7 March 2006
Source: Digital transcript purchased from Exemplaris.com. Files digitally signed by reporter.
This is court docket item No. 1529.
Other trial transcripts: http://cryptome.org/usa-v-zm-dt2.htm
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division -------------------------------: : UNITED STATES OF AMERICA : : : -vs- : Case No. 1:01-cr-455 : : ZACARIAS MOUSSAOUI, : Defendant. : : -------------------------------: 10:30 a.m. HEARING JURY QUESTIONNAIRE PROCEEDINGS February 6, 2006 Before: Leonie M. Brinkema, Judge APPEARANCES: Robert A. Spencer, David J. Novak and David Raskin, Counsel for the United States Edward B. MacMahon, Alan H. Yamamoto, Gerald T. Zerkin, Kenneth P. Troccoli and Anne Chapman, Counsel for the Defendant The Defendant, Zacarias Moussaoui, in person 2 1 NOTE: The case is called to be heard at 10:45 a.m. 2 in the presence of the jury panel as follows: 3 JURY PANEL IN 4 THE CLERK: Criminal case 2001-455, the United 5 States of America versus Zacarias Moussaoui. 6 Will counsel please note their appearance for the 7 record. 8 MR. SPENCER: Good morning, Your Honor. Rob 9 Spencer, David Novak and David Raskin for the United States. 10 THE COURT: Good morning. 11 MR. ZERKIN: Good morning, Your Honor. Gerald 12 Zerkin, Edward MacMahon, Alan Yamamoto, Kenneth Troccoli and 13 Anne Chapman for the defense. 14 THE COURT: Good morning. 15 THE DEFENDANT: I want to be here. These people 16 are not my lawyer. I don't want them to represent me. They 17 are not my defense. 18 THE COURT: Mr. Moussaoui, I have asked you to not 19 speak. This is only for the jury to just see the attorneys-- 20 THE DEFENDANT: People have the right to know that 21 these people are not my defense. 22 THE COURT: Mr. Moussaoui-- 23 THE DEFENDANT: For the four year I have been 24 against these people to represent me. 25 THE COURT: Mr. Moussaoui, if you continue to speak 3 1 against the Court's orders, you will be removed from the 2 courtroom. 3 Would you please sit down and be quiet. 4 THE DEFENDANT: No. I don't want these people-- 5 THE COURT: All right, I would like the Marshals to 6 remove Mr. Moussaoui from the courtroom. 7 NOTE: The defendant is removed from the courtroom. 8 THE COURT: Ladies and gentlemen, thank you for 9 appearing this morning. As you probably know at this point, 10 you have been summonsed here to be considered for jury duty 11 in the case of the United States of America versus Zacarias 12 Moussaoui, also known as Shaqil, also known as Abu Khalid al 13 Sahrawi, who on April 22, 2005, pled guilty to three 14 conspiracies at issue in this case. 15 They are: Conspiracy to commit acts of terrorism 16 transcending national boundaries; conspiracy to destroy 17 aircraft; and conspiracy to use weapons of mass destruction 18 in connection with the September 11, 2001 attacks in New York 19 and Northern Virginia and the hijacking of four aircraft and 20 their crashes in New York, Pennsylvania and Virginia. Each 21 of these convictions expose Mr. Moussaoui to a possible 22 sentence of death. 23 It will be the duty of the jury whose selection 24 begins today to decide whether Mr. Moussaoui should be 25 sentenced to death or be sentenced to life imprisonment 4 1 without possibility of release. Based on Mr. Moussaoui's 2 guilty pleas, there are no other sentences possible for those 3 three conspiracies. 4 Obviously, deciding whether to recommend a sentence 5 of death is the most serious decision that a jury is ever 6 called upon to make in our legal system. The gravity of this 7 decision is reflected in the multi-step process set out in 8 the Federal Death Penalty Statute. 9 Just because a person is guilty of a capital crime, 10 that is a crime for which death is a possible penalty, does 11 not mean that person should be sentenced to death. Instead, 12 the jury must make specific factual findings about the 13 defendant and what he specifically did in order to impose a 14 death penalty. 15 In this case, the first finding is whether the 16 defendant's specific intentional conduct makes him death 17 eligible. More precisely, the jury will be asked to decide 18 whether the defendant intentionally participated in an act, 19 which the Government argues was his lying to agents after his 20 arrest on August 16, 2001, which directly resulted in the 21 deaths that occurred during the airplane hijackings and 22 crashes on September 11, 2001. 23 If the jury were to find that Mr. Moussaoui did 24 intentionally do such an act and that those deaths on 25 September 11 were a direct result of the act, the second 5 1 phase of the trial would involve the presentation and 2 consideration of evidence of aggravating and mitigating 3 factors, and the question of whether Mr. Moussaoui should be 4 sentenced either to life imprisonment without the possibility 5 of release or death. 6 Aggravating factors are facts about the defendant 7 or the crimes which the Government believes favor the death 8 penalty. Aggravating factors are of two types: Statutory 9 reasons that are set forth in the death penalty statute; and 10 non-statutory reasons, that is other reasons which are 11 drafted by the Government. 12 Mitigating factors are facts about the 13 circumstances of the crime or the defendant's role in it, or 14 about his background or character, which the defense believes 15 favor a sentence of life imprisonment without possibility of 16 release. 17 In determining the appropriate punishment, each 18 juror will have to consider the aggravating factors which 19 have been proven beyond a reasonable doubt, and any 20 mitigating factors that the jury believes exist, before 21 making a determination as to the appropriate punishment. 22 The jury itself does not actually impose the final 23 sentence. That will be the Court's responsibility, but it 24 must impose the sentence found appropriate by the jury. 25 Now, this is only an overview of the law applicable 6 1 to the jury's consideration of the death penalty. The jury 2 will receive much more detailed instructions from the Court 3 during the course of the proceedings. 4 Because this case will involve evidence about Al 5 Qaeda and the September 11 attacks on the World Trade Center 6 and Pentagon, the case has received a great deal of publicity 7 over the past few years. And in fact, there is a large 8 article about the case on the front page of the Washington 9 Post this morning. 10 I assume every one of you is aware of what happened 11 on September 11, 2001, and has watched or read extensive 12 media coverage about that day and has watched news reports or 13 read about Al Qaeda. And I expect many, if not all, of you 14 have heard or read something about this case and this 15 defendant. Such media exposure does not necessarily 16 disqualify you from being eligible to serve on the jury, but 17 it is obviously an issue we need to probe carefully. 18 The problem with pretrial exposure to information 19 about a defendant or issues in a case is simply this: 20 Persons on trial must be judged not on the basis of what is 21 in the news or popular media, but rather on the hard evidence 22 presented in the courtroom during the trial. 23 If the pretrial publicity to which you have been 24 exposed has caused you to form such strong opinions about the 25 defendant or issues in this case that you think you might not 7 1 be able to put those opinions aside entirely and listen to 2 and evaluate the trial evidence with an open mind, then you 3 must so advise the Court on the jury questionnaire that I 4 will soon describe. 5 Similarly, the death penalty is a very 6 controversial issue about which many Americans hold strong 7 views. Simply having thought about, or listened to or read 8 about the death penalty will not disqualify you from being a 9 juror in this case unless your views are so firmly set as to 10 make it difficult for you to evaluate this case on the 11 evidence presented during the trial and apply the law given 12 to you by the Court, even if you disagree with that law. 13 To help the lawyers and the Court select a jury 14 that can objectively listen to the evidence and decide the 15 case solely on the basis of the evidence produced in this 16 courtroom during the trial and within the law as the Court 17 explains it, we have prepared a questionnaire that you will 18 be asked to fill out. Your totally candid answers to the 19 questions in the questionnaire are essential to the 20 Government and Mr. Moussaoui receiving a fair sentencing 21 hearing. 22 To ensure that you feel comfortable answering these 23 questions honestly, I have determined that your identities 24 will not be revealed to any trial participant or to the 25 public. In other words, you will be an anonymous jury. Only 8 1 limited members of the court staff know your names. That is 2 why you have been given a four digit number as your 3 identifier. And it is very important that you hold on to 4 that four digit number. 5 Now, although some of the questions on the 6 questionnaire may appear to be of a personal nature, please 7 understand that the Court and the parties must learn enough 8 information about each juror's background and experiences to 9 select a fair and impartial jury. 10 Your cooperation is of vital importance. Please 11 answer each question as fully and completely as possible. 12 Your complete candor and honesty is necessary so that both 13 the prosecution and the defense will have a meaningful 14 opportunity to select an impartial jury. 15 You must answer all the questions to the best of 16 your ability. If you do not know the answer to a question, 17 simply write "I don't know." 18 If the question does not apply to you, then you can 19 write either "not applicable" or just an "N/A." 20 If you do not understand a question, just write 21 "don't understand." Do not ask court personnel to explain 22 the question. They are not permitted to do that. 23 Do not leave any question blank. It is important 24 that the answers be yours alone. 25 If you need more space for your responses or wish 9 1 to make further comments regarding any of your answers, 2 please use the explanation sheets at the end of the 3 questionnaire. Put the number of the question you are 4 answering on the explanation sheet before you write the 5 response or comment. 6 Please keep in mind that there are no right or 7 wrong answers, only complete and incomplete answers. 8 Complete answers are far more helpful than incomplete 9 answers. And remember, you are sworn to give true and 10 complete answers on all questions. 11 Unless the question states otherwise, the fact that 12 a particular question is asked does not imply that the 13 subject matter of the question is an issue in the case. As 14 you read the questions, you are not to draw any inferences 15 about the issues which must be decided in the case. 16 Do not write on the back of any page. Please print 17 or write legibly, and be sure to put your number on the upper 18 right-hand corner of each page. 19 When you have finished answering the questionnaire, 20 you must sign with your name. On that signature page, you 21 are affirming the accuracy of your answers. That page will 22 be removed by court staff and will not be shown to any party. 23 Now, part of the questionnaire includes a list of 24 all persons who may be called as witnesses to testify. You 25 must put your juror number on that witness list and return it 10 1 to the court staff with your questionnaire. You may not 2 disclose the name of any of the witnesses on that list to 3 anyone. 4 The court personnel will advise you when you may 5 leave once you have -- once they have collected your 6 questionnaire and the witness list from you. 7 Now, in addition, I want to make sure that no one 8 in the jury pool is a family member, close personal friend or 9 associate of any of the trial lawyers in this case or of 10 their staff. 11 So, at this point I will ask the lawyers to again 12 introduce themselves and where they are practicing or 13 located. The lawyers who are physically in the courtroom 14 today are all the lawyers who may be presenting a portion of 15 the trial. And they will also name their staff who you might 16 see in and out of the courtroom at various times bringing 17 them documents or whatever. 18 Mr. Spencer, we will start with the Government. 19 MR. SPENCER: Thank you, Your Honor. My name is 20 Rob Spencer. I am an Assistant United States Attorney in the 21 Alexandria, Virginia office here. 22 MR. RASKIN: Good morning. My name is David 23 Raskin. I am an Assistant United States Attorney in the 24 Southern District of New York. My office is in New York 25 City. 11 1 MR. NOVAK: Good morning, folks. My name is Dave 2 Novak, I am an Assistant United States Attorney also in the 3 Eastern District Virginia. My offices are normally in 4 Richmond. 5 MR. SPENCER: In addition, during the trial we have 6 several staff members who are helping us: John Van 7 Lonkhuyzen, Greg Miller from the Department of Justice in 8 Washington; Gerard Francisco from the office in the Southern 9 District of New York; and Joel Alter, Lynn Johnson and Nancy 10 Kramp, all from the Alexandria office here. 11 Thank you. 12 THE COURT: All right, Mr. Zerkin. 13 MR. ZERKIN: Thank you, Judge. 14 Good morning. I am Joel Zerkin. I am an Assistant 15 Federal Public Defender in the Eastern District of Virginia. 16 I am located in our Richmond office. 17 MR. MacMAHON: Good morning. My name is Edward 18 MacMahon. I am a private attorney who is acting as a court- 19 appointed counsel in this case. My office is in Middleburg, 20 Virginia. I practice here and in Washington, D.C. 21 MR. YAMAMOTO: Good morning. My name is Alan 22 Yamamoto. I am a sole practitioner in Alexandria. 23 MR. TROCCOLI: Good morning. My name is Kenneth 24 Troccoli, I am an Assistant Federal Public Defender here in 25 Alexandria. 12 1 MS. CHAPMAN: Good morning. My name is Anne 2 Chapman, Assistant Federal Public Defender also in 3 Alexandria. 4 MR. ZERKIN: In addition, you may see staff members 5 who are assisting us of Pamela Bishop, Sandra Schidlo and 6 Gerylee Baron. 7 Thank you. 8 THE COURT: All right. So, ladies and gentlemen, 9 if you think you recognize any of those names or you think 10 you might know, have ever heard of or have any relation to 11 any of the trial attorneys, make sure you include that in 12 your questionnaire so that we know that. 13 Now, after you complete the questionnaire, the next 14 step will be for some of you to return to the courthouse for 15 more specific individual questioning by the Court. The first 16 of these individual questioning sessions begins on Wednesday, 17 February 15, 2006, at 9:30 a.m. So, you are all free to go 18 to work or otherwise keep your normal schedule until your 19 next time to report. 20 Individual questioning will continue daily starting 21 on the 15th until approximately 85 jurors are found to be 22 eligible. 23 Now, to find out whether you have to return for 24 individual questioning and, if so, when, you must call the 25 jury information number that was given to you by the court 13 1 staff. It is the same one I believe you have been calling in 2 on. But whatever it is, they will give you that phone 3 number. 4 If you are asked to return for individual 5 questioning, you should expect to be at the courthouse that 6 day for up to four hours. You will have to report either for 7 a morning session at 9:30 or an afternoon session that will 8 start at 2 o'clock. 9 Immediately after the individual questioning 10 session, you will be told whether you have been excused or 11 need to return for the final round of jury selection, which 12 is scheduled to start on Monday, March 6, 2006, at 10:00 a.m. 13 That would be in a different courtroom, in courtroom 700. 14 Now, on March 6 ultimately 18 of you will be chosen 15 to hear this case, although only 12 of you will actually 16 deliberate and issue the final decision. The other six are 17 alternates. 18 We use alternates in long trials to be sure that if 19 someone gets sick or for some other reason cannot continue as 20 a juror, we are sure to have the 12 jurors the law requires 21 make the decision at issue in this trial. No one is 22 designated an alternate until just before deliberations 23 begin. 24 If you are selected on March 6 to be one of the 18 25 jurors, you will need to remain at the courthouse all day 14 1 because we expect opening statements and some witness 2 testimony to start Monday afternoon. Lunch will be provided 3 for you, so do not worry about bringing food unless you have 4 special food needs. 5 After Monday, March 6, the trial will be held from 6 9:30 a.m. to 5:30 p.m. Mondays through Thursdays. If we stay 7 on schedule, we will not hold court on Fridays until the jury 8 begins its deliberations. I will try to give you several 9 days notice if we plan to hold court on Fridays. 10 Each phase of this trial is expected to last 11 several weeks, which is why you were initially advised that 12 the trial could go into late May. However, I will have a 13 better time estimate for you after the trial begins. 14 Obviously, we need jurors who can serve for the entire trial. 15 From today on, until you are notified that you have 16 been excused from this case, you must avoid reading, 17 listening to or in any other respect being exposed to 18 anything about this case, the attacks on September 11, 2001, 19 or the death penalty. And that includes not reading the 20 article in today's Post. And when you are watching the 21 television, watch out for those scrawls underneath and the 22 banners above. Anything that relates to this case, you must 23 immediately avoid. 24 You may not investigate any of the facts related to 25 this case or view the Court's website which has been set 15 1 aside in part for this case. You are not to discuss or 2 communicate about this case or any of the above issues with 3 anyone. 4 I have issued an order that prohibits anyone, 5 including members of the media and the general public, from 6 trying to contact, interview, identify or in any way 7 communicate with potential jurors. If you believe someone 8 has tried to do so, call the Court immediately. 9 Lastly, the duty some of you will be asked to 10 perform, that is to sit in judgment of another human being 11 and decide whether he should live or die, is an awesome 12 responsibility not to be taken lightly. You must have the 13 moral integrity to follow the law even if you disagree with 14 it, and you must find the facts fairly even if you do not 15 personally like the conclusion to which they lead. You must 16 be able to withstand any bias, prejudice or sympathy for 17 either side of this case and any public opinion. 18 You have seen Mr. Moussaoui's behavior this 19 morning. If you believe that that behavior has affected you 20 in any way such that you could not reach a fair and just 21 decision in this case, you need to make a clear statement of 22 that on your questionnaire. 23 You must agree that your only goal as a juror in 24 this case is to reach a fair and just decision. That is what 25 our legal system expects of its jurors, and that is what this 16 1 Court expects from you. 2 Now, I will ask the jurors to stand at this time 3 and take an affirmation. And by taking this affirmation, you 4 are promising that you will answer all questions on the 5 questionnaire as honestly as you can and that you will follow 6 the Court's instructions that have just been given to you, 7 particularly as to avoiding any media or reading about this 8 case. 9 If you would all please stand at this time. 10 THE CLERK: Please raise your right hand and respond 11 after the affirmation. 12 Do you affirm that you will truthfully answer all 13 questions asked of you by the Court on the jury questionnaire 14 and follow all the Court's instructions under penalty of law? 15 NOTE: The potential jurors respond affirmatively. 16 THE COURT: Thank you, ladies and gentlemen. Go 17 back to your seats. 18 Now, counsel, for the record, there are several 19 jurors on this list for the 10:30 session who either came off 20 the 10 o'clock list or who have come on from some other list 21 that you might want to have so you have a complete record of 22 who is here at this time. 23 Added to this list from the 10 o'clock session are 24 four jurors. Their numbers are 0049, 0146, 0168 and 0179. 25 In addition, we had two jurors scheduled for the 17 1 afternoon who for scheduling purposes came earlier. So, 2 juror 0446 is now here, and you should remove that juror's 3 number from your 2 o'clock list. And juror 0821 is here, and 4 you should remove that juror from your 2:30 list. 5 And the following jurors who were scheduled to be 6 here at 10:30 are not here. And these are 0250, 0256, 0260, 7 0276, 0281, 0286, 0290, 0298, 0303, 0329, 0334, 0344, 0346, 8 0351, 0381, 0408, 0413. 9 Counsel, if you would approach the bench at this 10 time. 11 NOTE: A side-bar discussion is had between the 12 Court and counsel out of the hearing of the potential jurors 13 as follows: 14 AT SIDE BAR 15 16 17 18 19 (REDACTED) 20 21 22 23 24 25 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (REDACTED) 15 16 17 18 19 20 21 22 23 24 25 19 1 2 3 4 (REDACTED) 5 6 7 8 9 10 NOTE: The side-bar discussion is concluded; 11 whereupon the case continues before the potential jurors as 12 follows: 13 BEFORE THE JURY PANEL 14 THE COURT: All right, ladies and gentlemen, I am 15 now going to recess court. You will remain in the courtroom. 16 The court staff will distribute the questionnaires we 17 discussed to you, and then the courtroom will be turned over 18 to you-all to fill out the questionnaires. 19 Thank you. We will recess court until 2 o'clock. 20 NOTE: The hearing was concluded at 11:12 a.m. 21 ------------------------------------------------ 22 I certify that the foregoing is a true and 23 accurate transcription of my stenographic notes. 24 _________________________________ 25 Norman B. Linnell, RPR, CM, VCE