13 March 2006
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1000 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA 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 BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME V 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 22314 FOR THE DEFENDANT: GERALD THOMAS ZERKIN KENNETH P. TROCCOLI ANNE M. CHAPMAN Assistant Federal Public Defenders Office of the Federal Public Defender 1650 King Street Alexandria, VA 22314 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 1001 APPEARANCES: (Cont'd.) FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. P.O. Box 903 107 East Washington Street Middleburg, VA 20118 and ALAN H. YAMAMOTO, ESQ. 643 South Washington Street Alexandria, VA 22314-3032 ALSO PRESENT: GERARD FRANCISCO COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 and KAREN BRYNTESON, FAPR, RMR, CRR Brynteson Reporting, Inc. 2404 Belle Haven Meadows Court Alexandria, VA 22306 (703)768-8122 1002 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, 1003 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. 1004 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. 1005 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, 1006 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 1007 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 1008 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 1009 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 1010 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 1011 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 1012 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 1013 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 1014 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 1015 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?" 1016 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. 1017 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? 1018 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 1019 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 1020 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 1021 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 1022 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. 1023 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. 1024 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 1025 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. 1026 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. 1027 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 1028 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.) 12 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. 16 17 18 Anneliese J. Thomson 19 20 21 Karen Brynteson 22 23 24 25