us v. usama bin laden - july 2, 2001 trial...

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2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 3 ------------------------------x

4 UNITED STATES OF AMERICA

5 v. S(7) 98 Cr. 1023

6 USAMA BIN LADEN, et al.,

7 Defendants.

8 ------------------------------x

9 New York, 10 N.Y. July 2, 2001 11 9:00 a.m.

12

13 Before: 14 HON. LEONARD B. SAND, 15 District Judge 16 APPEARANCES 17 MARY JO WHITE 18 United States Attorney for the Southern District of New York 19 BY: PATRICK FITZGERALD MICHAEL GARCIA 20 Assistant United States Attorneys

21

22 FREDRICK H. COHN DAVID P. BAUGH 23 Attorneys for defendant Mohamed Rashed Daoud Al-'Owhali 24 DAVID RUHNKE 25 DAVID STERN Attorneys for defendant Khalfan Khamis Mohamed

REPORTERS CENTRAL (212) 594-3582

http://www.findlaw.com/

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25 MR. FITZGERALD: Your Honor, at this


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2 time we would offer in evidence Government

3 Exhibit 4324, page 1 and 2, through lines 22,

4 which is a transcript of a proceeding involving

5 defendant Khalfan Mohamed on October 8, 1999.

6 MR. RUHNKE: No objection.

7 THE COURT: Received.

8 (Government Exhibit 4324 received in

9 evidence)

10 MR. FITZGERALD: And I would just

11 read lines 2 through 22 of that transcript:

12 "The Court (addressing attorney):

13 Does your client require an interpreter?"

14 The attorney for Khalfan responds:

15 "He speaks English, but his primary language is

16 Swahili. We have an Arabic interpreter.

17 Apparently his Arabic is better than his

18 English. I think he understands what he and I

19 discussed in English and he is prepared to go

20 forward today. In the future, if we can, we

21 would like to have a Swahili interpreter."

22 And then a prosecutor: "We will make

23 sure that gets arranged, your Honor.

24 "The Court: Mr. Mohamed, are you

25 able to understand me?


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2 "The Defendant: Yes.

3 "The Court: If at any time anything

4 is said which you want interpreted or which you

5 don't understand, will you please raise your

6 hand?

7 "The Defendant: Yes.

8 "The Court: Would you answer in

9 words? You are nodding your head. Would you

10 answer in words? Will you raise your hand if

11 there is anything that you don't understand?

12 "The Defendant: Okay. Yes."

13 Your Honor, we would also offer

14 Government Exhibit 4331, which is a transcript

15 of a hearing involving Mamdouh Salim on October

16 20, 2000.

17 THE COURT: Yes.

18 (Government Exhibit 4331 received in

19 evidence)

20 MR. FITZGERALD: And then I would

21 just read from page 357 of the transcript,

22 questioning by Salim's counsel of Salim, and:

23 "Q. Now, let me ask you, when you -- at that

24 time, which is almost two years ago, how was

25 your understanding of the English language in


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2 relation to now?

3 "A. I may speak in English now to expedite

4 matters to reduce the time, but I wish to have

5 the interpreter stand next to me in case I need

6 any assistance.

7 "Q. Well, how is your English, was it good or

8 bad? How was your English, your knowledge of

9 the English language when you were examined?"

10 Answer by Salim in English: "I

11 already studied the electrical engineering in

12 university for four years, and this was up to

13 1980, which is 20 years ago, and my language at

14 that time until now, or at least until the day

15 that they arrested me, it was technical

16 language. I can speak with an engineer for

17 hours, but with a lawyer it's very difficult

18 for me to speak for minutes. But after I'd

19 been arrested and then, unfortunately,

20 extradited here, I decided to improve my

21 language because I think this will assist me to

22 defend myself, hoping that I can win the case,

23 because I am innocent."

24 And we have one more stipulation,

25 your Honor. Strike that. Two more.


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2 Government Exhibit 4332:

3 It is hereby stipulated and agreed by

4 and between the parties that Government Exhibit

5 4326 is a copy of the subpoena provided to the

6 Bureau of Prisons requesting information

7 concerning 20 designated inmates. Government

8 Exhibit 4331A to 4331Q are copies of the

9 computerized disciplinary records of 19

10 inmates. The 20th name requested, Abdel Rahman

11 Yasin, is a person who was a fugitive who has

12 never been in custody and for whom there are,

13 thus, no records.

14 Government Exhibit 4315 is a copy of

15 the computerized disciplinary record of Abdel

16 Hakim Murad convicted with Ramzi Yousef and

17 Wali Khan Amin Shah of conspiring to bomb

18 airliners in the Philippines after being

19 extradited to the United States in 1995.

20 The computerized disciplinary records

21 referred to above are distinct from the

22 incident reports provided to Dr. Mark

23 Cunningham concerning the administrative

24 maximum prison at Florence, Colorado. The

25 complete set of incident reports pertaining to


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2 the prison at Florence provided to

3 Dr. Cunningham consist of thousands of pages

4 and was thus not offered as an exhibit.

5 And we would offer Government Exhibit

6 4332 and the exhibits referred to therein,

7 Government Exhibits 4326, 4331A to 4331Q and

8 4315.


10 (Government Exhibits 4332, 4326,

11 4331A through 4331Q and 4315 received in

12 evidence)

13 MR. FITZGERALD: And I'm corrected

14 that it is 4331A to S, so we would offer 4331R

15 and S at this time also.

16 Finally, your Honor, Government

17 Exhibit --


19 (Government Exhibits 4331R and S

20 received in evidence)

21 MR. FITZGERALD: 4307 is a

22 stipulation. It is hereby stipulated and

23 agreed, by and between the parties, that:

24 Government Exhibit 3050 is a copy of

25 a portion of a videotape that aired on the


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2 Al-Jazeira channel (an Arabic-language

3 broadcasting service in the Middle East) on or

4 about September 20th, 2000. In addition to the

5 broadcaster, the speakers in the entire

6 videotape were Usama Bin Laden, Ayman al

7 Zawahiri, Refai Ahmed Taha Musa and Sheik

8 Asadallah, the son of Sheik Omar Abdel Rahman.

9 Government Exhibit 3050 is the portion of the

10 videotape which includes Usama Bin Laden's

11 statements.

12 Government Exhibit 3050T is a fair

13 and accurate translation from Arabic into

14 English of Government Exhibit 3050. The

15 persons referred to by Usama Bin Laden include

16 Sheik Omar Abdel Rahman, el Sayyid Nosair,

17 Mohamed Rashid Dauod Al-'Owhali and Osama

18 Mullah Haydar (an alias of Wali Khan Amin

19 Shah).

20 The date the videotape was made is

21 not known. However, it is believed to have

22 been made at some time in the year 2000, when

23 defendants Mamdouh Salim, Wadih El Hage,

24 Mohamed Sadeek Odeh, Mohamed Rashed Dauod

25 Al-'Owhali and Khalfan Khamis Mohamed were in


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2 American custody.

3

4 (Continued on next page)

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2

3 It is further stipulated that Sheik

4 Omar Abdul Rahman was arrested in August 1993

5 in the Metropolitan New York area and later

6 charged with various crimes, including the

7 crime of seditious conspiracy, in essence, the

8 crime of conspiring to make war against the

9 United States from within the United States,

10 which conspiracy included among its overt acts

11 the bombing of the World Trade Center and

12 efforts to bomb various locations in New York

13 City, the Holland Tunnel, the Lincoln Tunnel,

14 the FBI building at 26 Federal Plaza, and the

15 United Nations building.

16 However, Abdul Rachman was noted

17 charge with the crime of bombing the World

18 Trade Center. Abdul Rachman was convicted of

19 seditious conspiracy after a trial in the

20 Southern District of New York in 1995, and was

21 also convicted at that time of conspiracy to

22 murder Egyptian President Murabak in

23 retaliation for the arrest of Mahmoud

24 Aboulahima separately convicted for the

25 February 1993 World Trade Center bombing.


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2 It is further stipulated that El

3 Sayed Nosair was convicted at the same 1995

4 trial in the Southern District of New York with

5 Abdul Rahman and others participating in the

6 same seditious conspiracy. In addition, Nosair

7 was convicted of the November 5, 1990 murder of

8 Rabbi Mayer Kahane in New York.

9 It is further stipulated that Wadi

10 Khan Amin Sha, a/k/a Marhedra, a/k/a Asmiri was

11 convicted in the 1996 trial in the Southern

12 District of New York of conspiracy to bomb

13 approximately 12 commercial airliners

14 registered to American carriers based upon

15 conduct in the Philippines and elsewhere in

16 late 1994 and early 1995, and of attempted

17 escape while awaiting trial in the Southern

18 District of New York.

19 We would offer Government Exhibit

20 4307, the stipulation, Government Exhibit 3050,

21 the video, and a transcript Government Exhibit

22 3050-T.


24 (Government's Exhibits 4307, 3050,

25 and 3050-T received in evidence)


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2 MR. FITZGERALD: At this time, your

3 Honor, I'd like to just hand out the single

4 page transcript, 3050T, and play the exhibit.

5 THE COURT: Yes.

6 (Government Exhibit 3050 played)

7 MR. FITZGERALD: The government

8 rests.

9 THE COURT: The government rests.

10 We'll take a very brief recess.


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2 (Jury not present)

3 THE COURT: What is the status of the

4 instruction to the jury with respect to

5 consideration of matters introduced during the

6 Al-'Owahli penalty phase?

7 MR. RUHNKE: Your Honor, the status

8 is that we decided to offer nothing.

9 THE COURT: Nothing. So that the

10 instruction to the jury ignores any reference,

11 they are to consider only what happened at the

12 liability phase and this phase. Is that

13 correct?

14 MR. FITZGERALD: Yes, Judge.

15 THE COURT: All right. We'll take a

16 very brief recess.

17 (Recess)


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2 (In open court; jury present)

3 THE COURT: As you have heard both

4 sides have rested and so we're now at the stage

5 where attorneys make their closing arguments.

6 Mr. Fitzgerald.

7 MR. FITZGERALD: Thank you, Judge.

8 Good morning. This morning I rise to

9 speak to you for the last time in this case, as

10 you consider the most serious questions a jury

11 could ever decide, whether the defendant Khamis

12 Mohamed should be punished by life imprisonment

13 or by the death penalty.

14 But I begin by reminding you of one

15 thing, why it is here, why you are here to

16 decide that. You are here to decide that

17 because of him, because he chose to kill and to

18 murder on August 7, 1998; because he chose to

19 participate with Salim in an attack on November

20 1, 2000. And I tell you that because some of

21 the evidence you have heard, some of the things

22 that have been said, some of the things

23 presented to you particularly quite recently,

24 might make you forget that.

25 You've heard about a year in South


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1 1721BIN2 Summation - Fitzgerald

2 Africa at Burger World where he was a model

3 employee and a model guest. Well, recognize

4 that he's here today because he made choices.

5 Things didn't happen to him. There is an

6 impression created at times that we're here

7 because things happened, bombings happened and

8 assaults happened. No, he did them. He

9 murdered people. He assaulted them.

10 Counsel for Khamis Mohamed in the

11 opening had told you candidly, did it, when he

12 spoke to the FBI he had no remorse, and they're

13 not running from the facts. But since that

14 time there has been some quiet role marking.

15 At the end of the guilt phase, counsel for

16 Khamis Mohamed made it sound like the weather,

17 and I remember quote as the world turns, as

18 events go. If Khamis Mohamed had left to go to

19 London to start a new life probably the embassy

20 would have been bombed on August 7, 1998

21 anyway, and that would not have changed, but

22 everything would have changed for him, and he

23 would not be sitting here facing your judgment,

24 but that's not how the world turned, as if the

25 bombing was something that happened to Khamis.


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2 In the beginning of the penalty

3 opening it was stated that it was to Khamis'

4 everlasting bad fortune that he sat in a cell

5 with Mandouh Salim, but that's not what

6 happened. It was to Officer Pepe's everlasting

7 bad fortune that the two of them got together

8 in a cell and tried to take him hostage and

9 savagely assaulted him.

10 During the testimony of Ms. Miller a

11 question was asked of her: Now, there came a

12 time when Mr. Mohamed became involved with a

13 group of people in Dar es Salam and at the end

14 of that process the American Embassy was

15 bombed. It wasn't a process. It was a choice.

16 It was an act. It was murder and we have to

17 remember that. This man decided on August 7,

18 1998 that people could die in an embassy with a

19 bomb he helped build, lined it with TNT and

20 made sure the truck got there. He thought that

21 he would die and he could run away, he would

22 abandon his family, lie to them, where he went

23 to South Africa and pretend to be a nice guy.

24 He Didn't give a damn about the people he

25 killed. He didn't give a damn about the people


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2 he left behind and when he was caught he said:

3 I did it, not because he was sorry, he

4 threatened to do it again.

5 On November 1, 2000 he and Salim

6 struck again. This is not the weather. It's a

7 person who killed in cold blood and will do it

8 again if given the chance.

9 Let's review the facts. Review the

10 facts about the bombing and the assault, and

11 remember who he is, what he has done, why he is

12 here, and why you are asked to make this

13 judgment.

14 You may forget that when he went to

15 Afghanistan remember how far away Afghanistan

16 is from Tanzania, how little people can leave

17 that island. He made a choice to go. He made

18 a choice to go. He paid his own way. He went

19 to Afghanistan and what did he do in

20 Afghanistan? He received training. How much

21 training did he receive? I bet you just about

22 everyone in the room has forgotten.

23 We heard about that little year in

24 South Africa where he was making burgers and

25 making broiled chicken. He really was trained


8562


2 for a little less than a year, and of fantan,

3 check the reports, check Agent Perkin's FBI

4 report. He admitted he was trained for nine to

5 ten months. And he told you Khamis Mohamed

6 told you through Agent Perkin's that he was

7 trained in light weapons, handguns and rifles.

8 He was trained in surface to air missiles and

9 rocket launchers. That's what he was doing in

10 Afghanistan. He wasn't running to get fanta.

11 He was getting trained on how to kill people.

12 Then he received advanced training.

13 He went for advanced training in how to wire a

14 bomb, advanced training in detonators. He was

15 not trained in how to make the bomb. So when

16 he had this image of Khamis Mohamed sitting

17 there in Dar es Salaam he knew how to kill, he

18 knew weapons, he knew how bombs worked. And

19 what did he do after nine to ten months of

20 training in Afghanistan? You heard he later

21 went to Somalia. This is long after the

22 Americans are gone. This is 1997.

23 He went to Mombasa. He went to

24 Somalia and he went through Mombasa and

25 Somalia. That's when he met the Hussein


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2 fellow, Ustafa Fadl told you heard about at the

3 guilt phase. That's when you heard about

4 Mohammed Odeh. What did he admit to Agent

5 Perkins he did there? I was a trainer. He

6 wasn't getting trained in Somalia. He was

7 training other people. He said it was possibly

8 with Al Quaeda the group you heard about at the

9 guilt phrase. He sold guns. He sold rifles.

10 He sold rocket launchers. He sold surface to

11 air missiles. That's Khamis Mohamed. He's not

12 on the island of Pemba. He's in Afghanistan

13 and in Somalia being trained and training.

14 Let's talk about the bombing. What

15 happened with the bombing? He made a choice,

16 Hussein, the Hussein we hear about was a

17 phantom. Hussein came to him and asked him to

18 do a jihad job, and it was not asked because he

19 said if you don't do it you have to keep it a

20 secret that I asked you. He gave him a choice.

21 He had free will. He could decide to do the

22 jihad job or not. He's not brainwashed. But

23 he didn't equivocate. No moral struggle. He

24 did it. And what did he do as part of the

25 plot? He did a variety of things. He rented a


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2 house, the second house let's talk about, and

3 he brought the Suzuki, the Suzuki that was used

4 to transport things.

5 Well, we heard a lot about, well, you

6 know, he rented a house in his true name. How

7 much of a jihad guy is he? That was his role.

8 He was the local guy. He knew the people in

9 Tanzania. He can't walk up and say, let me

10 rent this house an let me use the name John

11 Smith. That would be suspicious. Let me buy

12 the Suzuki and use a fake name. That would be

13 suspicious.

14 What he's got to do is he's a local

15 guy to make sure things get done, to get things

16 rented, to get things bought and then the smart

17 jihad guy has to get them documents and get out

18 of town, which is exactly what he did. Besides

19 renting the house, besides getting the Suzuki,

20 he ground the TNT.

21 Now, let's talk about that. First of

22 all, you'll hear, sure, it's low-level work

23 that also important people did Abu Rahman the

24 guy who wired the bomb in Nairobi, the guy who

25 wired the bomb in Dar es Salam, Abdul Rahman,


8565


2 and that defendant were grinding the TNT. You

3 could almost forget because in abstract reality

4 in the courtroom sometimes because you're not

5 there watching what that means. You saw the

6 grinder. The TNT is in clumps. Somebody

7 sitting there grinding, grinding a bomb. He

8 knows it's to kill people. That's what a bomb

9 is for. And he's grinding and grinding away.

10 Abdel Rahman and Khamis Mohamed grinding away a

11 mixture of death.

12 What did he tell you? He told you

13 through Agent Perkin's that he knew what the

14 target was. Five days before the bombing he's

15 told the target is the American Embassy in

16 Tanzania. No moral struggle, no hesitation.

17 He continues. He knows they're bombing a

18 building an American building in Tanzania and

19 people will die.

20 He told you no one was fooled. He

21 knew what is going on. He was in the camps.

22 He's trained in wiring bombs. He watched them.

23 He described how the truck was loaded, cylinder

24 bomb parts, cylinder bomb part, this is to hold

25 the cylinders. He watches it get wired right


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2 up to the dashboard so Ahmed can press the

3 button. He does what he can. He stays behind

4 because he is the local guy who can get things

5 done.

6 They leave. They need a bomber and

7 they supplied someone to make sure the truck

8 gets to the embassy, and he does that. When

9 the truck is stuck in the sand and they get it

10 out of the sand, they're still worried, well,

11 we can't have people get stuck in the sand

12 again. He arranges to have a tow truck driver

13 on Uhuru Road in case there is a problem.

14 And then after the truck goes on its

15 mission of death to where it's going to kill

16 eleven people and injure dozens of others, what

17 does he do? He goes back home and he prays,

18 and he's listening for the sounds of the bomb.

19 It is unlike what he told Dr. Post

20 five weeks back, he knew it wasn't a bomb in

21 Somalia which he wouldn't hear. He knew it was

22 a bomb in Tanzania, and he waited for the

23 sound. When he heard the sound, the explosion

24 he couldn't hear it, he turned on the TV and

25 saw the building had been bombed.


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2 Let me display Government Exhibit

3 3,000. That's the fellow countrymen, a hard

4 working Tanzania man, working to put food on

5 the table to support his family, being carried

6 out to die. And when he hears from the TV that

7 the bomb went off and people are dead, he's

8 happy. Then he turns to bring his own nephew

9 uses his own nephew to get rid of things and

10 sends a grinder off to the islands, buries the

11 rest of the stuff in the pit in the backyard.

12 We hear a lot about, gee, that proves

13 he's a nice guy that he brought his nephew in

14 to get rid of the some of the bomb stuff from

15 the bomb factory, and he sent his family, first

16 he cleaned, and he told him to clean the bottom

17 line in that grinder in the family home in

18 Zanzibar in the island is not going to get him

19 caught.

20 To get there you have to figure out

21 where the bomb is in that house at 213 Ilala,

22 who did it. By the time they get to their

23 family's house they have long figured out, what

24 he did was he lied to his family and told them

25 he was going somewhere else.


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2 He took the identity card and went to

3 South Africa. He went to South Africa and

4 claimed political asylum, lied to the South

5 Africans that he's got to be protected from

6 other people. Certainly didn't tell them, I

7 just murdered eleven people in cold blood and

8 didn't care about them. Instead, went down

9 there seeking their protection.

10 You know what else? Before he left,

11 before the others left they gave Khamis Mohamed

12 three telephone numbers. Two were in Yemen,

13 and one was in Pakistan. We heard a lot about

14 Khamis Mohamed supposed to be expendable. But

15 remember, Al-'Owahli was expendable. He was

16 supposed to die, but did not. Azzam was

17 expendable. He did die, the driver of the

18 truck in Nairobi. Ahmed the German was

19 expendable. He did die in the truck in

20 Tanzania.

21 But they left numbers for him. They

22 gave him the same thousand dollars Odeh got.

23 He got his own passport like Odeh did, and they

24 gave him these numbers.

25 But did they care about him, they


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2 gave him three numbers he couldn't check.

3 Maybe they were to a toll booth on the Jersey

4 Turnpike. Well, you know in fact that the

5 numbers were real. One of the numbers in Yemen

6 was the number 415923. If you look up Yemen,

7 the phone number 4159123, and you want to

8 figure out, gee, is that a jihad number? Is

9 that a real contact? Look at Bin Laden

10 satellite telephone number. Remember that

11 number we used to hold up on the board?

12 Look at the bill for Bin Laden's

13 satellite phone called that number thirty-four

14 times in the phone records. There is another

15 record, another number he was given in Yemen

16 219036 for Abu Rahman that shows up was in

17 London. Yemen 219036, you can see at the third

18 entry Abu Rahman Ben Mohammed Alyafad. 219036.

19 It shows up in Wadih El Hage's pop up phone

20 book. That same number, 219036 in Yemen.

21 They gave him contacts. He admitted

22 he used it and called once in Yemen and spoke

23 to Abu Rahman, but his phone card ran out so he

24 didn't have a longer conversation. I submit to

25 you he was given contacts and money and told to


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2 escape to live to fight another day. Sadly he

3 did, because he fought another day and Officer

4 Pepe will pay for that the rest of his life.

5 He also took those numbers and he

6 wrote them backwards in a piece of paper not to

7 preserve them, but to hide them. Writing the

8 digits backwards. That's Khamis.

9 You heard how sad he was when someone

10 maybe asked him to go get a fanta, but that's

11 not what this case is about. He made a choice.

12 He chose to go to Afghanistan and train. He

13 chose to go to Somalia to train. It was he who

14 wanted to do a jihad job or not, and he was not

15 brain washed. The difference between Khamis

16 and a lot of others is Khamis does not have

17 fire in his eyes. What he has is ice in his

18 veins, and that's what makes him more dangerous

19 because he coldly coolly decides I'll kill, I

20 won't look back, I'll go, be nice to people in

21 South Africa and I'll come to America. When

22 the chance is given to attack Officer Pepe,

23 he's in there.

24 Cold, cool, zero remorse. And where

25 do you see that? In October of 1999 in South


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2 Africa. There he is in South Africa and he is

3 finally caught. We hear from other people that

4 October 1999 how he wouldn't hurt an ant, but

5 when he's caught, what does he tell the FBI?

6 Yeah, I did it. Not because he's sorry, not

7 because he cares that eleven countrymen, his

8 own countrymen are killed, fellow Tanzanians,

9 fellow Muslims, not because he cares about

10 their family, okay, and recognize it. He's

11 putting his family through a lot, but those are

12 his choices. His choice on August 7th, his

13 choice on October 1999, his choice in November

14 2000. He didn't give a damn about the people

15 he killed or their families. And he told the

16 FBI on these days after having a year to

17 reflect that he read very little about the

18 bombing. He wanted to know what happened.

19 Can you imagine anyone murdering

20 eleven people and not bothering to look what

21 happened? And what he said was: He wanted to

22 kill Americans. The soldiers were such a hard

23 target, so they went after embassies. The

24 bombings were a success because they tied up

25 investigators. He was not sorry that


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2 Tanzanians were killed. You saw those victims.

3 Hard working people, guards, just trying to put

4 food on the table and he didn't care. He said

5 if he hadn't been caught he would have

6 continued to kill Americans and hope that

7 others would carry on and he would carry on if

8 he could.

9 That brings us to the assault.

10 Remember one thing in this case that if there

11 is one person you heard about in this trial, in

12 fact, there is only one person on this entire

13 planet who participated both in the bombings of

14 August 7, 1998 is Khamis did in Tanzania, and

15 in that assault in November 1, 2000 on Officer

16 Pepe. Here is the man who's caught for one

17 terrorist act and engages in another while

18 awaiting a trial while awaiting a chance for

19 justice. Let's talk about the assault.

20 When you look at the assault I ask

21 you to focus on five different areas. First,

22 focus on the preparation, the chronology, the

23 days before the attack. Second, focus on the

24 location where the attack, the maiming, took

25 place. Third, focus on the conduct of fighting


8573


2 the officers when they respond to the attack

3 because it tells you several things we'll go

4 through. Fourth, focus on what Officer Pepe

5 told you through three different witnesses

6 about the fact that it wasn't a them who he was

7 fighting. Finally, look at the forensics with

8 the blood, what the evidence, what the DNA

9 shows you.

10 Make no mistake about it. Salim was

11 a prime mover in the attack. Salim was angry.

12 He was upset. Now he's playing crazy. He's

13 pulling a Klinger saying, how he's nuts, he

14 wasn't responsible. He's a prime mover. But

15 make no mistake about it, this man was in it

16 with him. And we'll walk through the proof.

17 Let's start with the ten days prior

18 to the assault. You know some things happened.

19 You heard about Salim complaining about his

20 attorneys. You heard about him trying to get a

21 severance. He wasn't charged in the bombing,

22 didn't like the result. There are things going

23 on. You've also heard a lot about Ali Mohammed

24 which you may recall last week when you heard

25 him, plead guilty, and you have the transcript,


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2 he pled guilty to all the charges naming him.

3 It was in open court, when he walked in and

4 said: I'm guilty in a straightforward way.

5 When he pled guilty the date was October 20,

6 2000, ten days before the attack. Six people

7 awaiting trial, this trial in this courtroom.

8 Ali Mohammed pleads guilty. Don't you think

9 that hit the other five hard? Don't you think

10 they'd be talking about that in the period

11 October 20th to November 1st. Move forward

12 five days.

13 October 25th, cell rotation. Salim

14 is brought from another cell to cell number 6

15 then October 25th. Khamis Mohamed is brought

16 to another cell, to cell number 6 on October

17 25th. The people in cell 6 are moved out.

18 Their belongings are taken away. Salim and

19 Khamis Mohamed are brought in. No shanks. The

20 Afro comb turned into a bayonet stuck into

21 Pepe's eye and brain. The hair brush turned

22 into a jabbing knife. You can feel it through

23 the plastic. It still has a sharp edge. Those

24 were made. You can't bring a shank with you to

25 the new cell. Those shanks were made between


8575


2 October 25th and November 1st. And you know

3 what? Look at the picture, look at the

4 picture, Government Exhibit 4039 which is a

5 picture of what's underneath that concrete desk

6 in the 10 South unit and remember one of the

7 things you'll see is the construction up in the

8 ten south unit, a lot of it is awful light,

9 that supersecure prison you heard about in

10 Florida, stainless steel showers, concrete

11 desks, things like that.

12 Agent Hatton told you Government

13 Exhibit 3049 is the markings of something going

14 back and forth underneath the concrete desk.

15 It's Salim and Khamis Mohamed at work making

16 weapons on October 25th and November 1st.

17 You'll hear about the cell rotation

18 the log, the activity log in the period of

19 October 25 and November 1, and you'll see that

20 sometimes Salim was out of his cell, sometimes

21 Khamis Mohamed was out of his cell. And I'll

22 do some rough math and you can check it

23 yourself, but it's 168 hours between the

24 morning of October 25th and the morning of

25 November 1st, Khamis Mohamed was out of his


8576


2 cell about seven hours in that time. Salim was

3 out of his cell about nine and a half, roughly

4 nine and a half ten hours during that time.

5 They were out at the same time in different

6 rooms for about two and a half hours. So they

7 were apart for about 14 hours. They're

8 together for 154 hours.

9 And think about Mr. Ruhnke's opening

10 about being stuck in a Holiday Inn room with

11 nothing to do for the rest of your life. Well,

12 think about being stuck in a smaller Holiday

13 Inn room with a cellmate. Think about being

14 stuck in that room when you're angry, and Salim

15 didn't hesitate to share his feelings with

16 anyone, about how he was feeling.

17 Think about being stuck in a room

18 when someone just plead guilty, and think about

19 Khamis being stuck in the room with someone who

20 is an authority figure an educated religious

21 person, and from what we've heard that's what

22 Khamis listens to, if you're educated and

23 you're religious, he follows you. That's the

24 two of them, October 25th to November 1st,

25 spending their time in a cell together, shanks


8577


2 being made.

3 Something you haven't seen yet. If

4 you look at Government Exhibit 4020 which is a

5 photograph, there is a stipulation you heard

6 that Khamis Mohamed had glasses. Those are his

7 glasses. That is his bed. That is bed number

8 one. On this big chart here you saw that bed

9 number one is here. Bed number two is on the

10 wall. Khamis' glasses are in bed number one.

11 Why is that important? Because you later heard

12 that there is a brush by bed number two.

13 Government Exhibit 4036. 4036 is a picture of

14 the brush in Salim's bed. Why is that

15 important?

16 Well, in the year 2000 the defendant

17 Khamis Mohamed brought two brushes, I believe

18 the record shows April and May, and Salim

19 brought a brush in August of 2000. That's

20 Salim's brush. The agents who searched ten

21 south and cell 6 say that's the only brush they

22 found other than this one. This is Khamis

23 Mohamed's brush turned into a weapon. This is

24 Khamis Mohamed's brush. And we'll show you

25 later it was stuck in Pepe's head, because


8578


2 there is blood on it. There was blood on it.

3 There was a picture of it and the blood is

4 determined by the DNA person to be Officer

5 Pepe's blood.

6 There are two weapons that attacked

7 Officer Pepe, one Afro comb to be clear is

8 bought by Salim; the brush we submit to your

9 common sense tells you was Khamis, unless of

10 course we think Salim was secretly making a

11 weapon hiding it from Khamis Mohamed, using

12 Khamis' own brush. He uses his brush everyday.

13 Khamis had longer hair back then. You probably

14 saw the Otisville video. He had longer hair.

15 There was a saran wrap rope hidden

16 underneath the prayer rug on Khamis Mohamed's

17 bed number one, and you saw a picture of how

18 the saran wrap was used around the shoes, but I

19 submit to you the ones that were hidden around

20 the shoes were short ones, and we'll show the

21 picture later.

22 The rope in his bed was different.

23 It was an area there is to put something in,

24 and there is a long string. This is not to tie

25 your shoes together. You can take this rope.


8579


2 It is strong. There were sheets, strips of

3 sheets, nine stips of sheets found in that

4 cell, cell number 6, ripped into strips of

5 cloth. And you saw, and let's just put this up

6 for a moment, you saw when they searched it

7 later, two of those strips had blood on them,

8 Officer Pepe's blood.

9 These items, 4082, Pepe's blood was

10 found on those strips. Mr. Ruhnke told you

11 that it was to Khamis' everlasting bad fortune

12 they were put together. I submit to you it was

13 to Officer Pepe's. The preparation notes, and

14 we'll agree, assume Salim wrote the preparation

15 notes. There are prints on the document

16 reference to asthma. There is some

17 handwriting. The point is what is he doing

18 with his cellmate? It says here: Preparation

19 notes indicate observation that the TV may not

20 be working. They're aware that the tapes may

21 not work, but to be careful. There is

22 indications about the 46 door which is what

23 Officer Jacobs told you was the first door when

24 you come up to the sally port to get to 10

25 South. There is talk about tying one hand to


8580


2 the door, obviously, tying the hand of Officer

3 Pepe to the door. Talk of dividing the work of

4 the preparation, the hunting and attack, and

5 you know that's what Salim would do, divide the

6 work with preparations the hunting and attack

7 was Khamis.

8 There is talk about keeping an eye on

9 the back. What does that mean? I should have

10 left this up. If you look the stairs that's

11 always used is over here. That's where people

12 come in. But there's a back stairs and they

13 are going to take hostages up there. You don't

14 want to be surprised from behind. You don't

15 want to run out front to be exposed from

16 behind. Where is Khamis when they come up?

17 He's back by the electrical room also by that

18 box that's been tampered with.

19 There has been some indication from

20 the psychiatric report by Salim that he had

21 trouble talking to his cellmate. Well, what

22 you now know from the transcripts is Khamis

23 talks well enough to understand the proceedings

24 in English. When he was first brought here,

25 Khamis indicated his Arabic was better, and the


8581


2 entire statement given to Agent Perkins in

3 South Africa was in English. It wasn't through

4 an interpreter. You can see a thirty page

5 report single-spaced that makes sense. He

6 speaks English. Salim, Salim learned

7 electronic engineering in English. He's

8 explaining in English how well he knows English

9 in that other proceeding. They both speak

10 English. They both speak Arabic better. There

11 is no problem with them communicating.

12 Now, let's talk about the location.

13 What you've seen from the chronology is there

14 is a plea on October 20th. They are put

15 together on October 25th. The shanks are made

16 in the cell. Khamis doesn't have a brush when

17 they search the cell later that he bought two

18 that's clear and Salim brought the Afro comb.

19 Mr. Ruhnke said in his opening that

20 Mr. Garcia was playing fast and loose and what

21 he said is, on the day in question when I talk

22 about Mr. Garcia playing fast and loose with

23 the facts, this is what I mean: He told you

24 that Officer Pepe went back to the cell, the

25 door was opened and he was attacked. He


8582


2 doesn't know that to be true. And no one knows

3 that to be true. In fact, the responding

4 officers believe that Officer Pepe was attacked

5 as he was escorting Salim back to his cell.

6 Close quote.

7 So he accused Mr. Garcia of playing

8 fast and loose with the facts and led you to

9 believe the assault occurred outside cell 6. I

10 submit to you the overwhelming evidence is that

11 Officer Pepe was savagely attacked inside cell

12 6.

13 Why don't we show Government Exhibit

14 4019. These are Officer Pepe's keys. Now, the

15 keys, there are other keys to the cell door

16 which he later heard Salim had in his hands and

17 when he was apprehended that keys of Officer

18 Pepe which he was trying to use with him when

19 he's apprehended. The balance of his keys

20 which have the chits which show Officer Pepe's

21 name that's by the blue box in cell number 6.

22 His keys taken off in cell number 6. To the

23 right is an identity badge the badge being on

24 the chest of his shirt. Officer Pepe's badge

25 found in cell 6.


8583


2 Show 4018, 4021, for something that

3 after hearing Mr. Adler's testimony mean more

4 to you. Mr. Adler told you that after he was

5 meeting with Salim and Salim wanted to go back

6 to his cell and Adler and McAllister in the one

7 room Salim took a Redwell his files and put a

8 jump suit on top, and was holding them a

9 Redwell and a jump suit when he left the cell

10 uncuffed, escorted by Officer Pepe.

11 And he walked and talk over by the

12 other cell near where Dratel and Schmidt were

13 meeting with El Hage and that's the last he saw

14 of him. But there's Salim going back to his

15 cell with a Redwell and orange jump suit. The

16 Redwell, look at 4018 and look at 4021 got all

17 the way back to Salim's bed. The jump suit,

18 you can see the jump suit in the picture that,

19 the jump suit in pictures covered with blood,

20 Officer Pepe's blood on the jump suit is back

21 right here in cell number 6.

22 No one is going to tell anyone that

23 Salim, who by the way is 42 years old, has a

24 bad back, has asthma, is short of breath,

25 that's what we know about his condition. His


8584


2 picture we'll put up Government Exhibit 4121.

3 This is his picture that was taken in December

4 of 1998.

5 Now, Mr. Ruhnke had told you in his

6 opening that there is one thing you didn't know

7 about Salim, and I'll get it correct. I want

8 to quote it correctly. Quote: Something you

9 don't know about Salim is that he's a very

10 physically powerful man, a tall and strong man.

11 Well, here's Hercules in December of 1998;

12 asthma, bad back, shortness of breath and that

13 stipulation you heard about says he lost thirty

14 pounds since that photograph, and lost muscle

15 tone.

16 So on November 1, 2000, this man

17 after losing thirty pounds and muscle tone with

18 a bad back and asthma was taking on Officer

19 Pepe, an officer who weighed 250 to 260 pounds

20 and is trained in disturbance response. He

21 didn't take him on in the cell, and at the same

22 time carry back his Redwell, place it on his

23 bed and bring the jump suit in there.

24 How about the hot sauce stains,

25 government Exhibits 4016 and Government Exhibit


8585


2 4032? Look at those stains on the wall. There

3 are some are yellow, some are blood red. And

4 look at 4032 you can see the yellow on the side

5 of the shower, yellow on the floor of the

6 shower, and, obviously, you have Officer Pepe's

7 tie and his tie clasp in the shower. It looks

8 like someone came at Officer Pepe with this hot

9 sauce, sprayed it in his eyes, sprayed it in

10 his eyes trying to distract him so someone else

11 can attack him, and someone else came from him

12 at the side in cell 6. There is hot sauce in

13 the shower. The tie is in the shower. The ID

14 is just around the corner. The keys are in the

15 corner and the jump suit and the Redwell place

16 Salim at the back of the cell for a while;

17 awful lot like someone coming from the side,

18 the way Khamis Mohamed did when the officers

19 responded. But, certainly, Officer Pepe was

20 attacked in cell 6.

21 Look at 4023 and 4034. Look at the

22 blood, 4023, sorry, 4034. But, again, that

23 shows you some of those strips that had

24 Officers Pepe's blood found in cell 6. Look at

25 the blood in 4023. Look at the blood on the


8586


2 floor that large piece of the jump suit, the

3 rest of the strips and you see a bit of Saran

4 wrap rope lying on the floor.

5 That blood, you can blow up 4023 by

6 itself, that blood is Officer Pepe's blood,

7 4023. That blood, look at the pile of blood

8 there. That's Officer Pepe bleeding profusely

9 from the attack in cell 6. Of course you have

10 a camera. The camera in the cell was blocked

11 and of course the most obvious fact, where do

12 you find Officer Pepe? Where do you find

13 Officer Pepe with a shank, a bayonet sticking

14 through his eye deep into his brain? Cell 6.

15 And what does Officer Pepe tell

16 people, three different people: I fought them.

17 They were in cell 6. I submit to you when Mr.

18 Garcia told you that the attack happened in

19 cell 6, that's exactly what the evidence

20 proved. And Mr. Ruhnke told you it happened

21 outside, that was wishful thinking, because

22 when you find out that the attack happened in

23 the cell with Salim and the man who looks up to

24 him as a religious and educated figure, your

25 common sense tels you he was part of it.


8587


2 What happened on November 1st? Well,

3 Mr. Ruhnke opened to you and said, quote: The

4 evidence will be that Khamis Mohamed was seated

5 on the floor outside of cell number 6 and never

6 left that spot after Salim attacked Officer

7 Pepe. Close quote.

8 He has no burden to prove anything.

9 But I tell you if you stand up here and say

10 something, it's not borne out. Where is the

11 evidence that he sat on the floor and did

12 nothing? The attack happened in cell 6, and

13 you know what? His shirt has Officer Pepe's

14 blood on it. His sweat pants have Officer

15 Pepe's blood on it and the tops of his shoe has

16 Officer Pepe's blood on it. You don't get that

17 sitting outside doing nothing.

18 Now we know from Adler and McAllister

19 what happened in the morning of November 1st,

20 but think about the chronology. McAllister

21 shows up first. Adler comes later. They talk

22 to Officer Pepe. Everyone concedes world's

23 nicest guy, and he says, let me go find out if

24 Salim, your client, will see you. And he comes

25 back and tells McAllister, he's thinking about


8588


2 it. What does that tell you? Salim's got this

3 plan in mind to escape, to attack, to work

4 together to divide the hunt, the preparation

5 the attack, while Officer Pepe is talking to

6 Paul McAllister Salim and Khamis Mohamed are

7 back in cell 6. And what do you think they're

8 talking about?

9 And when Adler arrives, he goes back

10 to check on Salim, and sees Salim is praying,

11 and you can see the prayer rug is right down

12 there in the middle of the blood spot and he

13 says: I'll give him another ten minutes. I

14 don't want to interrupt his prayer. So Officer

15 Pepe showing kindness, trying to help a

16 defendant prepare for this trial, leaves him to

17 pray for ten minutes, goes back and talks to

18 McAllister and Salim.

19 Who's alone with Salim, Salim the man

20 who wants to prepare the attack, divide the

21 hunt, prepare the preparations, Khamis Mohamed.

22 Then he comes back and says: Salim wants to

23 use the computer. So he takes Adler and

24 McAllister and locks them in that room, and

25 while he's doing that, Khamis and Salim are


8589


2 together. You think he talked to the other guy

3 who filed the hair brush into a shank? You

4 think the guy who turned the Afro comb into the

5 shank, the guy with the hair brush sat and

6 talked? Of course they did.

7 Now, let's talk about the first

8 response. After this happened 15 minutes are

9 going by and they finally get the keys, Officer

10 Jenkins, Maiden, Carrino and others come

11 running down the hall. When they turn the

12 corner, they see Salim with a key, opening the

13 door to cell 6, and running into cell 6 where

14 they did not know at the time Officer Pepe was

15 there bleeding.

16 Where was Khamis? When Officer

17 Jenkins the first guy on the scene grabs what

18 has been called a shield, but it's not a

19 shield, it's a sound shield. It wasn't meant

20 as a weapon or protection. It's to cover

21 sound. Grabs that shield and runs along.

22 Khamis jumps out on the side, tries to squirt

23 hot sauce on him.

24 Stop there a moment, focusing. Where

25 is the hot sauce? Here we have to understand


8590


2 Khamis. We have to understand Khamis, because

3 he went to a mosque, he didn't get to Bosnia,

4 all the things, the fanta praying on his mind,

5 and we put on our microscope. Officers knowing

6 they're in deep trouble, they know Officer Pepe

7 is unaccounted for 15 minutes. They see blood.

8 He doesn't answer the phone, and they see

9 inmates on the loose. They are running through

10 that room. You saw the ADX video watching some

11 guys fight. You wouldn't want to be the one to

12 have to go out and break up that fight, and

13 that was nothing compared to the scene of

14 horrors of 10 South. They're running through,

15 and we're expecting them to remember that the

16 hot sauce on the shield, the hot sauce in this

17 way and which way it broke, and which way did

18 it go. Seconds it happened. What's more

19 important?

20 First of all, what's Khamis doing

21 outside the cell? Salim's got depo all his

22 prey locked up. Officer Pepe's locked in cell

23 6. He's the enemy. He's the hostage. Adler

24 and McAllister cleverly are locked in the other

25 room.


8591


2 You want the people who are against

3 you locked up. Khamis's on the loose. The two

4 people allowed to be on the loose are Salim and

5 Khamis. And what's Khamis doing with hot

6 sauce? They are not part of the attack. You

7 don't run a let me escape the cell, grab the

8 hot sauce. What's the hot sauce for? The hot

9 sauce was part of the plan. The hot sauce is

10 how they first attacked Pepe to distract him to

11 try to blind him and jump him, and then he's

12 getting ready to do exactly what he did, when

13 the next people come, grab the hot sauce spray

14 it in their eyes, try and distract them.

15 What's he doing with hot sauce? What

16 innocent reason? There is none. Would you

17 ever in the middle a blood bath reach over,

18 reach over in there, grab the hot sauce and run

19 out of the cell unless you're part of it?

20 Remember the hot sauce stains on Pepe's pants?

21 Officer Pepe's pants, and on the clothes of

22 Jenkins and Maiden and the other fellows?

23 That's the key.

24 Meanwhile, Khamis Mohamed, he

25 struggles with the various people and there is


8592


2 confusion about who pushed the shield, who

3 lunges at the shield, which way it breaks.

4 Okay. He's fighting with them. They conceded

5 that in the opening. They said we agree we

6 fought back against the officers. He struggled

7 with the officer, and they are trying to put a

8 cuff on him, and think about this, aren't we

9 lucky that no one else got stabbed in that

10 process?

11 Aren't we lucky that Khamis wrestling

12 around with three officers, that Salim's coming

13 back out of the cell, he could have grabbed the

14 other shank to kill someone else? That's the

15 whole point.

16 People are dangerous just from the

17 fact that in the middle of a melee where people

18 are trying to be killed you jump in and attack

19 the officers, but don't think it's limited to

20 that. On August 7, 1998 he made a choice to

21 murder people in cold blood. In October of 199

22 he says, I'll do it again.

23 And the first time someone, from an

24 officer who can still testify, who still has

25 their brain, sees him, he's attacking someone.


8593


2 Do you think he was peaceful in between? Do

3 you think that shank got built in the cell

4 without him? He was part of that assault.

5 And there is no way anyone can do the

6 damage to Officer Pepe on their own. Officer

7 Pepe came out and he had one cuff on his arm.

8 The camera got blocked. His tie came off. The

9 ID came off. Salim took the keys. That's what

10 he told you. Then he had the keys. Later the

11 sheets on the floor, saran wrap, two shanks,

12 and we'll talk about the other shank with Dr.

13 Koslow. The electrical box is tampered with

14 and you have to watch the back. It is not one

15 person acting on their own, and let me tell you

16 this.

17 You have to visualize for a reason

18 the force it took to stick that knife into

19 Officer Pepe's brain. Imagine a 250 to 260

20 pound trained officer, trained in disturbance

21 response. How do you take an Afro comb shaped

22 into a knife and take that and drive a piece of

23 hard plastic through the eye destroying the eye

24 and orbit, striking the bone at the back and

25 plunging it eight centimeters, two and a half


8594


2 inches into his brain?

3 Look at picture Government Exhibit

4 4110. That's how far in that knife got stuck

5 in Officer Pepe's brain. 250, 260 against

6 someone. If it's Salim, Salim is 155 pounds,

7 thirty pounds lighter than that. Note, lost

8 muscle tone. How much force does it take to

9 stick a bayonet through someone's eye like

10 that? Unless someone else is helping unless

11 someone's holding unless you have them pinned

12 on the ground. One man can't do it.

13 Now, let's talk about Pepe's

14 statements because you know what? We heard

15 that, gee, but for the camera we would know

16 what happened and how unfortunate for Khamis.

17 Well, the camera didn't record in fact the

18 notes show that when Salim wrote the note he

19 knew the camera wasn't recording, but had left

20 nothing to chance because if it did record you

21 would have seen the other side of the piece of

22 toilet paper but you know what, there was a man

23 in cell 6 who saw what happened. There was a

24 man in cell 6 who lived and almost died what

25 happened. There was a man in cell 6 who knew


8595


2 who assaulted him. Right now he can't talk.

3 But on November 1, 2000, he did. He did. He

4 told witnesses and through those witnesses told

5 you that was they who attacked him. He didn't

6 say him. They. Let's talk about those

7 witnesses.

8 Carrino, he told you from his

9 testimony that Officer Pepe said quote Lieu --

10 Lieu is probably short for lieutenant -- I gave

11 them a fight. I fought back and you know what?

12 That's true. Officer Pepe's a hero. He was 15

13 minutes up there for Officer Pepe to fight them

14 off, we're lucky there wasn't a lot more

15 damage. And he's in there fighting. You can

16 see the blood in cell number 6. And he was

17 remarkably strong to be able to walk off that

18 floor with that bayonet sticking in his eye and

19 walk down the stairs to the hospital. And he

20 told Lieutenant Carrino. I gave them a fight.

21 And what do we hear in

22 cross-examination? Previously he said the

23 words, I got them, I gave them a fight. The

24 report he said, they slipped the cuffs but I

25 gave them a fight. And in the statement to the


8596


2 FBI he said, they slipped the cuffs and I

3 fought back. The bottom line, it's always

4 they. It's always them.

5 There is only two people who could

6 have been them, Salim and Khamis Mohamed. I

7 submit to you through lieutenant Carrino,

8 Officer Pepe told you that this was not Salim

9 acting alone. This was not Hercules acting

10 alone sticking the bayonet into Officer Pepe's

11 eye.

12 Patel, the physician's assistant, he

13 wasn't part of the response team. He wasn't

14 part of the response team. He went up to 10

15 South. He saw Officer Pepe and then he took

16 him downstairs and what did Mr. Patel tell you?

17 Officer Pepe told him, I gave them a good

18 fight.

19 What was the cross-examination? You

20 were told it wasn't put in his medical injury

21 report. Now the injury report's in evidence

22 and when the physician assistant is writing

23 down the medical things he doesn't write, I

24 gave them a good fight. And what did he say on

25 cross-examination when he was asked that? Did


8597


2 you make any note of it at the time it was

3 said? Display Government Exhibit 4074. And

4 his answer was: It was around the time when he

5 was on the gurney. We were trying to start an

6 IV on him. He's in there, the physician's

7 assistant to save Officer Pepe's life. And

8 look at that picture. What you have to

9 appreciate is look at Officer Pepe's nose and

10 mouth. Get a sense of the distance there. The

11 shot where the difference between his nose and

12 his mouth is very short. Look at that gauze

13 and look at the bayonet still sticking out of

14 his eye. Remember they wrapped the gauze

15 around it to keep the bayonet still?

16 Look at that weapon sticking into his

17 eye and to his brain, and we're going to say,

18 Patel, you're making it up? Sure, you told the

19 FBI the first time you're asked in the report,

20 but you didn't stop saving his life to write it

21 down? Mr. Patel's testimony is devastating

22 because he told you it was them. It was they.

23 Elise Santilli. Take the picture

24 down. She was an officer employee at the MCC

25 out getting mail out, getting mail for inmates


8598


2 at the MCC. She comes back and doesn't know

3 what, she's not up on 10 south, but when she

4 gets back she finds out Officer Pepe is hurt

5 badly hurt, and has to go to the hospital and

6 she rides in that ambulance with Officer Pepe.

7 And what does she tell you?

8 Officer Pepe is remarkable because he

9 has this thing sticking in his brain where

10 Dr. Koslow tells us is the injury is cascading,

11 there is more and more damage to the brain over

12 time. So at that time that moment his brain

13 remarkably is still functioning, and how do you

14 know it's still functioning? Because he's

15 getting rushed to Bellevue and what she tells

16 us is as they are driving along, Officer Pepe's

17 saying: Where are we? Where are we? What

18 street are we at? Tell me the name of the

19 street. He knows he's in trouble. He's got

20 this thing sticking out of his eye. He wants

21 to know when is he getting there.

22 And then the paramedic says: What's

23 your date of birth? And he remembers it. He

24 knows enough to know the way to Bellevue. He

25 knows enough to ask about the streets. He


8599


2 knows enough in his brain at that time to know

3 his date of birth.

4 What does he say? I got them. Now

5 you heard when she spoke to the FBI agent as

6 she's sitting in a hospital with everything

7 going on, she doesn't mention that statement

8 that day while he's in a room having a bayonet

9 taken out of his eye while he's bleeding, while

10 doing x-rays.

11 I submit to you those three witnesses

12 are the last words Officer Pepe will say that

13 make sense. And they tell you, they tell you

14 that on November 1, 2000 the people who took

15 Officer Pepe's life for what it was, was them,

16 Salim and Khamis Mohamed. You can't forget

17 that.

18 You know from the crime scene that

19 one more thing you heard from the testimony of

20 Adler and McAllister that after the assault

21 when Salim was being taken away, that Adler and

22 McAllister both saw an officer take what looked

23 like a key and punch Salim near the eye. And I

24 submit to you Adler and McAllister both told

25 you about it. It happened. You can see from


8600


2 the forensics there is blood of Salim there.

3 It must have happened. Adler and McAllister

4 are telling you the truth.

5 I submit to you under the stress of

6 the situation it wasn't as bad an injury as

7 they thought because they both saw the next few

8 days they saw him and Adler even wondered

9 whether that was the guy who had been punched,

10 because they saw the record. There was a

11 laceration in his head. No excuse for it.

12 None. Should not happen.

13 But I want to talk about a different

14 cut you haven't heard much about and the cut

15 you haven't heard much about is the other cut

16 on Officer Pepe's head. I'm going to jump

17 ahead to Dr. Koslow. Dr. Koslow told you that

18 sure there was this bayonet sticking in the

19 eye. And the eye was destroyed and the orbit

20 and damaging to the brain, but he also told you

21 about another cut, a cut that went into Officer

22 Pepe's head and inch deep to the bone. That

23 was up here.

24 So whatever that bayonet did, got a

25 bayonet in the eye there is another cut inch


8601


2 deep to the bone and in fact they used that cut

3 to start the surgery when they had to do all

4 sorts of things to pull Officer Pepe's head to

5 reconstruct it after they took if apart to take

6 the knife out.

7 And I submit to you if you look at

8 Government Exhibit 4042, let's look at it the

9 way it was found on the floor, Government

10 Exhibit 4029, after the assault. This is after

11 the lab got it. Look at 4029. Look at that

12 brush. Look at the blood and the hole and the

13 bristles. You don't get blood soaked in the

14 holes of the bristles from dropping it on the

15 floor. That was used on Officer Pepe. That is

16 how the DNA expert told you that shank, that

17 comb had Officer Pepe's blood on it.

18 Now, we don't know who plunged it

19 into Officer Pepe. There is some evidence that

20 at some point Salim may have wielded it later

21 against someone. There are shanks in there.

22 There are weapons, there is hot sauce, a lot of

23 weapons, a lot of different tactics being used.

24 I submit to you when you look at the

25 forensic evidence and you look at the brush


8602


2 which has Pepe's blood on it, and the bayonet,

3 when you look at the sheet strips in the cell

4 with Pepe's blood on it, when you look at both

5 Khamis Mohamed's clothes and Salim's clothes,

6 both shirts have Pepe's blood on it both sweat

7 pants Pepe's blood on it, Khamis Mohamed's

8 shoes has Pepe's blood on it on the top. He

9 didn't get that sitting outside the cell.

10 Let me take you back to Mr. Ruhnke's

11 opening and talking to you about Khamis Mohamed

12 and how it is that he might have to spend the

13 rest of his life in the Holiday Inn, what's

14 like a Holiday Inn hotel room, except maybe

15 it's more like a hotel bathroom.

16 Maybe the first day it's okay, but to

17 spend the rest of your life there how horrible

18 would that be? Let's look at the danger that

19 Khamis Mohamed and Salim pose to everyone they

20 come into contact with, not just correction

21 officers, but staff, psychologists, people who

22 come to visit.

23 Let's compare even if Khamis Mohamed

24 were sentenced to the conditions for the worst

25 of the worst of the worst to what Officer Pepe


8603


2 has. Don't you think Officer Pepe if he could

3 would get down on his knees and pray for what

4 Khamis has? Khamis with access to a law

5 library. Pepe, what would he do with a law

6 library? One of his eyes is missing. A field

7 of the sight removed from the other. He

8 can't --

9 MR. RUHNKE: Objection.

10 THE COURT: Overruled.

11 MR. FITZGERALD: Khamis Mohamed will

12 have a TV. What will Officer Pepe do with a

13 TV? Khamis Mohamed will have exercise an hour

14 a day. Officer Pepe wishes he could exercise

15 and hour a day. Khamis Mohamed if he goes to

16 penitentiary will be unescorted. If he goes to

17 the worst of the worst of the worst, they may

18 give him a three-man escort to try to make sure

19 he doesn't kill or maim again.

20 Officer Pepe will have an escort

21 because he's partially paralyzed. Khamis

22 Mohamed is allowed visits. Officer Pepe

23 doesn't recognize the people who visit. You

24 heard about Khamis Mohamed's loss of human

25 contact, Officer Pepe lost his humanity. He


8604


2 didn't lose his humanity, lost his human

3 dignity, stolen from him by Salim and Khamis

4 Mohamed.

5 That's how they treated someone who

6 is there to help them. Sure, he's an officer

7 guardian, but he was helping them. He would go

8 to Salim and let him pray and make a decision

9 make sure he had the material to come to court

10 to get justice. And in a cold calculated

11 deceitful way they led him to believe they were

12 nice guys.

13 They led him to believe that they

14 were like the Nasser who worked down in Burger

15 World. And when he turned his back, when he

16 trusted too much, when he made the human

17 mistake of being human, they committed a savage

18 act on him, tried to take him hostage, tried to

19 take Salim's attorneys hostage. He's paying

20 the price, Officer Pepe, ever since.

21 Having said that, I submit to you

22 that what you now know about Khamis Mohamed

23 that he made a cold choice, a free choice and

24 unhesitating choice to murder people on August

25 7, 1998. He was honest in October 1999 when he


8605


2 said, I did it and I'll do it again.

3 In November 1, 2000 to the

4 everlasting misfortune of Officer Pepe he and

5 Salim struck again, and what's dangerous about

6 Khamis Mohamed is that he does not have the

7 fire in the eyes. He has the ice in the veins,

8 and he can play Mr. nice guy, but he sits there

9 waiting to kill again.

10 Now, in determining what sentence

11 Khamis Mohamed should receive, in determining

12 what sentence he should receive for the brutal

13 murder, callous murder of eleven of his

14 countrymen on August 7th, you should bear in

15 mind that you cannot afford to give Khamis

16 Mohamed mercy or extra justice. He's sentenced

17 everyone else he comes in contact with for the

18 next fifty years to all the dangers that he

19 presents as a trained killer who kills in cold

20 blood with no remorse.

21 Now in looking at the factors when

22 you analyze the factors set forth in this case

23 I'll talk briefly about the gateway factors.

24 The gateway factors we can display

25 them on the screen, there are four of them.


8606


2 That the defendant intentionally

3 killed the victim or victims of a particular

4 capital offense charged in a respective count

5 in the indictment. 2. The defendant

6 intentionally inflicted serous bodily injury as

7 a result resulting in death of the victim the

8 particular count you're considering. 3. That

9 he intentionally participated in an act

10 contemplating that a life would be taken and

11 the victim or the victims basically died as a

12 result. 4. That he intentionally participated

13 in an act creating a grave risk of death that

14 people would be killed and the victim died as a

15 result.

16 I submit to you that all four have

17 been easily proven the same reasons you found

18 the defendant guilty, the same reasons you

19 found the defendant himself killed those eleven

20 people. He chose to do a jihad job. He rented

21 the premise. He bought the vehicle. He helped

22 grind the TNT. He did what it took to get the

23 truck out of the sand and to get it to a Uhuru

24 Road on its mission of death and he agreed to

25 clean up afterward and get out of town. He


8607


2 killed people. I submit to you that the

3 gateway factors should be easily found.

4 Let's talk more importantly about the

5 statutory aggravating factors, because remember

6 the gateway factors once you find one of them

7 you do not weigh the gateway factors in making

8 the ultimate decision. The statutory

9 aggravating factors are weighed in that

10 process. And, in fact, any one statutory

11 aggravating factor alone could, if you found,

12 justify a death sentence in itself.


14

15

16

17

18

19

20

21

22

23

24

25


8594

1 1721BIN2 SUMMATION - Mr. Fitzgerald

2 MR. FITZGERALD: (Continuing) Let's

3 talk about the four statutory aggravating

4 factors.

5 The first is that the deaths and

6 injuries resulting in death occurred during the

7 commission or attempted commission of another

8 offense; that is, for each of the counts you

9 are looking at, when Khalfan committed that

10 crime, was he also doing it in the course of

11 committing other crimes. I submit to you when

12 you review the judge's charge, review the

13 evidence, that is clearly done. You will find,

14 I submit, that factor.

15 But you may wonder how much weight to

16 give that particular factor. I will tell you

17 candidly, that factor should be given less

18 weight. But I'll tell you why. That is a

19 statute that says you know when a person

20 commits murder, they are eligible for the death

21 penalty, and you are trying to decide of those

22 people who commit murder -- and there are

23 people who deal drugs, there are people who

24 commit murders for lots of reasons, lots of

25 different places -- should they be selected out


8595


2 as being the persons who merit or are eligible

3 for the death penalty.

4 And sometimes the underlying crime

5 connected to the crime makes it seem a lot

6 worse. A person may kill as part of a drug

7 deal or may kill as part of an effort to take

8 over an airplane. In this case, this factor

9 doesn't jump out at you. And you know why?

10 Because the underlying crime is so horrible.

11 This is mass murder. You are in a room with

12 someone who coldly killed 11 people. It's hard

13 to look at the other crimes and be wowed by it

14 because you are numbed by the offense he

15 committed. Bear that in mind.

16 The second factor is the fact that

17 the defendant, in the commission of the

18 offense, knowingly created a grave risk of

19 death to one or more persons in addition to the

20 victim.

21 I remind you to think about Lizzy

22 Slater. She testified at the guilt phase of

23 the trial. She was the woman who was in an

24 office and when the building blew up. The wall

25 fell on her. She had to crawl out. And when


8596


2 she finally got outside, remember she saw a man

3 with skin off, burning. It was so horrible,

4 she said, "I wish he would just hurry up and

5 die."

6 That's Pat Wagner, who was in her

7 office when the wall got blown around behind

8 it, and she is crawling out and she is stuck

9 and she sees Cynthia Kimble with a piece of

10 concrete stuck in her eye and has to rush her

11 to the hospital, where she is bleeding next to

12 a man face-down on a cot where the blood is

13 flowing over the side.

14 That's Henry Kessey, who told you

15 that as he leaves the building, there's so much

16 damage to his eye and so much blood, people are

17 yelling, "Kessey is going to die. Kessey is

18 going to die."

19 And you know what else it is? It's

20 Government Exhibit 1130. That's the building

21 across the street where the children's play

22 group meets. Fortunately, the Connolly family

23 who had the children's play group there was out

24 of town that week. That's the crater from the

25 bomb. That's the house -- what's left of the


8597


2 house where the children's play group met.

3 The damage on August 7th in Dar es

4 Salaam Tanzania was horrible. 11 dead, 60, 70,

5 75 injured. It's horrible. It could have been

6 worse. It could have been the children's play

7 group.

8 He doesn't get credit for the fact

9 that the Connolly family went away. You will

10 hear that he didn't know where the embassy was.

11 And that's true. And he didn't care. He

12 didn't give a damn. He didn't care who was

13 around it, who was in it, who was there. He

14 didn't kill before he bombed it, he didn't care

15 afterward. That's a grave risk of death, and

16 that statutory aggravating factor is worth an

17 awful lot. It is heavily weighted, because he

18 put all sorts of lives at risk and didn't care.

19 The third factor, substantial

20 planning and premeditation to cause death of

21 one or more persons or to commit an act of

22 terrorism.

23 This defendant planned. This

24 defendant knew what was going on, knew where

25 the target was. He got the house. He got the


8598


2 truck. He helped load the truck. He made sure

3 that the tow truck was there in case it didn't

4 work.

5 This factor should be given some less

6 weight by the fact that others planned a lot

7 more, but recognize what you are weighing here

8 in deciding a sentence. It is not just who

9 else involved with these guys is worse, but is

10 Khalfan Mohamed, from the collection of all the

11 people who committed murder, someone who should

12 be selected out.

13 And this substantial planning tells

14 you something very different. Forgetting who

15 did the most planning. He planned, he

16 premeditated, he wanted to do an act of

17 terrorism. This wasn't killing in the heat of

18 passion. This wasn't an argument. This wasn't

19 a fight. This wasn't something where people

20 got upset and lost their emotions or were

21 disturbed for a while. He killed in cold

22 blood.

23 I submit to you when you think about

24 three, think about what it tells you about his

25 dangerousness, what it tells you about the


8599


2 evilness of his conduct. It was preplanned to

3 commit an act of terror, to take innocent

4 people, blow them up to make your point.

5 And the final statutory aggravating

6 factor, the fact that he intentionally killed

7 or attempted to kill more than one person in a

8 single episode. And again, that should jump

9 out to you. This is not a person who murdered

10 one person. He murdered 11 and could have

11 murdered a lot more.

12 I submit to you if you take the grave

13 risk of death, the premeditation, and killing

14 more than one person in an episode, those three

15 factors together, without any non-statutories

16 necessary, justify the death penalty in this

17 case.

18 But let's talk about the

19 non-statutory aggravators, and I'll start with

20 the second one, victim impact, since we have

21 been discussing that. Let's talk not just

22 about Liz Slater, not just about Pat Wagner,

23 but think about what Pat Wagner goes through.

24 We heard just last week at the end of

25 the week about how it is that someone down in


8600


2 South Africa, nice person, but in denial, is

3 upset; they miss Nassor, who used to make

4 garlic chicken. Compare that to Pat Wagner.

5 She sees a woman and a child, she thinks of a

6 miscarriage, the baby she lost, and thinks of

7 the bombing.

8 Think about Cynthia Kimble, her eye

9 ruined. And Pat Wagner told you she's in touch

10 with her and she's sad and she's depressed.

11 Her life is ruined by the injuries she received

12 on the bombing that day.

13 Think about Edward Ruthashewra and

14 how he almost died, went to get tea and he came

15 back and his buddy is dead, the guy who

16 replaced him. Think about Ruthashewra's

17 brother, Valentyne Katunda. He was there and

18 he was one, one of the guards who survived.

19 Look at the Government Exhibit 3012.

20 That's a chart. There are six names on the

21 chart. All six are guards. The blue name is

22 Valentyne Katunda. He is the one who

23 testified. He testified because he is alive.

24 The other names, all dead, all guards who

25 worked to put food on their table, to support


8601


2 their families, and Khalfan murdered them.

3 Has anyone in history murdered more

4 guards, attacked more guards? He murders five

5 guards on August 7th, and then we have the

6 incident November 1st in the MCC. Valentyne

7 Katunda told you he's buried in the rubble,

8 buried in the rubble for hours.

9 And you know what? Mtendeje,

10 Mtendeje Mbegu. We'll put her picture up,

11 Government Exhibit 3030. That's Mtendeje.

12 Remember Henry Kessey told you she was a very

13 nice, very happy woman, he liked to talk to her

14 every day. She stuck out above all the other

15 guards. And that's one of her two children.

16 She was killed on August 7th, 1998

17 when she was going in for an interview to get a

18 better job as a secretary in the embassy,

19 leaving her husband, bringing her papers,

20 bringing her Koran, and saying to her husband,

21 "Pray for me. I want a better job."

22 What did Valentyne Katunda tell you,

23 where did she die? He told you she died in the

24 room with him. As he said, "She was lying on

25 my stomach." that beautiful woman, a mother, a


8602


2 wife, blown to bits by Khalfan Mohamed. She

3 lies across the stomach of Valentyne Katunda,

4 buried in the rubble for hours. And he didn't

5 give a damn. Get rid of the grinder, get my

6 name, go to South Africa and be a nice guy.

7 Who else was killed? Omari Nyumbu,

8 Government Exhibit 3029. That's Omari Nyumbu.

9 That's him at his job as a security guard. He

10 had a wife, Asha Kambenga, who testified. And

11 Asha told you she had a daughter from a prior

12 marriage, and then when this man Omari came

13 into her life, he raised her daughter like she

14 was his own.

15 And then Government Exhibit 3000,

16 this is what Khalfan did to that nice man, left

17 Asha Kambenga, at 22 years old, without a

18 husband, left a daughter, 4 years old, without

19 a father. Remember what Asha told you. She

20 can't send her; daughter to school. And she

21 said before she left, "Sometimes we don't eat."

22 That's what she has got to live with. That's

23 what's left with Khalfan, who has no remorse.

24 Government Exhibit 3023, Elisa Paul,

25 another security guard, ironically posing very


8603


2 near where he was killed, a person so brutally

3 killed he had to be identified by body parts

4 and DNA. He left behind his wife Grace, his

5 young daughter Merisiana.

6 What does Merisiana do? What does

7 she have for a father? Bear this in mind when

8 we hear Khalfan had a rough childhood, he grew

9 up without a father. And that is a shame, but

10 it's not a justification for what he did to

11 this father. Merisiana carries a picture of

12 her dad to show people, this is my father. She

13 had a father. She's left with plastic, glass,

14 wood, a photograph. She can't be sent to

15 school.

16 Government Exhibit 3027 is a picture

17 of Abbas Mwila, another guard, who left behind

18 his wife and three children, William was one,

19 Edna was five, and on August 7th, 1998, when

20 Khalfan Mohamed killed him, when he killed that

21 man, the youngest child was named Happiness,

22 six months old. Happiness had no father due to

23 Khalfan Mohamed.

24 We don't have a social history of the

25 man in Government Exhibit 3027, but his widow


8604


2 told you that there was six families living in

3 the house. Their home was one room. No

4 electricity. No running water. She raises the

5 children, she raises the father-in-law, and she

6 earns $25 a month.

7 So when you hear about the mitigators

8 later, about Khalfan not growing up with a

9 golden spoon in his mouth, remember what he

10 did, how he brutally slaughtered people, left

11 them behind and didn't give a damn.

12 Government Exhibit 3028, Yusufu

13 Ndange. He was killed. He was a water truck

14 driver at the embassy, and you heard from his

15 wife, Hanuni Ndange. And he left six children,

16 none of whom have a job. They ranged in

17 various ages from 12 to 25 for the time he was

18 killed. None of them work. They are left

19 without their breadwinner.

20 You heard about Mahundi, Mr. Mahundi,

21 Government Exhibit 3025, another driver,

22 another person who worked as a driver, his life

23 taken by Khalfan Mohamed. We have no social

24 history of him.

25 Government Exhibit 3031, Saidi


8605


2 Rogathi, another person who worked on the water

3 truck, killed.

4 Just think, for each of these

5 persons, you don't know where they were born

6 and, some of them, where they came from, and

7 all they struggled through in life, but all

8 they did was work hard to put food on their

9 table, to do their life.

10 And one thing we have to remember

11 here is we hear a lot about different cultures;

12 and sure, Tanzania is a different place and

13 they speak a different language, but let's not

14 lose sight of something. They are people just

15 like us, and the bond between us are far closer

16 than they have been described. They are

17 hard-working people. They are people who love,

18 who laugh when they can, who cry when they are

19 hurt, who go to school, who try to get jobs,

20 try to get education, try to raise families.

21 And one thing they do is they know right from

22 wrong, and let's not let this case take Khalfan

23 Mohamed and hide behind the Muslims, hide

24 behind the Tanzanians and not like this is

25 something we don't all understand.


8606


2 It's something none of the people

3 around him understood. When you heard from his

4 family, they never would have thought he would

5 have engaged in violence. When you heard from

6 the imam in South Africa, he never thought that

7 Khalfan would engage in violence. When you

8 heard from the Dalvies, they thought he

9 wouldn't hurt an ant. That's because Khalfan

10 has a side to him, a cold-blooded killing side

11 that he kills, remorseless, by choice, and

12 doesn't show it to people. That's not a

13 cultural thing. That's an evil character trait

14 of the defendant. That's what killed those

15 people on August 7th. That's what happened on

16 November 1st, 2000.

17 And let's not try to hide behind

18 culture or religion. Many, many people grew up

19 in Tanzania with a lot less. Many people grew

20 up in America with a lot less. He had a loving

21 family. There is no abuse. That family didn't

22 have violence in it or drugs or alcohol abuse

23 or other stuff. A lot of people grow up with

24 rough lives a lot closer to this courthouse

25 than Tanzania. He had a loving family and he


8607


2 made a cold choice. He decided to do what he

3 did and kill people and have no remorse.

4 Government Exhibit 3022, Mohamed

5 Jelani Mohamed, a man who helped his family,

6 who helped his village, with a wife, who had

7 children from a prior marriage that he tried to

8 see but obviously will never see again.

9 Khalfan Mohamed killed him, too.

10 And Doto Rahadhani, Government

11 Exhibit 3032. Remember Doto. Doto, his twin

12 Kulwa testified. The two of them played

13 together. They actually played on a soccer

14 team together, but they had a rough life.

15 Their mother and father both died. They were

16 left with four brothers and sisters, and it was

17 Doto who was the family breadwinner.

18 In fact, it's not coincidence that

19 all the people killed were the family

20 breadwinners. A job in the embassy is a good

21 job. The people who work there were the

22 mainstays of their families and their

23 communities. They could earn money to help

24 others.

25 And Doto was raising his family,


8608


2 raising his brothers and sisters, raising his

3 twin brother. He had a fiance, Martha. They

4 were going to be married in September of 1998.

5 If Khalfan Mohamed hadn't killed him, hadn't

6 killed Doto a month before, he would be married

7 and he would have his plan, his plan for two

8 children.

9 I submit to you that the victim

10 impact in this case, we cannot get numb to it.

11 We cannot get numb to it because of all the

12 death we have heard. We cannot be numbed to it

13 because people speak a different language, are

14 soft-spoken, from a different country. They

15 were good, decent, hard-working, law-abiding

16 people who were slaughtered. Khalfan doesn't

17 care, but we all should. I submit to you that

18 the victim impact in this case, the magnitude

19 of the crime, what he did to people is a

20 sufficient reason to vote for the death

21 penalty.

22 And you may ask yourself, well, you

23 know what, all those people are dead. Voting

24 for the death penalty doesn't bring anyone

25 back. What does it do? I submit to you we


8609


2 have to start thinking, we can't stop looking

3 at Khalfan saying, what can we do for him? We

4 can't think of the victims as water under the

5 bridge, because that's what Khalfan wants them

6 to be. Khalfan, the whole point to the

7 bombing, the whole point to the bombing is to

8 terrify people, slaughter them, bomb them, kill

9 them.

10 Omari Nyumbu's daughter doesn't go to

11 school. She doesn't eat. What Khalfan did

12 with the others is unspeakable. And at some

13 point, at some point when you do crimes so

14 heinous, when you kill people, when you leave

15 them with no one to visit and no one to write

16 mail, to be blunt, you forfeit your right to

17 live on this earth.

18 When you take other people's lives

19 away to coldly, to callously, after a moral

20 choice to do so, you have lost your right. And

21 then, in the process, when you are standing for

22 justice to try to beg for mercy for what you

23 did, if you turn and do what you did to Officer

24 Pepe, who was part of that process, we can't

25 afford to let him do that to anyone else.


8610


2 Let's talk about the second

3 non-statutory aggravating factor: Future

4 dangerousness. This is another key factor. I

5 submit to you that you have to understand that

6 this case is not about what happened to Khalfan

7 or what Khalfan did or what Khalfan chose to

8 do, what he happened on the world. He went for

9 training. He did the bombing. He made the

10 threats. He did the assault. I submit to you

11 there is no remorse. Any crocodile tears he

12 sheds are for him and not for the people he

13 left fatherless, without meals, without

14 educations. He cries only for himself.

15 I submit to you the danger he poses

16 is precisely because there is no fire in his

17 eyes, there is ice in his veins. And to leave

18 him, for ten, twenty, thirty, forty, maybe

19 fifty years in the prison system, to have

20 guards have to watch him, three eight-hour

21 shifts a day, seven days a week, fifty-two

22 weeks a year for four, five decades in a prison

23 system, where maybe he goes to Florence ADX --

24 and remember, when you see those pictures that

25 Dr. Cunningham shows you of stainless steel


8611


2 cells, the pictures he shows always leave out

3 the inmate. The danger isn't from the shower

4 or the concrete bed, it's the person in there.

5 And this man has proven himself to be a danger

6 time and time again.

7 I submit to you his future

8 dangerousness is something you have to weigh

9 heavily. When you decide between a death

10 sentence and a life sentence, clearly there is

11 a lot to weigh on the side of a death sentence.

12 You do not wish to impose a death sentence

13 inappropriately. Of course not. But you do

14 not wish to impose a life sentence

15 inappropriately when you leave the staff, the

16 psychologists, the warden, the physician's

17 assistants, the corrections officers, all those

18 people to go by day after day after day. And

19 you learn that the people in the ADX prison,

20 they leave, they go to penitentiaries where

21 they can walk among thousands. And he couldn't

22 be trusted in the 10 South Unit up on MCC on

23 November 1, 2000.

24 It only takes once. It only takes

25 one person to be human, like Officer Pepe, one


8612


2 person to lose their guard. And Khalfan

3 Mohamed is someone who was very good at fooling

4 people. The Dalvies are nice people. They

5 took him in. They are in denial. They

6 couldn't believe he would hurt an ant. He

7 fooled the imam, who said, "I can spot people

8 with two faces." He didn't see that. He

9 fooled his own family and he fooled Officer

10 Pepe. Let's not let 50 years of people have to

11 deal with that risk.

12 About that, let's talk about

13 Dr. Cunningham. He was the psychologist who

14 told you nothing about psychology. You heard

15 all about psychology degrees, but he really

16 came to be an expert on prisons. What a

17 perfect defense witness on prisons he is,

18 because he has never worked in one.

19 When I submit to you is there is a

20 real world out there, and Dr. Cunningham, he

21 told you about conditions at ADX. Let me place

22 the comparison chart up. Let's compare what

23 ADX is supposed to be from the rules. Let's

24 compare what the MCC was supposed to be on

25 November 1st, 2000.


8613


2 MCC: In your cell 23 hours a day;

3 solid steel outer door -- these are from the

4 rules that are posted in evidence -- each

5 inmate checked every 30 minutes; before removed

6 from cell, inmate is handcuffed through food

7 slot, pat searched; triple escort when out of

8 cell; recreation within the unit only; meals

9 taken in the cell; no television; phone calls

10 monitored; visits - no contact; non-legal mail

11 opened, copied, analyzed.

12 The main difference in ADX is a

13 second outer door. That's what it's supposed

14 to be like in theory. Dr. Cunningham shows you

15 a nice picture of a cell which doesn't look all

16 that different from an MCC cell when it's empty

17 and clean. That's the Internet. Those are the

18 rules. That's the way it's supposed to be.

19 And this is what Khalfan Mohamed can make it.

20 You are sentencing him in the real

21 world. Make that decision in the real world.

22 The last non-statutory aggravating

23 factors is the fact that high public officials

24 were targeted abroad, and Khalfan knew that

25 because he knew that the embassy was a target.


8614


2 I submit to you that has been proven. It has

3 been proven that it pertains to Mohamed,

4 Khalfan Mohamed, but I submit to you that

5 should be given less weight than the other

6 factors.

7 He was less involved in that

8 decision. You can consider it. Don't give it

9 great weight. What I submit you should

10 consider from the government's aggravating

11 factors is the fact that he killed 11 people.

12 And remember, we're not just comparing Khalfan

13 Mohamed just to other people involved in the

14 offense. Your job is to say, does he meet the

15 gateway factors; is he one of those persons who

16 committed murder, who committed the gateway

17 factors, which, I submit, is obvious, that

18 makes him eligible for the death penalty and

19 then say is he one of the persons who should

20 receive it?

21 And what makes him stand out from the

22 rest of the people who commit murder is the

23 people who do it in drug dealing in the Bronx

24 or Texas or anywhere else, he's a mass

25 murderer. Factor in he killed 11 people. He


8615


2 wanted to kill more. He created a grave risk

3 of death and the victim impact he imposed on

4 people was devastating. Factor in the future

5 dangerousness, the threat he poses, unlike

6 other people, he has proven himself to be a

7 danger within confinement, and he is

8 remorseless.

9 Now I'll talk to you about mitigating

10 factors. In considering the mitigating

11 factors, remember this is not a numbers game.

12 It is not how many factors can you come up

13 with. Some of the factors offered are true,

14 some are not. Some are worth some weight and

15 some are not. And some, I submit to you, are

16 frankly downright offensive.

17 We'll go through them.

18 A. His role in the offense. I think

19 we have them up here. If you focus on A,

20 Khalfan's role in the offense and relative

21 culpability, that is broken into three parts.

22 He was not a leader or organizer of the

23 conspiracy which led to the bombing of the Dar

24 es Salaam Embassy.

25 Second, although guilty of the


8616


2 murders, his participation was minor; and,

3 third, he was recruited by others as someone

4 who was an expendable member of the conspiracy.

5 Let's deal with the first. I don't

6 factually dispute that he was not a leader or

7 organizer of the bombing. I submit to you that

8 that should be given some weight, but not a

9 lot. I'll tell you why.

10 Khalfan Mohamed is a follower. He

11 listens. He has a choice, but he listens, and

12 if people tell him to kill, he kills. If

13 people tell him to attack, he attacks. I

14 submit to you in many ways he is not someone

15 lathered into a frenzy, he is not brainwashed.

16 According to Dr. Post, he told you they weren't

17 even talking about America and Afghanistan. He

18 wasn't worked up. He wasn't brainwashed. He

19 could sit there and think, coldly and

20 calculating. And he did. He didn't struggle

21 morally. He just chose to kill.

22 I submit to you the fact that other

23 people played a leader or organizer role is

24 worth something, but not all that much. When

25 you think about the fact that none of those


8617


2 leaders or organizers did what he did November

3 1, 2000, that puts a lot in perspective.

4 Because he not only did what he did with the

5 bombing, but then, when here in confinement,

6 when waiting for the trial before you, just two

7 months before, a hundred yards away, that

8 bayonet went into Officer Pepe's brain from

9 Salim and Khalfan Mohamed.

10 Secondly, his participation. Was it

11 relatively minor? We'll say this. He was a

12 lower-level guy in the group. He did some

13 work, but "minor" overstates it. It wasn't

14 unimportant. It was necessary. They needed

15 someone to get the bomb factory. Without a

16 bomb factory, there is no bomb.

17 They needed the truck to make sure

18 they could transport things -- the Suzuki.

19 Sorry. They needed to make sure the truck was

20 out of the sand, and he stuck around to make

21 sure there were no problems. Without him, it

22 doesn't happen. This is not something as the

23 world turns. He was needed, he was necessary,

24 he was part of it.

25 And he was recruited by officers as


8618


2 someone who was expendable. Well, sure. Is he

3 as important as Harun or Saleh or Abdel Rahman?

4 No. But the expendable ones are the ones that

5 are killed or left to be killed. He was left.

6 He was needed. He took it on his own to clean

7 up the bomb factory. Read the report. He

8 wasn't asked to do that. He thought that was

9 his role -- make sure he could clean up, so

10 people didn't find it.

11 He chose. He wasn't expendable.

12 They gave him the three numbers. They gave him

13 the numbers to get in touch with Bin Laden's

14 satellite phone, the number in Yemen, in Wadih

15 El Hage's phone book, which is also in Khalid

16 Fawwaz's phone book. He lived to fight another

17 day and Officer Pepe is paying the price.

18 I submit to you it's far more

19 important to you in factoring in the weight of

20 this factor that Khalfan Mohamed thought with

21 11 hard-working people in the embassy on August

22 7th were expendable. I submit to you it is far

23 more important in October 1999 when he thought

24 that people that should be killed in the future

25 were expendable. And I submit to you it's far


8619


2 more important that on November 1, 2000 he

3 thought Officer Pepe and anyone else they could

4 take as a hostage, they were expendable.

5 I submit to you he sits here today

6 and he looks out at all the people he will come

7 into contact with if he is sentenced to prison

8 for the rest of his life, that to him they are

9 expendable, and they should not be.

10 Second, we have the factor that

11 others of equal or greater culpability in the

12 murders will not be sentenced to death. Let's

13 talk about that. There are a variety of people

14 who may face the death penalty or may not. You

15 heard, for example, there are a number of

16 fugitives and they may be caught, they may not

17 be. Don't assume they will or will not face

18 the death penalty.

19 Some people were not involved in the

20 murders. You heard about Salim, the promise

21 made to the German authorities. But don't

22 overlook the fact you didn't hear evidence that

23 Salim was involved, Mamdouh Salim, for all his

24 evilness and all he did, he was not involved in

25 the embassy bombings. He was not charged with


8620


2 it, so the German authorities were told he will

3 not face the death penalty. He didn't face it

4 anyway.

5 Salim, an evil man, clearly a key

6 role in the attack on Officer Pepe, you heard

7 from Mr. Ruhnke the law does not provide the

8 death penalty for the attack on Officer Pepe

9 because he lived. It was unlucky for Officer

10 Pepe in many respects that he be so badly

11 maimed, but for Salim and Khalfan, it was lucky

12 that they don't face the death penalty. That's

13 what the law is.

14 You have heard about others for whom

15 there may be trouble or not to find the gateway

16 factors that you have to find here about

17 participating in an act. You heard about

18 Eidarous and Abdel Bary who received the claims

19 of responsibility in England and whether or not

20 that would count as a gateway factor, which

21 doesn't matter because you will assume that

22 England has put in the condition that do not

23 impose the death penalty if people are sent

24 over.

25 You heard about people who entered


8621


2 into plea agreements. And you have seen two of

3 them, Al-Fadl and Kherchtou. You saw that they

4 didn't participate in the bombing. They didn't

5 face the death penalty. They don't face it

6 now. But I submit to you from what you have

7 seen with those deals with those two witnesses,

8 the government smartly entered into those deals

9 to get information, to try and work against

10 people trying to kill us.

11 To the extent that people want to

12 speculate that there are other people

13 cooperating, I submit trust the track record.

14 If the government enters into a deal, don't be

15 distracted by what is happening with someone

16 else. Because you know what the bottom line

17 is? There are a lot of different things that

18 happen when people scatter all around the world

19 into different situations, and that's the doing

20 of the group, the group the defendant was part

21 of.

22 They decided to attack America

23 overseas. They decided to attack it in

24 Tanzania and Nairobi. They decided to attack

25 and run. And you know what? Khalfan was part


8622


2 of that decision. They came to Khalfan. They

3 said we're getting out of town. We need

4 someone who knows how to get the truck there.

5 And he cleaned up the place where the bomb was

6 built to help them get away with it.

7 They brought terror, they brought

8 death, and they brought anarchy into the world,

9 and now he wants to turn around and say, hey, I

10 shouldn't get the death penalty. After all,

11 look at all those people who got away, all the

12 people who got away because he helped clean up

13 the bomb factory, the people who got away

14 because they could leave because he was willing

15 to stay behind to get the job done.

16 Why reward, why reward Khalfan

17 Mohamed with a benefit because he chose to be a

18 part of a larger group. Why does someone who

19 works on their own and sets off a bomb in New

20 Jersey or Texas or somewhere else, why should

21 they die and suffer the ultimate punishment

22 when he can say, hey, I chose to be part of an

23 international group, I chose to run away, I

24 chose to help the others run away and we have

25 to have it nice and neat, you have to catch


8623


2 everyone before you can put me to death.

3 He chose to create the anarchy. He

4 chose to help other people runaway. I submit

5 to you, let's stop treating terrorists

6 different. If you murder, if you kill, if the

7 crime is evil, if you try and stab an officer

8 again, you get the punishment you deserve and

9 stop pointing at other people.

10 What about the 11 people he killed?

11 What justice do they have? They weren't

12 equally culpable. They weren't culpable at

13 all. What kind of sentencing hearing did he

14 give them? What kind of justice or due process

15 did he give the children, the children who

16 don't go to school and sometimes don't eat?

17 C. The postarrest statement. To

18 argue that his postarrest statement was

19 complete and truthful, it demonstrated

20 acceptance of responsibility and provided the

21 interviewing agents with information, valuable

22 information, I submit to you, was it largely

23 truthful? Yes.

24 You can have your doubts when he

25 talks about not knowing much about Bin Laden,


8624


2 not knowing much about the group, when he spent

3 nine to ten months in Afghanistan training and

4 he spent time with Al Ittihad, training over in

5 Somalia, but I submit to you, what is the

6 point? If you are talking about whether he is

7 being truthful, look at the moral element.

8 Why was he being truthful? Was he

9 saying, I'm sorry, I did a horrible evil thing

10 and I have had a year to think about it, a year

11 plus in South Africa, I've had people be nice

12 to me, I abandoned my family, but I thought

13 back to them and I realized what I did was

14 horribly wrong? No. What he told Agent

15 Perkins and the testimony was, he said that

16 basically because we had found him where he was

17 in Cape Town, that we already knew everything

18 so there was no reason for him to tell us one

19 thing when we knew that in fact another was

20 true. He said it because they knew it. And he

21 said it to say, I'm proud of the bombing, it

22 was a success.

23 It tied the investigators up because

24 it took them 14 months to find him. And he

25 said he would do it again. He gets no credit


8625


2 for being complete and truthful. And you know

3 what? Five weeks ago he is over there telling

4 Dr. Post, I deny the FBI report. He wants

5 credit for that? Admit it because you are

6 caught. Don't say you're sorry, lie to your

7 own witness afterward, and then say, no, treat

8 me differently because I was complete and

9 truthful.

10 Demonstrated acceptance of

11 responsibility? Hi, I murdered 11 people. I

12 injured many. I'm not sorry. I'm not sorry

13 Tanzanians died. I'm not sorry my countrymen

14 died. I'm not sorry my fellow Muslims died. I

15 wanted Americans to die. I hope people keep

16 killing Americans. That's not acceptance.

17 What he did to Officer Pepe, part of

18 the process to make sure that he gets a chance

19 for a fair trial, that's not acceptance.

20 We'll talk about Dr. Post in a

21 moment. That's not acceptance either.

22 I submit to you it's offensive to put

23 before you credit for acceptance of

24 responsibility and truth when he threatens and

25 attacks an officer. I submit to you his lack


8626


2 of remorse, his coldness, his feeling nothing

3 for the victims is something that will stay

4 with him forever. Part of what makes him

5 dangerous while confined. He doesn't see

6 anything wrong. He has no conscience. He will

7 do it again.

8 Provided the agents with valuable

9 information: Remember that he told them they

10 had papers which showed him he was charged when

11 they caught him. It came out in

12 cross-examination that they basically knew

13 everything. They had been to the bomb factory.

14 They had seen the Suzuki truck. They had the

15 lease. They had analyzed the house. They had

16 talked to the person who rented the house.

17 They talked to the neighbor. They talked to

18 the house girl. They talked to the juice cafe

19 owner who knew he went to Afghanistan. They

20 had been to his house. They had been to his

21 family. They had the explosives results. No

22 showing he told them anything significant they

23 didn't know.

24 And the judge has told you in the

25 guilt phase the last time that statements of a


8627


2 defendant after, when they were being

3 interviewed for an arrest, were only admitted

4 against him. They weren't admitted against

5 anyone else at the last trial. They are

6 useless against anyone else. No showing that

7 he helped identify anyone else involved in this

8 plot, no showing that he identified anyone who

9 could be arrested, no showing that that

10 statement could ever result in someone being

11 brought to justice. What value?

12 D. Mitigating factor is that the

13 alternative to a sentence of death is that he

14 will spend the rest of his life in prison. I

15 submit to you that's true. We don't dispute it

16 is true. You can check it as being proven.

17 You have been told that by the judge, but it's

18 worth zero weight. In fact, it is not worth

19 zero weight, it's worth negative weight.

20 That's the future dangerousness. That's the

21 point. If he is not sentenced to death, he

22 will be sitting there ticking like a time bomb

23 waiting for the next Officer Pepe to come

24 along.

25 E. No prior history of criminal


8628


2 behavior. Check that as true. It's been

3 proven. We agree. Zero weight.

4 I see, so we know about the bombing

5 of 11 people and the maiming of and injuring of

6 five dozen others, and before he assaulted

7 Officer Pepe with Salim sticking a bayonet in

8 his eye, no record of criminal history. He's

9 offered nine to ten months training in

10 Afghanistan how to kill, how to make bombs, how

11 to wire them. No history of criminal behavior.

12 Give it the weight it deserves. None.

13 F. If he is put to death, his family

14 will suffer grief and loss.

15 That's a tough one to talk about, but

16 let's be blunt. That should be given little

17 weight, not because anything about his family;

18 his family, to a person, are very nice, loving

19 people. But he can't hide behind them here.

20 They raised him with love. It was a good

21 family. That family is not the cause of these

22 problems.

23 He used his family. He used his

24 nephew to help clean out the bomb factory and

25 he abandoned them. In 1998, he lied about


8629


2 where he was going. He took his identity and

3 he headed to South Africa. He left them so he

4 could escape from the jihad. And I submit to

5 you he didn't give a damn about anyone else's

6 family. He didn't care about the 11 people he

7 killed, people he left fatherless, the people

8 he left from breadwinners.

9 Let him come here before you and say,

10 yeah, I killed a bunch of families, I ruined

11 family's lives, I participated in an attack a

12 Officer Pepe, and now feel sorry for me because

13 of what I have done to my own family.

14 Let's not wait for another Officer

15 Pepe to happen. Let's not wait again until

16 Officer Pepe's family, well, we spared him

17 because he's from a different culture, he had a

18 family. He's a danger. We have to face that.

19 We have to face the fact that if you give him

20 mercy, he poses a danger.

21 Remorseful? Let's talk about G.

22 Khalfan Mohamed is remorseful for the death,

23 injuries and other consequences. And what did

24 we hear? We heard from the opening from Mr.

25 Ruhnke, "You will hear testimony from both


8630


2 Dr. Post and Jill Miller that they have

3 discussed at great length Khalfan Mohamed's

4 view of what occurred at the embassy in Nairobi

5 and what occurred at the embassy in Dar es

6 Salaam, and that the experience and how the

7 experience of hearing from the victims had not

8 changed his beliefs, not changed his core

9 beliefs, but it changed his view of what jihad

10 should be and should not be, and that jihad

11 should not involve the killing of innocents,

12 that it was wrong.

13 And you heard from Dr. Post. You

14 heard he was Yale-educated. He has a very

15 impressive background. I submit to you, what

16 was he doing here? He came before you as an

17 expert on terrorism. He told you, I believe,

18 "I continued my research in religious extremist

19 leader Usama Bin Laden and his group al Qaeda."

20 And you found out what his research

21 was. He talked to one al Qaeda member, that

22 was Odeh, for 30 to 45 minutes; took two pages

23 of notes; didn't ask him if he was involved in

24 the bombing. That didn't come up. Didn't know

25 Ayman al Zawahiri, the man who signs the


8631


2 fatwahs and claims responsibility for the bomb;

3 didn't know Abu Ubaidah or the two al Qaeda

4 witnesses you heard from for days, Jamal

5 Al-Fadl and Kherchtou.

6 I submit if Dr. Post wanted to

7 continue his education, he should have served

8 as a juror. He should have learned what you

9 did. You knew a lot more about al Qaeda than

10 he did. What was he doing here? To give a dog

11 and pony show, to stand up and say I'm an

12 expert, I spent a half an hour with Odeh. He's

13 a low-level gofer. Didn't bring up the phone

14 numbers in Fawwaz's phone book or Wadih El

15 Hage's phone book -- not suggesting he knew

16 about it; didn't spend much time on this.

17 He came in with a Yale degree to tell

18 you where the defendant fit in. I submit you

19 don't need a Yale degree to figure that out.

20 He also came in, more importantly, much more

21 importantly, to dress up a tale of remorse from

22 Khalfan Mohamed. And what did he do? Well,

23 you heard, you heard the Fanta story. You

24 heard about the crushing blow to poor Khalfan

25 Mohamed, sitting there, making a bomb to blow


8632


2 people up and told, don't ask questions, get me

3 a Fanta.

4 Well, he left out an awful lot. Let

5 me say one other thing. He told you about the

6 evolution of Khalfan Mohamed. How, yes, in

7 October of 1999 he told the agents he did it

8 and wasn't sorry, but now he has evolved and

9 now I think over the time he really sees the

10 errors of his way and feels really sorry.

11 The evolution was Dr. Post's

12 testimony, because what he did when he took

13 Khalfan Mohamed, sitting here after all the

14 evidence at the trial, after hearing about the

15 victims, after hearing all that, denying it, I

16 didn't do it, denied the FBI report, the U.S.

17 Embassy, I didn't know it was a target until

18 after the bombing. He thought the bomb was in

19 Somalia.

20 I submit to you Dr. Post laughed when

21 we said, Did you invite the government in or

22 did you videotape? Of course not. Well, if he

23 really was remorseful, if Khalfan Mohamed

24 really was remorseful, wouldn't Dr. Post want

25 to make a videotape of the interview to show


8633


2 the victims? Hey, I did it. I did wrong. I

3 made a moral choice. It was wrong. You are

4 suffering. I care and I want to do something

5 about it.

6 Dr. Post was a dress-up, a dog and

7 pony show for you. He had a Yale degree, a

8 nice resume, come in, tell you Khalfan is a

9 gofer and tell you Khalfan feels bad, and he

10 left out the facts. He left out that Khalfan

11 is now worse, Khalfan is less remorseful,

12 Khalfan denies what you know he did.

13 Dr. Post was a fraud. That was a

14 fraud put on you to make you think that Khalfan

15 Mohamed was remorseful.

16 I'll say one other thing. Jill

17 Miller came, and I take my hat off to her.

18 After you were promised that she would tell you

19 the same thing, she said something different.

20 "Q. There came a time when Mr. Mohamed became

21 involved with a group of people in Dar es

22 Salaam. At the end of that process, the

23 American Embassy was bombed

24 "A. Yes.

25 "Q. And have you discussed that with him? It's


8634


2 in the FBI report, correct?

3 "A. Yes. I have not discussed it at great

4 length with him.

5 "Q. Your role was not to discuss the offense; is

6 that correct?

7 "A. That's correct."

8 We give her credit for not doing what

9 Dr. Post did. She did not participate in a

10 fraud. She did not put before you remorse from

11 someone who is not remorseful. And to come

12 into this courtroom, someone like Dr. Post, to

13 come into this courtroom, with the seriousness

14 of your decision and the seriousness of what

15 hangs in the balance, and try and basically

16 slip one past people and make it seem that

17 Khalfan Mohamed cares, when he doesn't, is

18 wrong.

19 You won't be shocked if I tell you

20 that "G" should get zero weight.

21 H. Sincere religious belief. It is

22 asserted that Khalfan Mohamed acted out of

23 sincere religious belief. You can check the

24 box as proven if you want. We suggest it was

25 not sincere religious belief.


8635


2 What weight do you give that? Think

3 about this. His religious belief is not as a

4 zealot. He's not crazy. There's no fire in

5 his eyes. You know what? Why does he get

6 credit for defending his religion? He killed

7 Muslims. He killed Tanzanians. There are a

8 billion Muslims in the world. They don't blow

9 up buildings. There are how many Tanzanians in

10 the world, from humble backgrounds, who work

11 hard and don't blow up buildings.

12 The fact that he acted out of sincere

13 religious belief makes it frightening, makes it

14 frightening they still hold for those core

15 beliefs and want to sit in one of our prisons

16 or penitentiaries for another 50 years waiting

17 to strike again. He is not brainwashed. He

18 knows what he has a choice to do and he makes

19 choices. The argument that he thinks that that

20 is what his religion compels him to do, the

21 fact that he is in more denial now than he was

22 before makes him all the more dangerous from

23 here on out. We don't want to explain to the

24 next Officer Pepe he got shanked because he

25 still holds to his religious beliefs.


8636


2 I. Khalfan Mohamed was 25 years old

3 at the time of the offense. Conceded to be

4 true. Check the box. Worth nothing. 25 years

5 is an old person, a person old enough to make

6 mature decisions, a person to decide whether to

7 kill or not kill, to go to Afghanistan or not

8 go to Afghanistan, to go to Somalia or not go

9 to Somalia, to participate in a jihad job,

10 knowing it's a bombing of an embassy or not.

11 Look at what he did to Happiness, who was six

12 months old. Look what he did at 27 to Officer

13 Pepe.

14 Zero weight.

15 J. Martyrdom. If Khalfan Mohamed is

16 executed, he will be seen as a martyr and his

17 death may be exploited by others to justify

18 future terrorist attacks. Let's think about a

19 couple of things.

20 First of all, you saw today, the last

21 exhibit you saw was a videotape. That was

22 Usama Bin Laden last fall, September 2000,

23 saying, free the brothers from prison. Free

24 Sheik Omar Abdel Rahman, who you know is a

25 leading figure. And clearly we're not trying


8637


2 to equate Sheik Omar Rahman and Khalfan

3 Mohamed, but he is saying free el Sayyid

4 Nosair, another person who engaged in terrorist

5 acts. He is saying free Mohamed Rashid Dauod

6 Al-'Owhali, who obviously was a defendant at

7 the trial, and he is in prison. He is saying

8 free Wali Khan Amin Shah, who is a little

9 higher, someone else who is in jail.

10 Usama Bin Laden is screaming to free

11 people from jail. Just being a prisoner is

12 enough. I submit to you Khalfan Mohamed, maybe

13 his stock has risen, maybe helping to carry out

14 a bombing, he is worth maybe more. Maybe he

15 assaults an officer and tries to take a hostage

16 and still serves a life sentence, maybe he is

17 worth more.

18 I submit punishing someone with life

19 imprisonment or death, no one is going to give

20 anyone credit. No terrorist attack is going to

21 be stopped because someone gets a life sentence

22 versus death. Usama Bin Laden hates us. There

23 is no way around it. Everyone in his group

24 hates us. They hate everything we do,

25 everything we try to do, everything we don't


8638


2 do. This trial, in their eyes, is a fraud.

3 Everything we do is a fraud. We are evil. Do

4 you really think this is an operation that is

5 going to be wiped off the books if Khalfan

6 Mohamed gets a life sentence? I submit to you

7 not.

8 Look at this case. The claims of

9 responsibility for the bombing he did in

10 Tanzania is in the name of Salmon al Odeh and

11 Zafra Al-'Owhali. Not related to Al-'Owhali,

12 not related to Odeh, two scholars in a Saudi

13 prison. Look at the stipulation. Sheik Omar

14 was convicted for trying to murder President

15 Mubarak of Egypt because of the arrest of

16 Mahmud Abouhalima. Bin Laden is screaming

17 about Al-'Owhali because of his arrest.

18 I submit to you, look at the note,

19 look at the hostage-taking note left on

20 November 1, 2000. "Please release," fill in

21 the blank, "from custody." If you are in jail,

22 they want you out. And they are going to bomb,

23 they are going to do what they want to do to

24 get people out of jail. If they decide to do a

25 bombing and name it after people, they will


8639


2 fill in the blank of whomever they want.

3 But don't let Khalfan Mohamed try to

4 get, a terrorist, gee, give me life, maybe it

5 will be the last bombing. It ain't happening.

6 His name will be on the list of 50 others names

7 when he is in jail or whether he is executed as

8 a reason to go forward.

9 K. Khalfan Mohamed should not have

10 been released by South African authorities.

11 Mr. Ruhnke opened on the fact that this was

12 almost like being struck by lightening. And

13 again, it's sort of passive stuff. It's like

14 the weather. Khalfan Mohamed blowing in the

15 wind, struck by lightening to face the death

16 penalty.

17 Let's step back and think about it.

18 It is not lightening. Okay, the law of our

19 country, the law of our nation is if you commit

20 murder, certain murders, you face the death

21 penalty. Khalfan Mohamed committed murder 11

22 times over. If he faces the death penalty,

23 it's not because he got struck by lightening,

24 but because he killed. He made a choice and he

25 killed and he'll get a punishment provided by


8640


2 the law.

3 He killed in Tanzania, where there is

4 a death penalty. He killed Tanzanians. He

5 killed trying to kill Americans, and the death

6 penalty is here. He killed Muslims, as the

7 imam told you in that video. Islam makes no

8 apologies for the death penalty. He killed in

9 a country with a death penalty, against a

10 country with a death penalty, and people of a

11 religion who have the death penalty.

12 And then he went to South Africa,

13 went to South Africa, which happened not to

14 have the death penalty. He went to South

15 Africa, where he got caught, and two years

16 later, the highest court decided he shouldn't

17 have come back without a promise not to have

18 the death penalty.

19 What almost happened was

20 happenstance. He almost got a break for having

21 run to South Africa. Why reward him for that?

22 Isn't he morally different? If you are caught

23 in New Jersey or Connecticut or Texas or

24 California and you bomb something, you are put

25 to death. But to run to a country without the


8641


2 death penalty, whether knowing it or not, why

3 should that count as a break?

4 I submit to you, don't reward

5 terrorists. Think about this. If there is

6 anything arbitrary in this case, it's the

7 miracle of Dr. Koslow. And Dr. Koslow is not

8 waiting in the hospital. If Bellevue isn't

9 where it is, they don't make the efforts to do

10 what they do and save Officer Pepe's life,

11 Salim and Khalfan Mohamed would face the death

12 penalty for that. I submit to you K is worth

13 zero weight.

14 L. L is the last mitigating factor

15 and I submit to you the most offensive. I

16 submit to you to sit before you and tell you

17 Khalfan Mohamed's personal characteristics as

18 an individual human being include the

19 following: One, Khalfan Mohamed has exhibited

20 responsible conduct in other areas of his life;

21 two, Khalfan Mohamed has shown himself to be a

22 person capable of kindness, friendship and

23 generosity; and, three, Khalfan Mohamed lost

24 his father at an early age and worked to help

25 his family, which struggled financially after


8642


2 the death of the major breadwinner.

3 He's a bomber. He killed people.

4 What was his life? The sociologist, a very

5 good job, very straightforward. Did you hear a

6 story that made your hair stand on end from

7 growing up in an abusive household? No, he

8 grew up in a loving family. We're sorry his

9 father died at a young age. We're sorry he got

10 partway through high school. A lot of people

11 get partway through high school. We're sorry

12 he went to a mosque. A lot of people went to a

13 mosque. We're sorry he didn't go to Bosnia. A

14 lot of people who wanted to go to Bosnia

15 didn't.

16 We are sorry a lot of things

17 happened. He had a loving home and he chose to

18 turn on his family, to turn on his true

19 religion, to turn on his countrymen and to kill

20 and to try to kill Americans. To come before

21 you and talk about his unique characteristics

22 as a kind human being.

23 A. He has exhibited responsible

24 conduct in other areas of his life. Sure, he

25 has exhibited them. That's what fools people.


8643


2 That's what fools the Dalvies. He can be very

3 kind. Teach a child. You want him to marry

4 your daughter. You wouldn't think he would

5 hurt an ant. The next day he is in custody,

6 saying, yeah, I bombed 11 people and I'll do it

7 again. That's what he is. He's got two faces.

8 And he can exhibit responsible conduct and he

9 may well exhibit responsible conduct in a

10 prison until he has a chance to strike. He

11 fooled his family, the Dalvies, he fooled

12 Officer Pepe.

13 The second: He has shown himself to

14 be capable of kindness and generosity. I

15 submit to you he is capable of that. Everyone

16 is capable of that. He is capable of savagery.

17 What happened to Officer Pepe, what

18 they did to him in that cell room in November

19 1, 2000 was a savage act, and Officer Pepe is

20 no longer capable of a lot of things.

21 And finally, he lost his father at an

22 early age. I submit to you a lot of people

23 lost their fathers because of him. Don't give

24 him credit for that. Don't give him a break

25 because he had a loving family, a loving


8644


2 mother, brothers and sisters and chose to kill.

3 Think of all the families without fathers.

4 Think of the woman who married Nyumbu's wife,

5 widowed, Asha Kambenga saying, "My daughter,

6 sometimes she doesn't eat." I submit to you

7 that in the balancing --

8 Your Honor, I'll have to do it in

9 under ten minutes.

10 I submit to you that in the balancing

11 of the factors -- and I apologize for keeping

12 you late. Obviously this is important, and I

13 want to say a couple of things to you.

14 In the balancing, you should weigh

15 the aggravating factors of killing multiple

16 people. Remember what you are doing. You are

17 saying, okay, assuming you find the gateway

18 factors, this person is eligible for the death

19 penalty.

20 From the group of people who commit

21 that type of murder, all of the groups of

22 people, people in America who do bombings, who

23 kill, who commit murders, who kill one person,

24 you have to sort out does Khalfan deserve the

25 death penalty, and in doing that you have to


8645


2 separate out your own views of the law, your

3 own personal views.

4 Some of you may think the death

5 penalty is a good thing. Some of you may think

6 it's a bad thing. Many of you may not really

7 be sure, not for lack of thinking. What you

8 have to decide is, given that it is the law of

9 our land, given that it is the jury's role to

10 say which of those people are so bad, that

11 committed such a bad crime deserve the ultimate

12 punishment, you have to vote that straight.

13 You cannot say in that group this

14 person really isn't the one who deserves the

15 death penalty, but I'm for the death penalty so

16 I'll vote for it. That would be wrong. You

17 can't look and say this person, based upon what

18 they did, deserves the death penalty, but I'm

19 against the death penalty. That would be

20 wrong.

21 You have to call it. You have to

22 sort out, is this person sufficiently

23 distinguished from the others to merit the

24 ultimate sanction. And I say, in this case,

25 when you look at that, think about 11 murders,


8646


2 11 people killed. Think about the fact that he

3 planned to do more. He wanted to do more.

4 Think about the children's play group that

5 wasn't there that day. Think about Pat Wagner,

6 walking around, afraid to see a wife and a

7 child because she thinks back to her

8 miscarriage. Think Cynthia Kimble's life,

9 ruined. Think about Mtendeje, a beautiful

10 woman, lying dead on Valentyne Katunda's

11 stomach, she's buried beneath the rubble for

12 five hours. Think about the grave risk of

13 death to others. Think about the injuries, the

14 blinding, the terror. Think about the victim

15 impact, all those families ruined, lost their

16 breadwinners, lost their loved ones, lost their

17 people. That's who the human bond is with.

18 Think about the future danger.

19 Think about the danger posed by a man

20 who was in that cell on October 25th to

21 November 1, when his hairbrush was made into a

22 shank, when Salim's afro comb was made into a

23 shank, and think about what they did to Officer

24 Pepe. Think about the risk he poses three

25 eight-hour shifts a day, seven days a week,


8647


2 fifty-two weeks a year for five decades in the

3 prison system. And weigh against that someone

4 who played a lesser role, but someone who did

5 it with a coldness, a coldness that is more

6 scary because you can't see zealotry in his

7 eyes, you don't see fire in his eyes. The ice

8 in his veins is something you see after he is

9 done killing people. The ice in his veins is

10 his masquerade as a kind, gentle human being

11 before he kills.

12 I submit to you the one thing about

13 this man is he made a free choice. He was not

14 brainwashed. He made his choice in August

15 1998. He chose to threaten in October 1999, he

16 chose to strike on November 1, 2000, and he has

17 no remorse.

18 And let me talk to you about your

19 oath and your promise and what it means, what

20 it means in this case. You gave an oath, made

21 statements in voir dire that you would try and

22 do justice. And justice means separating out

23 Khalfan Mohamed from the others.

24 I submit in this case, recognizing

25 him as someone who deserves the death penalty


8648


2 for the nature and magnitude of the crime he

3 committed, his absence of remorse and his

4 threatening to do it again, his future danger,

5 I submit to you that when you return your

6 verdict, when you return your verdict, put your

7 personal views aside and you make a decision

8 where he fits in.

9 I submit to you, you should strive to

10 be a unanimous verdict, strive to be unanimous

11 one way or the other. This jury is the

12 conscience of the community. You are sending a

13 message to the community. Usama Bin Laden

14 doesn't care one way or the other what you say.

15 He will hate us. You send a message to the

16 community.

17 MR. RUHNKE: Objection, "sending a

18 message."

19 THE COURT: It's argument. Obviously

20 it's not intended literally.

21 MR. FITZGERALD: What you say, if you

22 decide that life imprisonment is a death

23 sentence, a unanimous verdict that says, 12 to

24 nothing, we think life is appropriate makes a

25 statement. A unanimous decision 12/nothing


8649


2 that in light of the fact that the death

3 penalty is on the books, this defendant

4 deserves it says something. We all know if

5 there is a deadlock, life results. That's not

6 a unanimous statement that is the right result.

7 I urge you all to work to respect the

8 process and work for a unanimous verdict, to

9 take 12 different people and try to come

10 together and say, when we return a verdict, we

11 speak with one voice. We have taken the law,

12 we have put our personal views to the side, and

13 we have said we have to decide, does he deserve

14 the death penalty or not, and we have come

15 together as 12 and spoke with one voice.

16 I submit to you think about this.

17 Mr. Ruhnke opened to you about a firing squad

18 and everything else in this case just happens.

19 When he wants you to think about a firing squad

20 and say there are no blank bullets, don't get a

21 guilt trip for what Khalfan did. You are not a

22 firing squad. You are not killers.

23 If Khalfan Mohamed gets the death

24 penalty, if you sentence him to the death

25 penalty, it's because the law is there. There


8650


2 is a law of our country and he broke it. He

3 broke it when he chose to kill. He broke the

4 law when he chose to kill in cold blood.

5 The fault for him receiving the death

6 penalty is sitting on his shoulders, and I

7 submit to you that when you think about the

8 firing squad, recognize that this is the firing

9 squad. 12 bullets. He killed 11 people on

10 August 7th, 1998. Let's remember who they are.

11 These 11 people were killed by the firing

12 squad, that is, Khalfan Mohamed: Mr. Abdulla,

13 Mr. Elisha, Mr. Ndange, for whom there is no

14 photo, Mr. Mahundi, five, six, seven, eight,

15 nine, ten, eleven.

16 He was that firing squad, with no

17 jury, with no trial, with no mitigating

18 factors. He just killed. And you know what?

19 He is a bullet. He is a bullet that ripped

20 through these 11 people and hasn't stopped. He

21 is a bullet that, when is caught in South

22 Africa and said, yeah, I killed, yeah, I'm not

23 sorry, I don't give a damn about the people I

24 killed and I'll strike again, and he did.

25 When he struck again, you saw what he


8651


2 did to Officer Pepe. This was his 12th bullet.

3 That's a man who wanted to make sure the

4 defendants could go and meet with their lawyers

5 for a fair trial, this trial. And I submit to

6 you that this man is a firing squad and a

7 bullet, and you are 12 pieces of a shield; and

8 only if the 12 of you all come together, the 12

9 of you form one shield, can you stop him from

10 killing again.

11 And I submit to you that when you

12 consider the magnitude of the crime, the awful

13 crime which he did coldly and with no remorse,

14 that a just sentence is the death penalty. But

15 I submit to you when you take a person, the

16 only person on the planet who is part of the

17 Tanzania bombing, and then participated in that

18 heinous assault on Officer Pepe, when you take

19 that, a death sentence is not just a just

20 verdict, I submit to you it's the responsible

21 verdict.

22 Thank you.

23 THE COURT: Thank you, Mr.

24 Fitzgerald. And we'll break for lunch and

25 we'll resume at 2:20.


8652


2 (Luncheon recess)

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8637

1 1721BIN4 Summation - Stern

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

3 2:20 p.m.

4 (In open court; jury present)

5 THE COURT: Good afternoon.

6 Mr. Stern.

7 MR. STERN: Good afternoon.

8 You are not from Khalfan Mohamed's

9 world and he is not from yours and yet today,

10 nearly six months after we began, you sit here

11 to judge him, to decide his fate.

12 We all were raised in a world of air

13 conditioning and Corn Flakes and color TV. He

14 was raised in a mud hut. He went to a school

15 where coconut tree trunks stood in for desks.

16 You have never smelled the wind off an Indian

17 Ocean. You have never heard the cry of the

18 prayers in dusty Dar es Salaam. But today,

19 it's your job to decide if he should live or

20 die. Today you are his peers, and the only

21 ones who matter.

22 Although he came here from half a

23 world away, you also cannot forget what you

24 have in common, and that is your humanity.

25 Like you, he loves and feels pain. His life


8638


2 experience is not yours, none of you share it.

3 But he is closer to you than you know.

4 Mr. Fitzgerald would have you believe

5 that the tears you saw him shed were crocodile

6 tears. That means somehow that he cried for

7 your benefit, that he wasn't really moved by

8 his family and friends. But you sat here and

9 saw those weren't for your benefit. He tried

10 his best to hide them, but, like all of you, he

11 feels.

12 There are not many things I suppose

13 that Mr. Fitzgerald and I agree on but one is

14 this: On August 7th of 1998 Khalfan Mohamed

15 participated in a terrible, terrible act and

16 eleven people lost their lives. You found it

17 to be true. Khalfan Mohamed said it was true

18 and it is true. And for that terrible act he

19 will pay a terrible price. The only question

20 that remains is what price he should pay.

21 So let's talk for a moment about the

22 choices you have to make. There are only two.

23 The Judge has told you either you will sentence

24 him to death or you will sentence him to spend

25 the rest of his life every single day in


8639


2 prison.

3 Let's talk about the option of death.

4 Death in the end punishes those who remain.

5 Maybe there is a moment of pain, maybe the fear

6 that precedes it, but in the end it grieves

7 family, simple people who don't know why he's

8 here, who can't understand how he came to be

9 involved in the things he was involved in. He

10 won't have any more pain, and they will.

11 Maybe worse than that, other people

12 will cynically exploit his death.

13 Mr. Fitzgerald told you, well, no matter what

14 happens, whether he's put in prison, he'll be

15 exploited, whether he's executed, he'll be

16 exploited, but you know from something they

17 showed you that he's not even on the radar

18 screen. When Usama Bin Laden went on TV, he

19 mentioned a lot of people, Ramzi Yosef,

20 al-'Owhali. Did you hear him mention Khalfan

21 Mohamed? He's in jail, too, just like

22 al-'Owhali.

23 But part of the proof of how tiny he

24 really is, is that Usama Bin Laden's firing

25 people up. When he's telling people, this is


8640


2 why we fight, his name doesn't come up.

3 Now, all of you know the power of

4 martyrdom. It's not just an Islamic thing.

5 All of us know the name of Joan of Arc because

6 she was burned at the stake. But it's not just

7 big people who are immortalized by martyrdom.

8 Small people, too. You all know the name

9 Nathan Hale: I regret that I have but one life

10 to give for my country. He was just a soldier

11 in the revolutionary war, just a Vermont

12 soldier. No one would know who he was, had he

13 be held in a prisoner of war camp, but,

14 instead, once he was executed, he became a

15 rallying cry, a martyr, and we remember him to

16 this day.

17 Send him to jail and he'll quickly be

18 forgotten by all except those who love him.

19 Kill him, and you've guaranteed him

20 immortality.

21 In the end if you kill him, you'll

22 allow him to be used twice. Now, when I say

23 used, don't think that I am saying he didn't

24 know what he was doing. Don't think I am

25 saying he was not responsible for what he did.


8641


2 He knew and he is. That doesn't mean that

3 people bigger than him don't use all they've

4 learned over years and years to manipulate

5 people, to look for people with the kind of

6 zeal he has, with the kind of belief he has.

7 And so they got him, and he agreed of his own

8 free will to participate, and he was just what

9 the doctor ordered for this operation. He was

10 a local man. It would be no real loss in the

11 end if something happened to him. And he was

12 there to help him speak Swahili and get cars

13 and whatever, and so he served their purposes.

14 If you kill him, in death he will serve their

15 purposes again. Don't make that kind of

16 mistake.

17 The other option of course is life

18 imprisonment. And I want to talk to you about

19 two things that life imprisonment does to a

20 person. It affects you in the simplest most

21 day-to-day ways, and in the most profound ways

22 that we all know as human beings.

23 For him in the most basic way he will

24 never hear his native language spoken again.

25 He will never eat his native food. Now you can


8642


2 say boo hoo, too bad for him, and at some level

3 that of course is right, because there are

4 people who have suffered much, much more.

5 But as Mr. Fitzgerald has told you,

6 this will go on 24 hours a day, 7 days a week,

7 12 months a year, maybe for 50 years for him to

8 think about what he's done to his life and

9 everyday. When Thanksgiving comes and everyone

10 one else says, oh, at least we get turkey here

11 in the joint. At least we have that bitter

12 sweet memory of what it was like to be together

13 with our families, it will mean nothing to him.

14 Think of the things that make your

15 lives sweet. Think of picking what restaurant

16 to eat in, what movie to see, what clothes to

17 wear. Think of going to the bathroom by

18 yourself and no one is looking at you. That

19 will be taken from him. Every choice that he

20 will make will be determined for him by someone

21 else. Those are simple ways, ways that he'll

22 feel everyday for the rest of his life, but in

23 more profound ways as well, he will be

24 punished.

25 When his holiday Ramadan comes, he'll


8643


2 fast alone without his family. He'll never

3 marry. He'll never hold his child in his arms.

4 He'll live and die without seeing his nieces

5 and nephews born. And one day somehow he'll

6 get word that his mother has died, and he will

7 not be able to go and be in the arms of his

8 family. He'll be in jail and when that day

9 comes, five, ten, 15, 20 years from now, he'll

10 know I did this to myself.

11 Now, all of us, all of us have had

12 the experience of growing up and of saying to

13 ourselves: How did I do that? If we're lucky,

14 it's, how did I get a tattoo? But for him,

15 he's cost himself the rest of his life.

16 Those are the options you have and no

17 others. And the Judge will tell you the law

18 you must decide in following them. But I can

19 make it easier for you because we agree with

20 Mr. Fitzgerald again when he says the gateway

21 factors, you recall what they are, are proven.

22 They were proven by your verdict in the

23 original phase of this trial.

24 The statutory aggravators are proven.

25 They were proven by your initial verdict.


8644


2 Then there are the three nonstatutory

3 aggravators. Two of them are identical to

4 those in al-'Owhali, and only one is different

5 and that one of course is future dangerousness,

6 because it's the government's position that

7 Khalfan Mohamed is one of the people who

8 attacked Officer Louis Pepe, and it must be

9 obvious to you that that's really the crux of

10 this case.

11 On November 1st a terrible, terrible

12 thing happened. Officer Louis Pepe, a nice

13 person, a good man, was attacked, and for him

14 and his family nothing will ever be the same.

15 That's a given.

16 The question is, is Khalfan Mohamed

17 responsible for that attack? And the simple

18 answer is no, the government has not proven it.

19 The Judge will tell you that future

20 dangerousness, like the other aggravators, must

21 be proven to you beyond a reasonable doubt, and

22 you must all agree if it's to be used against

23 Mr. Mohamed. But the government has failed to

24 do that.

25 Now, Mr. Fitzgerald told you a


8645


2 version of the facts and it is a plausible

3 version of the facts, but that is not proof

4 beyond a reasonable doubt. So let me suggest

5 to you another plausible version of the facts,

6 a version supported by the evidence that you've

7 heard.

8 Let's say that seven days before

9 November 1st, Khalfan Mohamed and Mamdouh Salim

10 are put in the cell. They are not told they

11 are going together, but they're put in a cell

12 together. And Mamdouh Salim doesn't really

13 like Khalfan Mohamed very much and can't really

14 communicate with him very well. Look at the

15 stipulations from the psychiatric reports.

16 That's what he says.

17 And they're in the cell, but they're

18 not always in there together. And the cell is

19 filled with boxes. Agent Hatton I think told

20 you there were 68 boxes in that cell. You look

21 at the pictures and you'll see at the foot of

22 this bed the foot of that bed, next to the

23 sink, boxes everywhere.

24 And sometimes Khalfan Mohamed is out

25 of that cell and while he's out of that cell,


8646


2 he can't possibly know what Salim is doing, and

3 sometimes Khalfan Mohamed is sleeping and maybe

4 he doesn't really pay attention to what Salim

5 is doing, and Salim goes about his business,

6 and Khalfan Mohamed goes about his.

7 And then one day Salim gets a visit

8 from his lawyers, McAllister and Adler, and he

9 goes down the hall and on his way out he tucks

10 into his Redwell a sharpened comb, and a

11 sharpened brush.

12 Now, a lot was made of that brush.

13 Where is his brush? Do you know that the brush

14 next to Salim's bed isn't his that he used? Do

15 you know if there are brushes in any of those

16 68 boxes? You can't know because the FBI

17 didn't give you a record of what was in them.

18 So don't let them tell you it must be his

19 brush. What you do know is that no one ever,

20 ever says they see him with that brush.

21 So Salim goes down the hall and he

22 goes into one of those little interview rooms

23 and he he's sitting with his lawyers, and he

24 sees Officer Pepe and he's miserable, he's

25 angry, he hates being where he is, and he says


8647


2 to himself: I've got to get out of here.

3 And Officer Pepe comes and he says:

4 I have to go back to my cell for a minute,

5 Officer. And Officer Pepe is a good human

6 being and makes the mistake of not cuffing

7 Salim. And on the way back to the cell Salim

8 pulls out that comb and he attacks Officer Pepe

9 and plunges it into his eye.

10 What should make you think that

11 that's what happened? Well, look back at what

12 Lance Maiden tells you. He tells you: We saw

13 blood at cell number 4 on our way in. And

14 Jenkins, Rodrick Jenkins reluctantly tells you:

15 I concluded that Officer Pepe was attacked by

16 Salim on the way back to his cell.

17 One thing you know, that cell is

18 locked, and Khalfan Mohamed is locked inside.

19 So if there is blood in that hallway as the

20 officers are coming up then that blood got

21 there before Khalfan was out. Now, he takes

22 Officer Pepe and they say you know he's a

23 skinny man. This man was mujahadeen. You

24 remember he was one of the old ones, a guy who

25 fought in Afghanistan for years, and years. Do


8648


2 you think he can't take care of himself?

3 So he drags him back to the cell, and

4 he takes those keys and he opens that cell, and

5 what is Khalfan supposed to do?

6 If I could see picture 4020 for a

7 minute, please?

8 This is Khalfan Mohamed's bed. Take

9 a good look at it. You see the folded pillow

10 and the glasses set down. It looks like

11 somebody was sitting there reading or writing,

12 doesn't it? And it looks like after they got

13 up stuff was thrown on that bed.

14 So Khalfan Mohamed is sitting here,

15 minding his own business, and here comes Pepe,

16 and here comes Salim. What should Khalfan do?

17 Should he stay? Wouldn't the government have

18 said he was guilty if he stayed? Should he run

19 into the front? Wouldn't the government say

20 he's a lookout if he ran up to the front?

21 So Khalfan gets up and Officer Pepe

22 is being man handled by Salim, maybe stabbed

23 again with that hair brush, and Khalfan walks

24 out, and the only way he can walk out is here

25 where there's a pool of Officer Pepe's blood,


8649


2 and he goes out that door, he stops right

3 outside the cell. What should he do?

4 In what circumstance would the

5 government not come here and tell you he was

6 guilty? Then he waits, and he waits, and you

7 remember Rodrick Jenkins sees Salim up near the

8 front by the pillar. Is Khalfan with him? No.

9 Now the government will say about

10 that, well, I guess he was the lookout at that

11 back door at 10 South. And what if he went up

12 front, what would they say? He and Salim were

13 acting together.

14 Then they see Salim going with the

15 keys and Salim opens that door with the keys

16 and goes back inside. Did he say, Khalfan come

17 with me, buddy, we're in this together? Just

18 leaves Khalfan there.

19 Is what I'm telling you speculation?

20 No more than what the government told you. And

21 so when you're asked yourselves, what is proof

22 beyond a reasonable doubt, you know the answer.

23 No one really knows what happened there, and

24 you certainly can't kill someone on

25 speculation.


8650


2 Let's look more carefully at the

3 evidence the government produced. They began

4 by calling corrections officers and one of the

5 things in this case that's most interesting is

6 that these corrections officers cannot or will

7 not tell the same story.

8 Now, the government says we attribute

9 that to their fright or the hectic pace of

10 things that were going on, but they want you to

11 believe them about some things and disbelieve

12 them about others, and some of the things they

13 tell you cannot be true. Let's start with

14 Rodrick Jenkins.

15 He tells you he sees Salim alone near

16 the door with blood on his hands. He's

17 instructed the disturbance control team. And

18 he makes this conclusion that Pepe was attacked

19 returning Salim to his cell. He sees Salim

20 entering cell number 6 and now for the first

21 time we hear him say something that others

22 don't agree with.

23 He says: We come around the corner

24 near cell number 6, it's a blind corner. I

25 have the shield in front of me, and I'm


8651


2 attacked, boom, out of nowhere, I'm attacked.

3 Could be true, I guess, except that

4 Lance Maiden doesn't see it that way Lance

5 Maiden says, Khalfan is back up against the

6 wall, sort of bouncing on the balls of his feet

7 with his hands clenched. And Lt. Carrino says,

8 Khalfan is crouched down in a corner. So all

9 those things can't be true, but maybe that's

10 just attributable to the excitement and how

11 hectic things were.

12 Robert Jenkins doesn't recall the

13 shield breaking, and we know it broke. So

14 maybe that's attributable to how hectic things

15 were, but he does recall something. And if it

16 weren't so serious I guess maybe it would be

17 funny how it comes out, because what he recalls

18 is that Khalfan Mohamed had blood on his hands,

19 and here's how it comes out.

20 He's being questioned on redirect

21 examination by Mr. Garcia and it goes like

22 this:

23 Do you recall seeing blood on the

24 inmates Mohamed's hands?

25 "Q. Salim?


8652


2 Q. This defendant?

3 A. Oh, I don't rec

4 Q. I'm going to sh

5 Government Exhibit marked for

6 identification only 35164 and ask you to

7 read the last few lines on page 1.

8 Jenkins beginning to read: Got a

9 visual.

10 Q. Not allowed, I'

11 yourself?

12 A. Okay.?ot allo

13 Q. Does that refre

14 recollection as to whether or not you

15 saw anything on Mohamed's hands? Your

16 recollection, not what the report says.

17 A. Yes.ction, not

18 Q. And what, if an

19 recall yourself seeing on this

20 defendant's hands?

21 A. Says blood.nds?

22 Q. Not what it say

23 officer. Your recollection, do you

24 recall -- and I'll take the report back.

25 Do you recall on your own whether or not

REPORTERS CENTRAL

(212) 594-3582

8653


2 you saw anything on Mohamed's hands when

3 you saw him in the corner?

4 A. Yes, just a bot

5 in his hand.

6 Q. And do you reca

7 withdrawn.

8 Does this refresh your recollection

9 as to anything else you saw on Mohamed's hands?

10 Does this report refresh your recollection,

11 your recollection as to anything else you saw

12 in Mohamed's hands?

13 A. Yes.ands?to a

14 Q. What was that?

15 And he finally says: Oh, blood. I

16 saw blood on his hands.

17 Now, you'll remember that Rodrick

18 Jenkins is a specialist on this disturbance

19 squad and he was asked some questions about

20 some of his training, and these are the

21 questions he was asked by me.

22 Q. One of the thin

23 from your training that any evidence

24 needs to be preserved, isn't that fair

25 to say?

REPORTERS CENTRAL

(212) 594-3582

8654


2 A. Yes.Summation -

3 Q. And so for exam

4 had blood on their hands you wouldn't

5 allow them to wash their hands, would

6 you?

7 A. No. em to wash

8 "Q. You wouldn't allow them to wipe if off if

9 you could help, would you?

10 A. No.p, would you

11 Q. And from the ti

12 top of Mr. Mohamed, you never let him

13 wash his hands, did you?

14 A. No.is hands, di

15 Q. And you never g

16 anything to wipe his hands off on, did

17 you?

18 A. No." to wipe h

19 Now he says he has blood on his

20 hands. He says he never wiped them off and now

21 we have luckily an external source, a neutral

22 source that we can examine to see if indeed he

23 has blood on his hands.

24 So you should watch what we're about

25 to show you. Take a good luck. Take it back


8655


2 with you. Look at his hands. You get a good

3 luck at the palms of both his hands so when

4 Rodrick Jenkins says: Oh, yeah, he had blood

5 on his hands, he's not telling you the truth.

6 But we have another opportunity to

7 test what he says through a neutral source

8 because he tells you Khalfan Mohamed was

9 squirting something at him.

10 And he tells you it got on him, but

11 he tells you something else. What he was

12 squirting at me got on a shield I was using.

13 And you know you remember Mr. Kessner I think

14 his name was, came here and told you about

15 testing for capsicum and dihydrocapsicum, so

16 that if there was something on that shield all

17 they have to do is take the plexiglas shield,

18 test the plexiglas shield and see if it's

19 spattered with hot sauce.

20 But Agent Hatton, not part of the

21 Bureau of Prisons says: Nothing in my record

22 indicates that hot sauce was on any of the

23 plexiglas items. How could that be true?

24 Now one thing they do is they say,

25 well, we do have hot sauce on our clothes.


8656


2 That must prove that he was squirting hot

3 sauce. But you know that Salim was squirting

4 hot sauce. So the hot sauce on their clothes

5 doesn't prove who squirted it.

6 They could have proven it if it was

7 on that shield because everyone tells you he

8 was squirting it on the shield. Where is it?

9 If you're being told the truth, where is the

10 proof?

11 There is one other amazing thing in

12 this case, and it's something that comes up

13 again, and again, and again. You know that

14 Mamdou Salim and Khalfan Mohamed were badly

15 injured. You have a chance if you choose to

16 look at their medical records. Salim had a

17 broken jaw, and a cut on his left eye. Khalfan

18 Mohamed had a fractured orbit, a broken nose,

19 multiple fractures in his orbit. You can see

20 if you look at that video how badly bruised he

21 was. But not one person comes into this

22 courtroom and says: I hit him. I punched him.

23 Now, would it be understandable if

24 one of their own had been hurt? You can

25 understand them being angry. But someone had


8657


2 to tell you the truth. Read back through every

3 single person and see if one person sees

4 Khalfan Mohamed getting hit? See if one person

5 sees Mamdouh Salim getting hit? People are

6 with them all the time. People are standing

7 with them in a front near cell number 1.

8 People are standing with him in the hall

9 between cells number 4 and 5. Why is that

10 important? Why does that matter? What does

11 that have to do with anything?

12 Well, I guess what it has to do with

13 something in the end is that you'll find you've

14 been deprived of one of the most important

15 pieces of evidence and you'll have to decide

16 for yourselves why it doesn't exist, but maybe

17 the reason has something to do with that these

18 officers know that they beat these guys and

19 that they shouldn't have. But let's see, let's

20 see as we go on what we hear about that video.

21 Let's go next to Officer Maiden,

22 Lance Maiden. He's the person who tells you

23 there's lots of blood on the floor near cell

24 number 4, and that's interesting, because cell

25 number 4 is right where they take Khalfan


8658


2 Mohamed's clothes off, and I suppose that they

3 are going to say to you at some point, he has

4 Officer Pepe's blood on his clothes. How could

5 that happen? He has it on his shoes. How

6 could that happen? Although I already

7 suggested to you one way, that when Mamdou

8 Salim drags him in, Khalfan has to go right

9 past him to get out.

10 But you know there's another way.

11 They are fighting with him on the floor,

12 there's blood all over right inside the cell,

13 and Lance Maiden tells you there's blood all

14 over right in cell of number 4, and that's

15 right where they take his clothes off right

16 where you have photographs of his clothes lying

17 on the ground.

18 Anyway, he sees Khalfan, and he sees

19 Khalfan's hands, too, and there is not a

20 mention of blood on his hands from Officer

21 Maiden. He contradicts Rodrick Jenkins,

22 Officer Jenkins about what happened when they

23 approached. He said Khalfan stood back and

24 they approached him. He never sees Khalfan run

25 at them. But be that as it may, he also has no


8659


2 idea how anyone gets here, but there is

3 something much more interesting about Lance

4 Maiden.

5 You all recall seeing a videotape of

6 someone named Joe Rementer talking about what

7 happened. Joe Rementer is talking about what

8 happened within minutes of this incident. So

9 you should take a look at this and keep in mind

10 that Lance Maiden is the cameraman when this

11 video is made ten minutes after the incident.

12 That's what Lance Maiden tells you, ten minutes

13 after the incident.

14 (Video played)

15 MR. STERN: Now, there is a lot of

16 interesting things about that video, but the

17 first thing to consider is this: Officer

18 Maiden was asked questions about that video and

19 this is what he had to say:

20 As this crime scene video was being

21 made you knew that it could be evidence or

22 could be evidence in a case at some point,

23 right?

24 A. Correct.in a ca

25 Q. And so you knew


8660


2 be as accurate as it could possibly be,

3 did you not?

4 A. Yes. not?!Ô�ÿ

5 Q. And you would n

6 let innacuracy enter a crime scene

7 video, would you?

8 A. That's correct.

9 Q. That would be a

10 practice, would it not?

11 A. That wouldn't h

12 So what's said in that video? What

13 does Rementer say, with Maiden standing right

14 there? He says Khalfan Mohamed is crouched

15 behind a plexiglas shield and Salim comes out

16 spraying and he point to two bottles, and it's

17 interesting, because his report is also in

18 evidence, Joseph Rementer's report, and he says

19 in there, he comes out with two bottles over

20 his head spraying, and you know for a fact that

21 only two bottles are found outside that cell,

22 and you know for a fact that Khalfan Mohamed

23 never goes back into the cell.

24 So when they say Khalfan was spraying

25 that sauce you begin to wonder if it could be

REPORTERS CENTRAL

(212) 594-3582

8661


2 true, and it's not just that videotape that

3 should make you think that, because, again,,

4 Officer Hatton, Agent Hatton, I'm sorry, from

5 the FBI, you remember him. He went around

6 collecting things and taking photographs. Just

7 like Officer Jenkins, Agent Hatton reached the

8 conclusion -- go back to his testimony and read

9 it if you like. His conclusion was that hot

10 sauce was sprayed from the door of cell number

11 6. Khalfan was never in the door of cell

12 number 6. He was opposite the door of cell

13 number 6. And when Mr. Fitzgerald was telling

14 you his version of what had happened, he said:

15 Oh, and, look, here's hot sauce on the wall

16 inside. That must have gotten there when

17 someone squirted it at Officer Pepe, and that

18 someone must have been Khalfan Mohamed.

19 Well, you know, Salim locked himself

20 in that cell and if you look there's a little

21 puddle of hot sauce in the shower, so maybe

22 what happened is Salim filled up those bottles

23 and tried them out, squirting them on the wall.

24 Oh, they work. Then he opened that door and

25 went after these officers.


8662


2 It's all speculation, mine and his.

3 Don't confuse that for proof beyond a

4 reasonable doubt.

5 They next called Glenn Carrino, and

6 he again had what I would consider minor

7 inconsistency, things that I suppose could be

8 the result of the hectic activity or something,

9 but he says I had the shield. I had the

10 plastic shield, not Jenkins. He says that

11 Khalfan stayed all the way back in the corner

12 as far from him as he could get and they had to

13 approach him.

14 He then talks about a statement that

15 Officer Pepe made, and those statements are

16 interesting because in some ways they are the

17 cornerstone of the government's case. The

18 government says, we have a witness. That

19 witness is Louis Pepe. And he told you, they

20 did it.

21 Well, Carrino tells you about a

22 statement and he tells you he's not 99 percent

23 certain that that is the statement. He says,

24 I'm 99 percent certain. He says, Lu, I gave em

25 a fight. I fought back. And the government's


8663


2 case relies on this. Is it I gave em a fight,

3 or did Officer Pepe in the condition he was in

4 say, I gave them a fight? He says I gave him a

5 fight, I give them a fight, I gave him a fight.

6 You think he was really saying those precise

7 words? You know he didn't say, Lu, I give them

8 a fight. I fought back, even though Carrino

9 says he's 99 percent certain that's true,

10 because he'd earlier said they slipped the

11 cuffs and I fought back was the statement that

12 was made to him, so maybe he doesn't have such

13 a perfect memory of this statement, but the

14 government will say to you, that word he's sure

15 about. He's another one who says: Oh, the

16 sauce was spattering on the shield. Where?

17 Where? He sees no one hit.

18 And then the most disturbing part of

19 his testimony, because he says, I am aware of

20 the taping system on 10 South. I am aware of

21 the way that system works and five months ago I

22 made a complaint about it, because it wasn't

23 working, and it hasn't worked since. There's

24 your explanation to why there is no tape. Does

25 that tape really matter?


8664


2 Well, I guess you can't know. Maybe

3 it would show he was innocent. Maybe it would

4 show he was guilty. Certainly it would show

5 who covered up that camera if it showed nothing

6 else. But I guess the system hasn't been

7 working for five months, then you wouldn't

8 expect there to be a tape.

9 So we go on to Robert Parrish. You

10 remember Mr. Parrish. I think he's retired

11 now. And he also has a lot to say to you about

12 the tape, but surprisingly it is a completely

13 different story.

14 He tells you, well, the FBI came once

15 and I gave them a tape and that was the wrong

16 tape. And they came again and I gave them

17 another tape, but that was the wrong tape. And

18 then after that, we just didn't have any tape.

19 And he was asked if he told Agent Felch that

20 the tape was a copy and he was asked if he told

21 Agent Felch that the original tape had been

22 copied over, and he said, you know, I've racked

23 my brains and I just don't remember that. But

24 luckily Agent Felch does, and we all remember

25 who Joseph Felch shall was. And he says:


8665


2 Q. Let me show you

3 marked KKM12. Does that refresh your

4 recollection as to the date on which you

5 called Mr. Parrish?

6 A. Yes, November 9

7 Q. And on that day

8 conversation with Mr. Parrish about

9 whether or not that tape was available,

10 right?

11 A. I had a convers

12 Parrish, asking him or telling him and

13 asking him the tapes that we had did not

14 appear to be the tapes of the incident

15 where Officer Pepe was assaulted. And I

16 was asking him if he knew what the tapes

17 were that we had or where a tape that

18 would show that assault might exist or

19 if it did exist.

20 Q. And Mr. Parrish

21 he not, that he believed that the tapes

22 started at 11 p.m. on October 31, 2000

23 and stopped recording at 104 a.m. on

24 November 1, 2000? Didn't he tell you

25 that?


8666


2 A. That's what I r

3 Q. And he then tol

4 believes that the tape he had given to

5 the FBI to an agent of the FBI was a

6 copy and not the original, right?

7 A. Yes, he did say

8 Q. And he finally

9 original was reused and was therefore

10 unavailable, right?

11 A. Yes."ble, right

12 Now, this is a truly amazing turn of

13 events because you're told by Glenn Carrino

14 that for five months it hasn't worked. You're

15 told by everyone that there's no system for

16 changing the tape, and so it's really okay that

17 there's no tape.

18 And then you find out that up until

19 very early the very morning of this incident a

20 tape was running, and then the FBI is told they

21 don't have it, and you can look at it, there is

22 a tape from October 31st into November 1st and

23 it shows what's happening on 10 South. That

24 tape as it happens is at night, but you can

25 look at the tape. It's in evidence.


8667


2 And incredibly what terrible luck at

3 1:04 the tape stops functioning, no one

4 replaces it, and they just don't have anything

5 to show what happened that day.

6 Now, you can say it's speculation

7 that maybe it is just bad luck, but it's no

8 different than what Mr. Fitzgerald asks you to

9 do when he puts together the facts his way.

10 It is curious at best that Carrino

11 says it hasn't worked for five months and that

12 Felch never mentions that the original tape was

13 reused, and that only an outsider, I'm sorry I

14 said the wrong person, I meant that Parrish

15 never mentions the original tape had been

16 reused. It's only an outsider Agent Felch who

17 tells you that that is what was said to him.

18 That's half the government's whole

19 case. They call Officer Santulli who says that

20 Officer Pepe tells her, I got them, and I think

21 Mr. Fitzgerald said to you she failed to

22 mention it when she was interviewed by the FBI.

23 But that's really not what happened.

24 You can have the agent's testimony

25 read. What really happened is he said to her:


8668


2 Did he say anything to you about the incident

3 and her answer was: No. And they know that's

4 a problem, so they say, well, it was so hectic,

5 she was so frantic she couldn't remember the

6 answer to that question, but a few months later

7 or a month later it came to her.

8 But it wasn't so hectic that she knew

9 to go to the doctors and say, give me the comb.

10 I have to establish a chain of custody. And

11 her statement, too, is, make sure I get it

12 right, I got him.

13 Now they want you to read as, I got

14 them. I got them. Therefore, it must be him

15 and Salim. And, finally, they offer you

16 Mr. Patel and Mr. Patel says, too, oh, he made

17 a statement something about them, but he does

18 write down a statement contemporaneously

19 notwithstanding what Mr. Fitzgerald says about

20 how impossible it was to do that, he does write

21 down a statement, and the statement he writes

22 down, take a look at Officer Pepe's medical

23 record is: An inmate stabbed me in the eye.

24 An inmate.

25 So if we're so concerned about how


8669


2 many people are mentioned in a statement, then

3 factor that in, too. An inmate, a inmate,

4 stabbed me in the eye. Well, that's not two.

5 But I guess that one you should

6 ignore, but I got 'em, you should take to mean,

7 I got them, I got him and Salim.

8 Now, the government might tell you

9 that Khalfan Mohamed has ordered hot sauce and

10 honey and that is true. When you look at his

11 commissary records you will see that Khamis

12 Mohamed has a sweet tooth, and you'll see it

13 from the day he came into MCC. Look at all of

14 his commissary records. He always was ordering

15 hot sauce and honey. It was a regular part of

16 what he ordered.

17 They also want you to ignore what is

18 powerful evidence of his innocence. They don't

19 mention the fact that he's never seen with

20 Salim, that Salim ignores him entering the

21 cell. They say, well, sure, we know all the

22 notes are Salim's. We know that it's Arabic

23 handwriting, written in the hand of a native

24 Arabic speaker, but that's all right, we know

25 that the note that, we are the Muslims of 10


8670


2 South is so dissimilar from his writing that

3 they didn't even submit it for analysis.

4 We know that Salim's prints are the

5 only ones found on these documents, but Salim

6 must have told him. Well, that's interesting,

7 because if those documents were hung on the

8 wall then even if Salim didn't tell him, he

9 should have seen, because these documents were

10 found in a box right next to his bed.

11 You could say, well, they must be his

12 or he must have known about them. On the other

13 hand, if they were found deep in the bottom of

14 a box next to Salim's bed you might say: How

15 could he have seen? This is a mess in here.

16 It's a pig stye, Salim could have written these

17 at any time. But you don't know.

18 The best they can tell you we know

19 these are from cell number six. Sorry,

20 counsel, that's all we can tell you. So they

21 try to take Salim and make him, tag him along.

22 Salim wrote nasty disgusting vicious things and

23 they want you to attribute those things to

24 Khalfan Mohamed. It was Salim who was angry

25 and upset fighting with his lawyers, going in


8671


2 front of judges. You can read when he went in

3 front of Magistrate Eaton how he was

4 complaining and fighting with the judge.

5 You know from McAllister and Adler

6 that he was angry. He wouldn't meet with them.

7 He finally did. You'll see that Salim comes as

8 close to admitting this crime as he could come,

9 without actually doing it.

10 He says when he's seen by the

11 psychiatrist and the psychologist, I took the

12 keys off his belt. I saw my chance and I took

13 it. I took them off Salim's belt in my cell.

14 Maybe the government will say he's so

15 close to Khalfan Mohamed that he's protecting

16 him somehow. But that's sure not what he says

17 when he talks to the psychiatrist and the

18 psychologist. He says: I was not getting

19 along with my cellmate, and I could barely

20 communicate with him, because his English and

21 his Arabic weren't really that good.

22 Khalfan Mohamed can't control how the

23 evidence is collected. Khalfan Mohamed can't

24 control if a videotape is put in the machine.

25 He's stuck with the job they do. And so when


8672


2 you ask yourselves if his future dangerousness

3 has been proven beyond a reasonable doubt, when

4 you ask yourselves should we blame him for the

5 attack on Officer Pepe, first say this:

6 It is a terrible, terrible thing.

7 And then say: There is not proof beyond a

8 reasonable doubt that he did this.

9 I tell you that whatever he would

10 have done the government would have said, it

11 looks like he's guilty. If you listen to

12 Joseph Rementer, the only person who within

13 minutes of this incident is telling you about

14 it and the only person who tells you about it

15 on videotape, a person who's telling it at a

16 time when no one could talk about it or think

17 about it, or plan about it, he says: Khalfan

18 Mohamed is in the corner behind a plexiglas

19 screen. No squirting, no weapons, just there.


21

22

23 MR. STERN: (Continuing) and Salim

24 comes running out with these two squirt bottles

25 in his hands and a crazed look on his face, and


8673

1 1721BIN4 SUMMATION - Mr. Stern

2 Lance Maiden, who says, "I would step in if

3 there was misinformation in a crime scene

4 video," doesn't say a word.

5 It's not the kind of proof a

6 reasonable person would rely on without

7 hesitation in the most important matters of

8 their affairs. It's just government

9 speculation, and you cannot sentence someone to

10 death on speculation.

11 Now, the government may tell you

12 whether you find the attack on Peppe is

13 attribute to Mohamed or not, he is still a

14 future danger. They will say when he was

15 arrested, he said, I would do it again, I'm

16 glad Americans were killed.

17 And Mr. Fitzgerald crafted a very

18 good line: He doesn't have fire in his eyes,

19 he has ice in his veins. Really excellent.

20 You will remember it. Newspapers will write

21 it. But is that really completely true? And

22 you have the chance to read his statement. You

23 have a handwritten copy of it. That's the

24 statement taken as he was speaking. And you

25 will see that he tells the agents, "I think of


8674


2 the Kenyans all the time." He is asked a

3 question: "If there was a fatwah to kill

4 Americans anywhere you found them, what would

5 you do?" And his answer is: "I would have to

6 think about it. Some are good and some are

7 bad."

8 So when Mr. Fitzgerald says to you he

9 is a stone-cold killer, he is a person who

10 hides behind a mask of meekness, waiting for

11 his chance to kill, he has never had a moment's

12 remorse, you should doubt it, because even then

13 he was beginning to think for himself about

14 what he had done.

15 Well, that really is the government's

16 case. It must be clear that their whole case

17 really is about what happened with Officer

18 Pepe.

19 You heard from Dr. Cunningham, and

20 Mr. Fitzgerald ridiculed him, but the core of

21 what he said was completely unchallenged. At

22 ADX Florence, a guard has never been

23 hospitalized or killed as a result of an inmate

24 attack.

25 Now, do I know that Khalfan Mohamed


8675


2 will go there? No. He fits all the criteria.

3 But the only reason he won't go there is if the

4 Bureau of Prisons, who is, as you might

5 imagine, with 129,000 people in their system,

6 very experienced, says he needn't go there.

7 Otherwise, he will. It is a place that houses

8 the worst of the worst of the worst, and no

9 guard has ever been killed or hospitalized.

10 You saw what it's like, how they take

11 real care with a prisoner when you saw the

12 videotape of Khalfan being moved at Otisville

13 with the three officers and sticking his hands

14 through and the Martin chain and shackles on

15 his ankles, and I guess Mr. Fitzgerald's point

16 is that there is always human error. And I

17 guess that's true, there is. But that's why

18 they have three people -- to act as a check on

19 one another. That's why they change people all

20 the time -- so there is no familiarity.

21 Well, Mr. Fitzgerald ridiculed all of

22 the mitigation from Mr. Mohamed. He said

23 almost every time: Give it what it's worth.

24 Zero. Give it what it's worth: Less than

25 zero. So let's talk about it.


8676


2 One of the things to talk about is

3 his role compared to others who participated in

4 the offense, and Mr. Fitzgerald concedes that

5 he was not a planner. As a matter of fact, you

6 will read a stipulation from someone in the

7 U.S. Attorney's Office knowledgeable about this

8 case who says he is a low-level participant.

9 Not only is he not a leader, but there was no

10 one lower than he.

11 Mr. Fitzgerald says it couldn't have

12 happened without him, but that's not true.

13 Laborers, low-level people are a dime a dozen.

14 If they didn't find him, they were finding

15 someone else. The only skills he needed was to

16 speak Swahili and know how to do what he was

17 told.

18 Dr. Post came in and I think that Mr.

19 Fitzgerald referred to him as a dog and pony

20 show, as someone who had sold his dignity to

21 help out a terrorist. Now, you should think

22 for a moment about who Dr. Post is. Dr. Post

23 worked for the CIA for 21 years. Dr. Post did

24 profiles of world leaders for presidents.

25 Dr. Post is a psychiatrist. Dr. Post is a


8677


2 professor. Do you think for a second that he

3 is coming in here for him to destroy his own

4 reputation? He has spoken to 30 terrorists.

5 He has written on terrorism. He lectures on

6 terrorism. Do you think he is some sucker who

7 he is taking advantage of, or do you think

8 really that Dr. Post just said, I love this

9 little terrorist, I'm going to help him any way

10 I can? It's ridiculous.

11 Dr. Post came in here and tried to

12 explain to you his role in this offense, as he

13 understood it, and Mr. Fitzgerald says, well,

14 he didn't go talk to Bin Laden, he didn't talk

15 to Atef, he didn't talk to Zawahiri, he didn't

16 talk to this person, he didn't talk to Jamal

17 Al-Fadl, he didn't talk to Kherchtou, he didn't

18 say Odeh was the final word on al Qaeda.

19 He did say that Odeh described to him

20 how al Qaeda worked, and it's really the same

21 as what everyone else said. And what Odeh told

22 him was that there are members of al Qaeda --

23 and it's conceded that he is not a member of al

24 Qaeda -- and that the members of al Qaeda have

25 a say in what happens. I suppose maybe they go


8678


2 to meetings or secret handshakes, I don't know

3 exactly, but they have a say.

4 Khalfan Mohamed had no say. Mr.

5 Fitzgerald ridiculed the story about the Fanta.

6 Oh, poor Khalfan. He had to get somebody a

7 Fanta. But that wasn't really the point of the

8 story. The point of the story is that his only

9 job is to do what he is told, so when it comes

10 time to buy the Suzuki, read the transcript,

11 think back. Someone was there and gave him the

12 money to do it, and he put his name -- not an

13 Abu name, not a fake name, his name -- on the

14 car.

15 And when it came time to rent a

16 house, you remember someone, I think his name

17 was Mohamed Jaquanda was the broker for a

18 house, a slender elderly man, he said Khalfan

19 was there, someone who didn't speak Swahili was

20 there, and that person gave Khalfan the money

21 and Khalfan passed it over and Khalfan put his

22 name on there. And Mr. Fitzgerald acts like,

23 well, what's the big deal? He was running away

24 anyway. They were all running away, but they

25 weren't all putting their names on any


8679


2 documents.

3 He's the last one told of the

4 destination of the bomb. You know that al

5 Qaeda has this real knack for making passports.

6 You remember in El Hage's computer there were

7 all these different Yemen and Saudi Arabia,

8 different fake passport kind of things. He

9 didn't get one of those. He didn't get one of

10 a dead mujahadeen. He went to his friend

11 Zahran Malwi and said, hey, buddy, how about

12 changing a few things on this document and

13 letting me get a passport? That's how he got

14 his passport. He paid for it himself.

15 He was left there in the end, and Mr.

16 Fitzgerald said, well, he was left there but he

17 was supposed to go underground and they gave

18 him three phone numbers. They gave him three

19 phone numbers. They all went. They all went

20 to Yemen or Pakistan or Afghanistan before the

21 bomb ever went off. There was no risk for

22 them, but him, if he got caught, big deal.

23 Maybe they would get another martyr out of it.

24 Mr. Fitzgerald mocks the idea that

25 others of equal or greater culpability will not


8680


2 be sentenced to death, and he says, well, Bin

3 Laden's not caught, Atef isn't caught, Zawahiri

4 is not caught. We don't know what will happen

5 to them if they are caught. I suppose that's

6 true, but we do know about the people who are

7 caught.

8 We do know Mamdouh Salim is one of

9 the most powerful members of al Qaeda. We know

10 that Mamdouh Salim is on the Shura Council.

11 You remember the description of al Qaeda.

12 There's Bin Laden, the emir and then the Shura

13 Council, and that's where Abu Hajer al Iraqui

14 has his place and he lectures people. He is

15 one of the people who eggs on young men. Go

16 ahead, it's all right to do these bombings,

17 because Ibn Tamiyeh told us when we were

18 fighting the Tartars, if you kill people near

19 them, if they were innocent, God bless them,

20 they will go to heaven, and if they were

21 guilty, they deserve to go to hell anyway. So,

22 don't worry, if I tell you to go ahead, it's

23 okay.

24 Salim is a person who tried to buy

25 nuclear fuel to build a bomb. Remember Jamal


8681


2 Al-Fadl came in here and he told you how he was

3 sent into the middle of Khartoum somewhere to

4 meet with someone who had South African

5 uranium, and he was told he had to get in

6 contact with Salim and get something to weigh

7 it. Salim is one of the big moneymakers for al

8 Qaeda, and I want to talk to you for a minute

9 about that, because the top people in al Qaeda

10 seem to live pretty good lives.

11 You know that Ubaidah, before he died

12 in Lake Victoria, had a wife in Kenya and a

13 wife somewhere else and had cars and

14 businesses. You know that in Khartoum all

15 these people had businesses. And you remember

16 at one point Jamal Al-Fadl said, oh, no, no,

17 it's not true that just the most powerful

18 people, just the most connected people do well.

19 And I said, name one person who doesn't own a

20 factory or have a good business. Get back to

21 me when you think of it. And I'm still waiting

22 for him to get back to me.

23 Those people all do okay, and Salim

24 did okay until he got arrested in Germany.

25 Al-Fadl himself is doing pretty good. He got


8682


2 his whole family moved here. Wadih El Hage

3 doesn't face death.

4 And then we get to people much, much

5 closer to home. How about Ali Mohamed.

6 Remember who that is, Ali Mohamed, the guy who

7 lurks in the background? Well, now who should

8 lurk in the foreground, because you were read

9 his plea in which he admitted to what his role

10 was. And part of what he did was that he took

11 pictures of various embassies and aid centers,

12 I guess. And he took those pictures, and among

13 the things he did was he went back to Usama Bin

14 Laden.

15 Now, he has never gone to Usama Bin

16 Laden with anything. And he went back to Usama

17 Bin Laden and he said: Hey, Usama, or Bin

18 Laden, or whatever he calls him, I have this

19 picture here. It's of an embassy in Nairobi.

20 And Bin Laden said: Hey, that looks like a

21 good spot for a bomb, huh? And guess what

22 happened a few years later: Blown up. Ali

23 Mohamed, he doesn't face the death penalty.

24 How about Mohamed Sadeek Odeh. You

25 found that he was responsible for 213 deaths in


8683


2 Nairobi, and you had good reason to find it

3 because in his home in Witu he had a drawing of

4 the entryway to the embassy and he had a

5 drawing of his understanding of how the bomb

6 blast worked.

7 Now, that was tough to explain. I

8 remember Ed Wilford said, maybe it's a snow

9 cone or a boat, or he had some try at

10 explaining it, but you know that he was

11 directly involved. Not only was he directly

12 involved, but he was a leader. Because one

13 thing most of these leaders do is they have the

14 sense to never leave anything connecting them

15 to what happens. Did Salim know or not about

16 these bombings? No way of knowing. Did El

17 Hage know or not about these bombings? Who

18 knows?

19 But Odeh, you know, did. Why didn't

20 he face the death penalty here? How is that

21 fair? How is that just? Mr. Fitzgerald says

22 to you this is only about Khalfan Mohamed, but

23 it's about justice. It's about doing what's

24 right and doing what's fair, and if Odeh,

25 responsible for 213 deaths, doesn't face the


8684


2 death penalty, then how can Khalfan Mohamed?

3 A lot of people -- not a lot. Three

4 people are being extradited here from London.

5 One of them is named Eidarous, one al-Fawwaz

6 and one Abdel Bary, and you know that none of

7 them face the death penalty. One of them

8 can't. Al-Fawwaz apparently was not -- they

9 don't have the information to connect him to

10 the bombing, but Eidarous and Abdel Bary, they

11 do.

12 And Mr. Fitzgerald is right when he

13 says it's just a quirk of fate that they don't

14 face the death penalty. They're lucky to have

15 been arrested in a country like England. But

16 is that how this system should work, where your

17 life or death depends on a quirk of fate? Him,

18 that quirk of fate was just a little late. It

19 was just a mistake by someone in South Africa

20 or he would be just like Abdel Bary and

21 Eidarous.

22 Mr. Fitzgerald says to you, let's get

23 who we can, and where that leaves you is, let's

24 kill the least responsible person. Because the

25 last person you have to consider, all of you,


8685


2 is Mr. Al-'Owhali. You found him responsible

3 for 213 deaths. And while there is no way that

4 any death is okay, there is no way you can

5 balance one against the other.

6 Khalfan Mohamed is responsible for

7 11. He specifically chose to do the job he

8 did. Not only that, but he went and

9 reconnoitered. He looked around and said, wow,

10 that is crowded neighborhood. There's houses

11 and trains and banks and this and that. And he

12 even tried to get them to change it, but when

13 they didn't, ah, that's all right. We'll go

14 ahead anyway.

15 Khalfan Mohamed had never been to the

16 embassy. Everyone agrees with that. He didn't

17 really know what was there. Does that mean

18 he's not responsible? No. Don't mistake what

19 I am saying for that. But Al-'Owhali knew

20 specifically what damage would be done and he

21 went ahead.

22 He was actually there at the bombing.

23 He went there, he made sure it was carried out

24 and then he ran away. You know, it's hard, I

25 think, to understand how someone could do this.


8686


2 It's hard for me. I'm sure it's hard for you.

3 But it happened, and you have to somehow

4 compare people and what they did.

5 Part of what you can compare is how

6 they acted, because you didn't know it at the

7 time, but Mr. al-'Owhali straight-up lied when

8 he was arrested. And you will see there is a

9 stipulation of reports he filled -- not he

10 filled out, that were filled out about what he

11 said over about a two-week period. And he lied

12 and lied and lied and lied.

13 He said, I'm Khalid Saleh. I was

14 here to see my uncle. I was with a friend,

15 Harun, who was killed in the bombing, but we

16 were just walking by. I have no idea what

17 happened. I'm here from Yemen. I'm here from

18 here. Every word was a lie, until he was

19 cornered and had to tell the truth.

20 Mr. Fitzgerald says he is entitled to

21 nothing for having told the truth, and let's be

22 clear about something. Telling the truth,

23 accepting responsibility is a separate issue

24 from remorse. There is something to be said

25 for owning up to what you have done, and the


8687


2 government can't point to one fact in his

3 statement that is not true. From the biggest

4 to the smallest Mr. Fitzgerald says, well,

5 maybe you don't believe him when he says he

6 didn't know about Bin Laden. Do you have

7 evidence of that, or is that him asking you

8 again to speculate?

9 He gave them all kinds of information

10 in that statement. The FBI says that in that

11 statement he told them the names of the members

12 of his group. Take a look at it. It's an

13 interesting document. He gave physical

14 descriptions of each member in that group. He

15 told them the places where things had happened.

16 He told them what he had done and what others

17 had done.

18 And the government knows it's true

19 because they had the information before he ever

20 told them, but they didn't tell him. He told

21 them the truth without prompting, even down to

22 the tiniest things. You will remember that one

23 of the people, I think Khalfan Ghailani, maybe

24 rides a mountain bike, he can't drive, and he

25 said I think he rides a mountain bike. And


8688


2 remember someone came from the Al Noor Hotel

3 and said, oh, yeah, I remember one guy was on a

4 fancy bike with a lot of gears. He told them

5 something they didn't know -- that he had

6 mailed a package for Ahmed the German back to

7 Egypt after Ahmed the German was killed in the

8 bombing. It turned out to be true.

9 Every word he told them turned out to

10 be true. And it was in that same statement

11 that he talked about how he thinks about the

12 Kenyans, and I would have to think twice about

13 following a fatwah to kill Americans because

14 some are good and some are bad.

15 Now, again, I want to talk about

16 Dr. Post, who Mr. Fitzgerald ridicules as a dog

17 and pony show. He says, oh, that remorse,

18 that's fake remorse. That's the kind of

19 remorse one has because one doesn't want to be

20 executed and that he, sucker, Dr. Post, fell

21 for it and then he came in here and told you

22 all. Huh. Well, I've already talked about

23 Dr. Post and I think you would have to go a

24 long way to pull the wool over his eyes.

25 But beyond that, if Khalfan Mohamed


8689


2 wanted to try and fake remorseful, he would

3 have started from minute one with Dr. Post. He

4 would have said, oh, Dr. Post, I'm so sorry. I

5 can't believe what I have done. He didn't do

6 that. He didn't trust Dr. Post at first. Some

7 old white guy from the CIA comes in and starts

8 to talk to him and he says, I don't know

9 anything about anything. Mr. Fitzgerald says,

10 ah, he lied, but it's a lie that contradicts

11 the argument he makes. If it's false remorse,

12 he would think I had better pour it on every

13 chance I get, and that's not what he did.

14 It's another one of those things that

15 Mr. Fitzgerald says in his ringing way: Give

16 it what it's worth. Zero. Everything to him

17 is worth zero because he wants Khalfan Mohamed

18 dead. But you should give it what it's worth

19 because part of what we are as human beings is

20 mutable. We're able to change and learn.

21 Khalfan Mohamed had never really met

22 Americans before he came here, and all of a

23 sudden he has Americans lawyers and American

24 corrections people, American judges. And you

25 know, it's funny. I've heard that there's a


8690


2 tremendous amount of AntiSemitism in Japan,

3 where there is no Jews, and we all know that

4 very often in all white suburbs there's a lot

5 of racism, because we're all afraid of what we

6 don't know and we like to hate the people we

7 don't know.

8 But as you meet people, if you live

9 in New York City, you realize that everyone is

10 who they are as a person, and that's something

11 he has come to learn. And so when he says he

12 feels sorry, that, having thought about it, he

13 knows what a bad thing it was, must it be fake?

14 How many of you have changed as you thought

15 about things? How many of you, for example --

16 well, it doesn't matter. You have all changed.

17 Mr. Fitzgerald says there's a special

18 terrorist standard you should not apply, and

19 that standard that you should not apply is one

20 that says because your beliefs are sincere, you

21 don't deserve a break. And by that I suppose

22 he means to say that the person who murders out

23 of greed or out of lust is just the same as the

24 person who murders out of conviction.

25 And I want to talk to you about that


8691


2 for a minute, because it's sometimes hard to

3 know what's right and what's wrong in the

4 world. 90, 95, maybe 99 percent of these kinds

5 of movements are wrong, but just in our

6 lifetimes, we know that people call terrorists

7 have won the Nobel Prize. Yasser Arafat, when

8 I was a boy, was a terrorist, and next thing I

9 know, he's winning the Nobel Prize. Was he no

10 longer a terrorist? Is he no longer a

11 terrorist? I'm not suggesting one thing or the

12 other. Nelson Mandela was a terrorist, the

13 ANC, he was in jail on Robbins Island for 19

14 years or something, and then he was president

15 of South Africa. His movement, it turned out,

16 was right, not wrong.

17 Israel was begun by terrorists.

18 Menachem Begin was accused of blowing up the

19 King David Hotel. He was a terrorist. But

20 then later he was president, Prime Minister of

21 Israel. So when you say sincere beliefs don't

22 matter, sometimes they do. George Washington's

23 did. He was a terrorist to King George, I'm

24 sure.

25 You think it's hard to understand how


8692


2 he could be like that acting just for his

3 people. And I know it's not the same thing,

4 but as I think about it, I think of my grandma

5 who used to say whenever there was an election,

6 what's this person going to do for the Jews?

7 That's all. Not, how are they on the

8 environment? How are they going to be on

9 education? Is it good for the Jews was all she

10 ever asked. Now, she didn't bomb anywhere, she

11 went and played bridge instead, but that

12 doesn't mean that that impulse to look out for

13 your own is an impulse only someone like him

14 can have. So it does mean something.

15 That he acted out of sincere

16 religious beliefs. You know they are sincere,

17 but of what he did? South Africa. Mr.

18 Fitzgerald apparently would have you believe

19 that the whole time he was in South Africa he

20 was putting on a show; that when he was going

21 to mosque and teaching the mother the Koran and

22 teaching the kids the Koran and praying in the

23 little corner of his restaurant, that that was

24 all a show to tide him over until he could do

25 his next killing, but you know that's not


8693


2 really true. The idea that people are all one

3 thing or all the other is not the way the world

4 works.

5 We are not all evil or all good. All

6 of us have some of each. And when you saw

7 Sharhima Dalvie and you saw the people in her

8 family, you knew that that good was genuine.

9 He was working every day in a menial job, and

10 when he wasn't working, he was focused on his

11 faith. You may think it's foolish. You might

12 not be able to understand how he was so driven

13 just to focus on his faith, but he was, and no

14 one saw it.

15 You think he did it in preparation

16 for this? Hey, maybe some day I'll be arrested

17 and I'll be facing the death penalty, so I

18 better take this year out of my life and act

19 real, real religious. No.

20 How did he end up here? Well, it is

21 his fault. Mr. Fitzgerald is right about that.

22 He put himself here. But those sincere beliefs

23 were formed over years. I suppose you would

24 have to be in a mosque in Dar es Salaam and

25 hear what is said about Afghanistan and Bosnia


8694


2 and Somalia. You know, you know from his

3 statement, which the government has not been

4 able to show you in any way as untrue, that he

5 went to Afghanistan to be trained to fight in a

6 war, in a war. And he went to Somalia, seeing

7 if he could go to the front lines in a war.

8 That's not so foreign.

9 Americans have been to fight in wars

10 to defend their people, and he wanted to fight

11 in a war to defend his people but he didn't get

12 the chance, and instead that made him

13 susceptible to being easily led; his very

14 religiosity, his very belief made him a perfect

15 target. Again, don't think I'm saying it's not

16 his fault. It's his fault. He put himself

17 here, but there's a road he took to get here

18 and if you don't understand that road, you

19 can't possible judge him fairly.

20 He has proven with his family and

21 with people in South Africa that he has good in

22 him. The government says to you not kill the

23 most culpable, but kill the least

24 sophisticated. In the end, each of you has to

25 make a uniquely personal judgment whether the


8695


2 government has proven beyond a reasonable doubt

3 that the only appropriate punishment for

4 Khalfan Mohamed is death, whether that act

5 negated everything else he is and everything

6 else he will be.

7 If you kill him, you say there is no

8 hope not just for him, but for us. You say

9 there is no hope for the astounding human

10 capacity for change. You destroy the chance

11 that he will age and have the experience we all

12 share. We say if I had only known that before

13 and then pass it on to others. You eradicate

14 the hope that others will see the price Khalfan

15 has to pay for what he did. That price,

16 getting old and dying in jail, frightens the

17 young more than death.

18 In the end, if you give him life,

19 Khalfan will disappear. No one except those he

20 loves will remember him. Someone has to say

21 enough. Someone has to say I will not hurt

22 another family. Someone has to say I will not

23 become those I detest by doing what they do and

24 killing in the name of justice.

25 Let that be you.


8696

1 1721BIN4 REBUTTAL - Mr. Garcia

2 THE COURT: Thank you, Mr. Stern.

3 We'll take a very brief recess and then we'll

4 complete the opening statements.

5 (Jury not present)

6 THE COURT: Very brief recess.

7 (Recess)

8 THE COURT: Is someone here from CNN?

9 I'll see you in the robbing room after we

10 adjourn today.

11 There is a request from CNN about

12 post verdict interviews with jurors.

13 (Jury present)

14 THE COURT: Mr. Garcia.

15 MR. GARCIA: Thank you, Judge.

16 Good afternoon.

17 THE JURY: Good afternoon.

18 MR. GARCIA: It's been a very long

19 day, and thank you, as always, for your

20 attention and for your patience.

21 In the short time that we have left

22 together today, I would like to look at some of

23 the arguments Mr. Stern made to you while he

24 was up here this afternoon.

25 And it got a little emotional, and


8697


2 Mr. Stern said that Mr. Fitzgerald said you

3 should give zero weight to some mitigators

4 because he wants Khalfan dead. And he called

5 you killers a few times again, and I think we

6 have to get back to the fact that the reason

7 why you are here and the reason why you have to

8 decide whether this defendant receives a life

9 sentence or the death penalty is because of

10 what Khalfan Mohamed did, the crimes he

11 committed, and what he did in the prison on

12 November 1, 2000.

13 Everyone in this courtroom realizes

14 that this is not an easy road, that this is not

15 a simple decision, but you will know that it's

16 the right decision in this case. It's the

17 right decision because of this defendant, who

18 he is, what he has done and what he will do,

19 that the right decision in this case is a death

20 sentence.

21 Let's talk first about some of the

22 things that were said about causing pain and

23 suffering, causing pain to Mr. Mohamed's

24 family. When you think about that, I would

25 like you to keep one thing in mind: That


8698


2 Khalfan Mohamed hasn't been that person from

3 Pemba that they knew for a long, long time. He

4 hasn't been that student. He hasn't been that

5 son or that brother for a long time, since the

6 time that he became a killer, since the time

7 that he agreed to murder and murder without

8 remorse.

9 The family lost Khalfan Mohamed, the

10 Khalfan Mohamed they knew, a long time ago.

11 And the Dalvies, they never knew Khalfan

12 Mohamed. They didn't even know his name. They

13 knew the face he put on in South Africa, the

14 face he put on while he waited, the face that

15 said I wouldn't hurt an ant, when he had just

16 come from killing 11 people and when, the day

17 after, he's nabbed, the day he's arrested, he

18 says to the agents, I'd do it again, I'd help

19 in another bombing, I would kill more

20 Americans, I hope other people do it now that

21 I'm caught, and I would carry on if I could.

22 Let's talk about equally culpable

23 defendants. Other people don't face the death

24 penalty. Khalfan Mohamed chose this group. He

25 chose to be part of this global terrorist


8699


2 conspiracy and he helped some of the other

3 people get away, and that's who he wants you to

4 compare him with. He wants you to use Usama

5 Bin Laden as the yardstick and those others.

6 He should be compared to the group of murderers

7 who face the death penalty, and in that group

8 he stands out.

9 Why should a drug dealer in New

10 Jersey face the death penalty? Because he is

11 involved in such a heinous crime with such a

12 heinous crowd. And Mr. Stern made some

13 arguments, arguments about other people, and

14 those may have been very good arguments or they

15 may have had some weight at some time. And you

16 know what time Mr. Stern could have come up

17 here and talked to you about those arguments?

18 On October 31, 2000.

19 On October 31, 2000, there may have

20 been some weight to the arguments that other

21 people did more than me, because on November 1,

22 this defendant participated in that vicious

23 attack on Officer Pepe and he is the only one

24 who directly participated in the bombings in

25 Tanzania, killed 11 people, himself murdered 11


8700


2 people, and then once inside prison in the

3 United States, once here, awaiting a trial,

4 awaiting justice, participated in a vicious,

5 murderous attack on a guard in which the guard

6 was maimed and will never be the same.

7 You heard some talk about becoming a

8 martyr. Well, you have heard that Usama Bin

9 Laden wants people out of jail and that are

10 serving life sentences. Well, we hear that

11 those people were leaders before. You are

12 going to bring Khalfan Mohamed up to their

13 level. Well, Khalfan Mohamed got a lot of

14 attention by being tried here. Those other

15 defendants, Ramzi Yousef and Sheik Omar Abdel

16 Rahman, got a lot of attention for being

17 sentenced to life in prison. Should we not try

18 Abdel Rahman because we are going to make him a

19 martyr? Should we not try Ramzi Yousef because

20 we'll make him a martyr? It's fill in the

21 blank, as Mr. Fitzgerald told you.

22 Do they need another, do they need

23 another martyr? He's a terrorist. It may make

24 him a martyr. No. No. No. Let's have justice

25 for this crime. Let's have justice for this


8701


2 defendant. There are a million reasons out

3 there for Usama Bin Laden to attack America.

4 The fact this defendant may become more

5 notorious if he gets the death sentence should

6 not figure into your calculation.

7 There was some talk and there's been

8 talk about Salim, about his mental state before

9 this crime was committed on November 1st. In

10 his opening, Mr. Ruhnke said: We do not

11 contend, like Salim, that our actions are

12 somehow driven or justified or excused by

13 mental illness. And then we have heard a lot

14 about Salim's excuse. We have heard that he

15 talked to psychologists who went in to examine

16 him, to hear what he had to say and to evaluate

17 him. And you heard that Dr. Rosenfeld, when

18 talking about his hallucinations, he said, I

19 talk to this creature, Salim says, and the

20 creature told me to do things, and I fight with

21 the creature and should I do it and should I

22 not do it. And Dr. Rosenfeld concluded that it

23 is much more likely the possibility that Salim

24 fabricated his hallucinations in an effort to

25 explain the instant offense as due to the


8702


2 stress of his confinement, that is,

3 malingering.

4 So what Khalfan Mohamed would do

5 would be piggyback on Salim's excuse, which the

6 psychiatrist or psychologist concluded was

7 malingering, was fabricated, and to say Salim

8 was crazy, Salim must have done it himself.

9 And you know that's nonsense. Salim fabricated

10 those voices as his excuse, and now Khalfan

11 Mohamed would use it to say that Salim

12 committed this atrocious crime by himself.

13 Let me talk to you a little bit about

14 something the defense has done in this case.

15 It's been very subtle. They have tried to have

16 it both ways. They talk about Khalfan Mohamed

17 and the bombing. You heard Dr. Post say that

18 Khalfan Mohamed was very able to be recruit, he

19 was very susceptible. And I'll read to you

20 from Dr. Post's testimony, direct, 8328, lines

21 11 through 25 on that page and the first line

22 of the next page:

23 "A. Let me back up some. He was brought into

24 contact," this is Khalfan Mohamed, "with a

25 small group in Mombasa by Fahid, who introduced


8703


2 him to Hussein. Hussein was described to me by

3 Odeh, a member of al Qaeda, as a very strong

4 leader, a man of compelling personality. He

5 didn't use the word 'charismatic,' but that was

6 the basic quality that he communicated --

7 strong, persuasive, authoritarian. When I

8 talked to Khalfan Mohamed about Hussein, he too

9 described him as a very strong leader, a very

10 powerful personality.

11 "I want to remind you he had been

12 told, by the way, he also mentioned that he was

13 a highly religious man and a very educated man.

14 He had been told back in Zanzibar at age 7 or 8

15 or so, when he was in schools, the importance

16 of paying unquestioning respect to learned men

17 who are pious and religious men, who are

18 authorities, and Hussein conveyed himself as an

19 authority to the young Khalfan Mohamed.

20 "So when it comes to Hussein, the

21 young Khalfan Mohamed, Hussein believes that

22 this pious religious scholar is irresistible.

23 This Hussein said kill, and Khalfan Mohamed

24 killed."

25 Now we have also heard a lot about


8704


2 Salim and, in the relative culpability section,

3 as being a scholar, someone who memorized the

4 Koran. He was on the Shura council. He issued

5 religious decrees and fatwahs. In fact, when

6 Mr. Stern crossed Al-Fadl at the guilt phase of

7 this trial, he asked him about that. I'm

8 reading from page 517, Mr. Stern's cross of

9 Al-Fadl:

10 "Q. And Salim would give explanations based on

11 the Koran for why things al Qaeda was doing

12 were okay, were good, right?

13 "A. Yes.

14 "Q. And he would quote from the Koran and try to

15 convince people through those quotes what al

16 Qaeda was doing and what you were being asked

17 to do was something that a good Muslim would

18 do, right?

19 "A. Yes."

20 Page 518, line 13:

21 "Q. Okay. Now, you yourself don't know every

22 line of the Koran, do you?

23 "A. No.

24 "Q. And so when he would talk," this is Salim,

25 "when he would talk to you about lines from the


8705


2 Koran, according to you, he would tell you

3 these things and you would accept them as the

4 truth, wouldn't you?

5 "A. Yeah."

6 Again page 521:

7 "Q. And that was his way of saying to you and

8 everyone else," this is Salim again, "it's okay

9 to kill civilians if you have to because I say

10 it and another scholar says it and the scholar

11 interpreting the Koran says it, right?

12 "A. Yes.

13 "Q. So that was to mean to say to everybody,

14 it's okay, don't worry if you kill civilians,

15 it's part of what we have to do?

16 "A. Yes, under war.

17 "Q. And when you heard that, you accepted it,

18 did you not?

19 A. Yes." heard tha

20 So Salim, to Al-Fadl, is a leader, a

21 religious scholar, a very pious man, big player

22 in al Qaeda, and he is saying, based on the

23 Koran, based on my interpretation, go kill

24 civilians, and Al-Fadl saying, yes, we did it.

25 And that's the man that Khalfan Mohamed is in


8706


2 the cell with. That was the man who, for seven

3 days, is talking about violations of his legal

4 rights, about taking hostages, about doing

5 something.

6 In that case Khalfan Mohamed says,

7 oh, no, no, no, Hussein is charismatic. Young

8 Khalfan falls for that. But in the cell with

9 the leader of al Qaeda, Khalfan Mohamed is no,

10 no, and he's very surprised when Salim shows up

11 at the door, dragging Officer Pepe, and runs

12 out and hides behind the shield. There's a

13 fundamental tension between those arguments.

14 If Khalfan Mohamed is so susceptible to the

15 arguments and persuasion of pious and religious

16 men, he is susceptible to Salim.

17 Let's talk a little bit about remorse

18 before we get to the stabbing of Officer Pepe.

19 Mr. Stern came up to explain about remorse and

20 that it was a process. Dr. Post was in a

21 process with this defendant. He didn't trust

22 him. He was a white man. He was from the CIA

23 and it was a little bit of a process to develop

24 as to accepting and expressing remorse.

25 Well, it was five weeks ago. Within


8707


2 the last five weeks, Khalfan Mohamed denies he

3 knew the embassy was the target; says that if

4 he knew the details, he would have tried to

5 stop it. He did not know the target as Ahmed

6 drove off in the bomb truck. He didn't know

7 where it was going until he heard about it

8 later. That's all within the last five weeks.

9 Then he says, as to the 302, there was a

10 language problem. There's another language

11 problem there, and he denies the 302.

12 And then he says, well, if I did it,

13 I'm sorry. And that's remorse. That's the

14 expression of remorse. That's not remorse.

15 That's not remorse. The truthful statement is

16 what he said to the agents, that he would do it

17 again, he would do it again if he could. And

18 you know actions speak louder than words and

19 you know he did it again.

20 Let's talk a little bit about the

21 language problem. He's in his cell with Salim.

22 You know he speaks English. Salim speaks

23 English. You know they both speak Arabic. On

24 the tape, South Africa, the imam from South

25 Africa says Khalfan was glad when he met me


8708


2 because we could speak Arabic. That's on the

3 South African video.

4 Now let's talk a little bit about the

5 attack in Cell 6. Before we do that, let's

6 talk about the tapes. A lot was made of the

7 tapes in Mr. Stern's summation. Officer

8 Carrino Lt. Carrino said as far as I knew, the

9 tape wasn't working. That's how worthless it

10 was. There was no procedure for changing the

11 tape. There was no written directions for

12 changing the tapes. The protocol for 10 South

13 was in evidence. As far as I knew, the tapes

14 weren't working. Salim thinks the tapes aren't

15 working. Written in the notes: What about the

16 video, it may not work.

17 What did you hear about the tapes on

18 November 1? Shortly after the incident, agent

19 goes over to 10 South, sees Robert Perrish, who

20 does not know about the taping system; it's not

21 his responsibility. He's there at the crime

22 scene. He goes back at the lieutenant's

23 office, he pops out one tape. Brings it out,

24 hands it to the agent. They leave. They play

25 it, they watch it, wrong tape. Shows 9 South


8709


2 and shows a few of the corridors; does not show

3 the cells.

4 45 minutes to an hour, they bring the

5 tape back. They call the FBI agent, tell him

6 it's the wrong tape; he says come back, see

7 Perrish again. They go back, they leave this

8 tape downstairs. They don't give it back to

9 Perrish.

10 Perrish says okay. He goes in the

11 back, finds another tape, pops it out of the

12 machine, tries to play it in the front. It

13 gets stuck. They pull it out of the machine.

14 They hand it to the agent. As it turns out, it

15 is the view of the cells, but it's from 11 p.m.

16 to 1 a.m. the night before. Sometime later,

17 Agent Foelsch goes back and retrieves what he

18 thinks is the first tape which shows the 9

19 South view. So you have the two tapes here.

20 They're in evidence. You can watch them.

21 Perrish, who is being called, he says

22 I have a lot of conversations with agents about

23 tapes. On November 7 or 9 he talks to Agent

24 Foelsch again. He says, you know, I gave you

25 the tape. It shows 11 to 1. Maybe you heard


8710


2 that from another agent. He talked to a lot of

3 agents about it. He said maybe, Agent Foelsch

4 tells you, best recollection, he says the

5 original was taped over and you have got a

6 copy. Well, maybe he's thinking about that

7 tape they brought back that was left

8 downstairs.

9 Does he know if they had the

10 original? Do we know? There's a copy.

11 There's the original. That's what he is

12 talking about. There were two tapes. They

13 were taken out of the machines. Perrish

14 testified. He came in here. He told you what

15 happened. He looked at you, and here are the

16 two tapes, and that's the story of the tapes

17 and they're in evidence.

18 Let's talk about what happened on

19 November 1st. Now, Mr. Stern runs through a

20 story about Salim and Officer Pepe walking back

21 to the cell and the attack happening out there.

22 And I submit to you that that has to be,

23 because if the attack happens in the cell, it's

24 devastating. If the attack happens in that

25 small space of Cell 6 with Khalfan Mohamed and


8711


2 Salim, that's devastating. So the attack can't

3 happen there, has to happen outside. Well,

4 let's look at the forensics.

5 What do you see? And we'll look at

6 the photos too. You have some blood here.

7 Blood here is Peppe's. You have Khalfan

8 Mohamed's blood in front of Cell 4. That's the

9 blood in front of Cell 4. And then you have a

10 tremendous amount of blood back here.

11 And we will look at the photographs

12 of how that blood is. The blood here, blood

13 sample 3, it's on the walls. It's on the

14 walls. And you remember, and look at the

15 photographs. Salim is running to the front.

16 He is running to the front. He's behind the

17 post and he has blood on his hands. Nobody

18 says he doesn't. And he's running back through

19 the wing to get back to Cell 6. And there's

20 blood on the walls and there are a few little

21 blood stains here on the floor. There's a

22 fountain, a fountain of blood inside Cell 6,

23 all over here, all over the jumpsuit, all over

24 the prayer rug. You can see it in the

25 photographs.


8712


2 What else do you know? All over here

3 is hot sauce, sprayed in this area of the

4 shower. There is even a hot sauce top if you

5 looked at one of the photos Mr. Carrino showed

6 you; a yellow top, right here. The Redweld is

7 on the bed, bed 2. The jumpsuit is on the

8 floor. When Salim exits this room here and

9 comes around, he has the Redweld and the

10 jumpsuit. Redweld, jumpsuit inside the cell;

11 hot sauce against the shower.

12 Now, think, 155-pound Salim and

13 270-pound Officer Pepe, he stabs somewhere

14 here, doesn't leave a big pool of blood,

15 there's some splashes on the walls. He drags

16 him back with his Redweld and his jumpsuit all

17 the way around here, drags him here. There's

18 no blood, there's no smears like there is for

19 Salim over here, and they drag Salim and he's

20 leading. Look at the photograph. Look at the

21 smear. Look at the blood that's in this cell,

22 how much Officer Pepe bled. It's all over

23 their clothes.

24 No blood. Drags him back here with

25 his Redweld and with his jumpsuit, throws that


8713


2 onto the cell. Much to the surprise of Khalfan

3 man Mohamed? No. No. What the forensics show

4 you is blood all over the cell. Blood all over

5 their clothes. Hot sauce here, behind the

6 corner here. Redweld on the bed. That's what

7 the forensics show you and that's what

8 happened.

9 "Lure the hunt." Remember the notes:

10 "Lure the hunt." They lured the hunt.

11 Unfortunately for Officer Pepe, he was the hunt

12 this day. They lured him back. He opened the

13 cell, sprayed him with blinding hot sauce and

14 stabbed him with two weapons, two weapons, the

15 sharpened brush and the comb -- comb through

16 the eye, sharpened brush to the skull. To the

17 skull.

18 Two weapons. Let's talk about the

19 brush weapon. Let's talk about the brush

20 weapon. It's found out here covered with

21 Officer Pepe's blood, soaken to the bristles.

22 The commissary reports show that Khalfan

23 Mohamed ordered two brushes in the time before

24 this and Salim ordered one. Hatton tells you

25 when they search the cell, they find one


8714


2 complete brush. It is here, right behind

3 Salim's bed. The other brush, the only other

4 brush they find, has been sharpened into a

5 shive.

6 Salim still has his brush. If you

7 look at the photograph of bed number 2, and

8 that's 4036, you can see that brush behind

9 Salim's bed. And you know it's Salim's bed.

10 If you focus, if we can, on that note right

11 there, that's written in Arabic. And much has

12 been done in this trial to show you that

13 Khalfan Mohamed doesn't write in Arabic.

14 So Salim has his brush back here.

15 Khalfan Mohamed's brush is sharpened into a

16 lethal weapon and is outside the cell.

17 And then you heard -- just look

18 quickly. Here's Salim's blood. Here's Salim's

19 blood and here's going back to Cell 6, blood on

20 the walls here, his hands, blood here. This is

21 the cell between these two Cells 4 and 5. That

22 is Khalfan Mohamed's blood, little spatters

23 going back here until you get to the cell,

24 which is a blood bath. Look at the corner

25 here, hot sauce here.


8715


2 And when the guards come around this

3 way to rescue Officer Pepe, when they get here

4 to this blind corner, hot sauce this way, hot

5 sauce this way, Salim comes out and attacks

6 them after Mohamed comes out of the blind side,

7 right here. What could he have done? He could

8 have put his hands on the wall; he could have

9 not fought with them; he could have not sprayed

10 them with hot sauce, that's what he could have

11 done. But that's not what he did.

12 Three officers came in here and

13 testified about it. They testified that

14 Khalfan Mohamed sprayed them with hot sauce.

15 Their clothes are in evidence if you want to

16 look at it. The photos are in evidence. Where

17 do they get sprayed? They get sprayed on their

18 sleeves from around the shield and it tests for

19 hot sauce.

20 What else? If you look at the other

21 diagram, which I won't put up, you will see

22 there's hot sauce over the doorway on the

23 outside of the cell. Now, Mr. Stern told you,

24 yes, Agent Hatton concluded from the stain over

25 here that hot sauce had been sprayed this way.


8716


2 What do you conclude from the fact that there's

3 hot sauce stains over the cell door of Cell 6?

4 That someone is spraying it this way, and

5 that's what happened. That's what happened.

6 So what do you know? You know

7 Officer Pepe's attacked in a little space with

8 two weapons and that when the guards come up,

9 they are attacked by Khalfan Mohamed first and

10 then Salim comes out to help him.

11 Finally, you also know what Officer

12 Pepe said. You know that he said, "I fought

13 them. I gave them a good fight." There were

14 three witnesses that came in here, Carrino,

15 Patel and Santulli, and they sat in this

16 witness chair and they told you Officer Pepe's

17 last words, describing what happened on

18 November 1st. You saw them. You heard them.

19 You watched them.

20 Your decision. You heard the direct.

21 You heard the cross. Your decision. Do you

22 think they were right? Do you think they were

23 accurate? And I submit to you they were.

24 Every one of them, from an officer

25 responding to a physician's assistant to


8717


2 somebody who just rode along in the ambulance

3 who didn't know what had happened before, all

4 say the same thing, all tell you Officer Pepe's

5 last words, his last words before his brain

6 started to shut down, before he suffered that

7 stroke in Bellevue Hospital, and it's "them"

8 and it's "they."

9 It's Salim and it's Khalfan Mohamed.

10 That's how you know. You know it from the

11 statement. You know it from the forensics.

12 You know it from the evidence. You know it

13 from what he was doing when the guards got up

14 to that floor.

15 And remember, all of that, all of

16 that activity in the back of that cell, the

17 stabbings, the taking out of the sheets, the

18 blocking the camera, the prying open of the

19 electrical box, Salim going into the front, all

20 happened in 15 minutes. That's what McAllister

21 said. That's what McAllister said. From the

22 time Salim walks around the corner to the time

23 the guards come through the door is 15 minutes.

24 Two people, two people attacking, two people

25 attacking Officer Pepe and maiming him.


8718


2 Ladies and gentlemen, I submit to you

3 at the end of the day you know two things,

4 after you have seen all the evidence, after you

5 have seen the plans and the videotapes and the

6 stories about Burger World, you know that this

7 defendant, this defendant, you found himself

8 killed 11 people. He murdered, slaughtered 11

9 innocents on August 7th, 1998. That's the

10 crime he is convicted of: Murder of 11

11 innocents in cold blood.

12 And you know that he's a danger. You

13 know that he's a danger to everyone he comes in

14 contact with because he said it, he told it to

15 the agents, he said he would do it again, and

16 he did it. He participated in the attack on

17 Officer Pepe and he attacked the guards that

18 came up to help him.

19 He's a calculating killer who wants

20 to kill again, and he will kill again. And

21 when he does, when he does hurt someone, maim

22 someone, kill someone again, you know what?

23 You know what, ladies and gentlemen? He will

24 still be from Pemba. He will still be from

25 Pemba. He still will have worked in Burger


8719


2 World and there will still be atrocities that

3 have been committed in Bosnia.

4 The only difference the next time,

5 the only difference the next time is there will

6 be a different victim, there will be a

7 different grieving family, there will be

8 someone else maimed, there will be someone else

9 killed. That's the only difference.

10 Khalfan Mohamed has killed and he

11 tried to kill again, and a life sentence for

12 Khalfan Mohamed is a death sentence for the

13 next guard in one of those prisons who makes a

14 mistake. That's the choice.

15 Now, you all said you could vote for

16 the death penalty where it was appropriate, and

17 there is no more appropriate circumstances than

18 this mass murderer who tried to kill a guard.

19 Stop Khalfan Mohamed's mission of murder, and

20 the only penalty that will do that, the only

21 penalty that addresses this crime and the

22 threat this defendant poses every day is the

23 death penalty.

24 It is not easy. It is not a

25 comfortable decision, but Khalfan Mohamed left



8720


2 you no choice.

3 Thank you.

4 THE COURT: Thank you, Mr. Garcia.

5 Ladies and gentleman, tomorrow the first order

6 of business will be the court's charge. You

7 should begin your deliberations midmorning

8 tomorrow. Have a pleasant evening. We are

9 adjourned until tomorrow morning.

10 (Adjourned to 9:30 a.m. on July 3,

11 2001)

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