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

                       UNITED STATES DISTRICT COURT
                      EASTERN DISTRICT OF VIRGINIA
                           Alexandria Division
         -vs-                      :     Case No. 1:01-cr-455
     ZACARIAS MOUSSAOUI,            :
                   Defendant.      :
                                         10:30 a.m. HEARING
                           February 6, 2006
                   Before:  Leonie M. Brinkema, Judge
    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

 1             NOTE:  The case is called to be heard at 10:45 a.m.
 2   in the presence of the jury panel as follows:
 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

 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

 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

 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

 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

 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

 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

 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

 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.

 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.

 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

 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

 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

 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

 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

 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:
19                            (REDACTED)

14                            (REDACTED)

 4                            (REDACTED)
10             NOTE:  The side-bar discussion is concluded;
11   whereupon the case continues before the potential jurors as
12   follows:
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         ------------------------------------------------
                   I certify that the foregoing is a true and
23        accurate transcription of my stenographic notes.
25                       Norman B. Linnell, RPR, CM, VCE