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

Other case documents: http://cryptome.org/usa-v-zm-cd.htm

                        UNITED STATES DISTRICT COURT
                            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
                        UNITED STATES DISTRICT JUDGE
                                  DAVID J. NOVAK, AUSA
                                   DAVID RASKIN, AUSA
                                  United States Attorney's Office
                                   2100 Jamieson Avenue
                                  Alexandria, VA 22314
                                   Assistant Federal Public Defender
                                  Office of the Public Defender
                                   One Capital Square
                                  830 East Main Street, Suite 1100
                                   Richmond, VA 23219
                                   KENNETH P. TROCCOLI
                                  ANNE M. CHAPMAN
                                   Assistants Federal Public Defender
                                  Office of the Federal Public
                                  1650 King Street
                                   Alexandria, VA 22314

 1   APPEARANCES:  (Cont'd.)
                                  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
 7                                 U.S. District Court, Fifth Floor
                                  401 Courthouse Square
 8                                 Alexandria, VA 22314

 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

 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

 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

 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

 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

 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

 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

 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

 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

 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.

 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.

 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

 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.)
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

 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

 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

 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.)
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.
                                       Anneliese J. Thomson