. Yes, sir, they were there at sometime, yes, sir.
21 MR. WILFORD: Thank you, nothing further.
22 THE COURT: You may step down.
23 (Witness excused)
24 THE COURT: The government may call its next witness.
25 MR. BUTLER: The government calls Agent Patrick
2346
1 Buckley.
2 PATRICK BUCKLEY,
3 called as a witness by the government,
4 having been duly sworn, testified as follows:
5 DIRECT EXAMINATION
6 BY MR. BUTLER:
7 Q. Agent Buckley, what do you do for a living?
8 A. I am employed as a special agent with the Federal Bureau
9 of Investigation.
10 Q. How long have you been with the FBI?
11 A. Since 1988.
12 Q. Do you have any special training?
13 A. Yes, I am a special agent bomb technician.
14 Q. What does a bomb technician do?
15 A. Basically I receive some training at the hazardous devices
16 school in Huntsville, Alabama, where you are taught basic
17 explosives recognition, the handling of explosives, the
18 implementation of the improvised explosive devices, and bomb
19 crime scene procedures.
20 THE COURT: Agent, a little slower, please.
21 Q. Agent Buckley, where were you assigned back in August of
22 1998, what office?
23 A. Chicago field division.
24 Q. Did there come a time that you were sent overseas in
25 connection with your duties as a bomb technician?
2347
1 A. Yes, following the blast of August 7, 1998.
2 Q. Where were you sent to?
3 A. Nairobi, Kenya.
4 Q. When did you arrive, approximately?
5 A. August 14 of 1998.
6 Q. Drawing your attention to the afternoon of August 20,
7 1998, do you recall where you were on that day?
8 A. Yes. I was at No. 43 Runda Estates.
9 Q. Were you alone or with others?
10 A. I was with others.
11 Q. Approximately how many people were you with?
12 A. Approximately 10 people.
13 Q. What were you assigned to do at that time?
14 A. I was assigned to a couple duties. My first duty was to
15 conduct a protective sweep of 43 Runda Estates, to be sure
16 that there were no boobytraps or secondary explosives.
17 Q. Could you describe for the jury generally what you recall
18 Runda looks like, Port Runda Estates?
19 A. It was a large, white, multibedroom building with a
20 detached garage, a large security gate and large hedges around
21 the entire, basically, layout of the building and the estate
22 there.
23 Q. If we could pull up what has been previously entered into
24 evidence as Government's Exhibit 567A. Do you recognize what
25 is in Government's Exhibit 567A, Agent Buckley?
2348
1 A. Yes, I do.
2 Q. What is that?
3 A. No. 43 Runda estates.
4 Q. What did you do when you first arrived at 43 Runda
5 Estates?
6 A. Following the protective sweep, I participated in the
7 search at that location as a bomb technician and conducted
8 swabbings of some outdoor countertops at that outdoor
9 location.
10 Q. In preparation for this protective sweep, did you do
11 anything to prepare?
12 A. Yes, I put on a Ty-Vec suit and pair of latex rubber
13 gloves.
14 Q. Could you explain what a Ty-Vec suit is.
15 A. It is basically a plastic suit that you put over yourself
16 to protect yourself from contaminants at the location or to be
17 sure that you have no contaminants yourself.
18 Q. What did you do to conduct the protective sweep?
19 A. Basically, I walked around the exterior of the Runda
20 Estates address, looking for boobytraps and possible explosive
21 devices, and, like I said, found none, went back to the inside
22 of the residence, did a quick protective sweep there, and
23 noticed there were no boobytraps or possible explosive devices
24 in the location.
25 Q. Were you alone when you did this protective sweep?
2349
1 A. Yes, I was.
2 Q. After you conducted the protective sweep, what did you do
3 next?
4 A. Following that I conducted swabbings of the countertops
5 outside the kitchen door.
6 Q. Do you recall approximately how many swabbings you took?
7 A. Yes. I took one control swabbing and four other
8 swabbings.
9 Q. Do you know if photographs were taken of this area?
10 A. Yes, there were.
11 Q. I approach with two photographs that have been marked as
12 Government's Exhibits 791A and 791B. Do you recognize
13 Government's Exhibits 791A and B?
14 A. Yes, I do, counsel.
15 Q. What is depicted in 791A and B?
16 A. That is the two countertops immediately outside the
17 kitchen door. I took two swabbings from each one of the
18 countertops.
19 MR. BUTLER: I offer 791A and B at this time, your
20 Honor.
21 MR. WILFORD: No objection.
22 THE COURT: Received.
23 (Government's Exhibits 791A and 791B received in
24 evidence)
25 Q. If we could display Government's Exhibit 791A. If you
2350
1 could just describe for the jury, Agent Buckley, what is shown
2 in this photo, and maybe with the permission of the court we
3 could let Agent Buckley turn the screen around and step down.
4 THE COURT: Yes.
5 A. At these locations I conducted two swabbings at this
6 countertop and two more at this location right here.
7 Q. Where was this area located again, generally?
8 A. This would be the kitchen door to the main residence of
9 the 43 Runda estate. This is the door leading into the
10 kitchen.
11 Q. If we could pull up Government's Exhibits Government's
12 Exhibit 791B. What is depicted in Government's Exhibit 791B?
13 A. Referring back to the last picture, that would have been
14 the sink location to the left of the kitchen door. That is a
15 closeup shot of the counter.
16 Q. You can move back to the witness stand. Thank you.
17 What did you use to take these swabbings that you
18 mentioned?
19 A. For the swabbings at this time we used sealed Meta-pack
20 alcohol prep packages, the kind you find in a doctor's office.
21 Q. How did you take the swabbings?
22 A. We tore open the Meta-pack alcohol prep pad and removed
23 the swab with a pair of plastic forceps. Then with the pad
24 inside the forceps teeth we conducted swabbings across the
25 countertop.
2351
1 Q. What did you do with the swabbings once they were taken?
2 A. Once we took the swabbings, I placed them back inside the
3 Meta-pack pouch they came from and placed them inside a
4 Ziplock bag, sealed it, and initialed it. Following that, I
5 turned it in into the evidence custodian.
6 Q. Approaching with what have been marked as Government's
7 Exhibits 751 through 755, Agent Buckley, I ask you to take a
8 look at Government's Exhibits 751 and 755 and ask if you
9 recognize those items?
10 A. Yes, I do.
11 Q. What are they?
12 A. They are the swabs that were taken off the countertops
13 outside the kitchen door.
14 Q. How do you recognize them?
15 A. Because my initials and the date are on each one of the
16 envelopes.
17 MR. BUTLER: Your Honor, I would offer Government's
18 Exhibits 751 through 755 at this time.
19 MR. WILFORD: Without objection.
20 THE COURT: Received.
21 (Government's Exhibits 751 through 755 received in
22 evidence)
23 Q. What did you do with these swabbings once you placed them
24 inside the evidence bag?
25 A. Following that, I turned them over to the evidence
2352
1 custodian at the site.
2 Q. Was this the last time you were at 43 Runda Estates?
3 A. No, it is not.
4 Q. When is the next time you were at 43 Runda Estates?
5 A. August 23, 1998.
6 Q. Do you recall approximately what time of day you arrived
7 at 43 Runda Estates on August 23?
8 A. About 10 or so in the morning.
9 Q. Do you recall who was there?
10 A. About 10 other people.
11 Q. Without naming them, who were they?
12 A. Members of the evidence response team.
13 Q. How long were you at 43 Runda Estates on August 23?
14 A. Most of the day.
15 Q. What did you do on August 23?
16 A. Upon arrival, the first thing I did was another protective
17 sweep as I described earlier. At the time I did the sweep in
18 a Ty-Vec suit and pair of latex gloves as we did on the 20th.
19 Following the protective sweep of the exterior and interior of
20 the residence, no explosive devices or boobytraps were found
21 at that location.
22 Following that, I returned and took soil samples
23 immediately outside of the garage adjacent to the main
24 residence building at 43 Runda take.
25 Q. Can we show what has been previously received into
2353
1 evidence as Government's Exhibit 567G. Do you recognize
2 Government's Exhibit 567G?
3 A. Yes. That is the garage at the Runda Estate.
4 Q. Can we now display just for identification what has been
5 previously marked as Government's Exhibit 792A. Do you
6 recognize what is depicted in the photograph in Government's
7 Exhibit 792A?
8 A. Yes, I do. That is the garage at Runda Estates, and the
9 location up here is where the soil samples were taken.
10 MR. BUTLER: Your Honor, I would offer Government's
11 Exhibit 792A at this time.
12 MR. WILFORD: Without objection.
13 THE COURT: When you say here --
14 THE WITNESS: Up in this location adjacent to the
15 garage, between the hedge and the garage right there.
16 THE COURT: 792A received.
17 (Government's Exhibit 792A received in evidence)
18 MR. BUTLER: May we please display it for the jury at
19 this time.
20 Q. For the jury, could you explain to the jury the area from
21 where you took the soil samples?
22 A. They were the area between the hedge and the garage at
23 Runda Estates. It was, the small tree in the center of the
24 screen, immediately to the right of that was where the soil
25 samples were taken.
2354
1 Q. Do you recall about how many soil samples you took?
2 A. I took one control sample and then three straight samples
3 in that area.
4 Q. Again just to remind the jury, what is a control sample?
5 A. A control sample is a sample taken in that area to show an
6 exemplar of what the soil would be in that area at the time.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2355
1 Q. Agent Buckley, I've placed before you what has been marked
2 as Government Exhibits 756 through 759. Do you recognize
3 those items?
4 A. Yes, I do.
5 Q. How do you recognize them?
6 A. My name, initials and dates are on these cans.
7 Q. And what was contained in those cans?
8 A. There is one control sample of the soil and then three
9 other soil samples as indicated.
10 MR. BUTLER: Your Honor, I would offer Government
11 Exhibit 756 through 759 at this time.
12 MR. BAUGH: No objection.
13 THE COURT: Received.
14 (Government's Exhibits 756 through 759 received in
15 evidence)
16 Q. Now, what did you do, Agent Buckley, after you took the
17 soil sample?
18 A. Following the soil sample I conducted swabbings inside the
19 garage at Runda Estates.
20 Q. And what did you find once you entered the garage in Runda
21 Estates?
22 A. When I entered the garage itself was vacant. However, I
23 did notice various amounts of aluminum powder on the floor
24 surfaces on the inside of the garage.
25 Q. And where did you take your swabbing?
2356
1 A. I took the swabs from locations from flat surfaces inside
2 the garage where I saw quantities of aluminum powder.
3 MR. BUTLER: Could we please display for
4 identification purposes only what's been previously marked as
5 Government Exhibit 792B.
6 Q. Do you recognize Grand Jury Exhibit 792B?
7 A. Yes, I do. That's the interior of the garage at 43 Runda.
8 MR. BUTLER: Your Honor, I would offer 792B at this
9 time.
10 (Government's Exhibit 792B received in evidence)
11 Q. Could you show where approximately did you take your
12 swabbings if it's depicted in this photo?
13 A. The majority of my swabbings were taken on the floor
14 boards going across the width of the doors at the midlevel of
15 the door and then at the base of the doors on the flat
16 surfaces.
17 MR. BUTLER: If we could show just for identification
18 purposes what's been previously marked as Government Exhibit
19 792C.
20 Q. Do you recognize what's shown in Government Exhibit 792C?
21 A. Yes, that's a closeup of the door of the garage.
22 MR. BUTLER: Your Honor, I would offer 792C at this
23 time?
24 THE COURT: Received.
25 (Government's Exhibit 792C received in evidence)
2357
1 MR. BUTLER: Can we display 792C to the jury, please.
2 Q. Again, Agent Buckley, could you describe for the jury
3 where you took your swabbings?
4 A. As you look in that picture it's very visible
5 concentration of aluminium powder on the floor surfaces and
6 along the flat surface there a swab was taken of that area.
7 Q. Did you take swabbings from any other area in the general
8 garage area?
9 A. I took some swabbings from the garage bathroom.
10 MR. BUTLER: If we could show just for identification
11 purposes what's been previously marked as Government Exhibit
12 792D.
13 Q. Do you recognize what's depicted in Government Exhibit
14 792D, Agent Buckley?
15 A. Yes, that's the bathroom inside the garage.
16 MR. BUTLER: Your Honor, I offer 792D at this time.
17 THE COURT: That is received.
18 (Government's Exhibit 792D received in evidence)
19 MR. BUTLER: May we just please display it for the
20 jury.
21 Q. What general area did you take your swabbings there, Agent
22 Buckley?
23 A. In the floor toilet and up around the flush mechanism on
24 the top of the toilet.
25 Q. Now, on August 23, 1998 what did you use to take your
2358
1 swabbings on that day?
2 A. I used swabbing kits that were made up by the explosive
3 unit of our laboratory that consisted both dry and
4 alcohol-enriched cotton swabs sealed inside glass vials.
5 Q. What did you do with the swabbings once you took them?
6 A. Once each swabbing was taken with a pair of forceps the
7 swabbings were placed back inside the glass vial. They were
8 sealed tight, and I put my initials and date on them and they
9 were turned over to the evidence custodian who then sealed
10 them and placed them into ziplock bags.
11 Q. Agent Buckley, I placed before you what has been
12 previously marked as Government Exhibits 760 through 776. I
13 just ask you to just take a moment I. Realize there are a lot
14 of items there. But if you can just take a look at each of
15 them and let us know after you're done,whether these are the
16 swabbings that you took on August 23rd, 1998?
17 (Pause)
18 A. Yes, those are my swabbings.
19 Q. How do you recognize those items?
20 A. My initials and date on each one of the vials.
21 MR. BUTLER: No further questions, your Honor. I'm
22 sorry, your Honor, excuse me. I offer Government Exhibits 760
23 to 776 at this time.
24 THE COURT: Yes, received.
25 (Government's Exhibits 760 to 776 received in
2359
1 evidence)
2 THE COURT: Mr. Baugh on behalf of defendant
3 Al-'Owhali.
4 CROSS-EXAMINATION
5 BY MR. BAUGH:
6 Q. I am David Baugh. I represent the defendant Al-'Owhali.
7 What is the date on 760 through 776?
8 A. What is the date?
9 Q. You say you initialed and dated them?
10 A. August 23rd.
11 Q. Now, how many days did you go to that location and look
12 for samples?
13 A. I went two days, August 20th and August 23rd.
14 Q. All right. And on either of those days were you directed
15 to look specifically for aluminum powder?
16 A. No, but as a bomb technician you look for anything that
17 could be utilized to make an explosive device.
18 Q. So is it your testimony you were not told to go there and
19 look specifically for aluminum powder at certain locations?
20 A. No, it's not correct. As a bomb technician I would go to
21 a location looking for any evidence of a bomb or explosive
22 materials.
23 Q. No, I know that, sir. The question is are you stating you
24 were not directed to look specifically for aluminium powder?
25 A. No, not, no.
2360
1 Q. All right. Did you look for soil samples on the 20th?
2 A. No, I did not.
3 Q. Why did you go back on the 23rd?
4 A. I did a more extensive search on the 23rd.
5 Q. Were you directed to do a more extensive search on the
6 23rd?
7 A. We had some further information that we needed to do a
8 more extensive search on the 23rd.
9 Q. Do you know what that information was?
10 A. No, I do not.
11 Q. But you do understand that between the 20th and the 23rd
12 some information was developed by the FBI and you were told to
13 go back and look for something?
14 A. That's correct.
15 MR. BAUGH: All right. Thank you.
16 MR. RICCO: Your Honor, we have a couple of
17 questions.
18 THE COURT: Mr. Ricco on behalf of defendant Odeh.
19 CROSS-EXAMINATION
20 BY MR. RICCO:
21 Q. Good afternoon, sir.
22 A. How do you do, sir.
23 Q. You told us that when you went into 43 Runda Estates that
24 you were wearing a Tyvek suit?
25 A. Correct.
2361
1 Q. And the Tyvek suit serves two purposes?
2 A. Correct.
3 Q. One is it keeps you from coming into contamination with
4 anything?
5 A. Right.
6 Q. And it also prevents you from introducing substances into
7 the area that you're searching?
8 A. That's correct.
9 Q. And that's a very important, both concerns are very
10 important to your investigation, isn't that correct?
11 A. That would be correct.
12 Q. Because what you don't want to do is to infiltrate an area
13 or affect it by something that you brought from the outside?
14 A. Correct.
15 Q. And of course you want to protect your safety?
16 A. Right.
17 Q. Now, you also told us that you worked with items that were
18 sealed and closed after they were swabbed?
19 A. Right.
20 Q. The purpose of sealing those items again is to preserve
21 the integrity of that which you find, isn't that correct?
22 A. That's correct.
23 Q. Because what you don't want to do is mix items together in
24 the same envelope or the same package, correct?
25 A. Correct.
2362
1 Q. Because when they're mixed together one can rub against
2 the other and you have an improper finding?
3 A. That's correct.
4 MR. RICCO: No further questions.
5 Oh, one further question. I'm sorry.
6 Q. After you left Runda Estates on the 20th, was that place
7 left under guard?
8 A. You know I don't recall.
9 MR. RICCO: No further questions. Thank you very
10 much, your Honor.
11 THE COURT: Anything further of this witness?
12 MR. BUTLER: No, your Honor.
13 THE COURT: Thank you. You may step down.
14 (Witness excused)
15 MR. BUTLER: Your Honor, the government calls Special
16 Agent Stephen Haug)
17 STEPHEN M. HAUG,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. BUTLER:
22 Q. Special Agent Haug, how are you employed?
23 A. I'm employed by the Federal Bureau of Investigation.
24 Q. How long have you been with the FBI?
25 A. Approximately five and a half years.
2363
1 Q. Are you assigned to any particular unit or division?
2 A. Yes. I'm assigned to the Newark, New Jersey division.
3 Q. Do you have any special training?
4 A. Yes, I do.
5 Q. What's that?
6 A. As a Special Agent I was assigned to Quantico for 16 and a
7 half week training, new agent training at Quantico prior to
8 arriving at the Newark division.
9 Q. Are you on any particular team in Newark?
10 A. Yes. I am currently a team leader for one of our evidence
11 response teams.
12 Q. And did there come a time when you were received an
13 assignment to travel overseas?
14 A. Yes.
15 Q. And where did you go?
16 A. I went to Nairobi, Kenya.
17 Q. And approximately when did you arrive in Nairobi?
18 A. I believe it was the 12th or 13th of August of 1998.
19 Q. Now, drawing your attention to the afternoon of August 20,
20 1998, where were you?
21 A. I was assigned to go to assist in the conducting of a
22 search at 43 Runda Estates in Nairobi.
23 Q. And what particularly were you assigned to do at that
24 time?
25 A. I was assigned to coordinate the search efforts of the
2364
1 other members of the evidence response team.
2 Q. And what was your role in the search?
3 A. For the collection part of the evidence I seized the
4 evidence. I was the team leader.
5 Q. What would you do with these items once you received them?
6 A. Once they were photographed and documented they would be
7 placed, depending on the type of evidence, into a plastic or
8 paper bag. The bag would then be sealed with evidence tape
9 and then I would date and initial the seal on the bag.
10 Q. Did there come a time when you received a Time Magazine
11 during the course of the search?
12 A. Yes, there was.
13 Q. How did you receive the Time Magazine?
14 A. I received it from another agent who was part of the
15 search.
16 Q. Did you receive any other documents along with the Time
17 Magazine?
18 A. Yes. With that Time Magazine was an additional magazine,
19 I believe it was in Arabic, and maybe one or two other pieces
20 of documents, mail, things of that nature.
21 Q. What did you do with these items once you received them?
22 A. All of those items were placed into a single ziplock bag.
23 I zipped the bag sealed, placed a red evidence tape around the
24 seal of that bag, dated and initialled that bag.
25 Q. Let me approach with what has been previously marked as
2365
1 Government Exhibit 750. Do you recognize Government Exhibit
2 750?
3 A. Yes.
4 Q. How do you recognize 750?
5 A. I recognize my initials and the date on the evidence tag
6 of that bag. This was the bag that I placed all of these
7 items into.
8 Q. Do these items appear substantially the same as the time
9 you received them on August 20, 1998?
10 A. With the exception of being processed, yes.
11 MR. BUTLER: I would offer Government Exhibit 750 at
12 this time, your Honor.
13 THE COURT: Received.
14 (Government's Exhibit 750 received in evidence)
15 MR. BAUGH: No objection.
16 MR. BUTLER: No further questions, your Honor.
17 THE COURT: Anything further of this witness?
18 CROSS-EXAMINATION
19 BY MR. WILFORD:
20 Q. Agent Haug, do I pronounce it correctly?
21 A. Yes.
22 Q. Good afternoon.
23 A. Good afternoon.
24 Q. Sir, when you were conducting the collection of evidence
25 as a team leader were you wearing gloves?
2366
1 A. Yes, sir.
2 Q. And the reason for your wearing gloves was to prevent any
3 of your fingerprints or anything from getting on the materials
4 that you were collecting, isn't that correct?
5 A. Yes, sir.
6 MR. WILFORD: Thank you. Nothing further.
7 THE COURT: Thank you, Agent. You may step down.
8 (Witness excused)
9 MR. BUTLER: The government calls Agent Roger
10 Stanton.
11 ROGER C. STANTON,
12 called as a witness by the government,
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. BUTLER:
16 Q. How are you employed, Agent Stanton?
17 A. I am a Special Agent with the FBI.
18 Q. How long have you been with the FBI?
19 A. Approximately five and a half years.
20 Q. Have you received any special training?
21 A. Yes. I am assigned duties as a Special Agent bomb
22 technician.
23 Q. And where were you assigned in August of 1998?
24 A. To the Columbia, South Carolina division of the FBI.
25 Q. Did there come a time when you traveled overseas to
2367
1 Nairobi, Kenya in connection with your duties as a bomb
2 technician?
3 A. Yes.
4 Q. And approximately when did you arrive in Nairobi?
5 A. Approximately August 11th, 1998.
6 Q. And directing your attention to the morning of August
7 23rd, 1998, do you recall where you were on that date?
8 A. Yes. I was assigned along with a search team to 43 Runda
9 Estates.
10 Q. And what did you do once you got to 43 Runda Estates?
11 A. When I got to Runda Estates I was assigned duties to help
12 collect evidence.
13 Q. And did you do anything in preparation for your evidence
14 collection?
15 A. Yes, I had placed a Tyvek suit on my body, around my body.
16 Q. And where in particular did you go when you entered 43
17 Runda Estates?
18 A. The area that I went to search was the patio area of the
19 residence.
20 Q. And where is the patio area located?
21 A. As you come in the driveway to the residence you kind of
22 come in the gate on the property. There is a garage first,
23 and then there is the main residence. So you'll come by the
24 garage first, and then in between the main residence and the
25 garage there is a like a ceramic tile patio area.
2368
1 Q. And did you see anything on that ceramic tile when you
2 entered the patio area?
3 A. Yes. As I walked along the patio area in the back rear
4 left hand, left-side area I had seen some gray powder,
5 silver-like powder.
6 Q. What did you do once you saw that gray or silver powder?
7 A. I went ahead and took some swabbing samples of that
8 material.
9 Q. Do you recall about how many swabbings you took?
10 A. I think at least three swabs I believe. Several swabs
11 were done.
12 Q. And what did you use to take the swabbings?
13 A. I went to the evidence control technician for that search
14 and he had given me some vials, some gloves, forceps, regular
15 cotton swabs and alcohol cotton swabs.
16 Q. And were photographs taken of that area?
17 A. Yes, they were.
18 MR. BUTLER: Please show for identification purposes
19 only what has been previously marked as Government Exhibit
20 792E.
21 Q. Do you recognize Government Exhibit 792E?
22 A. Yes, I do.
23 Q. What's depicted in 792E?
24 A. That's the patio area.
25 MR. BUTLER: I offer 792E at this time, your Honor.
2369
1 THE COURT: Received.
2 (Government's Exhibit 792E received in evidence)
3 Q. Do you see generally is this the area from where you took
4 swabbings in the patio area?
5 A. Yes, sir. If you look at the entrance that has the sort
6 of oval opening, the doorway, it was just before that on the
7 patio floor.
8 MR. BUTLER: And could we please display just for
9 identification purposes what's been previously marked as
10 Government Exhibit 792F.
11 Q. Do you recognize what's depicted in 792F, Agent Stanton?
12 A. Yes, I do. It's the gray silver powder that I identified
13 as I walked toward that area of the patio.
14 MR. BUTLER: I offer 792F at this time, your Honor.
15 THE COURT: Received.
16 (Government's Exhibit 792F received in evidence)
17 Q. If you can, could you try to point out for the jury where
18 you saw this gray metallic powder. Maybe if you could turn
19 the screen toward the jury.
20 (Witness left stand)
21 A. The gray metallic powder that I had seen is right here in
22 this area (indicating).
23 (Witness resumed stand)
24 Q. Now, after you took these swabbins, Agent Stanton, what
25 did you do with them?
2370
1 A. I placed them in vials and sealed them and dated it and
2 wrote my name on it.
3 Q. Agent Stanton, I placed before you what has been
4 previously marked as Government Exhibits 780 through 783. I
5 just ask you to tell us whether you recognize those items?
6 A. I'm looking at Government Exhibit 780 and on the vial I
7 can see my handwriting and it's the, for 780 it says alcohol
8 control sample, 8/23/98, SAR Stanton.
9 Q. Could you just take a look at 781, 782 and 783 and let us
10 know whether you recognize those?
11 A. Yes, sir. I recognize all three of those.
12 Q. How do you recognize them? Do your initials appear on
13 those items as well?
14 A. Yes, sir. I have the date and I have my name written SAR
15 Stanton.
16 MR. BUTLER: I offer Government Exhibit 780 through
17 783 at this time, your Honor.
18 THE COURT: Received.
19 (Government's Exhibits 780 through 783 received in
20 evidence)
21 Q. Now, did you ever enter the garage area during this day,
22 Agent Stanton?
23 A. Yes, sir.
24 Q. And what did you see once you entered the garage area?
25 A. As I was in the garage area. I walked over to the garage
2371
1 doors, and I identified the same silver-type powder on the
2 garage door, something like there are wood pieces that may be
3 on the garage door with an area where something could sit on
4 top of it, and there was gray, that same silver-gray powder
5 was on those areas.
6 Q. This was similar to the powder that you saw in the
7 courtyard where you took your swabbings?
8 A. Yes, it was.
9 MR. BUTLER: No further questions, your Honor.
10 THE COURT: Anything further of this witness?
11 MR. BAUGH: No, your Honor.
12 THE COURT: Thank you. You may step down.
13 (Witness excused)
14 THE COURT: The government may call its next witness.
15 MR. BUTLER: The government calls agent Icey Jenkins,
16 your Honor.
17 ICEY LOU JENKINS,
18 called as a witness by the government,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. BUTLER:
22 Q. Agent Jenkins, how are you employed?
23 A. I'm a Special Agent with the FBI.
24 Q. And how long have you been with the FBI?
25 A. 14 years in June.
2372
1 Q. And do you have any special training?
2 A. Yes. I'm a member of the rapid deployment team and also
3 the evidence response team.
4 Q. And where were you assigned in August of 1998?
5 A. To the international terrorism squad at the Washington
6 field office in DC.
7 Q. And did there come a time when you received an assignment
8 to travel overseas to Nairobi Kenya?
9 A. Yes, sir.
10 Q. And when did you arrive in Nairobi?
11 A. Approximately August 9th of 1998.
12 Q. And drawing your attention to the morning of August 23,
13 1998 where were you on that morning?
14 A. We started out in the command post but then we took a bus
15 to number 43 Runda Estates.
16 Q. And what did you do after 43 Runda Estates?
17 A. We conducted a search of premise.
18 Q. And what particular, what in particular did you do to
19 conduct the search?
20 A. I had the outer grounds.
21 Q. How did you search the outer grounds?
22 A. Myself and two other agents formed almost a grid-type line
23 and conducted a search of the entire outside area of the
24 estate.
25 Q. What did you find during your search of the grounds of the
2373
1 estate?
2 A. Personally I found two pieces of wire and a piece of black
3 electrical tape.
4 Q. And do you recall approximately where you found these
5 items?
6 A. Yes. They were on what we referred to as the east side of
7 the garage right near the one of the front doors.
8 MR. BUTLER: If we could just display what's been
9 previously entered as Government Exhibit 582.
10 Agent Jenkins, if you could just step down for a
11 moment.
12 (Witness left stand)
13 Q. If you could indicate to the jury just generally where you
14 found the items on that sketch?
15 A. Right here is the first door, and the items were
16 approximately right here (indicating).
17 MR. BUTLER: You can sit back down in the witness
18 stand.
19 (Witness resumed stand)
20 MR. BUTLER: If we could show what's been previously
21 marked as Government Exhibit 567G previously entered into
22 evidence.
23 Q. Do you recognize what's depicted in this photograph?
24 A. Yes, that's the front of the garage from the estate.
25 Q. And if you could just, again, maybe just orally indicate
2374
1 to the jury where on what side of the garage you found those
2 items?
3 A. Facing the garage it would be on your right side to these
4 two flower beds.
5 Q. What did you do with these items once you found them?
6 A. We just stood by them because we were starting to finish
7 up the search, so we waited until we could get some clean
8 gloves and then we bagging the items. We also photographed
9 them first before we picked them up.
10 Q. I'm going to place before you what has been previously
11 marked as Government Exhibits 784, 785 and 786.
12 Do you recognize those items?
13 A. Yes.
14 Q. What is 784?
15 A. 784 is one of the pieces of wiring.
16 Q. How about 785?
17 A. 785 is another piece of wiring, it looks like.
18 Q. What is 786?
19 A. 786 is a piece of black electrical tape.
20 Q. How do you recognize these items?
21 A. By the bags that they are in and the writing on the front.
22 MR. BUTLER: I would offer Government Exhibit 784, 85
23 and 86 at this time, your Honor.
24 THE COURT: Received.
25 (Government's Exhibits 784, 785 and 786 received in
2375
1 evidence)
2 MR. BUTLER: If we could display just for
3 identification purposes what has been previously marked as
4 Government Exhibit 792H.
5 Q. Agent Jencks, do you recognize what's depicted in
6 Government Exhibit 792H?
7 A. Yes, that is a picture of the wiring and the masking tape,
8 the electrical tape.
9 Q. Is this in the general area where you found them?
10 A. Yes, that that's exactly where they were.
11 MR. BUTLER: I offer Government Exhibit 792H at this
12 time, your Honor.
13 THE COURT: Received.
14 (Government's Exhibit 792H received in evidence)
15 MR. BUTLER: If we could display that to the jury
16 please.
17 Q. Again, Agent Jenkins, this is where you found those items?
18 A. That's correct.
19 Q. And the structure, what's the white structure?
20 A. It's a little bit difficult to make out, but to the left
21 you can see the front door, and in the frame is the black item
22 in the middle.
23 Q. What is that to?
24 A. The frame to the front of the garage door.
25 MR. BUTLER: No further questions, your Honor.
2376
1 THE COURT: Anything further of this witness?
2 MR. WILFORD: No questions, your Honor.
3 THE COURT: Very well. You're excused.
4 (Witness excused)
5 THE COURT: We'll take our afternoon recess.
6 (Recess)
7 (In open court; jury not present)
8 MR. FITZGERALD: Just note for the record our
9 schedule for this morning is slightly amended. An agent named
10 Dan Gorman man is right after Lisa Foster Martin, a brief
11 chain of custody witness. I want to alert counsel.
12 THE COURT: I have spoken to the juror who asked to
13 be off on March 22 and she has said that she could sit on that
14 day if we started a little late, like around 10 which would
15 translate to 11 for us, and so we will work that out.
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
2377
1 (Jury present)
2 THE COURT: A week from Thursday on the 22nd of March
3 we'll start a little later than usual, and we'll work it out
4 with the Marshals. I'll remind you when somebody reminds me.
5 The government may call its next witness.
6 MR. BUTLER: Your Honor, the government calls Agent
7 Chris Newcomer.
8 CHRISTOPHER W. NEWCOMER,
9 called as a witness by the government,
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. BUTLER:
13 Q. Agent Newcomer, how are you employed?
14 A. I'm a Special Agent with the FBI.
15 Q. And how long have you been with the FBI?
16 A. For five years.
17 Q. Where were you assigned, what office were you assigned to
18 in August of 1998?
19 A. The Houston division.
20 Q. Do you have any special training?
21 A. I do. I am a certified technically trained agent with the
22 FBI. I've also been through evidence response team
23 certification.
24 Q. And were you one of the agents that was sent to Nairobi,
25 Kenya in August of 1998?
2378
1 A. Yes, I was.
2 Q. Approximately when did you arrive?
3 A. Approximately the second week of August of '98.
4 Q. Drawing your attention to the morning of August 23, 1998
5 do you recall where you were then?
6 A. I do.
7 Q. Where were you?
8 A. I was part of a search team going to conduct a search at
9 Runda Estates.
10 Q. And what was your assignment that day?
11 A. My particular assignment was photographer.
12 Q. While you were taking photographs did you take photos of
13 the garage area at 43 Runda Estates?
14 A. I did.
15 Q. And while taking photographs of the garage area did you
16 come across any items?
17 A. I did.
18 Q. Could you tell us what happened?
19 A. While taking pictures in the garage in order to get a
20 better lighting on some of metallic-looking powder that was on
21 one of the door ledges I opened the garage door up. Upon
22 opening the garage I found a small piece of metal between the
23 door and the doorjamb itself.
24 Q. I want to approach with what has been previously marked as
25 Government Exhibit 779. Do you recognize Government Exhibit
2379
1 779?
2 A. I do.
3 Q. What is Government Exhibit 779?
4 A. That is the piece of metal that I found between the door
5 and the doorjamb.
6 Q. After you found it what did you do?
7 A. After I located it, after I found it I notified one of the
8 other search agents to collect it. They collected the
9 evidence, placed it in a plastic bag sealed it and again
10 returned the bag to me for me to initial off on.
11 Q. Did you initial the bag?
12 A. I did.
13 MR. BUTLER: Your Honor, I offer Government Exhibit
14 779 at this time.
15 THE COURT: Received.
16 (Government's Exhibit 779 received in evidence.
17 Q. Did you take a photograph of this item?
18 A. I did.
19 MR. BUTLER: Can we display just for identification
20 purposes what has been previously marked as Government Exhibit
21 792I.
22 Q. Let's do it the old fashion way. Let me show you a
23 photograph what has been previously marked as 792I.
24 Do you recognize what is depicted in Government
25 Exhibit 792I?
2380
1 A. I do.
2 Q. What is that?
3 A. That is the photograph that I did take while in Kenya, and
4 on the photograph is this metal piece of metal.
5 Q. Where is the location depicted in 792I?
6 A. Between the door and the doorjamb of the garage.
7 MR. BUTLER: Your Honor, I offer Government Exhibit
8 792I at this time.
9 THE COURT: Received.
10 (Government's Exhibit 792I received in evidence)
11 MR. BUTLER: If the system is working now can we
12 display it to the jury, please.
13 Q. If you could just maybe turn the screen around, if you
14 could just show the jury with the pointer where you saw the
15 metal object in 792I?
16 A. (Witness pointing).
17 MR. BUTLER: Your Honor, may I approach with what has
18 been previously marked as Government Exhibit 779P2 for
19 identification.
20 Q. Do you recognize what's in Government Exhibit 779P2?
21 A. This would appear to be the same metal object though I
22 didn't take this photograph.
23 Q. Is that a fair and accurate representation of the piece of
24 metal that you seized that day on August 23, 1998?
25 A. Yes, it is.
2381
1 MR. BUTLER: Your Honor, I offer 779P2 at this time.
2 THE COURT: Received.
3 (Government's Exhibit 779P2 received in evidence)
4 MR. BUTLER: If we could plays display that to the
5 jury. No further questions.
6 THE COURT: Anything with this witness?
7 Mr. Wilford.
8 CROSS-EXAMINATION
9 BY MR. WILFORD:
10 Q. Good afternoon, Agent Newcomer.
11 A. Good afternoon.
12 Q. How you do, sir?
13 A. Doing well.
14 Q. Sir, when you found the metal object you didn't touch it,
15 right?
16 A. That's correct, sir.
17 Q. You just look at it, observed it and notified an evidence
18 collection member of the team, right?
19 A. That's correct.
20 Q. And that person handled the object with gloves?
21 A. Yes.
22 Q. They didn't touch it with their hands, right?
23 A. Not that I'm aware of, sir.
24 Q. Then they placed it in the sealed envelope and you signed
25 off on it, right?
2382
1 A. Yes.
2 MR. WILFORD: Nothing further. Thank you.
3 BY MR. BAUGH:
4 Q. Special Agent Newcomer, the photograph is taken of the
5 exhibit before it's picked up?
6 A. Yes.
7 Q. Do agents routinely carry cameras with them as part of
8 investigation?
9 A. As part of the search team as part of an evidence response
10 team there is usually one assigned photographer, somebody who
11 has special training in photography in this case was me. I
12 have advanced training in photography certification, and I did
13 take two cameras with me to Africa for the purpose of
14 photographing crime scenes.
15 Q. Do you take over investigative tools with you such as tape
16 recorders and calipers and stuff like that as well?
17 MR. BUTLER: Objection, your Honor, to the form.
18 THE COURT: I'll overrule the objection.
19 MR. BAUGH: Thank you.
20 Q. Do you carry things like that with you, too?
21 A. Usually, yes, sir.
22 Q. And lastly, or two more questions. One, the large number,
23 there were a large number of agents in Kenya during that time.
24 Did you all have radio communication between each other so if
25 you needed some other agents you could radio them and get
2383
1 assistance?
2 A. I didn't have a radio. I don't recall whether or not
3 there was a radio with the group. I believe that if there
4 were using current bureau technology there were no repeaters
5 in place, so we may have been beyond the distance that even a
6 normal hand-held radio would have reached back to the command
7 post.
8 Q. My last question. While these various teams are going
9 out, some picking up evidence, some interviewing witnesses and
10 all that, was there a command structure to coordinate the
11 activities of all these various groups?
12 A. Yes, sir.
13 MR. BAUGH: Thank you, sir. No further questions.
14 THE COURT: Thank you, Agent. You may step down.
15 (Witness excused)
16 MR. BUTLER: The government calls Agent Kenneth
17 Kempf.
18 KENNETH E. KEMPF,
19 called as a witness by the government,
20 having been duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. BUTLER:
23 Q. Agent Kempf, how are you employed?
24 A. Fine, thank you.
25 Q. How are you employed, sir?
2384
1 A. Oh, sorry. I'm with the Federal Bureau of Investigation.
2 Q. And how long have you been an agent with the FBI?
3 A. A little over twenty-one years.
4 Q. And where were you assigned in August of 1998?
5 A. I was assigned to the Houston division.
6 Q. And were you assigned to any particular unit or division?
7 A. Yes, I was part of the Houston division evidence response
8 team.
9 Q. Were you one of the agents that was sent to Nairobi, Kenya
10 in August of 1998?
11 A. Yes, I was.
12 Q. And approximately when did you arrive?
13 A. We approximately arrived there second week of August,
14 August 10th.
15 Q. Drawing your attention to the morning of August 23, 1998,
16 do you recall where you were on this day?
17 A. Yes. We were, it was a group of the ERT members that were
18 put together that were asked to go to a particular residence
19 to assist in a search.
20 Q. Do you recall where that residence was?
21 A. It was called the Runda Estates.
22 Q. And what was your assignment as part of the search that
23 day?
24 A. I was part of the search team of, I was more or less the
25 team leader that got the ERT guys together and girls, and
2385
1 basically put, gave some assignments out to different areas to
2 search.
3 Q. Did you also actively participate in the search?
4 A. Yes, I did.
5 Q. And what did you do?
6 A. Initially we went directly to the house and we did
7 primarily, the house was empty so the majority of the time we
8 were in there we were dusting for fingerprints primarily.
9 Q. Did you also seize items during the course of that search?
10 A. We seized approximately fifty items.
11 Q. Were any of those items plumbing items?
12 A. Yes. We seized, I seized two sink trap drains at the
13 bottom of a couple of sinks outside.
14 Q. Do you recall from about what area you seized those sink
15 drain traps from?
16 A. We called it the servant area that was attached to the
17 garage which was detached from the house.
18 Q. And were photos taken of this area?
19 A. Yes.
20 MR. BUTLER: Can we pull up just for identification
21 purposes what's been previously marked as Government Exhibit
22 792J.
23 Q. Agent Kempf, do you recognize Government Exhibit 792J?
24 A. Yes, I do.
25 Q. What is depicted in Government Exhibit 792J?
2386
1 A. It's the small sink that was attached to the servant area.
2 MR. BUTLER: I offer Government Exhibit 792J at this
3 time, your Honor.
4 THE COURT: Received.
5 (Government's Exhibit 792J received in evidence.
6 Q. The room that's leading into the sink area, what room is
7 that, Agent Kempf? The larger room on the other side of the
8 door the first room that you see in that photograph.
9 A. The first room it appeared to be a bedroom type. It was
10 empty room.
11 Q. What was the area where the sink was located again?
12 A. I would have considered that just right outside the
13 servants bedroom.
14 Q. Where was the garage in relationship to this sink?
15 A. The garage would have been as looking out of this door to
16 the right.
17 Q. When you took these sink drain traps, what did you do with
18 them?
19 A. I packaged the traps in tin cans, sealed them, dated them,
20 initialed them.
21 Q. Agent Kempf, I placed before you what has been previously
22 marked as Government Exhibits 777 and 778.
23 Do you recognize those items?
24 A. Yes, I do. It has my initials. Item number 37, yes.
25 Q. How about the other item, Government Exhibit 778, do you
2387
1 recognize that one?
2 A. I'm going to have to open this. Yes, I do.
3 MR. BUTLER: I would offer Government Exhibits 777
4 and 778 at this time.
5 THE COURT: Received.
6 (Government's Exhibits 777 and 778 received in
7 evidence)
8 MR. BUTLER: No further questions.
9 THE COURT: Anything further of this witness?
10 MR. BAUGH: No questions.
11 THE COURT: Thank you. You may step down.
12 (Witness excused)
13 MR. BUTLER: Government calls Agent Alisa Foster.
14 ALISA FOSTER,
15 called as a witness by the government,
16 having been duly sworn, testified as follows:
17 Q. Agent Foster, how are you employed?
18 A. I'm a FBI special agent assigned to the Washington field
19 office.
20 Q. How long have you been at the Washington field office?
21 A. For approximately five years.
22 Q. Are you assigned to any particular team?
23 A. Yes, sir, I'm evidence response team member.
24 Q. Drawing your attention to August 1998 were you one of the
25 agents that was sent to Nairobi, Kenya?
2388
1 A. Yes, sir, I was.
2 Q. Approximately when did you arrive in Nairobi?
3 A. I arrived in Nairobi approximately August 27th and 28th
4 towards the end of August.
5 Q. Just so we are clear, what was your name back in August of
6 1998?
7 A. Alisa Martin. I have been married since that time.
8 Q. When you went to Nairobi who went with you?
9 A. Three other members of the evidence response team from
10 WFO, Susan Mitchell, Robin Bonner and Michelle Carr.
11 Q. Now, moving ahead to September 2, 1998, were you assigned
12 any particular duties on that day as part of your
13 responsibility for the evidence response team?
14 A. Yes, sir, I was, I was assigned to go to Comoros Islands,
15 and search two residences.
16 Q. And where are the Comoros Islands located?
17 A. They're off the East Coast of Africa.
18 Q. And when did you arrive there?
19 A. I arrived there about 7 or 8 o'clock in the morning on
20 September 2nd.
21 Q. And where were you assigned to search?
22 A. We were assigned to search Harun's home and also Bebe's
23 home.
24 Q. These were locations described to you by whom?
25 A. By the supervisor in charge on the scene.
2389
1 Q. Which location did you go to first?
2 A. We went to Harun's residence first.
3 Q. And about what time of the day was it that you arrived at
4 Harun's location, you knew as Harun's residence?
5 A. That was about noon.
6 Q. And who was with you?
7 A. There were local gendarmerie or the local police were
8 there. There were also FBI LA SWAT team members who were
9 acting as security and investigators and Susan Mitchell.
10 Q. And who is Susan Mitchell?
11 A. Susan Mitchell is a team member from WFO, Washington
12 field.
13 Q. How did you get inside this location?
14 A. The local police went into the residence to make sure that
15 was safe, and then they did a preliminary search, and then the
16 FBI LA SWAT team members went in, and searched the, or
17 actually made sure it was secure again, and searched.
18 And then when they found evidence they thought was
19 pertinent, they called Susan. Susan and I went in at that
20 point.
21 Q. What was your particular role in the search?
22 A. I was the seizing agent.
23 Q. What does the seizing agent do?
24 A. The seizing agent collects all the evidence, to make sure
25 that it's sealed properly, and then maintains custody or
2390
1 control until it is transported to an evidence room.
2 Q. Could you please describe just generally for the jury what
3 the location looked like that you searched, that first
4 location?
5 A. Harun's home was a small house. When you enter the front
6 door there was a small bed to the left. There was a chair,
7 and also a small table. There was a larger bed in the corner
8 of that room. To the right was a small kitchen, and then if
9 you went between the two beds that was acting like it was a
10 living room-bedroom, if you went through those the end to the
11 back there was another small bedroom.
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25
2391
1 Q. Generally what types of items were seized that day?
2 A. There was two briefcases. There was a pair of hiking
3 boots. There was miscellaneous magazines and newspapers.
4 There were some articles or letters with handwriting that was
5 in a language other than English. And there was some hair, I
6 don't know if it was fake hair or real hair, that was found.
7 Q. Did you see any briefcases there that day?
8 A. Yes, I did. There were two briefcases.
9 Q. Do you remember anything about these briefcases?
10 A. There was a black briefcase that when it was brought to
11 me, I opened it up and I looked through preliminarily and I
12 saw there were several passports, there were airline tickets,
13 and these were all in numerous different names. I recognized
14 Harun's name because that was one name that I had been given.
15 And there were also a few items of clothing in that briefcase.
16 Q. What did you do with the briefcase once you saw these
17 documents inside the briefcase?
18 A. I put it into an evidence bag, a paper bag, and then wrote
19 a brief description of the briefcase, the agent's name who
20 gave it to me, and the location where he found it.
21 Q. Just to be clear, what is it that you put into the paper
22 bag?
23 A. I put the briefcase. When I opened the briefcase, I saw
24 what was in it, I shut the briefcase, and I put the briefcase
25 with all of its contents into the paper bag.
2392
1 Q. Agent Foster, I have placed before you what has been
2 previously marked as Government's Exhibit 900. Do you
3 recognize Government's Exhibit 900?
4 A. Yes, sir, I do.
5 Q. How do you recognize Government's Exhibit 900?
6 A. It has my name on it, and I also just remember the
7 briefcase, because of the documents inside.
8 Q. To be clear, is that the briefcase that you obtained at
9 Harun's evidence that day?
10 A. Yes, it is.
11 MR. BUTLER: Offer Government's Exhibit 900 at this
12 time, your Honor.
13 THE COURT: It is received.
14 (Government's Exhibit 900 received in evidence)
15 Q. Agent Foster, I have now placed before you what have been
16 previously marked as Government's Exhibits 951 and 952. Do
17 you recognize those items?
18 A. Yes, I do.
19 Q. How do you recognize those items?
20 A. It has my name on the bag and I also remember the hiking
21 boots from the residence.
22 Q. You obtained these items from where?
23 A. From Harun's residence.
24 MR. BUTLER: I offer Government's Exhibits 951 and
25 952 at this time, your Honor.
2393
1 THE COURT: Received.
2 (Government's Exhibits 951 and 952 received in
3 evidence)
4 Q. I place before you what has been previously marked as
5 Government's Exhibit 953 for identification, and I will ask
6 you to open the bag and just look inside and see if you
7 recognize Government's Exhibit 953?
8 A. Yes, I do.
9 Q. What is Government's Exhibit 953?
10 A. This is hair, or fake hair taken from one of the hiking
11 boots at Harun's residence.
12 Q. How do you recognize Government's Exhibit 953?
13 A. From memory, and also my writing and name is on the
14 packaging.
15 MR. BUTLER: Your Honor, I offer Government's Exhibit
16 953 at this time.
17 THE COURT: Received.
18 (Government's Exhibit 953 received in evidence)
19 Q. Agent Foster, I place before you two items. The larger
20 item, I believe, has been marked as Government's Exhibit 955,
21 and the smaller item 954, and I will just ask if you recognize
22 those items?
23 A. I need something to open this -- no, I am sorry, I've got
24 it.
25 Yes, I do.
2394
1 Q. How do you recognize those items?
2 A. I recognize them, some from memory and also my name and my
3 writing is on the containers.
4 Q. What is in Government's Exhibit 954 and 955?
5 A. Clothes taken from Harun's residence, from the back
6 bathroom mostly in the larger container, and the small
7 container, items of clothing found in the black briefcase.
8 MR. BUTLER: Your Honor, I would offer 954 and 955 at
9 this time.
10 THE COURT: Yes, received.
11 (Government's Exhibits 954 and 955 received in
12 evidence)
13 Q. Agent Foster, about how long did this first search last in
14 Harun's residence?
15 A. Approximately 45 minutes to an hour.
16 Q. While you were conducting the search, what was going on
17 outside?
18 A. There were 1 to 200 locals that had gathered around the
19 residence.
20 Q. What if anything did this cause you to do inside?
21 A. This just caused us to expedite the search.
22 Q. The items that you took from this first location, what did
23 you do with them?
24 A. In the residence, I took them and placed them into
25 evidence bags, and wrote a brief description of what the item
2395
1 was and what agent located it and the location that the agent
2 found it in. I then took those items and took them to a
3 vehicle outside of the residence.
4 Q. What did you do next?
5 A. We immediately went to the second search, which was Bebe's
6 residence.
7 Q. About what time did you arrive there?
8 A. Approximately 1:00.
9 Q. How did you gain access to this location?
10 A. It was the same manner as we had gone into Harun's
11 residence. The local police went in first to make sure the
12 home was secure. Then they searched. Then they called the
13 FBI L.A. SWAT team in. They did a quick security search and
14 they searched for evidence. When they found evidence that
15 they believed to be pertinent to the case they called in the
16 ERT, which would be Susan and myself.
17 Q. Could you briefly describe for the jury what this location
18 was.
19 A. This location was a larger home. When you walked in,
20 there was a dining room with a dining room table to the right.
21 There was a computer on the top of the dining room table.
22 When you walked through the house there were several bedrooms
23 and a bathroom.
24 Q. What types of items did you recover at this location?
25 A. We recovered magazines, newspaper articles about the
2396
1 bombings in Nairobi. We recovered a computer and computer
2 diskettes. We recovered from clothing items, also a duffel
3 bag with miscellaneous documents and clothing items inside the
4 duffel bag.
5 Q. Agent Foster, I have placed before you what has been
6 previously marked as Government's Exhibit 947. Do you
7 recognize Government's Exhibit 947?
8 A. Yes, I do.
9 Q. What is Government's Exhibit 947?
10 A. It is the yellowish-goldish duffel bag taken from Bebe's
11 house with miscellaneous books and newspaper articles inside
12 it.
13 MR. BUTLER: Your Honor, I would offer Government's
14 Exhibit 947 at this time.
15 THE COURT: Received.
16 (Government's Exhibit 947 received in evidence)
17 Q. What did you do with the items that you recovered from
18 this location, Agent Foster?
19 A. After we marked them for identification, we took them back
20 to the vehicle. Then we took all items seized from both
21 searches back to headquarters, the local police headquarters.
22 Q. Approximately how long were you at this location?
23 A. Less than an hour.
24 Q. What was going on outside this location?
25 A. There were hundreds of locals who had gathered around the
2397
1 residence.
2 Q. Did this cause you to do anything inside the second
3 location?
4 A. It again caused us to expedite the search.
5 Q. Where did you go after this second search?
6 A. We went to the local Comoros police headquarters.
7 Q. What did you do with the items that you seized that day at
8 the Comoros police headquarters?
9 A. When we returned to the headquarters, the local police
10 chief wanted to look at the items that we had taken from the
11 two residences. So, for example, I would take one piece of
12 evidence and it would be in a paper evidence bag. I would
13 take that evidence out. I would place it on top of the paper
14 bag and place it, not on the ground, it was like a car port
15 area. So I placed all the items out so the local police chief
16 could view the items we had taken from the residences.
17 Q. Why did you do that?
18 A. Because they were making the decision whether we could
19 take those away from the island or not.
20 Q. How long did it take before they reached their decision?
21 A. 10 p.m. that night.
22 Q. What did you do during this period of time?
23 A. I remained with the evidence, so I had control of the
24 evidence.
25 Q. While you were waiting at the Comoros police station, did
2398
1 you receive any additional items?
2 A. Yes, I did. About 7 or 7:30 that night, Special Agent
3 William Corbett came to me and told me about two items that
4 the local police had taken when we went into Harun's home and
5 Bebe's home before we went in, and they didn't tell us at the
6 time, but they told us later that night. They told Agent
7 Corbett, and they were willing to give those items up. One
8 item was a letter written in another language other than
9 English, and the second item, it appeared to be an address
10 book.
11 Q. Agent Foster, I place before you what has been previously
12 marked as Government's Exhibit 946A. Do you recognize
13 Government's Exhibit 946A?
14 A. Yes, I do.
15 Q. What is that?
16 A. It is a letter written in another language other than
17 English, possibly Arabic.
18 Q. How do you recognize that?
19 A. I recognize it because I have marked it with my name.
20 Q. Is that one of the items that you received while you were
21 at the Comoros police station?
22 A. Yes, it is.
23 MR. BUTLER: I would offer 946A at this time, your
24 Honor.
25 THE COURT: Received.
2399
1 (Government's Exhibit 946A received in evidence)
2 Q. Did the Comoros police make a decision about whether you
3 could take the items seized in the search?
4 A. Yes, they did.
5 Q. What did they decide?
6 A. They decided we could take probably 99 percent of the
7 items seized. There were a few toiletry items that they
8 wanted to return to Harun's wife, but other than that we could
9 take them.
10 Q. What did you with the items seized?
11 A. We repackaged the evidence and put it into a vehicle and
12 we spent the night -- since it was quite late we went to a
13 hotel, and at the hotel we did the final sealing of the
14 evidence.
15 Q. Once again regarding the black briefcase that has been
16 entered into evidence as Government's Exhibit 900, what did
17 you do with respect to the black briefcase?
18 A. I sealed it and I finished writing the description on the
19 bag and remained with the evidence until the next day.
20 Q. Were the documents still inside the briefcase when you
21 sealed up the briefcase?
22 A. Yes.
23 Q. When did you leave the Comoros?
24 A. We left early the next morning.
25 Q. Where did you go?
2400
1 A. We left to return back to Nairobi.
2 Q. What did you do with the items you seized once you
3 returned to Nairobi?
4 A. We took them immediately to CID headquarters, to the
5 evidence room.
6 Q. Specifically with regard to the black briefcase,
7 Government's Exhibit 900, do you know what you did with the
8 black briefcase?
9 A. Yes, sir. Shortly after we returned I gave the black
10 briefcase to Special Agent Mike Anticev.
11 MR. BUTLER: Your Honor, we have one more topic to
12 cover with Agent Foster.
13 THE COURT: How long?
14 MR. BUTLER: Another 10 minutes or so.
15 THE COURT: Is that all right? Thank you.
16 Q. Agent Foster, drawing your attention to September 7, 1998,
17 were you given a particular assignment in connection with your
18 ERT duties on that date?
19 A. Yes, sir, I was.
20 Q. What was the assignment that you received on September 7?
21 A. We were assigned to search a small white Datsun truck.
22 Q. Where was that truck located?
23 A. It was located under a carport at CID headquarters.
24 Q. Did you take any pictures of the truck during the search?
25 A. Yes, sir, we did.
2401
1 MR. BUTLER: I would like to please display just for
2 identification purposes what has been previously marked as
3 Government's Exhibit 960A.
4 Q. Do you recognize this series of photographs in
5 Government's Exhibit 960A?
6 A. Yes, sir.
7 Q. What is Government's Exhibit 960A?
8 A. It is photographs of the white Datsun truck that we
9 searched on September 9.
10 Q. Are these fair and accurate representations of the truck
11 that you searched?
12 A. Yes, it is.
13 MR. BUTLER: Your Honor, I would offer Government's
14 Exhibit 960A at this time.
15 THE COURT: It is received.
16 (Government's Exhibit 960A received in evidence)
17 MR. BUTLER: Now would you please display them to the
18 jury.
19 Q. Who was with you object on this search?
20 A. It was the same team that came from Washington. It was
21 Robin Bonner, Michelle Carr, and Susan Mitchell. There were
22 also some bomb technicians from headquarters.
23 Q. What did the bomb technicians do?
24 A. One technician put a Ty-Vec suit on and took one swabbing
25 of the vehicle, and he also made sure that there were no
2402
1 explosive devices inside the vehicle and that it was safe for
2 us to search it.
3 Q. Were any explosive devices found on the truck?
4 A. No, sir.
5 Q. What was your role in the search of the truck that day?
6 A. I was responsible for part of the swabbings of the
7 vehicle, for vacuuming, for obtaining loose evidence, and I
8 also super-glued some of the items that we removed from the
9 vehicle.
10 Q. Why did you super-glue items?
11 A. We felt that -- it is possible to super-glue an item and
12 send it back to FBI lawyers, to the lab. It's for
13 fingerprints. We can dust there but it is always better to --
14 the super glue -- it is literally super-glue vapors, and it
15 kind of hardens any prints that we find on the item. And then
16 headquarters can process it.
17 Q. In preparation for taking the swabbings, what did you do?
18 A. I put on a Ty-Vec suit.
19 Q. Anything else?
20 A. There was a control swab taken of the suit and also of my
21 gloves.
22 Q. How did you swab the truck?
23 A. We have a vial of cotton balls and forceps. You take the
24 forceps, you get a cotton ball, and you swab different areas
25 of the truck. And you take that cotton ball and you put it
2403
1 into a separate individual glass vial and seal it.
2 Q. What parts of the truck did you swab?
3 A. I swabbed portions of the bed and I also swabbed some of
4 the interior of the truck.
5 Q. Agent Foster, I place before you what have been previously
6 marked as Government's Exhibits 970, 978, 974, and 972, and I
7 will ask if you recognize these items? I am sorry, Agent
8 Foster, I have one more, it is 980.
9 A. Yes, I do.
10 Q. What are those items?
11 A. These are swabbings that we took of the truck bed, I took
12 of the truck bed, and also a few of the interior of the truck.
13 Q. What did you do with the swabbings once you were done with
14 them?
15 A. We took the swabbings and put them into an individual
16 vial, small glass vial, and sealed it.
17 MR. BUTLER: Your Honor, I offer the exhibits at this
18 time.
19 THE COURT: Yes. 970, 974, 978, 972 and 980
20 received.
21 (Government's Exhibits 970, 972, 974, 978 and 980
22 received in evidence)
23 Q. Did you also search the cab area of the truck, Agent
24 Foster?
25 A. Yes, I did.
2404
1 Q. What did you do in the search of the cab area of the
2 truck?
3 A. I did a few things. I took the rear view mirror and
4 super-glued it. I also took the driver's side, took a razor
5 and cut the driver's side seat, the top of that out. I
6 believe I located a couple of loose items.
7 Q. Were photos taken of the cab area of the truck?
8 A. Yes, sir, they were.
9 MR. BUTLER: Can we display just for identification
10 purposes what has been previously marked as Government's
11 Exhibit 960B.
12 Q. Do you recognize what is depicted in Government's Exhibit
13 960B, Agent Foster?
14 A. Yes, sir, that is the interior of the truck.
15 MR. BUTLER: Your Honor, I would offer 960B at this
16 time.
17 THE COURT: Received.
18 (Government's Exhibit 960B received in evidence)
19 Q. I place before you, Agent Foster, what have been marked as
20 Government's Exhibits 988, 984A through C, and 990, and ask
21 whether you recognize these items? Why don't we start with
22 the exhibit in the bag to your left. Do you recognize the
23 exhibit in the bag to your left?
24 A. Yes, I do.
25 Q. What number is that? What is the exhibit number on that?
2405
1 A. It is Exhibit 990.
2 Q. What is Exhibit 990?
3 A. It is the rear view mirror from the interior of the white
4 truck.
5 MR. BUTLER: I would offer Government's Exhibit 990
6 at this time, your Honor.
7 THE COURT: It is received.
8 (Government's Exhibit 990 received in evidence)
9 Q. Going to the next item, what item is that, Agent Foster?
10 A. This is a light cover from the truck -- actually, two --
11 and a lug nut.
12 Q. Do you recognize those items?
13 A. Yes, sir, I do.
14 Q. Were those items that you seized from inside of the truck
15 that day?
16 A. Yes, in the glove box of the truck.
17 Q. What is the exhibit number, Agent Foster?
18 A. 984A-C.
19 Q. I would offer that exhibit at this time, your Honor.
20 THE COURT: It is received.
21 (Government's Exhibit 984A-C received in evidence)
22 Q. Lastly, the item in the large can, do you recognize that
23 item, Agent Foster?
24 A. Yes, sir, I do.
25 Q. What is that?
2406
1 A. This is the seat, the bottom of the seat that I removed
2 from the white truck.
3 Q. What is the exhibit on that item, on the side of the can?
4 A. 988.
5 MR. BUTLER: I would offer 988 at this time, your
6 Honor.
7 THE COURT: Evidence received.
8 (Government's Exhibit 988 received in evidence)
9 Q. After you seized these items, Agent Foster, what did you
10 do with them?
11 A. Sealed them and took them to the evidence room at CID
12 headquarters.
13 MR. BUTLER: No further questions, your Honor.
14 MR. BAUGH: Just one.
15 CROSS-EXAMINATION
16 BY MR. BAUGH:
17 Q. Special Agent, do you know how that address became
18 targeted as a suspect address?
19 A. No, sir, I don't.
20 MR. BAUGH: Thank you.
21 THE COURT: Mr. Wilford.
22 CROSS-EXAMINATION
23 BY MR. WILFORD:
24 Q. Good afternoon, Agent Foster.
25 A. Good afternoon.
2407
1 Q. How are you?
2 A. Good, thank you.
3 Q. Agent, when you described taking the various items from
4 several searches to CID headquarters -- is that correct?
5 A. Yes, sir.
6 Q. That was located in Nairobi?
7 A. Yes, sir.
8 Q. There they were placed in, what you said, the evidence
9 room?
10 A. Yes, sir, there was one room designated as an evidence
11 room.
12 Q. Who was in charge of that room?
13 A. While I was there, Susan Mitchell, part of my team, was in
14 charge of the room. When she left, Michelle Carr was the
15 custodian of the room.
16 Q. Was there a system for logging items into the room and
17 logging items out of the room?
18 A. Generally each item had a chain of evidence -- chain of
19 custody, excuse me. When I received something, my name would
20 be the first name or the second name on the item. Then I
21 would put it into the evidence room and that would be marked
22 on that sheet, that it was put into the evidence room. If
23 anyone took that from that room, then they would sign for that
24 item.
25 Q. When items were sent to Washington for further forensic
2408
1 examination, were they logged out?
2 A. I don't know because I never did that. I know that I was
3 told if I did take something out of the room that I would log
4 it out, but I never did that.
5 Q. Was the room locked?
6 A. Yes, sir.
7 Q. Who maintained the key?
8 A. Susan Mitchell had a key and she was our team leader.
9 Q. The key that Miss Mitchell had, she received that from the
10 Kenyan CID; is that correct?
11 A. I don't know. She was the team leader, so she talked to
12 supervisors when I wasn't present.
13 Q. The system of accountability that was employed for that
14 evidence room was the same that the FBI maintained in the
15 United States; isn't that correct?
16 A. As far as the chain of custody, yes.
17 (Continued on next page)
18
19
20
21
22
23
24
25
2409
1 MR. WILFORD: Nothing further. Thank you.
2 THE COURT: Anything further of this witness?
3 MR. BUTLER: No, your Honor.
4 THE COURT: Thank you. You may step down.
5 (Witness excused)
6 THE COURT: Thank you, ladies and gentlemen. We are
7 adjourned till tomorrow.
8 (Jury excused)
9 THE COURT: Any matters that should be addressed
10 prior to the return of the jury tomorrow?
11 MR. RICCO: No, your Honor.
12 THE COURT: I assume counsel will advise me if and
13 when it is appropriate to talk to the jury about the calendar.
14 We are adjourned until tomorrow.
15 (Proceedings adjourned until Tuesday, March 13, 2001,
16 at 9:45 a.m.)
17
18
19
20
21
22
23
24
25
2410
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 DONALD SACHTLEBEN.......2230 2245 2266 2267
5 JUNICHI MYAGI...........2268 2280
6 SAID SALIM OMAR.........2283 2294
7 TAMARRA RATEMO..........2295 2318
8 RONALD L. KELLY.........2320 2323
9 STEVE CASPER............2328
10 JOHN JOSEPH HUGHES......2338 2344
11 PATRICK BUCKLEY.........2346 2359
12 STEPHEN M. HAUG.........2362 2365
13 ROGER C. STANTON........2366
14 ICEY LOU JENKINS........2371
15 CHRISTOPHER W. NEWCOMER.2377 2381
16 KENNETH E. KEMPF........2383
17 ALISA FOSTER............2387 2406
18 GOVERNMENT EXHIBITS
19 Exhibit No. Received
20 840 ........................................2241
21 802-D1 .....................................2245
22 841A through 841F ..........................2274
23 Government Exhibits 583A ...................2287
24 123 ........................................2289
25 567A through G .............................2297
2411
1 582 ........................................2300
2 568 ........................................2309
3 586 ........................................2314
4 842 and 843 ................................2323
5 839-P1 and 839-P2 ..........................2333
6 695A through 695J ..........................2341
7 696 and 696P ...............................2343
8 791A and 791B ..............................2349
9 751 through 755 ............................2351
10 792A .......................................2353
11 756 through 759 ............................2355
12 792B .......................................2356
13 792C .......................................2356
14 792D .......................................2357
15 760 to 776 .................................2358
16 750 ........................................2365
17 792E .......................................2369
18 792F .......................................2369
19 780 through 783 ............................2370
20 784, 785 and 786 ...........................2374
21 792H .......................................2375
22 779 ........................................2379
23 792I .......................................2380
24 779P2 ......................................2381
25 792J .......................................2386
2412
1 777 and 778 ................................2387
2 900 ........................................2392
3 951 and 952 ................................2393
4 953 ........................................2393
5 954 and 955 ................................2394
6 947 ........................................2396
7 960A .......................................2401
8 970, 972, 974, 978 and 980 .................2403
9 960B .......................................2404
10 990 ........................................2405
11 984A-C .....................................2405
12 988 ........................................2406
13 946A .......................................2399
14 DEFENDANT EXHIBITS
15 Exhibit No. Received
16 Odeh AA ....................................2266
17
18
19
20
21
22
23
24
25
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