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

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
                                  .       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
                        UNITED STATES DISTRICT JUDGE
                                  VOLUME I
                                  DAVID J. NOVAK, AUSA
                                   DAVID RASKIN, AUSA
                                  United States Attorney's Office
                                   2100 Jamieson Avenue
                                  Alexandria, VA 2231430
                                   KENNETH P. TROCCOLI
                                  Assistant Federal Public Defenders
                                   Office of the Federal Public
                                   1650 King Street
                                  Alexandria, VA 22314

 1   APPEARANCES:  (Cont'd.)
                                  P.O. Box 903
 3                                 107 East Washington Street
                                  Middleburg, VA 20118
 4                                   and
                                  ALAN H. YAMAMOTO, ESQ.
 5                                 643 South Washington Street
                                  Alexandria, VA 22314-3032
 7   ALSO PRESENT:                 MARJORIE FARGO
                                  GREG MILLER
 8                                 SHEILA MYRICK
10                                 U.S. District Court, Fifth Floor
                                  401 Courthouse Square
11                                 Alexandria, VA 22314
12                                   and
                                  KAREN BRYNTESON, FAPR, RMR, CRR
13                                 Brynteson Reporting, Inc.
                                  2404 Belle Haven Meadows Court
14                                 Alexandria, VA 22306

 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

 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

 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.

 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

 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

 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

 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

 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

 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?

 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

 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.

 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.

 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

 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

 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.

 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.)
 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.
                                       Anneliese J. Thomson
13                                        Karen Brynteson