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, . 2:41 p.m. a/k/a Shaqil, a/k/a . 6 Abu Khalid al Sahrawi, . . 7 Defendant. . 2:30 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 - 17) 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 COURT: 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 them being my defender, and I will take the stand and tell 15 the whole truth about my involvement. 16 THE COURT: Mr. Moussaoui -- 17 THE DEFENDANT: And I have nothing to do with them, 18 okay? 19 THE COURT: Mr. Moussaoui -- 20 THE DEFENDANT: For four year I oppose them to be my 21 lawyer. I'm al Qaeda, they're American, and I have nothing to do 22 with them, okay? 23 THE COURT: Mr. Moussaoui, that's enough. I'll ask you 24 to go with the marshals. You've been told several times today you 25 are not to be speaking at this time. 4 1 Gentlemen, if you'd please remove him? 2 THE DEFENDANT: Four years -- I will take the stand. I 3 will take the stand and testify at this trial. 4 (Defendant removed from courtroom.) 5 THE COURT: Ladies and gentlemen, thank you for 6 appearing this afternoon. You have been summonsed here to be 7 considered for jury duty in the case of The United States of 8 America v. Zacarias Moussaoui, also known as Shaqil, also known as 9 Abu Khalid al Sahrawi, who on April 22, 2005, pled guilty to three 10 conspiracies at issue in this trial. 11 The first conspiracy is conspiracy to commit acts of 12 terrorism transcending national boundaries; the second is 13 conspiracy to destroy aircraft; the third, conspiracy to use 14 weapons of mass destruction in connection with the September 11, 15 2001 attacks in New York and Northern Virginia and the hijacking 16 of four aircraft and their crashes in New York, Pennsylvania, and 17 Virginia. Each of these three convictions exposes Mr. Moussaoui 18 to a possible sentence of death. 19 It will be the duty of the jury whose selection begins 20 today to decide whether Mr. Moussaoui should be sentenced to death 21 or be sentenced to life imprisonment without possibility of 22 release. Based on Mr. Moussaoui's guilty pleas, there are no 23 other sentences possible for those three conspiracies. 24 Obviously, deciding whether to recommend a sentence of 25 death is the most serious decision that a jury is ever called upon 5 1 to make in our legal system. The gravity of this decision is 2 reflected in the multi-step process set out in the Federal Death 3 Penalty Statute. 4 Just because a person is guilty of a capital crime, that 5 is, a crime for which death is a possible penalty, does not mean 6 that person should be sentenced to death. Instead, the jury must 7 make specific factual findings about the defendant and what he 8 specifically did in order to impose a death penalty. 9 In this case, the first finding is whether the 10 defendant's specific intentional conduct makes him death eligible. 11 More precisely, the jury will be asked to decide whether the 12 defendant intentionally participated in an act, which the 13 government argues was his lying to agents after his arrest on 14 August 16, 2001, which directly results in the deaths that 15 occurred during the airplane hijackings and crashes on 16 September 11, 2001. 17 If the jury were to find that Mr. Moussaoui did 18 intentionally do such an act and that those deaths on September 11 19 were a direct result of that act, the second phase of the trial 20 would involve the presentation and consideration of evidence of 21 aggravating and mitigating factors, and the question of whether 22 Mr. Moussaoui should be sentenced either to life imprisonment 23 without the possibility of release or death. 24 Aggravating factors are facts about the defendant or the 25 crime which the government believes favor the death penalty. 6 1 Aggravating factors are of two types -- statutory reasons that are 2 set forth in the death penalty statute, and non-statutory, or 3 other reasons which are drafted by the government. 4 Mitigating factors are facts about the circumstances of 5 the crime or the defendant's role in it or about his background or 6 character which the defense believes favor a sentence of life 7 imprisonment without possibility of release. 8 In determining the appropriate punishment, each juror 9 will have to consider the aggravating factors which have been 10 proven beyond a reasonable doubt and any mitigating factors that 11 the juror believes exist before making a determination as to the 12 appropriate punishment. The jury itself does not actually impose 13 the final sentence. That will be the Court's responsibility, but 14 it must impose the sentence found appropriate by the jury. 15 Now, this is only an overview of the law applicable to 16 the jury's consideration of the death penalty. The jury will 17 receive a much more detailed set of instructions from the Court 18 during the course of the proceedings. 19 Because this case will involve evidence about al Qaeda 20 and the September 11 attacks on the World Trade Center and the 21 Pentagon, the case has received a great deal of publicity over the 22 past few years. There's also a large article about it on the 23 front page of today's Washington Post -- some of you are nodding, 24 so I guess some of you have already read it -- and there will be 25 coverage this evening. 7 1 I assume that every one of you is aware of what happened 2 on September 11 and has watched or read extensive media coverage 3 about that day and has watched news reports or read about al 4 Qaeda, and I expect many, if not all, of you have heard or read 5 something about this case and this defendant. Such media exposure 6 does not necessarily disqualify you from being eligible to serve 7 on the jury, but it is obviously an issue we need to probe 8 carefully. 9 The problem with pretrial exposure to information about 10 a defendant or issues in a case is simply this: Persons on trial 11 must be judged not on the basis of what is in the news or popular 12 media, but rather on the hard evidence presented in the courtroom 13 during the trial. 14 If the pretrial publicity to which you have been exposed 15 has caused you to form such strong opinions about the defendant or 16 issues in the case that you think you might not be able to put 17 those questions entirely aside and listen to and evaluate the 18 trial evidence with an open mind, then you must so advise the 19 Court on the jury questionnaire that I will soon describe for you. 20 Similarly, the death penalty is a very controversial 21 issue about which many Americans hold strong views. Simply having 22 thought about or listened to or read about the death penalty will 23 not disqualify you from being a juror in this case unless your 24 views are so firmly set as to make it difficult for you to 25 evaluate this case on the evidence presented during the trial and 8 1 apply the law given to you by the Court, even if you disagree with 2 the law. 3 To help the lawyers and the Court select a jury that can 4 objectively listen to the evidence and decide the case solely on 5 the basis of the evidence produced in this courtroom during the 6 trial and within the law as the Court explains it, we have 7 prepared a questionnaire that you will be asked to fill out this 8 afternoon. Your totally candid answers to the questions in the 9 questionnaire are essential to the government and Mr. Moussaoui 10 receiving a fair sentencing hearing. 11 To ensure that you feel comfortable answering these 12 questions honestly, I have determined that your identities will 13 not be revealed to any trial participants or to the public; in 14 other words, you will be an anonymous jury. Only limited members 15 of the court staff know your names. That is why you have been 16 given a four-digit number as your identifier, and it's very 17 important to hold onto that number. 18 Although some of the questions may appear to be of a 19 personal nature, please understand that the Court and the parties 20 must learn enough information about each juror's background and 21 experiences to select a fair and impartial jury. Your cooperation 22 is of vital importance. Please answer each question as fully and 23 completely as possible. Your complete candor and honesty is 24 necessary so that both the prosecution and the defense will have a 25 meaningful opportunity to select an impartial jury. 9 1 You must answer all the questions to the best of your 2 ability. If you do not know the answer to a question, simply 3 write, "I don't know." If the question does not apply to you, you 4 can write "N/A" for not applicable or put "not applicable." And 5 if you do not understand a question, just write "don't 6 understand." Please do not ask court personnel to explain the 7 question, because they are not permitted to do that. 8 Do not leave any question blank. It is important that 9 you answer -- that your answers be yours alone, and if you need 10 more space for your responses or wish to make further comments 11 regarding any of your answers, please use the explanation sheets 12 at the end of the questionnaire. Put the number of the question 13 you are answering on the explanation sheet before you write the 14 response or comment. 15 Please keep in mind that there are no right or wrong 16 answers, only complete and incomplete answers. Complete answers 17 are far more helpful than incomplete answers. And remember, you 18 will be sworn to give true and complete answers to all questions. 19 Now, unless the question states otherwise, the fact that 20 a particular question is asked does not imply that the subject 21 matter of the question is an issue in this case. As you read the 22 questions, you are not to draw any inferences about the issues 23 which must be decided in this case. 24 Please do not write on the back of any page, and please 25 print or write legibly, and be sure to put your juror number on 10 1 the upper right corner of each page. 2 When you have finished answering the questionnaire, you 3 must sign it with your name. On that signature page, you are 4 affirming the accuracy of your answers. That page will be removed 5 by court staff and will not be shown to any party. 6 Now, part of the questionnaire includes a list of all 7 persons who may be called as witnesses to testify. You must put 8 your juror number on that witness list and return it to the court 9 staff with your questionnaire. You may not disclose the name of 10 any of those witnesses to anyone. The court personnel will advise 11 you when you may leave once you have -- once they have collected 12 your questionnaire and the witness list from you. 13 Now, I also want to make sure even though there's a 14 question about this in the questionnaire, that you know who the 15 attorneys are who will be presenting this trial to you and also 16 the names of their staff who may be assisting them, so I'm going 17 to ask the lawyers who are in court today to reintroduce 18 themselves to you, and if you think you might know any of the 19 lawyers or the people working with them in any personal or 20 business capacity, you need to make sure you indicate that on the 21 questionnaire. 22 Mr. Spencer? 23 MR. SPENCER: Thank you, Your Honor. 24 Good afternoon. My name is Rob Spencer. I'm an 25 assistant United States attorney. My office is here in 11 1 Alexandria. 2 MR. RASKIN: Good afternoon. My name is David Raskin. 3 I'm an assistant United States attorney in the Southern District 4 of New York, and my office is in New York City. 5 MR. NOVAK: Good afternoon, folks. My name is Dave 6 Novak, and I'm an assistant United States attorney here in the 7 Eastern District of Virginia, but my office is normally located in 8 Richmond. 9 MR. SPENCER: In addition, we have the following people 10 who will be helping us prepare for this trial: John Van 11 Lonkhuyzen and Greg Miller, they work at the Department of Justice 12 in Washington; Gerard Francisco, who is from the Southern District 13 of New York, New York City; and Joel Alter, Lynn Johnson, and 14 Nancy Kramp from our office here in Alexandria. Thank you. 15 THE COURT: Mr. Zerkin? 16 MR. ZERKIN: Good afternoon. I am Jerry Zerkin. I am 17 with the -- I'm an assistant federal public defender for the 18 Eastern District of Virginia. 19 MR. MAC MAHON: Good afternoon. My name is Edward 20 MacMahon. I'm an attorney in private practice and a 21 court-appointed lawyer in this case. My office is in Middleburg, 22 Virginia, and I work here in Virginia and in Washington, D.C. 23 MR. YAMAMOTO: Good afternoon. My name is Alan 24 Yamamoto. I'm a sole practitioner in Alexandria. 25 MR. TROCCOLI: Good afternoon. My name is Ken Troccoli, 12 1 and I'm an assistant federal public defender here in Alexandria. 2 MS. CHAPMAN: Hello, my name is Anne Chapman. I'm an 3 assistant federal public defender in Alexandria, Virginia. 4 MR. ZERKIN: In addition, the following people have 5 helped us with this case and may be with us in court during these 6 proceedings: Pamela Bishop, Sandra Schidlo, and Gerylee Baron. 7 THE COURT: Thank you. 8 Ladies and gentlemen, after you complete the 9 questionnaire, the next step will be for some of you to return to 10 the courthouse for more specific individual questioning by the 11 Court. The first of these individual questioning sessions will 12 begin on Wednesday, February 15, 2006, at 9:30 a.m., so you are 13 all free to go to work or otherwise keep your normal schedule 14 until your next time to report. 15 Individual questioning will continue daily until we 16 have -- approximately 85 jurors are found eligible. To find out 17 whether you have to return for individual questioning and, if so, 18 when to return, you must call the jury information number given to 19 you by the court staff. If you are asked to return for individual 20 questioning, you should expect to be at the courthouse for up to 21 four hours. You will have to report either for a morning session, 22 they will start at 9:30 a.m., or an afternoon session, which 23 starts at 2 p.m. 24 Immediately after the individual questioning session, 25 you will be told whether you have been excused or would need to 13 1 return for the final round of jury selection, scheduled to start 2 at 10 a.m. on Monday, March 6, 2006, in a different courtroom, 3 it's actually courtroom 700. 4 Now, on March 6, 18 of you will ultimately be chosen to 5 hear this case, although only 12 of you will actually deliberate 6 and issue the final decision. The other six are alternates. We 7 use alternates in long trials to be sure that if someone gets sick 8 or for some other reason cannot continue as a juror, we are sure 9 to have the 12 jurors the law requires make the decision at issue 10 in this trial. No one is designated an alternate until just 11 before the deliberations begin. 12 If you are selected on March 6 to be one of the 18 13 jurors, you will need to remain at the courthouse all day, because 14 we expect opening statements and some witness testimony to start 15 Monday afternoon. Lunch will be provided for you, so do not worry 16 about bringing food unless you have special food needs. 17 After March 6, the trial will be held from 9:30 a.m. to 18 5:30 p.m. on Mondays through Thursdays. If we stay on schedule, 19 we will not hold court on Fridays until the jury begins its 20 deliberations. I will try to give you several days' notice if we 21 plan to hold court on Fridays. 22 Each phase of this trial is expected to last several 23 weeks, which is why you were initially advised that the trial 24 could go into late May. However, I will have a better time 25 estimate for you after the trial begins. Obviously, we need 14 1 jurors who can serve for the entire trial. 2 From today on, until you are notified that you have been 3 excused from this case, you must avoid reading, listening to, or 4 in any other respect being exposed to anything about this case, 5 the attacks on September 11, or the death penalty. You may not 6 investigate any of the facts related to this case or view the 7 Court's website, which has a section on this case. You are not to 8 discuss or communicate about this case or any of the above issues 9 with anyone. 10 I have issued an order that prohibits anyone, including 11 members of the media and the general public, from trying to 12 contact, interview, identify, or in any way communicate with 13 potential jurors. If you believe someone has tried to do so, call 14 the Court immediately. 15 Lastly, the duty some of you will be asked to perform, 16 that is, to sit in judgment of another human being and decide 17 whether he should live or die, is an awesome responsibility not to 18 be taken lightly. You must have the moral integrity to follow the 19 law, even if you disagree with it, and you must find the facts 20 fairly, even if you do not personally like the conclusion to which 21 they lead. You must be able to withstand any bias, prejudice, or 22 sympathy for either side of this case or any public opinion. 23 And you saw this afternoon a brief example of some of 24 Mr. Moussaoui's behavior. You have to ask yourselves whether what 25 you saw in court today might affect your ability to be impartial 15 1 in judging him, and if so, you must clearly indicate that on the 2 questionnaire. 3 You must agree that your only goal as a juror in this 4 case is to reach a fair and just decision. That is what our legal 5 system expects of its jurors, and that is what this Court expects 6 from you. 7 All right, counsel, if you'll approach the bench, 8 please? 9 (Bench conference on the record.) 10 [--- Redacted 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ---] (End of bench conference.) 24 THE COURT: All right, ladies and gentlemen, if you will 25 all now stand, the clerk is going to administer an affirmation to 17 1 you under which you are going to promise to truthfully answer the 2 questionnaire and to abide by the Court's orders as given to you 3 in these instructions just now. 4 (Jury Pool affirmed.) 5 THE COURT: Thank you, ladies and gentlemen. Now, 6 you-all can stay in the courtroom to fill out the questionnaires. 7 We're going to recess court at this time. Thank you. 8 (Which were all the proceedings 9 had at this time.) 10 11 CERTIFICATE OF THE REPORTER 12 I certify that the foregoing is a correct transcript of the 13 record of proceedings in the above-entitled matter. 14 15 16 Anneliese J. Thomson 17 18 19 20 21 22 23 24 25