7 March 2006
Source: Digital transcript purchased from Exemplaris.com. Files digitally signed by reporter.
This is court docket item No. 1530.
Other trial transcripts: http://cryptome.org/usa-v-zm-dt2.htm
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11 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA 2 ALEXANDRIA DIVISION 3 UNITED STATES OF AMERICA, . Criminal No. 1:01cr455 . 4 vs. . Alexandria, Virginia . February 6, 2006 5 ZACARIAS MOUSSAOUI, . 2:00 p.m. a/k/a Shaqil, a/k/a . 6 Abu Khalid al Sahrawi, . . 7 Defendant. . 2:00 Session . 8 . . . . . . . . . . . 9 TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA 10 UNITED STATES DISTRICT JUDGE 11 APPEARANCES: 12 FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA DAVID J. NOVAK, AUSA 13 DAVID RASKIN, AUSA United States Attorney's Office 14 2100 Jamieson Avenue Alexandria, VA 22314 15 FOR THE DEFENDANT: GERALD THOMAS ZERKIN 16 Assistant Federal Public Defender Office of the Public Defender 17 One Capital Square 830 East Main Street, Suite 1100 18 Richmond, VA 23219 and 19 KENNETH P. TROCCOLI ANNE M. CHAPMAN 20 Assistant Federal Public Defenders Office of the Federal Public 21 Defender 1650 King Street 22 Alexandria, VA 22314 23 (APPEARANCES CONT'D. ON FOLLOWING PAGE) 24 (Pages 1 - 18) 25 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 2 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., 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. Will counsel please note their 5 appearance for the record. 6 MR. SPENCER: Good afternoon, Your Honor. Rob Spencer, 7 David Novak, and David Raskin for the United States. 8 THE COURT: Good afternoon. 9 MR. ZERKIN: Good afternoon, Judge. Gerald Zerkin, Ed 10 MacMahon, Alan Yamamoto, Ken Troccoli, and Anne Chapman for the 11 defense. 12 THE COURT: All right. 13 THE DEFENDANT: No, they are not for my defense. I 14 oppose these three lawyers -- Zerkin, MacMahon, Yamamoto -- and 15 these people. They are not my defense. 16 THE COURT: Mr. Moussaoui -- 17 THE DEFENDANT: I will testify. I will take the stand 18 and tell the truth. 19 THE COURT: For the third time, Mr. Moussaoui -- 20 THE DEFENDANT: Everybody know now that I will testify 21 of the entire truth that I know. 22 THE COURT: Mr. Moussaoui, you have been asked by the 23 Court before not to speak. This is not your opportunity. Now, 24 would you please sit down? 25 THE DEFENDANT: For four years, I have no opportunity to 4 1 oppose. 2 THE COURT: I will ask the marshals to remove 3 Mr. Moussaoui from the court yet again. 4 THE DEFENDANT: This is pure tyrany. I will take the 5 stand -- 6 THE COURT: Mr. Moussaoui -- 7 THE DEFENDANT: -- and I will testify of the entire 8 truth. 9 Nobody can not say now that they don't know that I want 10 to testify. I will take the stand, and I will say the truth that 11 I know. 12 And this defense is a fraud. This is not my defense. 13 It is an entire fraud. They are lying from top to end. 14 THE COURT: Ladies and gentlemen, thank you for 15 appearing this afternoon. 16 (Defendant removed from courtroom.) 17 THE COURT: As you may already have determined -- found 18 out, you have been summonsed here today to be considered for jury 19 duty in the case of The United States of America v. Zacarias 20 Moussaoui, also known as Shaqil, also known as Abu Khalid al 21 Sahrawi, who on April 22, 2005, pled guilty to three conspiracies 22 at issue in this trial: 23 First, conspiracy to commit acts of terrorism 24 transcending national boundaries; second, conspiracy to destroy 25 aircraft; and third, conspiracy to use weapons of mass destruction 5 1 in connection with the September 11, 2001 attacks in New York and 2 Northern Virginia and the hijacking of four aircraft and their 3 crashes in New York, Pennsylvania, and Virginia. Each of these 4 three convictions exposes Mr. Moussaoui to a possible sentence of 5 death. 6 It will be the duty of the jury whose selection begins 7 today to decide whether Mr. Moussaoui should be sentenced to death 8 or be sentenced to life imprisonment without possibility of 9 release. Based on Mr. Moussaoui's guilty pleas, there are no 10 other sentences possible for those three conspiracies. Obviously, 11 deciding whether to recommend a sentence of death is the most 12 serious decision that a jury is ever called upon to make in our 13 legal system. The gravity of this decision is reflected in the 14 multi-step process set out in the Federal Death Penalty Statute. 15 Just because a person is guilty of a capital crime, that 16 means a crime for which death is a possible penalty, does not mean 17 that person should be sentenced to death. Instead, the jury must 18 make specific factual findings about the defendant and what he 19 specifically did in order to impose a death penalty. 20 In this case, the first finding is whether the 21 defendant's specific intentional conduct makes him death eligible. 22 More precisely, the jury will be asked to decide whether the 23 defendant intentionally participated in an act, which the 24 government argues was his lying to agents after his arrest on 25 August 16, 2001, which directly result in the deaths that occurred 6 1 during the airplane hijackings and crashes on September 11, 2001. 2 If the jury were to find that Mr. Moussaoui did 3 intentionally do such an act and that those deaths on September 11 4 were a direct result of that act, the second phase of the trial 5 would involve the presentation and consideration of evidence of 6 aggravating and mitigating factors, and the question of whether 7 Mr. Moussaoui should be sentenced either to life imprisonment 8 without the possibility of release or death. 9 Aggravating factors are facts about the defendant or the 10 crime which the government believes favor the death penalty. 11 Aggravating factors are of two types. There are statutory reasons 12 that are set forth in the death penalty statute and non-statutory, 13 that is, other reasons which are drafted by the government. 14 Mitigating factors are facts about the circumstances of 15 the crime or the defendant's role in it or about his background or 16 character which the defense believes favor a sentence of life 17 imprisonment without possibility of release. 18 In determining the appropriate punishment, each juror 19 will have to consider the aggravating factors which have been 20 proven beyond a reasonable doubt and any mitigating factors that 21 the juror believes exist before making a determination as to the 22 appropriate punishment. The jury itself does not actually impose 23 a final 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 to 7 1 the jury's consideration of the death penalty. The jury will 2 receive much more detailed instructions from the Court during the 3 course of the proceedings. 4 Because this case will involve evidence about al Qaeda 5 and the September 11 attacks on the World Trade Center and the 6 Pentagon, the case has received a great deal of publicity over the 7 past few years, and, in fact, there's a front page article on 8 today's Washington Post, and there is CNN and other coverage of 9 this case at this point. 10 I assume every one of you is aware of what happened on 11 September 11, 2001, and has watched or read extensive media 12 coverage about that day and has watched news reports or read about 13 al Qaeda, and I expect many, if not all, of you have heard or read 14 something about this case and the defendant. Such media exposure 15 does not necessarily disqualify you from being eligible to serve 16 on the jury, but it is obviously an issue we need to probe 17 carefully. 18 The problem with pretrial exposure to information about 19 a defendant or issues in a case is simply this: Persons on trial 20 must be judged not on the basis of what is in the news or popular 21 media, but rather on the hard evidence presented in the courtroom 22 during the trial. 23 If the, 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 the case that you think you might not be 8 1 able to put those opinions aside entirely and listen to and 2 evaluate the trial evidence with an open mind, then you must so 3 advise the Court on the jury questionnaire that I will soon 4 describe. 5 Similarly, the death penalty is a very controversial 6 issue about which many Americans hold strong views. Simply having 7 thought about or listened to or read about the death penalty will 8 not disqualify you from being a juror in this case unless your 9 views are so firmly set as to make it difficult for you to 10 evaluate this case on the evidence presented during the trial and 11 to apply the law given to you by the Court, even if you disagree 12 with the law. 13 To help the lawyers and the Court select a jury that can 14 objectively listen to the evidence and decide the case solely on 15 the basis of the evidence produced in this courtroom during the 16 trial and within the law as the Court explains it, we have 17 prepared a questionnaire that you will be asked to fill out this 18 afternoon. Your totally candid answers to the questions in the 19 questionnaire are essential to the government and Mr. Moussaoui 20 receiving a fair sentencing hearing. 21 To ensure that you feel comfortable answering these 22 questions honestly, I have determined that your identities will 23 not be revealed to any trial participant or to the public; in 24 other words, you will be an anonymous jury. Only limited members 25 of the court staff know your names. That is why you have been 9 1 given a four-digit number as your identifier, and it's very 2 important that you hold onto that number. 3 Now, although some of the questions on the questionnaire 4 may appear to be of a personal nature, please understand that the 5 Court and the parties must learn enough information about each 6 juror's background and experiences to select a fair and impartial 7 jury. Your cooperation is of vital importance. Please answer 8 each question as fully and completely as possible. Your complete 9 candor and honesty is necessary so that both the prosecution and 10 the defense will have a meaningful opportunity to select an 11 impartial jury. 12 You must answer all the questions to the best of your 13 ability. If you do not know the answer to a question, just 14 write, "I don't know." If the question does not apply to you, 15 either write "N/A" or "not applicable," and if you do not 16 understand a question, just write "don't understand." Do not ask 17 court personnel to explain the question. They are not permitted 18 to do that. 19 Do not leave any question blank. It is important that 20 the answers be yours alone. If you need more space for your 21 responses or you wish to make further comments regarding any of 22 your answers, please use the explanation sheets at the end of the 23 questionnaire. Put the number of the question you are answering 24 on the explanation sheet before you write the response or comment. 25 Please also keep in mind that there are no right or 10 1 wrong answers, only complete and incomplete answers. Complete 2 answers are far more helpful than incomplete answers. Remember, 3 you are sworn to give true and complete answers to all questions. 4 Unless the question states otherwise, the fact that a 5 particular question is asked does not imply that the subject 6 matter of the question is an issue in the case. As you read the 7 questions, you are not to draw any inferences about the issues 8 which must be decided in this case. 9 Now, please do not write on the back of any page, and 10 please write or print legibly, and be sure to put that four-digit 11 juror number on the upper right corner of each and every page. 12 When you have finished answering the questionnaire, you must sign 13 with your name. On that signature page, you are affirming the 14 accuracy of your answers. That page will be removed by court 15 staff and will not be shown to any party. 16 Part of the questionnaire includes a list of all persons 17 who may be called as witnesses to testify. You must put your 18 juror number on that witness list and return it to the court staff 19 with your questionnaire. You may not disclose the name of any of 20 those witnesses on that list to anyone. The court personnel will 21 advise you when you may leave once they have collected your 22 questionnaire and the witness list from you. 23 Now, I also want the counsel who are going to be trying 24 this case to introduce themselves to you one more time, because 25 some of you might know them as a neighbor or friend or have had 11 1 business or professional dealings with them, and we would want you 2 to make sure you could indicate that on the questionnaire. In 3 addition, they are going to read for you the names of any of their 4 staff who may be in the court during the course of the trial. 5 Mr. Spencer, we can start with you, please. 6 MR. SPENCER: Thank you, Your Honor. 7 My name is Rob Spencer. I'm an assistant United States 8 attorney here in Alexandria. 9 MR. RASKIN: Good afternoon. My name is David Raskin. 10 I'm an assistant United States attorney in the Southern District 11 of New York. My office is in New York City. 12 MR. NOVAK: Good afternoon, folks. My name is Dave 13 Novak, and I'm an assistant United States attorney here in the 14 Eastern District of Virginia. My offices are normally located 15 down in Richmond. 16 MR. SPENCER: In addition, I'll read the names of some 17 staff members who are helping us on the case: John Van Lonkhuyzen 18 and Greg Miller from the Department of Justice in Washington; 19 Gerard Francisco from New York City; Joel Alter, Lynn Johnson, and 20 Nancy Kramp from here in Alexandria. Thank you. 21 THE COURT: All right. Mr. Zerkin? 22 MR. ZERKIN: Good afternoon. My name is Jerry Zerkin. 23 I'm an assistant federal public defender for the Eastern District 24 of Virginia. My offices are in Richmond. 25 MR. MAC MAHON: Good afternoon. My name is Edward 12 1 MacMahon. I'm a private attorney and a court-appointed lawyer in 2 this case. My office is in Middleburg, Virginia, and I practice 3 in Virginia and Washington, D.C. 4 MR. YAMAMOTO: Good afternoon. My name is Alan 5 Yamamoto. I'm a sole practitioner in Alexandria, Virginia. 6 MR. TROCCOLI: Good afternoon. My name is Kenneth 7 Troccoli. I'm an assistant federal public defender here in 8 Alexandria. 9 MS. CHAPMAN: My name is Anne Chapman. I'm an assistant 10 federal public defender also here in Alexandria. 11 MR. ZERKIN: There are several of our staff members who 12 are also assisting us who you may see in the courtroom when the 13 hearing begins: Pamela Bishop, Sandra Schidlo, and Gerylee Brown. 14 THE COURT: Thank you, counsel. 15 MR. ZERKIN: Baron, excuse me. 16 THE COURT: Ladies and gentlemen, after you complete the 17 questionnaire, the next step will be for some of you to return to 18 the courthouse for more specific individual questioning by the 19 Court. The first of these individual questioning sessions begins 20 Wednesday, February 15, 2006, at 9:30 a.m., so you are all free to 21 go about your normal schedule or to go to work until your next 22 time to report. 23 Now, individual questioning will continue on a daily 24 basis until approximately 85 jurors are found eligible. To find 25 out whether you have to return for individual questioning and, if 13 1 so, when you have to return, you must call the jury information 2 number that has been previously given to you by the court staff. 3 If you are asked to return for individual questioning, you should 4 expect to be at the courthouse for up to four hours. You will 5 have to report either for a morning session, in other words, 6 you'll be told either you're coming in at 9:30 on a particular 7 day, or an afternoon session, which would begin at 2 p.m. 8 Immediately after the individual questioning session, 9 you will be told whether you have been excused from this case or 10 need to return for the final round of jury selection, scheduled to 11 start at 10 a.m. on Monday, March 6, in a different courtroom. It 12 will be courtroom 700. 13 Now, on March 6, 18 of you will ultimately be chosen to 14 hear this case, although only 12 of you will actually deliberate 15 and issue the final decision. The other six are alternates. 16 We use alternates in long trials to be sure that if 17 someone gets sick or for some other reason cannot continue as a 18 juror, we are sure to have the 12 jurors the law requires make the 19 decision at issue in this trial. No one is designated an 20 alternate until just before the deliberations begin. 21 If you are selected on March 6 to be one of the 18 22 jurors, you will need to remain at the courthouse all day, because 23 we expect opening statements and some witness testimony to start 24 Monday afternoon. Lunch will be provided for you, so do not worry 25 about bringing food unless you have special food needs. 14 1 After March 6, which again is a Monday, the trial will 2 be held daily from 9:30 a.m. to 5:30 p.m. Mondays through 3 Thursdays. If we stay on schedule, we will not hold court on 4 Fridays until the jury begins its deliberations. I will try to 5 give you several days' notice if we plan to hold court on Fridays. 6 Each phase of this trial is expected to last several 7 weeks, which is why you were initially advised that the trial 8 would go -- could go into late May. However, I will have a better 9 time estimate for you after the trial begins. Obviously, we need 10 jurors who can serve for the entire trial. 11 From today on, until you are notified that you have been 12 excused from this case, you must avoid reading, listening to, or 13 in any other respect being exposed to anything about this case, 14 the attacks on September 11, or the death penalty. And that means 15 if you haven't read today's Washington Post, do not read it, at 16 least as to the sections about this case, and be careful for those 17 banners and crawlers or scrawlers, whatever they call it, at the 18 bottom of the news that will most likely have references to this 19 case. 20 You may not investigate any of the facts related to this 21 case or view the Court's website, a portion of which is devoted to 22 this case. You are not to discuss or communicate about this case 23 or any of the above issues with anyone. I have issued an order 24 that prohibits anyone, including members of the media and the 25 general public, from trying to contact, interview, identify, or in 15 1 any way communicate with potential jurors. If you believe someone 2 has tried to do so, call the Court immediately. 3 Lastly, the duty some of you will be asked to perform, 4 that is, to sit in judgment of another human being and decide 5 whether he should live or die, is an awesome responsibility not to 6 be taken lightly. You must have the moral integrity to follow the 7 law, even if you disagree with it, and you must find the facts 8 fairly, even if you do not personally like the conclusion to which 9 they lead. You must be able to withstand any bias, prejudice, or 10 sympathy for either side of this case or any public opinion. 11 And you've seen an example of some of Mr. Moussaoui's 12 behavior this afternoon. You must decide and tell us on the 13 questionnaire whether you feel that anything you saw in his 14 behavior today might make it difficult or impossible for you to be 15 a fair and impartial juror in deciding the case that's at issue in 16 this case. 17 You must agree that your only goal as a juror in this 18 case is to reach a fair and just decision. That is what our legal 19 system expects of its jurors, and that is what this Court expects 20 from you. 21 At this point, I'd like you-all to stand. The clerk 22 is -- if you can stand. Otherwise, just raise your right-hand. 23 The clerk is going to administer an affirmation in which you will 24 affirm to answer the questions asked of you truthfully and to also 25 abide by the Court's instructions. 16 1 (Jury Panel affirmed.) 2 THE COURT: All right, you may have a seat. Thank you, 3 ladies and gentlemen. 4 In a moment, we will recess court, and you will remain 5 in the courtroom. The court staff will hand out the 6 questionnaires, and as I said, when you're finished with the 7 questionnaires and the witness list, once the staff tells you you 8 may leave, then you're free to go. 9 Counsel, approach the bench for a second. 10 (Bench conference on the record.) 11 [--- Redacted 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ---] (End of bench conference.) 21 THE COURT: All right, at this point, we'll recess court 22 until 2:30. Thank you, ladies and gentlemen. Stay in session. 23 (Which were all the proceedings 24 had at this time.) 25 18 1 CERTIFICATE OF THE REPORTER 2 I certify that the foregoing is a correct transcript of the 3 record of proceedings in the above-entitled matter. 4 5 6 Anneliese J. Thomson 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25