7 March 2006
Source: Digital transcript purchased from Exemplaris.com. Files digitally signed by reporter.

This is court docket item No. 1564.

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 14, 2006
     ZACARIAS MOUSSAOUI,           .       10:00 a.m.
    a/k/a Shaqil, a/k/a           .
     Abu Khalid al Sahrawi,        .
                    Defendant.     .
     .  .  .  .  .  .  .  .  .  .  .
                           TRANSCRIPT OF HEARING
                        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
                                   Assistant Federal Public Defenders
                                  Office of the Federal Public
                                  1650 King Street
                                   Alexandria, VA 22314
                              (Pages 1 - 24)

 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 not 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 morning, Your Honor.  Rob Spencer,
 7   David Novak, David Raskin for the United States.
 8             THE COURT:  Good morning.
 9             MR. ZERKIN:  With the Court's permission, I will do this
10   from here.  Gerald Zerkin, Ed MacMahon, Alan Yamamoto, Anne
11   Chapman, and Kenneth Troccoli for the defense.
12             THE COURT:  Very good.  Thank you, counsel.
13             Let's have Mr. Moussaoui brought in.
14                            (Defendant present.)
15             THE COURT:  All right, the defendant is now here.
16             All right, as I indicated in my order earlier, I guess
17   last week, I wanted to have a brief hearing today to discuss some
18   logistical issues in preparation for tomorrow, which will be the
19   beginning of individual voir dire.  The main reason for this
20   hearing, although I do want to address some other matters as well,
21   was to determine how Mr. Moussaoui plans to behave in the
22   following proceedings.
23             Now, Mr. Moussaoui, you are in court today because the
24   Court wants to determine whether you plan to remain quiet and
25   allow your lawyers to represent you in your case or whether you

 1   intend to try to make speeches as you did during the initial jury
 2   matter.  And I need to have you go -- you can stay there; just
 3   speak in a good, loud voice -- whether you expect or plan to be
 4   quiet or whether you intend to try to talk during the voir dire.
 5             THE DEFENDANT:  I will speak from the speaker.
 6             THE COURT:  All right, you may go there.  Go ahead.
 7   This is not your opportunity to make a speech.  I'm asking you --
 8             THE DEFENDANT:  I know.  I know your story.
 9             THE COURT:  Mr. Moussaoui, let me explain to you why
10   this is important in your case.  If I am not satisfied from today
11   that you will follow my directions and remain silent so that this
12   proceeding can go on in a proper fashion, you will not be
13   permitted to be in the courtroom during the individual voir dire,
14   which starts tomorrow at 9:30.
15             THE DEFENDANT:  I fully understood the letter that you
16   sent me which threatened me to kick me out of the court if I don't
17   become silent for my, my organized death.  I understand fully.
18   (Arabic spoken.)
19             So I'm going to respond to your question because I have
20   a more technical point to -- today.  I stand here as a French
21   citizen.  I want to make clear that I am not French and have no
22   relation.  I'm a sworn enemy of France.  So I want to make this in
23   the record that I'm not French, okay?  I tell you I am a Muslim,
24   and I have nothing to do with a nation of homosexual Crusaders.
25   And I am not a frog.  That's the first thing.

 1             Concerning your, your lawyer, my, what you say my -- the
 2   fact of my speech where I want to make it known like I have been
 3   trying for the last four years that these people are not my
 4   lawyer, and it just happens that on last Monday, okay, when I was
 5   going to take my shower, I had a chance to hear the news, because
 6   I'm under a complete blackout, okay, I have no TV, no radio, no
 7   newspaper, I know nothing about what's happening outside, but this
 8   time during my shower, I have the chance to hear the news that
 9   George W. Bush was launching a new campaign of revenge against
10   terrorism.
11             So you want me when I hear that the federal government
12   is launching campaign of revenge against terrorism, you want me to
13   take as a lawyer the federal Zerkin, the KKK lawyer MacMahon, and
14   the federal -- Yamamoto, the geisha of Dunham.
15             THE COURT:  Now, Mr. Moussaoui, excuse me, I am not
16   going to permit you to use a public federal courtroom to malign
17   your attorneys.  You are --
18             THE DEFENDANT:  Then you try to organize my death for
19   four years.
20             THE COURT:  Mr. Moussaoui --
21             THE DEFENDANT:  You won't even organize a hearing to
22   hear my very rational reason why I oppose these people to be my
23   lawyer.  You want to use a post mortem hearing when once I will be
24   dead, you will know why Moussaoui and -- the rational reason why
25   Moussaoui doesn't want these people to be his lawyer, okay?

 1             THE COURT:  Mr. Moussaoui, you are fighting --
 2             THE DEFENDANT:  Four years, four years you deny me even
 3   one minute to express to everybody why these people are organizing
 4   my sending to the gas chamber or lethal injection, okay?  And each
 5   time you have said, "Mr. Moussaoui, you have been civilized.
 6   Mr. Moussaoui, keep quiet or the marshal will kick you out."  You
 7   think that I'm going -- today is my death.  Today is my death,
 8   because I know that if I don't make sure that these people are not
 9   going to represent me, I know that I am dead, okay?
10             So I say that I will testify, okay, and they are
11   organizing to, to (inaudible) my attorney.  I have the right to
12   testify after I make this decision.  I want to make an informed
13   decision, a final decision whether or not I testify after I hear
14   all that is said.  I have the right to testify in the gateway
15   factors for death and after aggravating factors.  Okay?
16             As for the hearing, okay, you say that I misbehaved.
17   What on earth is the problem for the jurors to know that this
18   defense doesn't belong to me?  You own everything.  You are
19   America -- the defense, the judge, the attackers.  These people
20   are American.  I'm al Qaeda.  I'm a sworn enemy of you.  You, you,
21   you, you, for me you are enemy.  And your own commander in chief
22   says he want to launch a revenge against terrorists.
23             THE COURT:  All right, Mr. Moussaoui, you are the
24   biggest enemy of yourself.
25             THE DEFENDANT:  No, absolutely not.

 1             THE COURT:  Your continuing conduct is going to keep you
 2   out of the courtroom.  You are not going to say anything more.
 3   You are being asked today whether or not you can sit quietly in
 4   court and let these lawyers represent you.
 5             THE DEFENDANT:  Yeah.
 6             THE COURT:  If you're telling me that you cannot, then
 7   you will watch these proceedings from your cell in this building
 8   by television.  That's the only choice you have.  Whether you
 9   testify or not is an issue we will address down the road.
10             THE DEFENDANT:  Yes, like for four years the issue of
11   them not being my lawyer, we will address once you will be dead.
12   You can file a post mortem motion maybe, Mr. Moussaoui.
13             THE COURT:  I'm not taking any more time.
14             THE DEFENDANT:  Yes, you don't have time.
15             THE COURT:  Are you going to sit quietly and let us
16   address some business, or are you going to continue to try to
17   talk?
18             THE DEFENDANT:  Sorry?
19             THE COURT:  Are you going to sit down quietly and let
20   the lawyers do some business, or are you going to continue to try
21   to talk?
22             THE DEFENDANT:  I'm going to leave.
23             THE COURT:  Yes, you are.  All right.
24             Then the defendant will -- I think has made an adequate
25   record that he is refusing to comply with the Court's directions.

 1   He will not be permitted to be present in the courtroom at any
 2   time during the individual voir dire.
 3             THE DEFENDANT:  This is for you.
 4             THE COURT:  If at some point during the course of the
 5   trial I determine that he is able to control himself, he may be
 6   admitted back in courtroom.
 7             Go with the marshals now, Mr. Moussaoui.
 8             THE DEFENDANT:  I'm leaving.  I'm taking my papers.
 9   That's all I do.  God curse you and America.
10             THE COURT:  Now, we have some business to take care of.
11             THE DEFENDANT:  Yes.  Take care of my death.
12             THE COURT:  The first one is I have received a fax from
13   Mrs. Moussaoui.
14             THE DEFENDANT:  God curse you.
15                            (Defendant taken from courtroom.)
16             THE COURT:  And I want to reflect the defendant
17   continued to shout "curse you" as he left the courtroom.  I am
18   satisfied on this record that he has forfeited his right to be
19   present during the proceedings.
20             Do any attorneys want to put anything on the record
21   about the situation at this point?  Is the government satisfied
22   there's an adequate record that he should not be in court during
23   individual voir dire?
24             MR. SPENCER:  Yes, Your Honor.
25             THE COURT:  How about defense counsel?

 1             MR. ZERKIN:  Well, Your Honor, excuse me, I don't think
 2   it's our --
 3             THE COURT:  Well, if you have any objection, you need to
 4   make the record.
 5             MR. ZERKIN:  I'm not making a record on that, Your
 6   Honor.  I'm just -- what happened happened, and the Court has made
 7   its ruling --
 8             THE COURT:  All right.
 9             MR. ZERKIN:  -- and we would stand on that record.
10             THE COURT:  And what we will do then so that you're not
11   surprised tomorrow, we will rearrange the tables in the courtroom
12   since we won't need a table for Mr. Moussaoui, and the voir dire
13   will go forward without his presence.
14             Let me just go back to what we were -- I was addressing.
15   I received a fax from Mrs. Moussaoui asking for an accommodation
16   that she can attend the trial with an interpreter.  I thought we
17   had worked that out, that she will have access through Courtroom
18   701 to be able to sit with an interpreter.  Has that not been
19   worked out?
20             MR. ZERKIN:  I think it has, Your Honor.  I know nothing
21   of this.  I had not heard of it before.
22             THE COURT:  I'll make a copy for you-all, but I'm going
23   to ask defense counsel to please tell her that I've received her
24   letter; we've made those accommodations.  Obviously, the
25   interpreter will have to be sufficiently quiet as to not disturb

 1   others in that audience.  She cannot be in this courtroom with an
 2   interpreter, that will be too distracting, but in 701, that is
 3   permissible, all right?
 4             MR. ZERKIN:  Very good.  Yes, Your Honor.
 5             THE COURT:  All right.  Now, counsel, I have -- I think
 6   you've already got on your tables some proposed general questions
 7   that I intend to ask each group of jurors tomorrow.  My plan is
 8   when we start each voir dire session, we'll have all 12 of the
 9   prospective jurors in the courtroom.  We will take attendance by
10   number.  I'll administer the affirmation to them, and then I was
11   proposing to ask some general questions that I think would cover
12   all of them as a group.
13             I invite you to add any additional questions that you
14   might think of that would basically go across the boards, and you
15   can just fax those to me tonight.
16             I did include, as you see from question No. 1, the
17   additional witness.  Now, although we've had a sort of a rule on
18   not disclosing witnesses pretrial, I have no way of avoiding that
19   happening tomorrow, but I think with just one witness, it should
20   not be a problem.  I assume the government has no objection to
21   proceeding that way.
22             MR. SPENCER:  That's correct, Your Honor.
23             THE COURT:  All right.  But if there are any other
24   last-minute witnesses that you think we need to run by the
25   prospective jurors, we need to know that before close of business

 1   tonight.
 2             The second and third issues I think we need to address,
 3   I will obviously consider any rewording of those or any follow-up
 4   that you think we need to add.  It occurred to me that April will
 5   see both Passover and Easter.  That may have an impact on some,
 6   both counsel and witness and juror issues, and so I just want us
 7   to be aware of that.  And it also will be the time -- you saw this
 8   in a lot of the juror questionnaires -- that the schools are on
 9   break, and that may affect availability of some jurors.
10             Frankly, if we have two equally qualified jurors and one
11   is going to want to take spring vacation with their children and
12   one doesn't have that problem, I'm opting for the one that doesn't
13   need the break so we can try to keep this case going on schedule,
14   but we'll see how that plays out tomorrow.  So if you can just get
15   me those questions by the close of business.
16             And then attached to that were proposed specific voir
17   dire questions that are a little bit more narrowly focused which I
18   think are more appropriate for the individual juror to answer, and
19   obviously, then I myself at least as to the first 12 don't have
20   any follow-up questions that the Court is concerned about asking
21   with one or two hardship questions that the questionnaires
22   suggested, so I will again be looking at proposed voir dire as to
23   those jurors, and I hope you'll get them to me as soon as you can
24   today so that I'm ready for tomorrow, all right?
25             Is there anything else that you-all want to address as

 1   to the -- oh, yes, there is something:  It has come to our
 2   attention that there may be some jurors within that pool who have
 3   connections to sensitive government employment situations through
 4   family or friends or whatever.  If for that reason or any other
 5   reason there are issues concerning jurors that need to be
 6   discussed but not in open, you know, we need to have you approach
 7   the bench, and we'll take care of that, all right?
 8             The other thing is we have been getting -- when I say
 9   "we," the Clerk's Office has been getting phone calls or e-mail
10   messages from some of the jurors that they have some date problems
11   between now and the end of February.  They're not completely
12   unavailable, but some things have come up, and so you may see from
13   time to time jurors being brought in who are out of order,
14   numerically out of order.
15             That's not a mistake on our part.  It's because we've
16   been notified by a juror that, you know, they're not available on
17   the 15th and 16th of February but are completely available after
18   the 20th.  All right?
19             I will try -- you'll get today my letter -- my order as
20   to those who have been excused for next week, so you'll have --
21   the lineup for next week you should get today, and hopefully by
22   the end of this week, the lineup for the rest of the month you'll
23   have as well.  I'm still reviewing your requested additions --
24   additional strikes, etc., that you've been filing with me, and all
25   this has been done under seal because I think this type of jury

 1   selection should be done under seal to avoid any problems with the
 2   jury.
 3             I need to know, I'm assuming, counsel, you-all want a
 4   rule on the witnesses in this case, correct?
 5             MR. SPENCER:  Yes, Your Honor.
 6             THE COURT:  The defense wants it as well?
 7             MR. ZERKIN:  Yes.
 8             THE COURT:  All right.  The rule on witnesses does have
 9   a little wrinkle in this case.  I'm going to issue a written
10   order, but just to give you a heads-up, because the transcript of
11   the trial proceedings is going to be available electronically, we
12   have in this case -- and we don't usually have this -- the
13   potential for witnesses reading the trial proceedings, and so I
14   need to impose an order that bans any potential witness from in
15   any respect reading the proceedings that have been going on ahead
16   of them.  I'm putting the burden on counsel to make sure that that
17   has also been communicated to your respective witnesses, all
18   right?
19             Now, I had -- we had informally asked Mr. Spencer to
20   discuss with defense counsel the logistical issue of getting
21   you-all in and out of the courtroom so that we can maximize your
22   one-hour lunch break.  I don't want you-all getting tired.  This
23   is going to be a tough enough case to try, and one thought was
24   to -- and I don't mind entering an operating order that would
25   require that people not leave this courtroom until counsel have

 1   left.  Now, that's to get you ahead of the pack to the elevators
 2   so that we can get you out of here.
 3             However, if I'm going to do that, since the spectators
 4   also need as much time as they can to get around the building,
 5   you-all have to be literally ready to get up and move
 6   instantaneously, and I know sometimes lawyers need for various
 7   reasons to linger.
 8             Have you had a chance to think through how you want to
 9   proceed in that respect?  Mr. Spencer?
10             MR. SPENCER:  We have, Your Honor.  I asked the question
11   of Mr. Troccoli last night.  From our side, we appreciate the
12   thought, but I think we are going to need the time to gather
13   ourselves before we leave the courtroom.
14             THE COURT:  All right.
15             MR. SPENCER:  So we say no, thank you, to the Court on
16   that.
17             THE COURT:  All right.  Defense feels the same way?
18             MR. MAC MAHON:  If I may from here, Your Honor?
19             THE COURT:  Yes.
20             MR. MAC MAHON:  We're prepared to do what the marshals
21   want us to do in terms of security, but whatever they tell us to
22   do is fine with us.
23             THE COURT:  They're not going to tell you.  This is an
24   option I'm thinking for you, because I'm told that sometimes the
25   lineup at the elevators can take a while and --

 1             MR. MAC MAHON:  Sure, it can, but if the government
 2   doesn't want to do it, we'll get out of here either way, Your
 3   Honor.
 4             THE COURT:  All right.
 5             MR. MAC MAHON:  I think we're going to have some
 6   different -- we're not going to go to the cafeteria for lunch.
 7             THE COURT:  All right.
 8             MR. MAC MAHON:  So if we can -- we'll be fine either
 9   way.
10             THE COURT:  That's fine, all right.
11             Again, because of this issue about the transcript of
12   these proceedings being public and the concern that I've expressed
13   in an order that went out this morning that, counsel, you may not
14   have seen yet but that addresses the requests that we've been
15   getting informally for access to the trial exhibits as they go
16   into evidence, I'm also concerned about bench conferences.
17             Now, the whole point of having a bench conference is
18   that there's some matter of sensitivity that the jury is not
19   supposed to be exposed to.  If the transcript of bench conferences
20   is publicly out in the world, then that increases the possibility
21   of a juror seeing something that he or she should not see, and so
22   unless I have an objection from counsel, I plan to adopt the same
23   reasoning that I had in the order I issued this morning, that is,
24   that the bench conference transcripts will be available to counsel
25   only under seal.  In other words, the transcript that Ms. Thomson

 1   produces that you-all, I believe, have ordered on a daily basis,
 2   you'll get the entire transcript, but you need to treat it as if
 3   it's under seal, because it will include the bench conferences.
 4             The transcript that will be available electronically to
 5   the general public, the media, whoever, will be minus the bench
 6   conferences until the trial is over, and then unless there's some
 7   sensitive matter that couldn't be public, I'll have no problem
 8   ordering those to be unsealed.
 9             Now, does either side have any objection to proceeding
10   that way?
11             MR. SPENCER:  No objection, Your Honor.
12             THE COURT:  How about from the defense?
13             MR. ZERKIN:  No objection.
14             THE COURT:  All right.  I know we're not going to
15   discuss in this proceeding any CIPA matters; however, we do need
16   to probably schedule another hearing.  I would ask you to think
17   about when that might be doable.  I'm thinking possibly next
18   Friday at 11:00 since we know we're going to all be here at 1:00
19   for the voir dire.  I don't think we're going to have a whole lot
20   of time between now and then.
21             You-all can get back to me on that, but that's for
22   planning purposes, we do have unresolved matters that still need
23   to be addressed.
24             Mr. --
25             MR. SPENCER:  That's acceptable to us, Your Honor.

 1             MR. MAC MAHON:  Your Honor, I just wanted to alert you
 2   in that regard the government has been providing Jencks to us, and
 3   a lot of the Jencks material is classified.
 4             THE COURT:  Well --
 5             MR. MAC MAHON:  A small bit.  We have a designation that
 6   we should have finished for you today which is going to add
 7   another 113 documents to the CIPA mix, and we've alerted the
 8   government that it's coming, and hopefully we'll have it to you
 9   today, but Friday is fine with us, but we may need to have some
10   more hearings even after that.
11             THE COURT:  All right.  Now, I wasn't talking about this
12   Friday.  I was talking about a week from this Friday.
13             MR. MAC MAHON:  Well, we're going to have some more CIPA
14   litigation, I'm sure, to do before the case starts.  I just wanted
15   to alert you to that.
16             THE COURT:  Well, I'm optimistic, after this week, when
17   I get a sense of how many jurors are surviving the voir dire, if I
18   get a good sense that we're going to finish this process early,
19   that also gives us a couple of days before March 6 to wrap these
20   things up, although I'd rather do it sooner than later, all right?
21             MR. MAC MAHON:  Thank you, Your Honor.
22             THE COURT:  All right.  There are a couple of motions
23   that have been filed -- these again are sort of some mopping up
24   issues that I think we can address.  Back in January, the
25   government filed a motion to admit a rule 15 deposition at trial.

 1   It's docket No. 1471.  I'm not going to identify the witness who's
 2   at issue in that case, but, counsel, I'm sure you know which one
 3   we're talking about.
 4             I can't recall whether I've gotten an opposition to that
 5   or not, but I think we should address that issue now.  I can't see
 6   any Crawford problem, because that witness, as you know, was
 7   videotaped.  The deposition was done with counsel fully
 8   cross-examining.  In fact, I mean, all confrontational issues were
 9   addressed, and I even believe Mr. Moussaoui was present when we
10   took that rule 15 deposition, wasn't he?
11             MR. SPENCER:  I believe so, Your Honor, yes.
12             THE COURT:  Yes.  So is there any objection to that
13   transcript being admitted?  If you're not prepared to respond to
14   it -- I can't recall whether you've filed a response.
15             MR. MAC MAHON:  The only response I think we would have,
16   Your Honor, is I don't know whether the government is intending to
17   play the entire deposition or whether we can cross-designate if we
18   get specific portions.
19             MR. SPENCER:  Play the whole thing, Your Honor.
20             THE COURT:  Well, you ought to review it, and if there's
21   a principled basis for an objection to any portion of it, get that
22   to us right away.
23             MR. MAC MAHON:  We will, Your Honor.
24             THE COURT:  But I am, in essence, going to grant 1471,
25   all right?  So that motion is now off of our docket as something

 1   that we have to address.
 2             The government filed a motion yesterday -- and I know
 3   the defense hasn't had a chance to file a written response, or if
 4   you have, I haven't seen it -- 1535.  It's the motion for
 5   reciprocal discovery.  Is there going to be an opposition to that?
 6             Mr. Zerkin?
 7             MR. ZERKIN:  Your Honor, the difficulty is, of course,
 8   there are a lot of balls being juggled in the air at the moment.
 9             THE COURT:  Oh, I know.
10             MR. ZERKIN:  And I have, quite frankly, not -- I've been
11   elsewhere dealing with the juror issues.  So I have not -- I'm
12   sure there will be a response, but I have not focused on that yet.
13             THE COURT:  Well, I was trying to save you the need to
14   have to write something.  I mean, they're requesting under Rule
15   16, you know, their rights to appropriate reciprocal discovery,
16   and I think the categories that they've requested are within the
17   rules, so I don't think there should be a basis for the objection.
18             The government was asking that such things as fees or
19   any benefits paid to expert or other witnesses, you know, those
20   typical types of things, and they wanted it by no later than
21   February 27.  So, you know, if you have no opposition, make it
22   short.
23             MR. ZERKIN:  Judge, I will look at the categories.  If
24   there's no objection to it, we will advise the Court and counsel
25   promptly.  If there is something that we think is objectionable,

 1   we will advise everyone as well and file a response.
 2             THE COURT:  All right.  I'm going to get an order out
 3   today just to clean up portions of this case.  We did discuss the
 4   other day the defendant's motion to establish that the Federal
 5   Rules of Evidence do not apply.  I believe what I said in that
 6   hearing, which was partially sealed, that I agree with that
 7   position except that the Court always reserves the right to
 8   determine if evidence is relevant, whether it's cumulative,
 9   whether it's material or otherwise, you know, inadmissible for
10   reasons of prejudice or whatever.
11             So with those understandings that those, those criteria
12   do not change, I think there was no real objection to that
13   position that the rules of -- the traditional rules of evidence do
14   not apply to this proceeding, correct?
15             Mr. Novak, I think you had --
16             MR. NOVAK:  That's correct.
17             THE COURT:  All right.
18             MR. NOVAK:  We're going to file a response to their
19   motion in limine today, Judge.
20             THE COURT:  Well, I don't think you need to.
21             MR. NOVAK:  No, they filed a -- after you ruled --
22             THE COURT:  Right.
23             MR. NOVAK:  -- they filed a motion in limine about the
24   snippets of videotape testimony that we are now going to respond
25   to today.

 1             THE COURT:  That's fine.
 2             Now, there is a defense motion filed on January 19; it's
 3   1465.  This was a motion in limine to exclude two government
 4   expert witnesses who are also testifying as summary witnesses.  I
 5   think there are significant issues in that motion.
 6             One of the alternate requests in that motion is that
 7   there be a hearing, and I think we ought to have a brief hearing
 8   so that I can get more specifics as to exactly in particular, the
 9   degree to which the government would be using these witnesses to
10   give a prospective opinion.  That's the aspect of the testimony
11   that gives me the greatest concern, and we need to address that.
12             So that might be something that we could schedule for
13   next Friday as well.  That would have to be under seal, because
14   it's addressing witness issues ahead of the trial, but I would ask
15   you to think about doing that.
16             The government filed this motion, which is 1536, to
17   amend the witness list on mental health notice.  I'm granting that
18   motion.  I think it's appropriate, and I've already included the
19   first half of that in the voir dire for tomorrow with the
20   additional witness, so 1536 is granted.
21             And the government's position regarding the retention of
22   alternate jurors really is looking down the road, but I am going
23   to go ahead and just so you know ahead of time, whatever
24   alternates are left after Phase I will be essentially given very
25   strong operating rules about avoiding any involvement with the

 1   media, any looking at the case, in other words, keeping them as
 2   hermetically sealed as we can, and then I will bring them back
 3   into court for Phase II, if we get to Phase II, to sit as jurors
 4   as emergency alternates.  They'll know then that they're
 5   alternates.
 6             If we don't lose any jurors, then they'll never
 7   deliberate.  If we lose some jurors, I believe with proper voir
 8   dire and instructions, they can sit, and so that's how I'm going
 9   to address that issue, all right?
10             That is everything that I wanted to address this
11   morning.  Are there any other matters that we need to address?
12   First of all, is there anything further in terms of being ready
13   the rest of this week on the voir dire?  Is everybody set for
14   that?  Yes?
15             MR. ZERKIN:  Yes, Your Honor.
16             THE COURT:  All right.  Any other motions then that we
17   need to hear especially via hearing you need to, you know, let me
18   know about, all right?
19             All right, Mr. Spencer, was there something that you
20   wanted to raise?
21             MR. SPENCER:  Your Honor, I just wanted to -- going back
22   to the rule on witnesses, Your Honor, we had requested and I
23   believe the defense has consented to the government having two
24   case agents present during the testimony.  Those would be Aaron
25   Zebley and Jim Fitzgerald.

 1             If I'm misstating that the defense agreed, I apologize,
 2   but in a case of this size, I think two case agents would be
 3   appropriate.
 4             THE COURT:  Were you anticipating that those agents
 5   would sit within the well?
 6             MR. SPENCER:  Well, we don't have room, Your Honor.
 7             THE COURT:  I know.
 8             MR. SPENCER:  I'm out of chairs, so we're going to use
 9   one of our front row seats for one and have Mr. Zebley sit in the
10   front on this side of the bar, Your Honor.
11             THE COURT:  Is there going to be an issue about those
12   two?
13             MR. ZERKIN:  Your Honor, we don't object.  This relates
14   to the other question, of course --
15             THE COURT:  I know.
16             MR. ZERKIN:  -- and what's expert testimony and what's
17   not expert testimony, but in principle, we don't object to them
18   having the two case agents.
19             THE COURT:  All right, that's fine.
20             Is there anything else we need to address then this
21   morning?  We're going to see a lot of each other.  Are all three
22   counsel or all five counsel for the defense going to be in on the
23   voir dire or, I mean, are different people coming in?
24             MR. ZERKIN:  No, Your Honor.  I will be in on all of it,
25   and we will probably rotate other members of the defense team.

 1             THE COURT:  That's fine.
 2             Mr. Spencer?
 3             MR. SPENCER:  We are -- the three of us are going to try
 4   to be there for as much as we possibly can, Your Honor.
 5             THE COURT:  All right, that's fine.
 6             Very good.  If there's nothing further then, we'll
 7   recess court for the day.  Thank you.
 8                            (Which were all the proceedings
 9                             had at this time.)
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.
                                       Anneliese J. Thomson