7 March 2006
Source: Digital transcript purchased from Exemplaris.com. Files digitally signed by reporter.
This is court docket item No. 1528.
Other trial transcripts: http://cryptome.org/usa-v-zm-dt2.htm
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1UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA, . Criminal No. 1:01cr455 . vs. . Alexandria, Virginia . February 6, 2006 ZACARIAS MOUSSAOUI, . 10:00 a.m. a/k/a Shaqil, a/k/a . Abu Khalid al Sahrawi, . . Defendant. . 10:00 Session . . . . . . . . . . . . TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA DAVID J. NOVAK, AUSA DAVID RASKIN, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 FOR THE DEFENDANT: GERALD THOMAS ZERKIN Assistant Federal Public Defender Office of the Public Defender One Capital Square 830 East Main Street, Suite 1100 Richmond, VA 23219 and KENNETH P. TROCCOLI ANNE M. CHAPMAN Assistants Federal Public Defender Office of the Federal Public Defender 1650 King Street Alexandria, VA 22314 (APPEARANCES CONT'D. ON FOLLOWING PAGE) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 2 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: EDWARD B. MAC MAHON, ESQ. P.O. Box 903 3 107 East Washington Street Middleburg, VA 20118 4 and ALAN H. YAMAMOTO, ESQ. 5 643 South Washington Street Alexandria, VA 22314-3032 6 OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR 7 U.S. District Court, Fifth Floor 401 Courthouse Square 8 Alexandria, VA 22314 (703)299-8595 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 P R O C E E D I N G S 2 (Defendant present.) 3 THE CLERK: Criminal Case 2001-455, United States of 4 America v. Zacarias Moussaoui. Counsel, please note their 5 appearance for the record. 6 MR. SPENCER: Good morning, Your Honor. Rob Spencer, 7 David Novak, David Raskin for the United States. 8 THE COURT: Good morning. 9 MR. ZERKIN: Good morning. Gerald Zerkin, Ed MacMahon, 10 Alan Yamamoto, Ken Troccoli, and Anne Chapman for the defense. 11 THE COURT: Good morning. 12 MR. ZERKIN: Thank you. 13 THE DEFENDANT: I want to be heard. 14 THE COURT: Mr. Moussaoui, this is not -- 15 THE DEFENDANT: I want to be heard by this Court before 16 the proceedings start. 17 THE COURT: All right, Mr. Moussaoui, please have a 18 seat. This is not a time for you to be speaking. 19 THE DEFENDANT: These lawyers are not my lawyers. 20 THE COURT: Mr. Moussaoui -- 21 THE DEFENDANT: I have said for the last four years -- 22 THE COURT: All right, Mr. Moussaoui -- 23 THE DEFENDANT: -- that I don't want to be represented 24 by Zerkin, MacMahon, Yamamoto, and Dunham. 25 THE COURT: The marshals are asked to remove 4 1 Mr. Moussaoui. 2 THE DEFENDANT: Everybody here know that these people do 3 not represent me. 4 THE COURT: Mr. Moussaoui, please go with the marshals. 5 THE DEFENDANT: No, I don't want to give you any excuse 6 to pretend that I make any aggressive move, so I'm moving. 7 They are not my lawyer. I don't want them to represent 8 me. I'm al Qaeda; they are American; they are my enemies. They 9 have nothing to do with these people. This trial is a circus. 10 (Defendant removed from courtroom.) 11 THE COURT: Ladies and gentlemen, thank you for 12 appearing this morning. As you obviously know, you have been 13 summonsed here to be considered for jury duty on the case of 14 United States of America v. Zacarias Moussaoui, also known as 15 Shaqil, also known as Abu Khalid al Sahrawi, who on April 22, 16 2005, pled guilty to three conspiracies at issue in this trial: 17 They are conspiracy to commit acts of terrorism 18 transcending national boundaries; conspiracy to destroy aircraft; 19 and conspiracy to use weapons of mass destruction in connection 20 with the September 11, 2001 attacks in New York and Northern 21 Virginia and the hijacking of four aircraft and their crashes in 22 New York, Pennsylvania, and Virginia. Each of those three 23 convictions expose Mr. Moussaoui to a possible sentence of death. 24 It will be the duty of the jury whose selection begins 25 today to decide whether Mr. Moussaoui should be sentenced to death 5 1 or be sentenced to life imprisonment without possibility of 2 release. Based on Mr. Moussaoui's guilty pleas, there are no 3 other sentences possible for those three conspiracies. Obviously, 4 deciding whether to recommend a sentences of death is the most 5 serious decision that a jury is ever called upon to make in our 6 legal system. The gravity of this decision is reflected in the 7 multi-step process set out in the Federal Death Penalty Statute. 8 Just because a person is guilty of a capital crime, that 9 is, a crime for which death is a possible penalty, does not mean 10 that person should be sentenced to death. Instead, the jury must 11 make specific factual findings about the defendant and what he 12 specifically did in order to impose a death penalty. 13 In this case, the first finding is whether the 14 defendant's specific intentional conduct makes him death eligible. 15 More precisely, the jury will be asked to decide whether the 16 defendant intentionally participated in an act, which the 17 government argues was his lying to agents after his arrest on 18 August 16, 2001, which directly resulted in the deaths that 19 occurred during the airplane hijackings and crashes on September 20 11, 2001. 21 If the jury were to find that Mr. Moussaoui did 22 intentionally do such an act and that those deaths on September 11 23 were a direct result of that act, the second phase of the trial 24 would involve the presentation and consideration of evidence of 25 aggravating and mitigating factors and the question of whether 6 1 Mr. Moussaoui should be sentenced either to life imprisonment 2 without the possibility of release or to death. 3 Aggravating factors are facts about the defendant or the 4 crimes which the government believes favor the death penalty. 5 Aggravating factors are of two types -- statutory reasons that are 6 set forth in the death penalty statute, and non-statutory, that 7 is, other reasons which are drafted by the government. 8 Mitigating factors are facts about the circumstances of 9 the crime or the defendant's role in it or about his background or 10 character which the defense believes favor a sentence of life 11 imprisonment without possibility of release. 12 In determining the appropriate punishment, each juror 13 will have to consider the aggravating factors which have been 14 proven beyond a reasonable doubt and any mitigating factors that 15 the juror believes exist before making a determination as to the 16 appropriate punishment. 17 The jury itself does not actually impose the final 18 sentences. That will be the Court's responsibility, but it must 19 impose the sentence found appropriate by the jury. 20 This is only an overview of the law applicable to the 21 jury's consideration of the death penalty. The jury will receive 22 much more detailed instructions from the Court during the course 23 of these proceedings. 24 Because this case will involve evidence about al Qaeda 25 and the September 11 attacks on the World Trade Center and the 7 1 Pentagon, the case has received a great deal of publicity over the 2 past few years. In fact, this morning on the front page of the 3 Washington Post, there is a large article about the case. 4 I assume every one of you is aware of what happened on 5 September 11, 2001, and has watched or read extensive media 6 coverage about that day and has watched news reports or read about 7 al Qaeda, and I expect many, if not all, of you have heard or read 8 something about this case and this defendant. 9 Such media exposure does not necessarily disqualify you 10 from being eligible to serve on the jury, but it is obviously an 11 issue we need to probe carefully. The problem with pretrial 12 exposure to information about a defendant or issues in a case is 13 simply this: Persons on trial must be judged not on the basis of 14 what is in the news or popular media, but rather on the hard 15 evidence presented in the courtroom during the trial. 16 If the pretrial publicity to which you have been exposed 17 has caused you to form such strong opinions about the defendant or 18 issues in the case such that you think you might not be able to 19 put those opinions aside entirely and listen to and evaluate the 20 trial evidence with an open mind, then you must so advise the 21 Court on the jury questionnaire that I will soon describe. 22 Similarly, the death penalty is a very controversial 23 issue about which many Americans hold strong views. Simply having 24 thought about or listened to or read about the death penalty will 25 not disqualify you from being a juror in this case unless your 8 1 views are so firmly set as to make it difficult for you to 2 evaluate this case on the evidence presented during the trial and 3 apply the law given to you by the Court, even if you disagree with 4 the law. 5 To help the lawyers and the Court select a jury that can 6 objectively listen to the evidence and decide the case solely on 7 the basis of the evidence produced in this courtroom during the 8 trial and within the law as the Court explains it to you, we have 9 prepared a questionnaire that you will be asked to fill out this 10 morning. Your totally candid answers to the questions in the 11 questionnaire are essential to the government and Mr. Moussaoui 12 receiving a fair sentencing hearing. 13 To ensure that you feel comfortable in answering these 14 questions honestly, I have determined that your identities will 15 not be revealed to any trial participant or to the public. In 16 other words, you will be an anonymous jury. Only limited members 17 of the court staff know your names. That is why you have been 18 given a four-digit number as your identifier. 19 Although some of the questions may appear to be of a 20 personal nature, please understand that the Court and the parties 21 must learn enough information about each juror's background and 22 experiences to select a fair and impartial jury. Your cooperation 23 is of vital importance. Please answer each question as fully and 24 completely as possible. Your complete candor and honesty is 25 necessary so that both the prosecution and the defense will have a 9 1 meaningful opportunity to select an impartial jury. 2 You must answer all the questions to the best of your 3 ability. If you do not know the answer to a question, write, "I 4 don't know." If the question does not apply to you, you can write 5 "not applicable" or "N/A," and if you do not understand a 6 question, just write "don't understand." 7 Do not ask court personnel to explain the question. 8 They are not permitted to do that. 9 It is important that you not leave any question blank, 10 and it is very important that the answers be yours alone. If you 11 need more space for your responses or you want to make further 12 comments regarding any of your answers, please use the explanation 13 sheets at the end of the questionnaire. Put the number of the 14 question you are answering on the explanation sheet before you 15 write the response or comment. 16 Please keep in mind that there are no right or wrong 17 answers, only complete and incomplete answers. Complete answers 18 are far more helpful than incomplete answers. Remember, you'll be 19 sworn to give truthful and complete answers to all questions. 20 Unless the question states otherwise, the fact that a 21 particular question is asked does not imply that the subject 22 matter of the question is an issue in the case. As you read the 23 questions, you are not to draw any inferences about the issues 24 which must be decided in this case. 25 Do not write on the back of any page. Please print or 10 1 write legibly, and be sure to put your juror number, that is, that 2 four-digit number you were given this morning, on the upper right 3 corner of each and every page. 4 When you have finished answering the questionnaire, you 5 must sign with your name. And if you note, on that signature 6 page, you are affirming the accuracy of your answers. That page 7 will be removed by court staff and will not be shown to any party. 8 Part of the questionnaire includes a list of all persons 9 who may be called as witnesses to testify. You must put your 10 juror number on that witness list and return it to the court staff 11 with your questionnaire. You may not disclose the names of any of 12 those witnesses to anyone. 13 The court personnel will advise you when you have -- 14 when you may leave once you have collected -- once they have 15 collected your questionnaire and the witness list from you. 16 After you complete the questionnaire, the next step will 17 be for some of you to return to the courthouse for more specific 18 individual questioning by the Court. The first of these 19 individual questioning sessions begins on Wednesday, February 15, 20 2006, at 9:30 a.m., so until February 15, you are all free to go 21 to work or otherwise keep your normal schedule. 22 Individual questioning will continue on a daily basis 23 until approximately 85 jurors are found eligible. To find out 24 whether you have to return for individual questioning, and if you 25 do have to return, when, you must call the jury information number 11 1 given to you by the court staff. If you are asked to return for 2 individual questioning, you should expect to be at the courthouse 3 that day for up to four hours. You will have to report either for 4 a morning session at 9:30 a.m. or an afternoon session at 2 p.m., 5 and again, you will be notified about the specific time and date 6 on that phone answering system. 7 Now, immediately after the individual questioning 8 session, you will be told whether you have been excused or need to 9 return for the final round of jury selection, which is scheduled 10 to start at 10 a.m. on Monday, March 6, 2006, in courtroom 700. 11 On March 6, ultimately, 18 of you will be chosen to hear 12 this case, although only 12 of you will actually deliberate and 13 issue the final decision. The other six members of the jury are 14 alternates. We use alternates in long trials to be sure that if 15 someone gets sick or for some other reason cannot continue as a 16 juror, we are sure to have the 12 jurors the law requires make the 17 decision at issue in this trial. No one is designated an 18 alternate until just before deliberations begin. 19 If you are selected on March 6 to be one of the 18 20 jurors, you will need to remain at the courthouse all day because 21 we expect opening statements and some witness testimony to start 22 Monday afternoon. Lunch will be provided for you, so do not worry 23 about bringing food unless you have special food needs. 24 After March 6, which is a Monday, the trial will be held 25 from 9:30 a.m. to 5:30 p.m. Mondays through Thursdays. If we stay 12 1 on schedule, we will not hold court on Fridays until the jury 2 begins its deliberations. I will try to give you several days' 3 notice if we plan to hold court on Friday. 4 Each phase of this trial is expected to last several 5 weeks, which is why you were initially advised that the trial 6 could go into late May. However, I will have a better time 7 estimate for you after the trial begins. Obviously, we need 8 jurors who can serve for the entire trial. 9 From today on, until you are notified that you have been 10 excused from this case, you must avoid reading, listening to, or 11 in any other respect being exposed to anything about this case, 12 the attacks on September 11, or the death penalty. And that 13 includes today's Washington Post. It also includes those banners 14 and those crawl statements that you see on the news. The more you 15 can stay away from the news, the better while this case -- until 16 you know your status in this case. 17 You may not investigate any of the facts related to this 18 case or view the court's website that has been established for 19 this case. You are not to discuss or communicate about this case 20 or any of the above issues with anyone. 21 I have issued an order that prohibits anyone, including 22 members of the media and the general public, from trying to 23 contact, interview, identify, or in any way communicate with 24 potential jurors. If you believe someone has tried to do so, you 25 are to call the Court immediately. 13 1 Lastly, the duty some of you will be asked to perform -- 2 to sit in judgment of another human being and decide whether he 3 should live or die -- is an awesome responsibility not to be taken 4 lightly. You must have the moral integrity to follow the law even 5 if you disagree with it, and you must find the facts fairly even 6 if you do not personally like the conclusion to which they lead. 7 You must be able to withstand any bias, prejudice, or 8 sympathy for either side of this case, and any public opinion. 9 You also this morning were exposed to some behavior by 10 Mr. Moussaoui. I want to make sure that if any of you feel that 11 that outburst or the way he conducted himself might affect the way 12 in which you would go about judging this case, you need to clearly 13 put that statement on the juror questionnaire. 14 You must agree that your only goal as a juror in this 15 case is to reach a fair and just decision. That is what our legal 16 system expects of its jurors, and that is what this Court expects 17 from you. 18 Now, I will have all the jurors stand at this time, and 19 you will be given an oral affirmation under which you are 20 promising to answer all of the questions in the juror 21 questionnaire as honestly as you can to the best of your ability, 22 and you also by taking this affirmation are promising that you 23 will do the best you can to comply with my direction about 24 avoiding any media coverage or discussion of this case with 25 anyone. 14 1 And the clerk will now administer that affirmation to 2 you. Please stand. 3 (Jury Panel affirmed.) 4 THE COURT: Thank you. Have a seat, ladies and 5 gentlemen. 6 Counsel, is there anything you want to bring to my 7 attention at the bench that we need to further discuss with the 8 jury? 9 MR. SPENCER: No, Your Honor. 10 THE COURT: All right. Mr. Zerkin? 11 MR. ZERKIN: No, Your Honor. 12 THE COURT: All right. Then once again, ladies and 13 gentlemen, I thank you for appearing today. I'm now going to have 14 the Court stand in recess. You need to remain in the courtroom to 15 work with court staff on the juror questionnaire. 16 And, counsel, just for your records, the jurors who did 17 not appear today in this session, some of you might want to keep 18 track, the following jurors did not report to the 10:00 session. 19 I don't know if any of them are in the 10:30 or later in the 20 afternoon. They are Jurors 0026, 0047, 0049, 0061, 0072, 0077, 21 0083, 0113, 0146, 0166, 0167, 0168, 0179, 0185, 0188, 0195, 0198. 22 I also want to make sure, counsel, that there is no 23 objection to 0332 from the 10:30 list having been excused, that 24 is, the 0 -- that is the juror who's -- the government had an 25 issue about, and I believe defense counsel agreed that 0332 could 15 1 be excused. Correct? 2 MR. ZERKIN: I believe that's right, Your Honor. 3 THE COURT: All right. Did you-all want to approach the 4 bench for a second? 5 MR. ZERKIN: Yes, if we could, Judge. 6 THE COURT: Yes, please do. 7 (Bench conference on the record.) 8 (LINES 8 THROUGH 20 REDACTED.) 9 10 11 12 13 14 15 16 17 18 19 20 21 (End of bench conference.) 22 THE COURT: Ladies and gentlemen, before we recess, I 23 did want you to be sure that you know who the lawyers are who 24 you'll be seeing in court throughout this trial, and also, the 25 lawyers would like to name the various staff people working with 16 1 them on the case. 2 As you are answering your jury questionnaire, if you 3 think you know in any business or personal capacity any of the 4 trial counsel or their staff, you need to let us know on the 5 questionnaire. 6 Mr. Spencer will start with the government. 7 MR. SPENCER: Yes, thank you, Your Honor. I'm Rob 8 Spencer. I'm an assistant U.S. attorney. 9 MR. RASKIN: David Raskin. I'm also an assistant United 10 States attorney. 11 MR. NOVAK: Good morning. I'm David Novak. I'm also an 12 assistant United States attorney. 13 THE COURT: And, Mr. Spencer, you're located here in 14 Alexandria. 15 MR. SPENCER: Yes. 16 THE COURT: And your colleagues are located where? 17 MR. SPENCER: Mr. Raskin is from the Southern District 18 of New York, and Mr. Novak is from this district, but his home 19 office is in Richmond. 20 THE COURT: All right. Do you want to name any staff 21 members who the jury might see during the course of the trial or 22 who would work on this case with you? 23 MR. SPENCER: Thank you, Your Honor. John Van 24 Lonkhuyzen, who is an attorney from the Department of Justice in 25 Washington; Gerard Francisco, who's a legal assistant from the 17 1 Southern District of New York; Greg Miller, who is a technical 2 specialist from Washington, D.C., Department of Justice; Joel 3 Alter, who works in our office here in Alexandria; and Lynn 4 Johnson and Nancy Kramp, who are also staff people from our office 5 in Alexandria. 6 THE COURT: Thank you, Mr. Spencer. 7 All right, Mr. Zerkin, do you want to introduce your 8 team? 9 MR. ZERKIN: Thank you, Your Honor. 10 Good morning. Gerald Zerkin. I'm an assistant federal 11 public defender. I'm located usually in our Richmond office. 12 MR. MAC MAHON: Good morning, ladies and gentlemen. My 13 name is Edward MacMahon. I'm a private attorney, and my office is 14 in Middleburg, Virginia. 15 MR. YAMAMOTO: Good morning. My name is Alan Yamamoto. 16 I'm a sole practitioner in Alexandria, Virginia. 17 MR. TROCCOLI: Good morning. My name is Kenneth 18 Troccoli. I'm an assistant federal public defender in Alexandria, 19 Virginia. 20 MS. CHAPMAN: Good morning. My name is Anne Chapman. 21 I'm an assistant federal public defender in Alexandria. 22 MR. ZERKIN: The staff members who will be working with 23 us and who you would see in the courtroom would be three 24 paralegals: Pamela Bishop, Sandra Schidlo, and Gerylee Baron, all 25 of whom are working with the Federal Public Defender's Office or 18 1 with the defense team in general. Thank you. 2 THE COURT: All right, counsel, anything further? 3 MR. ZERKIN: That's all. 4 THE COURT: If not, then we'll recess court and allow 5 the jury to begin filling out their questionnaires. And once 6 again, thank you for appearing today, ladies and gentlemen. 7 (Which were all the proceedings 8 had at this time.) 9 10 CERTIFICATE OF THE REPORTER 11 I certify that the foregoing is a correct transcript of the 12 record of proceedings in the above-entitled matter. 13 14 15 Anneliese J. Thomson 16 17 18 19 20 21 22 23 24 25