7 March 2006
Source: Digital transcript purchased from Exemplaris.com. Files digitally signed by reporter.
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1UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA, . Criminal No. 1:01cr455 . vs. . Alexandria, Virginia . March 6, 2006 ZACARIAS MOUSSAOUI, . 10:00 a.m. a/k/a Shaqil, a/k/a . Abu Khalid al Sahrawi, . . Defendant. . EXCERPT . . . . . . . . . . . . TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME I APPEARANCES: FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA DAVID J. NOVAK, AUSA DAVID RASKIN, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 2231430 FOR THE DEFENDANT: GERALD THOMAS ZERKIN KENNETH P. TROCCOLI Assistant Federal Public Defenders Office of the Federal Public Defender 1650 King Street Alexandria, VA 22314 (APPEARANCES CONT'D ON FOLLOWING PAGE) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 2 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: EDWARD B. MAC MAHON, 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 7 ALSO PRESENT: MARJORIE FARGO GREG MILLER 8 SHEILA MYRICK 9 COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR 10 U.S. District Court, Fifth Floor 401 Courthouse Square 11 Alexandria, VA 22314 (703)299-8595 12 and KAREN BRYNTESON, FAPR, RMR, CRR 13 Brynteson Reporting, Inc. 2404 Belle Haven Meadows Court 14 Alexandria, VA 22306 (703)768-8122 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 and Jury in.) 3 * * * * * 4 THE COURT: All right, but the rest of us, the 17 of you 5 are going to be the jury. At the end of the case, as I said, if 6 all 17 of you are still here, five of you will randomly be 7 selected as alternates, and so it will only be 12 of you who will 8 actually decide the first phase of this case. And I'll give you 9 more details about how all that's going to work in a few minutes. 10 What I wanted to do, however, was to begin by giving you 11 some instructions, and if Juror 402 and -- are you 379? Good. 12 If you would look to your right, gentlemen, you'll see a 13 stack of notebooks and pens. If you'd like to take one for 14 yourself and then pass them down the row? 15 Due to the complexity of the case, I will permit you to 16 take notes. Many judges don't let jurors take notes. I usually 17 do, and I want to just give you some preliminary instructions 18 about how you'd handle your notes. 19 You are instructed that your notes are only a tool to 20 aid your own individual memory, and you should not compare your 21 notes with those of other jurors in determining the content of any 22 testimony or in evaluating the importance of any evidence. 23 Notes are not evidence and are by no means a complete 24 outline of the proceedings or even a list of the highlights of the 25 trial. Above all, your memory should be your greatest asset when 4 1 it comes time to deliberate and render a decision in this case. 2 It is also important to remember that the 12 of you who 3 will ultimately decide this case are 12 coequal judges, because 4 jurors are really judges. The job of a juror is to actually judge 5 the facts of the case and render a decision based upon those 6 facts. 7 And I always tell jurors I wish I had 12 black robes I 8 could give to the jury to wear while they're sitting in this box 9 as a special reminder to each person in that box of the very 10 special role you play in your legal system. 11 Now, each of your individual memories of the trial 12 evidence and conclusions on that -- of that evidence, based -- I'm 13 sorry -- and conclusions based on that evidence is worthy of 14 respect and consideration by all the other jurors. The 15 conclusions of those jurors who have taken extensive notes are not 16 to be considered any more or less valid than the conclusions of 17 those jurors who took fewer notes or none at all. 18 You should put your juror number on your notebook, and 19 you may over the course of this trial need more than one notebook. 20 You're not to take those notebooks out of the courthouse. During 21 recesses and breaks, if you leave your notebooks in the jury box, 22 they'll not be bothered, and overnight my courtroom deputy, 23 Ms. Arnott, will collect them and return them to you in the 24 morning. 25 Now, I want to give you some preliminary instructions 5 1 because some of you have not been jurors, in fact, many of you 2 have not been jurors before, and I just want you to know what you 3 can be expecting during the course of these proceedings. 4 A trial is divided into several parts. The first part 5 involves jury selection, and, obviously, we have just completed 6 that part. After lunch the next phase will begin, and that is 7 called opening statements. This is the time when an attorney for 8 each side will provide the jury with an overview of the case from 9 that side's perspective. 10 Because the government has the burden of proof in a 11 criminal case, it goes first in each part of the trial. So the 12 government will make the first opening statement, and then the 13 defense will make its opening statement. Each side has been 14 allowed approximately 45 minutes in which to make its opening 15 statement. 16 Now, the jury needs to be careful in how it approaches 17 what the lawyers say during their opening statements, as well as 18 whenever the lawyers are speaking during the trial. Specifically, 19 unless a lawyer is announcing a stipulation, which I will explain 20 to you in a minute what that is, what a lawyer says either in an 21 opening statement or in a question to a witness or in an objection 22 or in closing argument is not evidence. 23 If you think about it, the lawyers weren't there on the 24 scene. They didn't take a -- promise to tell the truth in court, 25 although they're officers of the court, but they're not witnesses. 6 1 Instead, their job throughout the trial is to bring out the 2 evidence by asking the appropriate question of a witness or by 3 tendering the correct -- an appropriate exhibit. 4 Now, after opening statements, we will have a 20-minute 5 break and then begin the evidence portion of the trial. The 6 government will put its evidence on first. Evidence consists of 7 three categories of information. These would be called 8 stipulations, physical evidence, and witness testimony. 9 When we speak about a stipulation, that means that the 10 attorneys on both sides have agreed to the existence of a fact, 11 and the jury must, unless otherwise instructed, accept the 12 stipulation and regard the fact as proved. 13 Physical evidence includes such things as photographs, 14 objects, and documents. Now, some of the documents that will be 15 introduced into evidence in this case have been redacted. That 16 means that portions of the documents have been blacked out to 17 remove certain information, some of which may be about our 18 national security. The redactions were made consistent with the 19 law and under the supervision and approval of the Court. You may 20 not draw any inferences whatsoever from any redaction, nor may you 21 hold any bias against either party due to the redactions. 22 Lastly, you will be presented with witness testimony. 23 Normally in a criminal case, witnesses testify in the courtroom, 24 and this box that all of you have sat in during the voir dire is 25 the witness box. Now, when a person is in the courtroom actually 7 1 testifying, we call that live testimony. 2 Sometimes, however, a witness is not available to come 3 to the courthouse to testify in person. If the parties know about 4 a witness's unavailability in advance, they can arrange under Rule 5 15 of the Federal Rules of Criminal Procedure to conduct a 6 videotaped deposition of that witness. That involves having the 7 witness take the same affirmation to tell the truth as do live 8 witnesses in the courtroom, and then being questioned in exactly 9 the same manner as a live witness, that means having lawyers for 10 both sides ask questions. 11 Now, Rule 15 videotaped deposition testimony will be 12 introduced during this trial. You should also know that when 13 those depositions were taken, the defendant was acting as his own 14 attorney. I had also insisted that the defendant have the 15 assistance of counsel for those depositions. Therefore, you will 16 see both the defendant and his standby counsel asking questions of 17 the witness. 18 Since that time, the defendant's right to represent 19 himself has been revoked. You should draw no inference of any 20 kind for or against the defendant from the fact that he once 21 represented himself and no longer does. 22 Another unusual form of witness testimony in this case 23 may come from six men designated as enemy combatants. For 24 national security reasons, these six witnesses cannot testify live 25 in this courtroom, nor were the parties able to take their 8 1 depositions under Rule 15. Instead, you will receive their 2 testimony as written stipulations, which will be explained to you 3 in detail if they are entered into evidence. You may not draw any 4 inferences or hold any bias against any party due to the form in 5 which these witnesses' statements will come into evidence. 6 Now, after the government presents all its evidence, 7 then the defendant may present any evidence he has. In a criminal 8 case, there is no burden on a defendant to present any evidence; 9 however, he has a right to produce evidence if he wants to. If 10 the defendant puts on evidence, the government may present 11 rebuttal evidence. 12 Once the evidence portion of the trial is over, the next 13 part of the trial is closing arguments. The government makes the 14 first closing argument, then the defense makes his closing 15 argument, and because it bears the burden of proof, the government 16 is allowed a rebuttal argument. During closing arguments, the 17 lawyers will argue for the conclusions they believe the jury 18 should find from the evidence presented during the trial. 19 After all the closing arguments have been completed, it 20 then becomes my job to give you the specific instructions about 21 the law which you must apply to this case, and then we give the 22 case to you, the jury, for deliberation. 23 Now, during the trial, a lawyer may object to a question 24 or a piece of evidence or some other matter going on during the 25 trial. It is a lawyer's job to object when he or she believes 9 1 that there is a problem with a question or a witness's answer or 2 an exhibit or something else going on in the trial, and it's the 3 Court's job to rule on such objections. 4 If I find merit to the objection, you will hear me say 5 either "objection granted" or "objection sustained." Those 6 phrases mean the same thing. 7 If I find no merit, I will say either "objection denied" 8 or "objection overruled." And those two phrases mean the same 9 thing. 10 The jury should not hold against a party the fact that 11 an attorney has made an objection or draw any inference for or 12 against a party based on how the Court ruled on the objection. 13 The Court approaches objections in the same spirit as an umpire in 14 a sporting event, that is, to keep the enterprise conducted within 15 the rules and not to help one side win or the other side lose. 16 Lastly, because of the number of complex issues in this 17 case and the need to coordinate exhibits and witness schedules, 18 some of the trial lawyers may not be in the courtroom when trial 19 sessions start or may have to leave the courtroom while the trial 20 is in progress. I have given them permission to do this in order 21 to keep the trial on schedule. You should draw -- I'm sorry, you 22 should not draw any inferences against a party because of a -- 23 that party's lawyer's late entry or early leaving of the 24 courtroom. 25 I want to give you a brief overview of what is involved 10 1 in this first phase of this case. On April 22, 2005, the 2 defendant in this case, Zacarias Moussaoui, pled guilty to three 3 counts which subject him to a possible sentence of death. Briefly 4 summarized, those counts are, Count 1, conspiracy to commit acts 5 of terrorism transcending national boundaries; Count 3, conspiracy 6 to destroy aircraft; and Count 4, conspiracy to use weapons of 7 mass destruction. 8 Because the defendant has pled guilty, there is no 9 question about whether he is guilty of the crimes for which he was 10 charged. You have been selected to serve as jurors solely to 11 decide the defendant's punishment. 12 Under federal law, the punishment for each of these 13 three charges can be death or life imprisonment without the 14 possibility of release. There is no parole in the federal system. 15 Your conclusion that the defendant be sentenced to death or life 16 imprisonment will be binding on the Court, and I will sentence the 17 defendant according to your conclusion. 18 The punishment hearing itself is divided into two 19 phases. The purpose of the first phase, which is what we are 20 starting today, is to make a threshold finding on the defendant's 21 eligibility for the death penalty. The first issue you must 22 decide is whether the defendant was at least 18 years of age at 23 the time of the September 11, 2001 attacks. 24 I understand that the parties have stipulated that the 25 defendant was at least 18 years of age at that time. If so, you 11 1 are bound by that stipulation, and again, I will discuss all of 2 that with you in more detail later on. 3 And the reason for that is under the federal law, the 4 death penalty cannot be applied to someone under the age of 18 at 5 the time the offense was committed, and that's why I have to give 6 that to you. 7 Now, the second issue you must determine is whether the 8 defendant intentionally participated in an act, contemplating that 9 the life of a person would be taken or intending that lethal force 10 would be used in connection with a person other than one of the 11 participants in the offense, and that the victims of September 11 12 died as a direct result of that act. 13 I will define this threshold finding in more detail at 14 the end of the first phase before you deliberate; however, because 15 this threshold finding will be the focus of the first phase, I 16 want to summarize in a little bit more detail what the government 17 must prove at this first phase of the proceeding. 18 The government has informed the Court that the act upon 19 which it will rely is that the defendant lied to federal agents at 20 the time of his arrest in the October 16-17, 2001 time period, 21 which was approximately three weeks before the September 11 22 attacks occurred. Therefore, the government must prove three 23 essential things: 24 One, that the defendant intentionally -- yes, 25 Mr. Spencer? 12 1 MR. SPENCER: Yes. August, not October. 2 THE COURT: I'm sorry, August 16-17. 3 MR. SPENCER: Thank you, Your Honor, August. 4 THE COURT: Let me go back. The government has informed 5 the Court that the act upon which it will rely is that the 6 defendant lied to federal agents at the time of his arrest on 7 August 16 and 17, 2001, which was approximately three weeks before 8 the September 11 attacks occurred. Therefore, the government must 9 prove three essential elements on this -- in this phase: 10 One, that the defendant intentionally lied to federal 11 agents at the time of his arrest on August 16 through 17 of 2001; 12 Two, that the defendant did so contemplating that the 13 life of a person would be taken or intending that lethal force 14 would be used in connection with a person, other than one of the 15 participants in the offense; and 16 Three, that at least one victim died on September 11, 17 2001, as a direct result of the defendant's lies. 18 The burden of proof for this threshold finding rests on 19 the government. To that end, you must decide whether or not the 20 government has proved the threshold finding beyond a reasonable 21 doubt. If you fail to unanimously find that the government has 22 proved this threshold finding beyond a reasonable doubt, your 23 deliberations are over. The Court will then sentence the 24 defendant to life imprisonment without the possibility of release. 25 On the other hand, if you determine unanimously that the 13 1 government has proven this threshold finding beyond a reasonable 2 doubt, then we will proceed to the second phase, during which 3 evidence of aggravating and mitigating factors will be presented 4 and the ultimate decision as to the appropriate sentence reached. 5 Accordingly, during the first phase of the proceeding, 6 you should not consider whether death is the appropriate 7 punishment. Instead, you should focus solely upon whether the 8 government has proven the threshold finding beyond a reasonable 9 doubt. 10 I stress the importance of giving careful and thorough 11 consideration of all the evidence you will receive during this 12 trial. In making these very difficult decisions in this case 13 about punishment, you must be guided by reason and not by bias, 14 prejudice, or sympathy for or against either the defendant, the 15 government, or the victims, or by any public opinion. 16 You are to act impartially and objectively in deciding 17 the issues before you, with your sole goal being to render a fair 18 and just decision based on the law received from the Court and the 19 facts as you have found them based on the evidence presented only 20 in the courtroom. Anything you have seen, heard, or read about 21 this case outside of the courtroom must be entirely disregarded by 22 you in making your decisions. 23 Now, this last instruction addresses juror conduct. You 24 must scrupulously follow these instructions concerning your 25 conduct throughout the trial. 14 1 No. 1 -- and you've heard this from me a million times 2 and probably I'll start every day asking you the same thing, but 3 it is important -- you must avoid any media coverage or any 4 comment, whether from friends, family members, in the media or 5 elsewhere, about this case, the defendant, and the war on 6 terrorism in any form, including TV, radio, printed media, the 7 Internet, et cetera. And this also includes works of fiction or 8 entertainment. The movie Syriana, for example, would be 9 inappropriate for you to see while this case is in progress, and 10 any of the many pieces of fiction that are out there now that 11 address some of the issues circulating around this case. 12 No. 2, you may not discuss or communicate in any form 13 with anyone anything about this case, what you see or hear in the 14 courtroom, or your thoughts about the trial until you are excused 15 as a juror. 16 Moreover, I need to caution you at this point you may be 17 exposed to some national security information that has not been 18 fully declassified. Therefore -- and we will advise you if and 19 when that happens. There may be some information in this case 20 that you may never disclose. 21 Three, none of the court staff or the United States 22 Marshal's Service personnel may talk with you about any issue 23 related to this case or answer any questions you might have 24 related to this case, and you should not communicate with them 25 about the case or ask them such questions. 15 1 Their interactions with you will be limited solely to 2 helping you with logistical arrangements such as meals and 3 transportation, or where to find things in this building. I mean, 4 those types of very neutral pieces of information, of course 5 they're here to help you with. 6 If any of you believe that this rule as to juror and 7 staff conduct has been violated, or you have any questions or 8 concerns about your jury service, the proper procedure is for you 9 to write me a note using your juror number, not your name, and 10 that will get to me, and then I can respond to you. 11 Now, it is extremely important that a juror keep an open 12 mind throughout the trial. Until all of the evidence has been 13 presented and you have heard all the arguments of counsel and 14 received all the instructions of the Court, you do not have a 15 complete picture of the case. Therefore, while the trial is in 16 progress, do not discuss trial issues with the other jurors or in 17 any respect start deliberating. 18 If you start to think about issues and make up your mind 19 about them, it's harder to change your mind if new evidence comes 20 in that should be properly considered by you, so we try to ask 21 jurors -- we do ask jurors to keep an open mind throughout the 22 trial. 23 Now, lastly, the subject matter and the decisions at 24 issue in this trial are of the gravest nature. Nevertheless, 25 there may be times when I or one of the trial participants do or 16 1 say something that causes laughter. Everyone in this courtroom is 2 a human being, and laughter is a normal and healthy human 3 reaction, particularly to tension. 4 Even in the midst of one of the world's greatest 5 tragedies, the play Hamlet, there are moments of comic relief. 6 That interjection of humor in Hamlet does not change that play 7 into a comedy. 8 If there is humor or laughter during this trial, the 9 extremely serious nature of this trial is not in any respect 10 diminished. 11 Now, we're going to recess at this time, and as I 12 indicated to you earlier, Inspector Parks from the Marshal's 13 Service is going to brief you about transportation arrangements, 14 and my courtroom deputy, Ms. Arnott, is going to assist you with 15 food arrangements. And they will show you where you're going to 16 go for your lunch. 17 We are going to be together for a great deal of time. I 18 will do what I can to make this as comfortable for you. If you 19 need breaks before the allotted time, a lot of us are looking at 20 you, and that's one of the reasons, if you get our attention, we 21 will obviously break earlier. 22 If there are any difficulties, hopefully we can work 23 them out for you, but it is important that our jurors be 24 comfortable, be well rested, feel comfortable in the courthouse, 25 and if there's anything going on that is of concern to you, do not 17 1 hesitate to write me. 2 All right, counsel, do I need to raise any other issues 3 with the jury at this time? 4 MR. SPENCER: No, thank you, Your Honor. 5 MR. ZERKIN: Thank you, Your Honor. 6 THE COURT: And any objection to the instructions? 7 MR. SPENCER: None, Your Honor. 8 MR. ZERKIN: None. 9 THE COURT: All right. Mr. Yamamoto? 10 MR. YAMAMOTO: Your Honor, I have an administrative 11 matter. 12 THE COURT: All right. Should I excuse the jury first? 13 MR. YAMAMOTO: Yes, Your Honor. 14 THE COURT: All right. Then we're going to excuse the 15 jury at this time, and we'll stay in session to address that 16 matter. 17 You can go with the court security poeple into the jury 18 room, please. 19 (Jury out.) 20 THE COURT: All right. Mr. Yamamoto? 21 MR. YAMAMOTO: Your Honor, Mr. Moussaoui has asked that 22 the Court reconsider his motion for pro se status. 23 THE COURT: That issue has been considered many, many 24 times. It's over and done with. It's denied, and we will proceed 25 with this trial with full counsel in place. 18 1 MR. YAMAMOTO: Thank you. 2 THE COURT: All right, we'll recess court until 2:00. 3 (Recess from 12:15 p.m., until 2:00 p.m.) 4 5 CERTIFICATE OF THE REPORTERS 6 We certify that the foregoing is a correct transcript of the 7 record of proceedings in the above-entitled matter. 8 9 10 Anneliese J. Thomson 11 12 13 Karen Brynteson 14 15 16 17 18 19 20 21 22 23 24 25