13 March 2006
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                        UNITED STATES DISTRICT COURT
                            ALEXANDRIA DIVISION
     UNITED STATES OF AMERICA,     .       Criminal No. 1:01cr455
          vs.                      .       Alexandria, Virginia
                                  .       March 13, 2006
     ZACARIAS MOUSSAOUI,           .       9:30 a.m.
    a/k/a Shaqil, a/k/a           .
     Abu Khalid al Sahrawi,        .
                    Defendant.     .
     .  .  .  .  .  .  .  .  .  .  .
                          TRANSCRIPT OF JURY TRIAL
                        UNITED STATES DISTRICT JUDGE
                                  VOLUME V
                                  DAVID J. NOVAK, AUSA
                                   DAVID RASKIN, AUSA
                                  United States Attorney's Office
                                   2100 Jamieson Avenue
                                  Alexandria, VA 22314
                                  KENNETH P. TROCCOLI
                                   ANNE M. CHAPMAN
                                  Assistant Federal Public Defenders
                                   Office of the Federal Public
                                   1650 King Street
                                  Alexandria, VA 22314

     APPEARANCES:  (Cont'd.)
                                   P.O. Box 903
                                   107 East Washington Street
                                   Middleburg, VA 20118
                                   ALAN H. YAMAMOTO, ESQ.
                                   643 South Washington Street
                                   Alexandria, VA 22314-3032
                                   U.S. District Court, Fifth Floor
                                   401 Courthouse Square
                                   Alexandria, VA 22314
                                   KAREN BRYNTESON, FAPR, RMR, CRR
                                   Brynteson Reporting, Inc.
                                   2404 Belle Haven Meadows Court
                                   Alexandria, VA 22306

 1                         P R O C E E D I N G S
 2                            (Defendant in, Jury out.)
 3             THE CLERK:  Criminal Case 2001-455, United States of
 4   America v. Zacarias Moussaoui.  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, Mr. Spencer.
 9             MR. MAC MAHON:  Good morning, Your Honor.  Edward
10   MacMahon with Ken Troccoli, Alan Yamamoto, and Anne Chapman for
11   the defense.
12             THE COURT:  All right.  Should Agent Samit be in the
13   courtroom at the present time?  I assume we're -- do we need to
14   have a discussion before the jury comes in?
15             MR. MAC MAHON:  I think we should address the matter.
16             THE COURT:  Yeah.  Agent Samit, this doesn't affect you,
17   but it's just as well since you are a witness that you stay
18   outside.  We will call you in a second.  All right.
19                                 (Witness out.)
20             THE COURT:  All right.  In all the years I have been on
21   the bench, I have never seen such an egregious violation of a
22   court's rule on witnesses as occurred on, I guess, the afternoon
23   of March 10 and over the weekend apparently by an FAA attorney,
24   somebody working at the Transportation Safety Administration, who
25   as I understand it from what I have been told by the government,

 1   this person was an attorney who was, I guess, coordinating the FAA
 2   with this case; is that right, Mr. Novak?
 3             MR. NOVAK:  Yes, Judge.
 4             THE COURT:  And despite the fact that we had an order
 5   that indicated that there was a rule on witnesses, the only
 6   exception for which was experts for both sides, which we had
 7   agreed to, and the rule on witnesses among other things provided
 8   that no witness who was going to testify in this case was to have
 9   read the transcripts of the proceedings before that witness
10   testified, and obviously, no one in the courtroom was to be
11   discussing -- that is, none of the attorneys -- with any potential
12   witness what was going on in court.
13             And what I have been advised, and I certainly credit the
14   prosecutors for bringing this to my attention immediately, was
15   that this attorney not only discussed in detail with quotations
16   aspects of the government's opening statement and the theory as it
17   affected the FAA with various FAA people who are going to be
18   witnesses in this case, but as I understand it actually arranged
19   for a copy of the transcript from the first day's proceeding to go
20   to those witnesses.
21             Now, first of all, is there any additional information,
22   Mr. Novak, you want to bring to my attention about this attorney
23   and her conduct in this case?
24             MR. NOVAK:  Judge, we really are left speechless,
25   frankly.

 1             THE COURT:  Yeah.
 2             MR. NOVAK:  I mean, as soon as we found out about it on
 3   late Friday, we started investigating.  We were originally told it
 4   was just a transcript was delivered but not read, and then
 5   obviously that prompted our investigation.  We are obviously
 6   disappointed.
 7             I don't know what else to tell you other than, in fact,
 8   that I think at most the prejudice here exists in terms of the
 9   disclosure of the evidence testimony as it relates to Agent
10   Anticev.  And I want to make it clear, I'm not trying to diminish
11   the significance of this violation at all.  We obviously think it
12   is important.
13             THE COURT:  Well, just for the record, Mr. Novak, had
14   this attorney been advised about the rule on witnesses?  I mean,
15   the order is as public as it can be, and it is on the website, and
16   clearly, you know, you-all have had it for some time.
17             MR. NOVAK:  Right.  I would just say this:  She left me
18   a voice mail message.  I didn't speak to her after I found out
19   about it because we wanted to quarantine the situation and try to
20   find out what the extent of the, you know, potential contamination
21   was.  She left me a voice mail message on Friday night, which
22   Mr. Raskin also heard, in which she said she knew the rule.  She
23   thought it only applied to witnesses, not to the opening
24   statements, but, of course, she also disclosed the testimony of
25   Agent Anticev as well.

 1             So we're really not in a position to defend her conduct,
 2   Judge, and I don't want to sound like that.  I think the question
 3   is where do we go from here?  I have a case, there is a Fourth
 4   Circuit case that talks about such a situation, it is the Rhynes
 5   case.  I believe it's on -- I will give you a copy to defense
 6   counsel and to the Court, I would offer that up.  It is 218 F.3d
 7   310.  Can I offer it through Mr. Wood?  And the remedy in Rhynes
 8   lies in cross-examination, and I think that that's what the answer
 9   is here.
10             We have turned over, as the Court knows, we submitted to
11   you ex parte the e-mails, most of which is her pontificating about
12   the government's opening and wrongly, frankly, wrongly
13   understanding at all what we're going to do.  So in many ways it
14   is irrelevant.
15             The problem area that I frankly see is the disclosure of
16   the evidence of the cross-examination of Mr. Anticev, his
17   testimony about that one incident about the CIA claim, which we
18   have disclosed that to Mr. MacMahon, and I gather that that will
19   be an opportunity for them to cross-examine the witnesses.
20             I will tell you that we have obviously met with these
21   witnesses before, and they obviously know what the questions are
22   that we are going to ask.  Frankly, Ms. Martin did, too.  I think
23   she just misunderstood what it is that we were saying in the
24   opening and just improperly acted.
25             And I'm not going to defend her actions, obviously,

 1   wholly improper, we agree with your view of this, but I think now
 2   the question is prejudice and where do we go from here?  And I
 3   think the remedy is cross-examination.  The defense knows about
 4   it.  And her pontifications, frankly, are irrelevant to the rest
 5   of the case.
 6             THE COURT:  All right.  Mr. MacMahon?
 7             MR. MAC MAHON:  Thank you, Your Honor.  First, I would
 8   like to -- I appreciate the government bringing this to our
 9   attention as soon as they could, but this prompts us to file the
10   motion to dismiss the death notice in this case under the Fifth,
11   Sixth, and the Eighth Amendments to the Constitution of the United
12   States, Your Honor.
13             This is not going to be a fair trial anymore, and it is
14   going to be because of what a lawyer did in absolute derogation of
15   your order.  And it wasn't any of the three gentlemen sitting
16   here, but this is a lady who comes to the CIPA hearings.  This is
17   a person who has been involved in this case from the beginning.
18             THE COURT:  This attorney has been at the CIPA hearings?
19             MR. MAC MAHON:  Yes, Your Honor.  And the whole idea of
20   the rule on witnesses is to stop somebody from trying to shape the
21   testimony of a witness.  And one of the government's -- I don't
22   want to read the names of the witnesses here because we haven't
23   done that before, but showing transcripts to one of the key
24   government witnesses was obviously an attempt to shape their
25   testimony.  And the idea that I can pull out my opening statement

 1   or somebody else's and somehow cure that is impossible.
 2             And what's even worse, Judge, at the very least you are
 3   going to have to strike, I believe, the government's witnesses
 4   that saw this.  But the main other issue, which I frankly have
 5   never seen in a case, and a lot of issues in this case are sui
 6   generis, is that one, two, three, four of these witnesses, the
 7   defense had intended to call.
 8             And what am I going to do, cross-examine my own witness
 9   on a violation that some other lawyer did?  And if you look at the
10   attachment to the e-mail, the e-mail attachment to this letter,
11   what we're dealing with is, you know, to one of the government's
12   witnesses, "We need to be careful in describing how these measures
13   would have impacted the attack and be prepared."
14             Judge, that's not just a slipup about Agent Anticev not
15   remembering somehow that the agency knew that a plane was going to
16   fly into the CIA.  It isn't something dealing with an obscure
17   evidentiary issue.
18             It is the issue in this case that these witnesses were
19   going to testify to, as to if certain A, B, C things had happened,
20   that the attacks wouldn't have occurred and, therefore, this man
21   should be executed.  And what we have is an exact violation to
22   make them shape the testimony.  Be careful, you know, if one of
23   the lawyers asks you this, remember to say this.  It is exactly
24   what the rule of witnesses is for.
25             And because it impacts our witnesses as well as the

 1   government's, I don't think there is any way to cure it at this
 2   point.  At the very least, the government's witnesses that have
 3   been subject to this testimony have got to be excused from this
 4   case.  Maybe the Court, if you don't grant the motion to dismiss,
 5   would enter some determination of a finding as to these matters or
 6   some kind of instruction, and I only ask for that in the
 7   alternative, but I'm with the Court and I'm sure counsel here at
 8   the table agree with me, I'm shocked.
 9             I don't even -- when I got the letter this morning, I
10   really didn't even know what to say about such a violation from
11   someone who literally gets cleared, comes in this courtroom, and
12   I'm sure the record in this case will show was present in the
13   Court when you issued the rule on witnesses in this case, and was
14   certainly present when you have excused witnesses and told them
15   not to discuss their testimony with anyone.
16             If we're going to get a fair trial under the rules of
17   the Death Penalty Act, and the way it applies, we just can't have
18   this, Your Honor.  It is so much taint in the case, and it is
19   caused by the government that -- the proceedings really just
20   should be dismissed and Mr. Moussaoui just sentenced to life in
21   prison.  We're not going to get a fair trial anymore.
22             Thank you, Your Honor.
23             MR. NOVAK:  May I respond briefly?
24             THE COURT:  Yes.
25             MR. NOVAK:  First of all, in terms of dismissing the

 1   notice or excluding witnesses, the Rhynes case clearly says
 2   that --
 3             THE COURT:  Was that a death penalty case?
 4             MR. NOVAK:  It's not a death penalty case, Judge.
 5             The Rhynes case clearly says that the remedy has to be
 6   commensurate and it says to cross-examination is the appropriate
 7   remedy in such a circumstance.
 8             But may I just make one factual point here?  As the
 9   Court has had an opportunity to read this, and we've made full
10   disclosure to you as soon as we found out about this because we
11   want you to know what the situation is here, Ms. Martin's
12   overriding point on the e-mails was one thing.  She read the
13   opening statement to believe that the government was going to take
14   the position that the x-ray machines, and magnetometers would be
15   100 percent detecting of blades.  That's what her point is, and
16   that generated the response from Ms. Osmus, who says no, they are
17   not 100 percent.
18             The government will not put that evidence on.  In fact,
19   we intended even before this to elicit the fact that we know that
20   the examination for metal objects at airports is fallable, we know
21   that it is not 100 percent, and she just interpreted what we were
22   trying to do the wrong way.
23             So the thrust of her e-mail is just factually wrong
24   about what we intend to do.  And we never intended to offer that
25   type of evidence.  Her other factual point is that which we have

 1   disclosed, which is the testimony by Agent Anticev about the plane
 2   going into the -- the plan for a plane to, I think, go into the
 3   CIA, and, again, that's a factual issue.  What occurred with that
 4   plane or that information exists, I mean, it is finite.  I mean,
 5   it happened many years ago.
 6             Now, do I think this is wrong?  I absolutely agree that
 7   it is horrendously wrong, and she was here during the CIPA
 8   hearings, and she should have known about better.  There is no
 9   question about that.
10             The question is what is the remedy here?  And no matter
11   how upset everybody is here, it still has to be commensurate for
12   what the damage is.
13             And I'm suggesting to you what the true damage is here
14   when it all boils down, it is that comment about the plane into
15   the CIA, and that's been disclosed, and that can be
16   cross-examined, and that exists in intelligence reports.  It is
17   not like it is going to change or anything like that.  And so
18   that's the reason I suggested it could be cured here by
19   cross-examination.
20             At the end of the day, the jury has the right to hear
21   this evidence.  To exclude the FAA evidence, those witnesses in
22   this case would exclude clearly half of this case and would
23   deprive the jury an opportunity to make a proper decision in this
24   this case.
25             And, Mr. MacMahon also mentioned briefly finding the

 1   witnesses, but the witnesses had nothing to do with it.  They
 2   listened to a lawyer, who they thought was their attorney giving
 3   them advice.  So I don't think the witnesses are at fault here.
 4   It is one attorney who made an egregious mistake here.
 5             The question now is how do we fix it?  And I think the
 6   answer under Rhynes lies in cross-examination, Judge, particularly
 7   when you look at what the particular facts that she talked about,
 8   and you have the e-mails, Judge, and you can look at that.  Her
 9   argument is why did the government say that we could stop this
10   whole thing with just the magnetometers, because everybody knows
11   that you can't get 100 percent of the knives with the
12   magnetometers.
13             We are not going to put that evidence on.  We're going
14   to say -- we're going to have our witnesses testify, which is
15   accurate, which is that those machines are fallible, and she
16   misunderstood that, and that's why she got all excited.
17             Thank you, Judge, for your time.
18             MR. MAC MAHON:  Just briefly, Your Honor, if I could?
19             THE COURT:  Yeah.
20             MR. MAC MAHON:  The Rhynes case, which Mr. Yamamoto just
21   had a chance to read sitting here, involves a defense lawyer
22   talking to one of his witnesses about what was going to happen.
23   The Rhynes case -- and the defendant, of course, in that case
24   isn't a government lawyer who's implicating somebody's
25   constitutional rights.  We don't have the case, and maybe there is

 1   one and we haven't had time to look for it, where it was the
 2   government that violated the sequestration order in a death case
 3   with the effect that that's what would happen was that now the
 4   defense has got problems even putting on their own case with this
 5   testimony.
 6             I don't know what Ms. Martin's intention was in this
 7   case.  I haven't talked to her about it.  I can't discern it on
 8   the record that we have before us, but I know that I have got a
 9   problem with my own witnesses that I really don't think can be
10   remedied just through cross-examination and asking her whether --
11   asking the guy if he was misled by his own lawyer when he read the
12   opening statement or some other testimony.  So we reiterate our
13   motion.
14             THE COURT:  All right.  I'm going to recess to look at
15   the Rhynes case and to think about this issue.  As you know, there
16   was a close call Thursday afternoon with the objection that the
17   defense -- the correct objection the defense made to a line of
18   questioning by the prosecution.  I denied the motion for the
19   mistrial, thinking that I could adequately correct the record with
20   proper instructions, but this is the second significant error by
21   the government affecting the constitutional rights of this
22   defendant and, more importantly, the integrity of the criminal
23   justice system in this country, and in the context of a death
24   case, I have to think very careful about this issue.
25             I will ask the marshals if the jury wants to go to their

 1   lunch space to stretch their legs, just advise them that there is
 2   a legal issue that the Court has taken under advisement and don't
 3   know when I'm going to have them come back.
 4             Somebody bring me a copy of the Rhynes case.  We'll
 5   recess court until further notice.
 6             (Recess from 9:45 a.m., until 11:10 a.m.)
 7                               (Defendant in, Jury out.)
 8             THE COURT:  In the break, has anyone had a chance to see
 9   whether there's any more authority to help the Court on this
10   issue?  The Rhynes case, I don't think, solves the government's
11   problem.  That case involved a defense attorney, one of the trial
12   attorneys, who spoke to one witness.  The trial court as a
13   sanction for the violation on the rule on witnesses struck the
14   defense witness.
15             When the Court of Appeals looked at the fact scenario,
16   it was dealing with, first of all, a different rule on witnesses
17   than the one we have in this case.  The rule on witnesses in the
18   Rhynes case is purely referred to Rule 615 of the Federal Rules of
19   Evidence.
20             Now, this Court's order of February 22 referenced that
21   rule and specifically said, "It is hereby ordered that Federal
22   Rule of Evidence 615, exclusion of witnesses, be and is in effect
23   for nonvictim witnesses who may be called to testify in this
24   proceeding.  Such witnesses may not attend or otherwise follow
25   trial proceedings; for example, may not read transcripts before

 1   being called to testify."
 2             And specifically excluded from that restriction were the
 3   government's summary witnesses, Agents Zebley and Fitzgerald, and
 4   then we orally, I believe, amended that to include defense expert
 5   witnesses.  And I reiterated again that under Section 3593(c) of
 6   Title 18, that restriction did not apply to victim witnesses who
 7   could either attend the proceedings or follow any portion of the
 8   trial before testifying.
 9             That is the rule on witnesses that this Court invoked.
10   It is a very different rule than the rule that was at issue in the
11   Rhynes case, which merely referenced 615.
12             Moreover, the rule did not just say testimony, and so
13   any argument that the transcript of the opening statements would
14   not have been covered by this rule is not accurate.
15             Unlike the Rhynes case, which involved the taint of one
16   witness, there are seven witnesses to whom improper communications
17   were made.  And of these seven witnesses, I believe it's three
18   are -- were supposed to be government witnesses and four defense
19   witnesses, so we have a very different fact situation.
20             We also have the problem that in this case, the FAA
21   component of this case is basically one-half of the government's
22   theory of the case in terms of dividing what could have been done
23   offensively and defensively, so the Court is faced with a very
24   serious taint of a key portion of this case.
25             And if one reads the e-mails, the other problem that

 1   occurred here is that in many cases, the e-mails were being sent
 2   by this attorney to more than one witness at a time; that is, they
 3   were addressed to one witness and copied to another, which is a
 4   further violation of at least standard trial attorney practice of
 5   not interviewing or discussing things with witnesses together,
 6   because what that leads to is the very real potential that
 7   witnesses are rehearsed, coached, or, otherwise, that the
 8   truth-seeking concept of a proceeding is significantly eroded.
 9             And there's excellent language in the Rhynes decision
10   about the therapeutic value of rules on witnesses.  In fact, as
11   the Fourth Circuit has said, "After cross-examination, the
12   second -- one of the other most important ways of maintaining the
13   integrity of the evidence in a trial is by having rules on
14   witnesses."
15             Now, of course, in the history of this case, we already
16   have a significant limitation on the cross-examination rights of
17   the defendant through the use of stipulation substitutions for
18   combatant witnesses, which we haven't gotten to yet, so we have
19   that problem lurking in the background in this case.
20             We have the additional problem in this record that on
21   page 952 of the transcript from Thursday, the following question
22   was asked of the witness, "At any time from the time he" -- that
23   is, the defendant -- "spoke to you on August 17 until September
24   11, did he ever call you up or take any outreach to you to say,
25   hey, I lied; let me fix this?"

 1             Now, that question, which drew an immediate objection
 2   from Mr. MacMahon and a comment from the Court that the objection
 3   was sustained, that the question was not proper, and the jury was
 4   told to disregard the question, as we know from the colloquy after
 5   court on Thursday, in and of itself raised a significant problem
 6   in this record as to whether an inappropriate comment on a
 7   defendant's right to invoke his Fifth Amendment right to remain
 8   silent had been put into the record.
 9             So we now have two very serious problems.  I allowed the
10   first one, that is, the improper question, to go forward with some
11   trepidation, but I now have this issue for which there is
12   absolutely no excuse.
13             Now, the prosecution team is not responsible for what
14   happened.  Nevertheless, this attorney is a government attorney,
15   she has been present at CIPA hearings, and has blatantly violated
16   the Court's order.  And with this amount of mess in the record, it
17   is very difficult for this case to go forward.
18             However, I do not want to act precipitously.  There's
19   too much time invested in this case.  We have 17 members of the
20   community who've sacrificed a week of their time and who are here
21   as the jury, and so what I want to do to make sure that whatever
22   decision I render is appropriate, is I want to take a little time
23   to let this set in, and I want to talk with the attorneys about
24   some options, and I don't want to waste the jury's time any more
25   today.

 1             It is, therefore, my intention, unless I hear otherwise
 2   from counsel, to advise the jury that there's been a serious
 3   violation of a court order in this case that I am having to
 4   investigate, and it has put the trial on hold for a day or so.  I
 5   will excuse them for today, ask them to be back here, and that's
 6   one question I want to ask you-all:  One thing I am considering is
 7   an evidentiary hearing, in which I hear from this attorney and
 8   each of the seven witnesses who were exposed to her e-mails, and
 9   find out if I can satisfy myself that their testimony is not going
10   to be slanted or otherwise inaccurate.
11             How -- what is the defense view about that?
12             MR. MAC MAHON:  Well, Your Honor, we've made our motion.
13   If the Court wants to have an evidentiary hearing to further flesh
14   this out on the record, we wouldn't have an objection to that.
15             The only, the only comment I would make, if you're going
16   to tell the jury that there's been some kind of violation of the
17   court order, and again I'm not pointing at the three lawyers to
18   the right of me, but it certainly doesn't have anything to do with
19   the conduct of the defense in this case, and whether you want to
20   clarify that for the jury or whatever, we think the record is
21   clear at this point, whether or not she was -- I think we made our
22   motion, Your Honor.  I'm not going to belabor it.
23             If the Court wants to have an evidentiary hearing, we're
24   prepared to do that.
25             THE COURT:  All right.  Mr. Novak?

 1             MR. NOVAK:  Judge, we're obviously in a position of
 2   having brought this violation to your attention, so we're in a
 3   tough spot here, but I will say this:  I spent the weekend
 4   investigating this to the best of my ability.  I believe that the
 5   evidence of the violation is the e-mails.  I think that's how
 6   Ms. Martin acted.  That's why you have a written record as to what
 7   occurred.
 8             If the Court believes that you need a further
 9   evidentiary hearing to satisfy itself, I mean, it's up to the
10   Court.  I had a couple thoughts, though, if I could just offer
11   because I know that you're considering various remedies here of
12   how to cure this.
13             It seems to me that starting with the first witness,
14   Ms. Osmus, who's identified in the letter, she did exactly what
15   was right.  She responded to the e-mail and corrected Ms. Martin,
16   and you know from -- as to that particular witness that she has
17   not been tainted, because you have a written e-mail beforehand
18   that says, "You're wrong about this."
19             And we've turned that over as Jencks material now to the
20   defense.  And I'm suggesting that we know as to that witness,
21   Judge, that she's not been tainted, if we could go forward, if the
22   government could go forward with just that witness of the three
23   that we've identified.
24             As to the other -- as to the defense witnesses, which
25   puts us in a little bit of a different spot, those witnesses, as I

 1   understand it from the two e-mail notices that have been given
 2   from Mr. Yamamoto, were identified to introduce historical
 3   information that's in various intelligence notes, that was in
 4   slide shows, and things like that.  That information is final
 5   because it's past.  It's in records.
 6             And we're prepared to stipulate to those documents.
 7   They can introduce those documents.  They've gone through the CIPA
 8   process with the Court, and they can be stipulated.
 9             And my point there is that there would be no harm, I'm
10   suggesting to the defense, and I think that we're not here to
11   argue that there's no violation, and we're not here to argue that
12   it's not egregious.  I think what we're here to argue is that I
13   think the Court is in the position of trying to decide what the
14   appropriate remedy is, so that both sides can get a fair trial
15   here.  After all the work that both sides have gone through for
16   four years, and I know that's what the Court is trying to do, make
17   sure that due process is not offended here.
18             And it sees to me -- and Ms. Osmus, you can see her
19   e-mail.  She hasn't been tainted.  And on the defense witnesses,
20   we'll stipulate to all the past information pertaining -- that
21   they've identified that they want to introduce.  I don't see how
22   there can be any harm as to that.  They get the benefit of putting
23   that information in without having to call the witnesses and us
24   cross-examining them and saying, you know, would it have been
25   different had you gotten the statement of facts?  And so it seems

 1   to me that's a pretty big benefit to the defense.  That's just a
 2   couple of thoughts.
 3             THE COURT:  Mr. Spencer?
 4             MR. SPENCER:  Your Honor, let me just add several
 5   points.  First, we -- the three of us here, the actual prosecutors
 6   here, interpreted the Court's order in precisely the manner that
 7   the Court recited it.  We didn't think we had some we could
 8   properly share the opening statement with witnesses, and we
 9   didn't, so we completely agree with that.
10             Second, I think it is important to note that we -- this
11   wasn't our making.  And we've reported it to the Court as soon as
12   we learned of it.  And we cannot control the actions of an
13   attorney from the FAA, and we did not, obviously.
14             But, third, Your Honor, with respect to Mr. MacMahon's
15   point on what is told the jury, for those reasons and others and
16   because the Court is still considering the remedy, I think it
17   would be precipitous to tell the jury that there has been a
18   violation by the government at this point.  I mean, the Court is
19   still going to be considering an evidentiary hearing.  The Court
20   is still looking at what the remedy ought to be.
21             I think if the jury just knows that there is an issue,
22   and obviously the Court is intent on telling them that there's
23   been a violation of a court order that necessitates the recess at
24   this point, I think that is sufficient right now.
25             Later on, if that's part of the remedy the Court decides

 1   upon, then fine, but I don't think we need to get to that right
 2   now to tell the jury that today.  Thank you, Your Honor.
 3             THE COURT:  All right.  If the jury is out there, let's
 4   bring them in.
 5             MR. MAC MAHON:  Can I just speak for one second, Your
 6   Honor?
 7             THE COURT:  I'm sorry.  Mr. Wood, hold on one second.
 8   Yes, Mr. MacMahon.
 9             MR. MAC MAHON:  With respect to the FAA issues, what
10   Mr. Yamamoto was telling me there was that there's a lot of
11   information in addition to just the introduction of documents of
12   an historical nature and otherwise that's going to come out of
13   these witnesses.
14             It's not -- and maybe Mr. Novak just doesn't know the
15   full extent of what Mr. Yamamoto intends to do, is to elicit a lot
16   of this information about the very issues about security, what was
17   going on at the airports, and what was going -- actually happening
18   in that time frame.  So the remedy of just putting documents in by
19   stipulation is no answer to this problem.
20             I haven't seen the e-mail that Mr. Novak referred to --
21             THE COURT:  All right.
22             MR. MAC MAHON:  -- so I'm -- and if it's been produced,
23   I haven't seen it.
24             THE COURT:  Well, what I'm going to do is the
25   government's submission to the Court was ex parte.  I'm going to

 1   overrule that label and require that the entire package be given
 2   to the defense.
 3             And I see no reason why that should not be public,
 4   because if this trial winds up -- if the death penalty winds up
 5   being dismissed, the public has a right to know how and why it
 6   happened and so I will direct that that information, since the --
 7   will be publicly available, and you have it, and the public has
 8   it, and that is appropriate.  The jury will not get it.
 9             I'm going to tell the jury that there has been a problem
10   created not by the prosecution team but by the FAA in this case
11   and that I have to take under consideration some issues, and I'm
12   going to have them coming back Wednesday morning.  We're going to
13   take some time and think about this.  And so let's get the jury in
14   so I don't waste --
15             MR. NOVAK:  Judge, may I say one thing?
16             THE COURT:  Yes, Mr. Novak.
17             MR. NOVAK:  Ms. Martin actually works for the
18   Transportation Safety Administration, not the FAA.
19             THE COURT:  Sorry.
20             MR. NOVAK:  And to be clear, the FAA had actually
21   removed her from the case by the time she sent these e-mails.  She
22   originally was representing these attorneys, but last week, the F
23   AA had their own counsel step in and take it over.  She sent the
24   e-mails while she was still acting in her Transportation Safety
25   Administration posture.

 1             Just to be accurate, she doesn't work for the FAA; she
 2   works for TSA; and I'm just telling you that additional fact.
 3             THE COURT:  Thank you.  Thank you.
 4             Let's bring the jury in.
 5             And will the marshals be ready then to assist the jury
 6   in leaving the building?
 7             THE DEPUTY MARSHAL:  Yes, ma'am.
 8             THE COURT:  Thank you.
 9                                 (Jury in.)
10             THE COURT:  Thank you, ladies and gentlemen.  Have a
11   seat, please.
12             And I apologize to you.  Juries hate what just happened,
13   and that is, you come to court, you're here on time, and you don't
14   get to come into the courtroom, but I want you to have a little
15   background as to what has happened today.
16             Back on February 22, I issued an order that's not
17   uncommon in most cases, and that is, the judges issue what are
18   called rules on witnesses.  It's an order that is meant to prevent
19   witnesses from comparing their testimony with each other or from
20   listening to what witnesses had said in court and then changing
21   their testimony to be consistent with that testimony or to refute
22   it.
23             It's a very important protection of the truth-seeking
24   process of a trial, and we take that rule on witnesses very
25   seriously, as do all the trial lawyers who appear in this court.

 1             Now, the rule on witnesses in this case was even a
 2   little bit more specific, because this is a very visible case.
 3   One of the things that is happening in this case is that the
 4   transcript is being prepared and is available on the Internet, so
 5   that people can read this afternoon what happened in court this
 6   morning.
 7             And so in my order of February 22, I included the fact
 8   that witnesses may not attend or otherwise follow trial
 9   proceedings, which included specifically may not read transcripts
10   before being called to testify.
11             It was brought to the prosecutors' attention -- and they
12   get great credit for having immediately alerted the Court -- that
13   an attorney for the TSA, the Transportation Safety Administration,
14   who was a liaison person with several of the government aviation
15   witnesses in this case egregiously breached that order by, among
16   other things, sending copies of the transcript of the opening
17   statement to, it appears, seven witnesses, plus e-mail messages
18   commenting upon the government's opening statement and issues that
19   had been raised in this case.
20             And I frankly have not determined how I'm going to
21   handle that problem, but it is the kind of legal issue that I must
22   address as the judge presiding over this case, and I want you to
23   know why I've had to have this delay.
24             Now, the weather is beautiful out there, and I don't
25   want you to have to sit around all day while I figure out what I'm

 1   going to do.  And I'm going to perhaps have to have some hearings
 2   tomorrow, which would not at this point be appropriate for you to
 3   be exposed to, so I am putting you on a vacation, and we are not
 4   going to be in session, at least not with the jury, tomorrow.
 5             At the present time, I will want you back here at your
 6   regular starting time on Wednesday.  It is obviously very
 7   important, and I expect there'll be some news coverage about this,
 8   so please continue to follow your obligation to this Court and
 9   avoid any coverage about this issue in particular, the case,
10   al Qaeda, or the defendant.
11             Again, I want to make sure you understand neither our
12   prosecutors who brought this to my attention immediately, nor the
13   defense counsel, had anything to do with this.  Nevertheless, it
14   is a very significant problem that I have to think about and
15   decide how I'm going to address.
16             So I want to thank you for your attendance this morning.
17   The marshals will help you get out of the building, and we will
18   see you back here on Wednesday.  You're free to go to work
19   tomorrow if you'd like to.  All right?
20             Thank you.  We'll stay in session.
21                                      (Jury out.)
22             THE COURT:  All right.  I would like some more briefing.
23   There's got to be more case law out there on this issue.  I will
24   also invite both sides to address this Fifth Amendment issue that
25   was raised on Thursday so I have a better handle on the law.

 1             And I think tomorrow morning, it would be wise for us to
 2   see some of these witnesses to try to determine the extent to
 3   which they have been tainted and to think about other ways in
 4   which we can remedy the situation, if at all possible.
 5             All right?  I'll put the burden on the government to
 6   line up the witnesses.  We can start at 9:30 tomorrow morning.
 7             MR. NOVAK:  Judge, I think that we can produce all of
 8   them except for one at this point, and the only reason -- I will
 9   certainly try to produce all of them.
10             THE COURT:  Which --
11             MR. NOVAK:  The fourth witness, the first identified
12   defense witness is retired, and he's in North Carolina.  We're
13   going to scramble to get him up here.  I don't know if I can get
14   him here by 9:30.  We're certainly going to do everything we can.
15             THE COURT:  Well, we've got the whole day to take
16   evidence and decide how we're going to handle this thing.
17             MR. NOVAK:  We'll certainly -- we're going to do
18   everything possible to get him here.  I just want to make it -- I
19   don't want you to think we're negligent if we can't get him here.
20             THE COURT:  And I would assume at this point you're
21   going to get the word out to any other attorneys from other
22   government agencies who are working with you on this case that if
23   there have been any other similar violations, I'd better know
24   about them now, because if we find out about them on
25   cross-examination, there's going to be some serious sanctions.

 1             MR. NOVAK:  Judge, we also checked with the airline
 2   attorneys that were referenced in the e-mails to make sure that
 3   there was no violation as to any of the testimony from airline
 4   employees, and they've indicated to us that that did not occur.
 5   We checked that right away.
 6             THE COURT:  All right.
 7             MR. NOVAK:  May I make one additional comment?
 8             THE COURT:  Yes, sir.
 9             MR. NOVAK:  Just in reaction to something Mr. MacMahon
10   said.  In terms of the defense witnesses, the first defense
11   witness and the -- was retired by the time, the summer of 2001.
12             The other three witnesses are purely intelligence types
13   of witnesses, nothing to do with what happened with the gates,
14   screening, and stuff like that, and so they would not be able to
15   give evidence about the point about screening and being
16   successful, and that's the reason -- I just point that out to you
17   in terms of our offer to cure this through stipulations, which we
18   renew.  If there's something in particular that they want to cure
19   this, we would be certainly open to that.  But their testimony, I
20   don't think, affects the issue that is raised by Ms. Martin and
21   her e-mails.
22             THE COURT:  All right.  Well, I'll be awaiting your
23   memoranda on these two issues, and we'll start at 9:30 tomorrow
24   morning.
25             Anything else the defense wants to bring to my

 1   attention?
 2             MR. MAC MAHON:  No, Your Honor.  We'll get you a brief.
 3   Do you want one by 5:00?  Is that what you're looking for?
 4             THE COURT:  I'd like to be able to read it for tomorrow,
 5   yeah.
 6             MR. MAC MAHON:  We'll do our best.
 7             THE COURT:  All right.  Very good.
 8             MR. MAC MAHON:  Thank you.
 9             THE COURT:  We'll recess court.
10             (Recess from 11:33 a.m., until 9:30 a.m., March 15,
11   2006.)
13                      CERTIFICATE OF THE REPORTERS
14        We certify that the foregoing is a correct transcript of the
15   record of proceedings in the above-entitled matter.
                                       Anneliese J. Thomson
21                                        Karen Brynteson