26 July 2002
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0001
1 UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
2 ALEXANDRIA DIVISION
3 UNITED STATES OF AMERICA, . Criminal No. 01-455-A
.
4 vs. . Alexandria, Virginia
. June 13, 2002
5 ZACARIAS MOUSSAOUI, . 1:00 p.m.
a/k/a Shaqil, a/k/a .
6 Abu Khalid al Sahrawi, .
.
7 Defendant. .
.
8 . . . . . . . . . . .
9 TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE LEONIE M. BRINKEMA
10 UNITED STATES DISTRICT JUDGE
11 APPEARANCES:
12 FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA
KENNETH M. KARAS, AUSA
13 DAVID J. NOVAK, AUSA
United States Attorney's Office
14 2100 Jamieson Avenue
Alexandria, VA 22314
15
16 FOR THE DEFENDANT: ZACARIAS MOUSSAOUI (pro se)
17
18
19 (APPEARANCES CONT'D. ON FOLLOWING PAGE)
20
21 COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR
KAREN BRYNTESON, RMR, CRR
22 U.S. District Court, Fifth Floor
401 Courthouse Square
23 Alexandria, VA 22314
(703)299-8595
24
(Pages 1 - 68)
25 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
0002
1 APPEARANCES: (Cont'd.)
2 FOR THE DEFENDANT: FRANK W. DUNHAM, JR.
Federal Public Defender
3 KENNETH P. TROCCOLI
Assistant Federal Public Defender
4 Office of the Federal Public
Defender
5 1650 King Street
Alexandria, VA 22314
6 and
EDWARD B. MAC MAHON, ESQ.
7 P.O. Box 903
107 East Washington Street
8 Middleburg, VA 20118
and
9 GERALD THOMAS ZERKIN
Assistant Federal Public Defender
10 Office of the Public Defender
One Capital Square
11 830 East Main Street, Suite 1100
Richmond, VA 23219
12 and
JUDY CLARKE
13 Assistant Federal Public Defender
Federal Defenders of Eastern
14 Washington and Idaho
10 N. Post, Suite 700
15 Spokane, WA 99201
16
ALSO PRESENT: HARRY BRADY
17 GERARD FRANCISCO
SALLY HASSENEIN
18 NANCY KRAMP
19
20
21
22
23
24
25
0003
1 P R O C E E D I N G S
2 THE CLERK: Criminal Case 2001-455-A, United States of
3 America v. Zacarias Moussaoui. Will counsel please note their
4 appearance for the record.
5 MR. SPENCER: Good afternoon, Your Honor. Rob Spencer,
6 Ken Karas, and David Novak for the United States.
7 THE COURT: Good afternoon.
8 MR. DUNHAM: Good afternoon, Your Honor. Frank Dunham,
9 Ed MacMahon, Jerry Zerkin, and Judy Clarke for the defendant.
10 THE COURT: Good afternoon, counsel.
11 All right, Mr. Moussaoui is entering.
12 (Defendant in.)
13 THE COURT: All right. This matter comes on for
14 several issues, the first of which is to make a decision as to
15 the competency of Mr. Moussaoui to exercise his Faretta rights to
16 waive counsel and to represent himself. And we have received, as
17 everybody knows, forensic evaluations by Dr. Patterson, who was
18 appointed by the Court to conduct such an examination.
19 Dr. Patterson met briefly with Mr. Moussaoui four times
20 in May and did produce a preliminary or first report summarizing
21 those four contacts with Mr. Moussaoui and his conclusions based
22 upon those four contacts. Mr. Moussaoui had not engaged Dr.
23 Patterson in any kind of an extensive discussion in those first
24 four meetings.
25 Based on that first report, defense retained or had
0004
1 already retained two mental health experts who basically reviewed
2 Dr. Patterson's report and much of the same documentary
3 information, pleadings, some evidence, writings of Mr. Moussaoui,
4 and have tendered their views on the issue of Dr. Patterson's
5 report and the mental health of Mr. Moussaoui.
6 Dr. Patterson was able in one final, the fifth visit
7 with Mr. Moussaoui, to have nearly a two-hour interaction with
8 him and was able to file a much more detailed supplemental
9 report. And there has been a brief response to that report filed
10 by the defense.
11 So the first question now that the Court has these four
12 reports, which it has read, and I've, of course, read the briefs
13 of the attorneys on this issue. I've also read Mr. Moussaoui's
14 earlier pro se pleadings on the issue of his desire to represent
15 himself. This is the proceeding at which we're going to make
16 decisions on these issues.
17 Now defense counsel has requested that the Court not
18 rule today but to permit further evaluation of Mr. Moussaoui. I
19 find that that is not necessary based on the quantum of
20 information that the Court has before it in the forensic reports
21 that have been filed to date. I have, however, allowed to both
22 sides the option of putting on any additional evidence on the
23 issue of competency.
24 Mr. Dunham, is there any additional evidence you want
25 to present to the Court on that issue at this time?
0005
1 MR. DUNHAM: Well, Your Honor, if you're not going to
2 entertain argument on that point, we would call Dr. Stejskal,
3 unless the Court would prefer just a proffer of what his
4 testimony would be and would accept that proffer. I had prepared
5 to argue the issue of whether there was enough before the Court
6 to determine competency at this point, an argument that goes
7 somewhat beyond the papers we've submitted on this point.
8 THE COURT: I'm going to allow brief argument. I'm not
9 cutting you off from that right.
10 MR. DUNHAM: Okay.
11 THE COURT: But what I'm saying is that to the extent
12 in your motion you have asked the Court to have further
13 evaluations done of Mr. Moussaoui, not necessarily a Butner-type
14 of evaluation but further reports or evaluations, I have
15 determined that that's not necessary.
16 But I will hear any additional argument or evidence
17 that you want to present. You are still the counsel of record
18 for Mr. Moussaoui at this point, because I have not made a
19 definitive ruling on his desire to be pro se, and therefore, you
20 will be representing him in this matter, and so you may make any
21 argument you wish on his behalf in that respect.
22 MR. DUNHAM: Your Honor, then we would call William
23 Stejskal to the stand.
24 Is he here?
25 THE COURT: All right.
0006
1 MR. DUNHAM: And I would ask that Ms. Judy Clarke be
2 admitted pro hac vice for the purpose of conducting the
3 examination.
4 THE COURT: All right, that will be granted.
5 I assume there's no objection from the United States,
6 Mr. Spencer?
7 MR. SPENCER: Your Honor, I think a proffer is probably
8 sufficient here, but I don't object, no.
9 THE COURT: All right. Well, Mr. Dunham, why don't you
10 start or if you're not handling -- I guess you are handling this.
11 Let me hear what your proffer is to see what it would add to the
12 record.
13 MR. DUNHAM: Well, Your Honor, I believe if, if Mr. --
14 Dr. Stejskal were to testify, he would point out that
15 Dr. Patterson defined "delusion" as a belief not supported by
16 fact or culture at page 9 of his report. And he would point out
17 that Dr. Patterson said that you can't say that Moussaoui's
18 specific thoughts are not delusional based on his interview at
19 page 7 of his report.
20 He would then point out that there is nothing in
21 Dr. Patterson's report that indicates that Mr. Moussaoui's
22 beliefs in this case, in particular the belief that his attorneys
23 are in a conspiracy with the government to kill him, there's
24 nothing in his report that indicates that that's a common belief
25 from people of Mr. Moussaoui's subculture and that one would
0007
1 expect an opinion based on a subculture as the explanation for an
2 irrational belief to go into that issue of how other people in
3 that subculture would act under similar circumstances in order to
4 determine that it is subcultural.
5 This brings us to the diagnosis which Dr. Stejskal
6 would testify that is -- that Dr. Patterson has taken
7 inconsistent positions. He excludes an Axis I diagnosis of
8 mental -- major mental illness by saying that Mr. Moussaoui is
9 acting in accordance with his subculture; that is, when he adopts
10 a belief that is not real, the -- that he, Dr. Patterson explains
11 this away by saying it is consistent with his subculture. But
12 then on Axis II, he gives a diagnosis.
13 Now if Mr. Moussaoui is acting consistently with his
14 subculture, there should be no diagnosis on Axis II, either,
15 because acting consistent with one's subculture should not
16 produce a diagnosis on either axis. And so Dr. Stejskal would
17 testify that there's an inherent inconsistency in the diagnosis
18 in Dr. Patterson's report that is not explained, not reconciled,
19 and is in flat contradiction with the DSM-IV, and that would be
20 his testimony.
21 THE COURT: All right. The difficulty that I think the
22 defense has in its position is that unlike Dr. Patterson, who did
23 have an opportunity to physically interact with Mr. Moussaoui on
24 five different occasions, my understanding is that neither of the
25 two mental health experts who you engaged have been able to meet
0008
1 with Mr. Moussaoui. Is that correct?
2 MR. DUNHAM: Your Honor, that is correct. And I would
3 also say that when you say five interactions, Mr. --
4 Dr. Patterson did not see him on four, and on the fifth, he
5 himself says that he was unable to perform a full mental status
6 examination.
7 And we're dealing with a serious matter here. And we
8 believe that the Court has the power to require Mr. Moussaoui to
9 submit to a proper examination by some doctor, which he has not
10 done yet. And we, we believe that it won't -- it shouldn't take
11 long. The Court simply orders him to fully comply, to answer the
12 questions.
13 I, I am prepared to address this morning the things
14 that come out of the examination that Dr. Patterson had on June 7
15 that don't make any sense and ought to give the Court substantial
16 pause. If you read Dr. Patterson's report, at one point
17 Mr. Moussaoui says, "I want to change my plea." His plea is
18 currently not guilty. Yet he talks in the same report about
19 wanting a jury trial. He talks in the same report about the
20 witnesses he's going to call. He talks in the same report about
21 how counsel want him to be convicted and won't really defend him.
22 Those thoughts are inconsistent thoughts, and a
23 thorough examination of Dr. -- of Mr. Moussaoui would probe into
24 those inconsistencies and try to determine what the thought
25 process is that produced those statements in a two-hour
0009
1 interview.
2 Now I'm not faulting Dr. Patterson for not being more
3 aggressive. Mr. Moussaoui turned him away four times and saw him
4 on the fifth time only after he saw Dr. Patterson's report and
5 saw in Dr. Patterson's report the things that his attorneys were
6 reporting about him, and on that situation, he agreed to, to let
7 Dr. Patterson see him.
8 But the scene, that interview was controlled by
9 Mr. Moussaoui. Dr. Patterson was trying to build trust with the
10 man. He couldn't press him. He was lucky to get in, because
11 Mr. Moussaoui had refused him four previous times.
12 There are other things in that report that are
13 completely illogical and inconsistent that Dr. Patterson did not
14 follow up on. For example, during that interview, Mr. Moussaoui
15 says that he told Frank Dunham that he wanted to go pro se and
16 represent himself and that Frank Dunham said, "Okay. I'll have
17 one of my assistants draw up the motion for you."
18 Now he later on describes how he played dumb and
19 secretly went along with a motion that he didn't even really
20 believe in so that he could get into court and ask Your Honor to
21 allow him to go pro se.
22 Now Dr. Patterson never really explores why if he asked
23 his counsel if he could go pro se and his counsel says, "I'll
24 prepare a motion for you," why he doesn't say, "Okay. Do it,"
25 why he goes through an elaborate ruse of over a month to bring
0010
1 the matter up in an indirect way.
2 I think Dr. Patterson would say he'd like to know the
3 answers to those questions. I think -- because Dr. Patterson has
4 said he can't rule out delusions and he said he can't rule out
5 the fact that perhaps he has delusions and fantasies regarding
6 the roles of his attorneys. He says that right in his report.
7 And it seems to me that rather than reaching a
8 premature closure on this thing, under Mc Kaskle, it wouldn't
9 stall the proceedings to require Mr. Moussaoui to submit to a
10 complete examination, answer all the questions. If there's
11 inconsistencies, if there's thought processes disconnected, let
12 the mental health experts explore that fully and make it clear to
13 Mr. Moussaoui that he can't duck it, he can't bob and weave, and
14 he can't fulfill the requirement of this Court by simply
15 answering those questions he wants to ask -- answer and not
16 answer the other questions.
17 I do not believe we're at the point in a death penalty
18 case where the Court should on this record foreclose competency
19 when it comes to waiving counsel. And if there's any seriousness
20 to the talk about changing his plea, he's got to have further
21 examination than what he's had up to this point.
22 We would ask that Dr. Patterson and our experts be put
23 on an equal footing, that Mr. Moussaoui be told that his pro se
24 motion will be continued until he meets with these people, and
25 that his refusal to meet and answer their questions fully and
0011
1 participate in the examination will result in denial of his pro
2 se right. That's what we think should be done here, Your Honor,
3 most respectfully.
4 THE COURT: All right. Mr. Spencer, do you want to
5 respond?
6 MR. SPENCER: Thank you, Your Honor. On the matter of
7 that statement about a change of plea, a change of plea, of
8 course, Your Honor, doesn't require a mental health examination.
9 It requires what happens in courts all across the country every
10 day: a simple colloquy in which the court makes an assessment
11 about the mental health based on the colloquy of the defendant.
12 That points out, Your Honor, that on this record, the
13 Court has ample evidence to find the defendant, Mr. Moussaoui,
14 competent. You've got Dr. Patterson's two reports now. You've
15 got the defendant's court appearances, including a 50-minute
16 colloquy on April 22 with him. You've got some written pleadings
17 by the defendant. You've got the observations of Alexandria
18 Detention Center personnel recounted both by defense
19 psychologists and by the psychiatrist, Dr. Patterson, that you
20 appointed.
21 There's plenty here. There's just no reasonable cause
22 to belabor this any longer.
23 Out of an abundance of caution, I believe, Your Honor,
24 you asked Dr. Patterson to take a look at the defendant's mental
25 health. He's done that. We're past that stage now. You've got
0012
1 the record before you on which you can find him competent, and we
2 can move forward.
3 That's all, Your Honor. Thank you.
4 THE COURT: All right. I have, Mr. Dunham, given very
5 careful consideration to this issue. I agree, frankly, with
6 Mr. Spencer that it was out of an abundance of caution that I
7 decided to have the mental evaluation performed of Mr. Moussaoui,
8 because although his style, his writing style may be a bit more
9 dramatic than would a lawyer's style be, and he certainly has a
10 flare for adjectives, as you know, Mr. Moussaoui does come from a
11 different culture where things are done differently than we, and
12 he is, in fact, in a much smaller section of that culture than
13 even that culture itself as a whole.
14 Cultural differences may appear irrational to different
15 cultures. It doesn't mean the person is insane from a
16 psychological standpoint.
17 I think it's a very -- very, very significant that the
18 day-to-day observations of the people in the Alexandria Jail
19 consistently negate any question about there being any serious
20 mental illness or disease from Mr. Moussaoui. I did think those
21 first four contacts in and of themselves had some significance.
22 That's why I thought Dr. Patterson's report was so excellent.
23 He noted, for example, consistently that
24 Mr. Moussaoui's cell was neat, that he was appropriately dressed,
25 that his hygiene was appropriate. And we all know because we've
0013
1 been in this business a long time, people with serious mental
2 illness, that's one of the first things you look for. They are
3 often disheveled. They are -- they sometimes smell bad. They
4 are unkempt. That's not Mr. Moussaoui.
5 The food hoarding was the one bit of somewhat
6 aberrational behavior that's been pointed out by both sides, but
7 that's been in my mind completely explained away in part by
8 Mr. Moussaoui's fasting practices, which are part apparently of
9 his religious beliefs. And before April 22, when this issue
10 about proceeding pro se even came up, that problem was resolved
11 between Mr. Moussaoui and the folks in the jail. That suggests,
12 as the psychiatrists talk about goal orientation and the ability
13 to resolve problems. There's been no evidence from the people
14 who watch him on a day-to-day basis of delusions, of any kind of
15 strange behavior that would give the Court any concern.
16 Frankly, one of the reasons I was erring on the side of
17 caution was because I'm certainly aware that the special
18 management, administrative management procedures in place
19 covering -- governing how Mr. Moussaoui's being housed are
20 onerous, and there was a concern to make sure that there had not
21 been some kind of decompensation by Mr. Moussaoui while he'd been
22 in that kind of custody.
23 The jailers, none of them provided any evidence of
24 that. And Dr. Patterson, although those first four contacts were
25 brief, he did have face-to-face contact with the defendant. He's
0014
1 had a two-hour interaction with him.
2 I've certainly seen Mr. Moussaoui now two or three
3 times in court and read all of his papers. And as I said, I
4 don't see any basis to prolong this issue. I am comfortable in
5 deciding the competency issue based upon the quantum of
6 information that is before me.
7 MR. DUNHAM: Could I make one point, Your Honor?
8 THE COURT: Yes, sir.
9 MR. DUNHAM: The, the factors that you just described
10 are all correct, but one thing is ignored, and that is the fact
11 that I had 55 meetings with this man, over 100 hours with him,
12 and I don't share the view of those jailers. I was dealing with
13 him on this case. And the description of my relationship with
14 him is captured in the Stejskal-Amador report and to some extent
15 in Dr. Patterson's report, and my experiences with him are not
16 just Frank Dunham on this is what I saw. It's also the other
17 counsel in this case.
18 And when you look at the things that we were
19 experiencing with him, I do not believe you can write them off to
20 culture. And what we were seeing was that he was demonstrating
21 erratic thought processes. He would make demands that changed
22 without recognition of inconsistency with prior demands that he'd
23 made. He would ask that things be done or not done, then
24 question why things were done or not done that he had asked to be
25 done or not done.
0015
1 He had mood shifts. We demonstrated numerous examples
2 of these, one of which Your Honor is aware, where he, he
3 prohibited us from filing a change of venue motion. The very
4 first thing he does after the hearing on April 22 is to file a
5 change of venue motion. He does these things, Your Honor,
6 without any seeming recognition of what he did before.
7 Now our doctors found that to be significant from a
8 psychiatric standpoint. Dr. Patterson reports it almost like a
9 history.
10 Your Honor has also not mentioned the fact of
11 significant, a family history of mental health disease,
12 particularly among his siblings. These are all things that I
13 suggest warrant caution in dealing with this circumstance and
14 would justify a little more time to look into it. That's all,
15 that's all I'm saying.
16 THE COURT: I understand the facts that would warrant
17 caution, but I think that caution has already been exercised by
18 having the evaluation.
19 And again, I sent that second order out advising
20 Mr. Moussaoui that it was inconsistent with his desire to proceed
21 pro se, when he knew that I was requiring there be a mental
22 health evaluation for him to continue to not see Dr. Patterson,
23 and that if that continued, I might have to send him to Butner.
24 That was a very subtle hint that I was sending to the defendant,
25 and he understood it, because after he got that order, he met
0016
1 with Dr. Patterson.
2 In my mind, if nothing else, that shows goal-directed
3 behavior that is more than sufficient, not just that one fact
4 alone, but in light of everything that I have observed, to
5 satisfy me that for the legal purposes of competency, which is
6 basically that a defendant has sufficient present ability to
7 consult with his attorneys with a reasonable degree of rational
8 understanding and rationally functioning understanding of the
9 proceedings against him, I'm satisfied that under the Dusky
10 standard, Mr. Moussaoui is competent, and therefore, I'm going to
11 turn now to the Faretta colloquy, which I believe is the next
12 step that I must engage in in making the decision as to whether
13 or not the defendant may proceed pro se.
14 Mr. Dunham?
15 MR. DUNHAM: Your Honor, can I -- I understand you've
16 ruled on that, and I'm not arguing that.
17 THE COURT: All right.
18 MR. DUNHAM: But we believe that the Court should first
19 determine, not present to Mr. Moussaoui, as the government would
20 have the Court do, say that you might not be able to see certain
21 materials or you might not be able to have access to this or that
22 or you might not be able to use the telephone to call witnesses.
23 We think that those restrictions should be determined so that
24 when the Court does the Faretta inquiry, it's not put to him in
25 an ambiguous way as if something might or might not happen.
0017
1 What -- we believe that that -- that when the Faretta
2 inquiry is conducted, he should know what he's going to be facing
3 so that it's a knowing and intelligent waiver of certain
4 requirements that -- of law that he would otherwise have the
5 benefit of.
6 So we would urge the Court to next address the issue of
7 our motion, which was made at a time when we were, when we were
8 still counsel for Mr. Moussaoui, that if the, if the motion --
9 that if the -- if he's allowed to proceed pro se, that he have
10 access to the information that he needs in order to defend
11 himself and address the government's argument that certain
12 information can be seen by a standby counsel and determine how
13 that's going to work so that when you take his Faretta -- when
14 you do the Faretta colloquy, it's done with some degree of
15 certainty as to what he's going to be facing, not some, well,
16 this might happen or this might happen.
17 I think it's a far more knowing and intelligent waiver
18 if you tell him this is how it's going to be. This is going to
19 happen. This is going to happen.
20 THE COURT: I'm not doing that, because, in fact,
21 nothing is written in stone in this case, and there's going to be
22 a reasonable balancing done as to the discovery in this case. So
23 I'm not going to do it that way. You've made your argument for
24 the record.
25 All right, Mr. Moussaoui, you'll need to come up to the
0018
1 lectern now, please.
2 THE COURT: Mr. Moussaoui, you filed with the Court a
3 day or two ago, June 11, a pro se motion to testify at the
4 hearing. And this is -- I'm giving you an opportunity to speak,
5 but you're going to have to first respond to questions which I'm
6 going to put to you.
7 Now I understand that your religious convictions will
8 not permit you to take an oath in this Court.
9 THE DEFENDANT: No.
10 THE COURT: I want to tell you that if you're going to
11 answer any of my questions, those answers must be completely
12 truthful. Do you understand that?
13 THE DEFENDANT: Yes, I do.
14 THE COURT: All right. Do you understand that if you
15 fail to answer a question truthfully, that is, if you lie or
16 attempt to mislead the Court, because I have advised you that you
17 must speak truthfully in this Court, the government could
18 prosecute you for a new federal felony offense called perjury.
19 Do you understand that?
20 THE DEFENDANT: I understand fully.
21 THE COURT: Do you agree to answer all the Court's
22 questions truthfully?
23 THE DEFENDANT: Yes, I do completely.
24 THE COURT: All right. I find these answers to be
25 legally sufficient and equivalent to an oath or affirmation.
0019
1 They subject Mr. Moussaoui to the possibility of a prosecution
2 for perjury, and I'm therefore going to ask you these questions.
3 Now, Mr. Moussaoui, you know, because I know you've
4 read Faretta, we've talked about this last time, that the Court
5 is going to ask you questions that are directed explicitly to
6 your desire to waive counsel and to represent yourself.
7 Is that still, by the way, your desire?
8 THE DEFENDANT: Absolutely.
9 THE COURT: All right. For the record, what is your
10 full name?
11 THE DEFENDANT: My name is Zacarias Moussaoui,
12 Z-a-c-a-r-i-a-s, Moussaoui, M-o-u-s-s-a-o-u-i.
13 THE COURT: Mr. Moussaoui, how old are you?
14 THE DEFENDANT: I'm 34 year old. I was born the 30 of
15 May, 1968.
16 THE COURT: All right. And, Mr. Moussaoui, your first
17 language is French; is that correct?
18 THE WITNESS: My mother tongue is Moroccan, but I
19 speak only French currently.
20 THE COURT: All right.
21 THE DEFENDANT: I do speak some kind of Arabic.
22 THE COURT: You have always seemed to understand
23 everything in court, but I want to advise you again, we have a
24 French language interpreter in the court. Do you feel in any
25 respect you would like the assistance of a French language
0020
1 interpreter as we go through these questions?
2 THE DEFENDANT: I do not think so, because I've spent
3 extensive time in England since 1992, and I follow different
4 course there, master degree, and I speak to a great extent the
5 English language.
6 THE COURT: All right. If, as I ask you these
7 questions, if you should not understand what I'm asking you,
8 would you either ask me to repeat the question or ask to consult
9 with the interpreter?
10 THE DEFENDANT: I will do that.
11 THE COURT: All right. Just for the record, although
12 you told me last time, could you give me the extent of your
13 education?
14 THE DEFENDANT: My education?
15 THE COURT: Yes, sir.
16 THE DEFENDANT: I've got different high school diploma,
17 but let's start by I have got a degree, a French degree in
18 commerce and technology. That will be the equivalent in English.
19 Then I have a diploma from the Institute of Export of
20 London. Then I have a master degree, postgraduate, in
21 international business from South Bank University, London.
22 THE COURT: All right. Are you presently under the
23 care of a doctor for any physical or mental condition right now;
24 I mean, within the last week or so at the jail?
25 THE DEFENDANT: No.
0021
1 THE COURT: Are you presently taking any medicine for
2 any physical or mental condition?
3 THE DEFENDANT: No, I do not.
4 THE COURT: And are you presently under the influence
5 of any alcohol or drugs?
6 THE DEFENDANT: No. As a Muslim, I do not take this
7 substance.
8 THE COURT: All right. And, Mr. Moussaoui, have you
9 been given a copy of the indictment in this case?
10 THE DEFENDANT: Yes, I do.
11 THE COURT: Do you have that in your cell at this time?
12 THE DEFENDANT: Yes, I have.
13 THE COURT: All right. Then I'm assuming you are aware
14 of the six charges that have been filed against you in that
15 indictment.
16 THE DEFENDANT: Yes.
17 THE COURT: All right. And you understand, do you not,
18 that the first four of those charges; that is, conspiracy to
19 commit acts of terrorism transcending national boundaries,
20 conspiracy to commit aircraft piracy, conspiracy to destroy
21 aircraft, and conspiracy to use weapons of mass destruction, all
22 with allegations that death ensued as a result of that
23 conspiracy, are what we call capital offenses in our legal
24 system?
25 THE DEFENDANT: I do understand that they carry death
0022
1 penalty.
2 THE COURT: All right. They actually carry two
3 possible penalties --
4 THE DEFENDANT: Yes.
5 THE COURT: -- and only two.
6 If convicted of any or all of those offenses, you are
7 looking at either life imprisonment without the possibility of
8 parole or the death penalty. Do you understand that?
9 THE DEFENDANT: I understand fully the gravity of the
10 charge.
11 THE COURT: All right. There are also some financial
12 aspects, but those are not critical in this case.
13 Do you understand that the abolition of parole is real?
14 That's not on paper, which means if you are sentenced to life
15 imprisonment, you will never be released from prison during your
16 natural life. Do you understand that?
17 THE DEFENDANT: I understand fully the U.S. system of
18 justice, and I will never see the light again. I understand
19 this.
20 THE COURT: Moreover, because of the nature of the
21 offenses charged against you, if you are convicted and sentenced
22 to life imprisonment without the possibility of parole, the
23 manner in which you will be held in custody will be more onerous
24 than that for a normal prisoner, because you will be basically in
25 a solitary type of confinement.
0023
1 Do you understand that?
2 THE DEFENDANT: Yes, I understand fully. I met one of
3 the inmate with in Colorado, and he was next to me in Manhattan.
4 He explained to me that you are alone all the time.
5 THE COURT: All right. Now do you understand that for
6 capital offenses, there is a, a two-stage prosecution?
7 THE DEFENDANT: Yes, there is a -- there is a guilty
8 phase and the death penalty phase.
9 THE COURT: That's correct. And that there -- because
10 the law is so complicated in these types of cases, lawyers
11 usually specialize particularly in the penalty phase of these
12 kinds of cases.
13 Mr. Zerkin in particular, as I think I told you before,
14 whether, whether you like him or not or trust him or not, I am
15 telling you is a nationally renowned expert on the intricacies of
16 penalty phase litigation in capital cases. Do you understand
17 that?
18 THE DEFENDANT: I understand that, also that I have a
19 lawyer that I have send a letter to you, have contacted me. He
20 have tried four case of death penalty, and I'm going to secure
21 his services as soon as I will be put in charge of my defense.
22 And I will not give his name because of security reason
23 for him, because to defend Mr. Moussaoui might be a bit
24 dangerous, so I have almost secured services. He will work for
25 me on a no fees basis, because he's a Muslim lawyer. He
0024
1 understand my position. So he indicated this in a very clear
2 manner through different letter.
3 I believe that you received some of his letter. And I
4 am not say his name, but this person exists. And I'd like you to
5 confirm that you received such a letter.
6 THE COURT: All right. There is a letter that's been
7 filed under seal ex parte in the court file, yes.
8 THE DEFENDANT: Okay. So this person came to meet me
9 at the jail after having sent the letter one month before. This
10 letter never reached me. But anyway, he came and visit me. He
11 told me that he will work for me. He have four capital case --
12 THE COURT: I have to tell you that's not what he has
13 said to the Court.
14 THE DEFENDANT: So, I mean, that I will go back to the
15 letter. Maybe I make a mistake. That's possible. But I know
16 that he tried some case of capital death. And that's a person
17 who will represent me, because I have the confidence that he will
18 act in my best interests.
19 And I think that after having responded to your
20 question fully, I would like to explore -- to explain in very
21 briefly why, for which reason, very logical reason I suspect
22 these people to not to have the best interests toward me and this
23 prevent absolutely that in the future they will exert any, any
24 responsibility in my case.
25 THE COURT: Well, wait. Let's not get off track,
0025
1 Mr. Moussaoui. Are you telling me that you do want the
2 assistance of an attorney to help you in defending this case?
3 THE DEFENDANT: I'm saying that my understanding that a
4 standby lawyer will help you to overcome the, the issue of
5 protocol, the small thing in court. That's what my
6 understanding. So this person will be working outside the court
7 for me, for example, contacting potential witness if it was
8 needed, bringing me different material.
9 But inside the court, I do not wish at all, because
10 from -- because the situation now advance so much that it is not
11 possible for me to entrust my life to somebody else.
12 THE COURT: All right. You understand that any
13 attorney who is going to even act as a standby counsel is still
14 an officer of the court?
15 THE DEFENDANT: Even if he's retained by me?
16 THE COURT: Absolutely. Any lawyer who appears in my
17 court has to comply with the rules of ethics and behavior. And a
18 foreign attorney, that is, an attorney from another state, and if
19 it's the same -- if we're talking about the same lawyer --
20 THE DEFENDANT: Yes.
21 THE COURT: -- he is not from Virginia, correct?
22 THE DEFENDANT: Yes.
23 THE COURT: All right. He will have to retain or hire
24 or associate with an attorney who does practice in this Court in
25 order for him to appear here, because every -- every court does
0026
1 have its own rules and procedure.
2 And a lawyer from Alaska, for example, or Illinois
3 isn't going to know necessarily exactly how we do things in the
4 Eastern District of Virginia. So we have a local practice rule.
5 Now he can represent you, but he's going to be -- have
6 to connect with another lawyer or law firm that does practice in
7 this Court.
8 THE DEFENDANT: Yeah, I mean, that this is feasible.
9 There's no problem at the moment for me.
10 THE COURT: But I must tell you that if we're talking
11 about the same lawyer, may I say what state he is from so we know
12 if we're talking about the same person?
13 THE DEFENDANT: I would like not because --
14 THE COURT: All right.
15 THE DEFENDANT: -- he have a profile very recognizable,
16 so it will be easy for people to identify him.
17 THE COURT: Well, the reality of it is, though, as you
18 know that he's going to have to pass at least the preliminary FBI
19 background to be able to interact with you.
20 THE DEFENDANT: Yeah, I'm not -- I don't have a problem
21 with FBI background. I'm, I'm talking about people outside, the
22 general public knowing precisely that this person is helping me.
23 Because as you know, it's a very emotional case. And some people
24 can have very irrational behavior if they know that this person
25 is helping a supposed mass killer.
0027
1 THE COURT: All right. Now you do know, do you not,
2 that your mother, who I believe is in court this afternoon, has
3 retained a Mr. Randall Hamud, who is an American Muslim attorney
4 who has apparently recently successfully defended, I believe it's
5 two Arab American material witnesses, if I read the newspaper
6 articles correctly.
7 Is Mr. Hamud in Court, just so I know?
8 MR. HAMUD: Yes, Your Honor.
9 THE COURT: You might -- Mr. Moussaoui, just turn
10 around for a second, please, and take a look. This is Mr. Hamud,
11 who I don't believe you have yet met.
12 THE DEFENDANT: Hello, Mama.
13 THE COURT: But, Mr. Moussaoui, your mother has gone
14 to -- thank you. Thank you.
15 Your mother has gone to the trouble of retaining an
16 attorney that has the same, similar background to you so that you
17 might be comfortable with him. And I -- you have not met with
18 him yet; is that correct?
19 THE DEFENDANT: It is very simple.
20 THE COURT: I'm sorry, the answer is simply yes or no.
21 THE DEFENDANT: Yes, I didn't meet with him. And for
22 the foreseeable future, I will not, because my mother, she's a
23 mother, and she want to help her son of her best ability. And I
24 understand fully this, but she do not speak English. She do not
25 have an understanding of what is the reality of this case, the
0028
1 implication of this case, okay? So as a mother, she's trying her
2 best to help her son. That everybody can understand.
3 But the reality of the case and this implication
4 require extreme cautions for me, okay? And I cannot entrust my
5 life to somebody that -- who have befriended these people and who
6 come through these people. And my mother have no means to have
7 chosen this lawyer, because she doesn't speak English, she
8 doesn't read this English, and she live in -- she was in Morocco.
9 So this lawyer have been put forward by whoever; I don't want to
10 speculate. But I would prefer to have my own choice.
11 I think it is not too much to ask somebody whose life
12 is at risk, who is going to face the death penalty, to have the
13 confidence to work with a lawyer who he have chosen. I think
14 it's not too much.
15 MR. DUNHAM: Your Honor, he should know that the lawyer
16 that we -- the lawyer that you're referring to whose state we're
17 not mentioning was also put forward by us.
18 THE COURT: Well --
19 THE DEFENDANT: That's not the case, I have to say.
20 This lawyer, after, after hearing my appeal on the 22 of April,
21 sent a letter to me. And this letter was intercepted by them.
22 It will never reach me. Captain Mitchell at the jail is a
23 witness of this conversation where the lawyer informed me that he
24 send the letter. Captain Mitchell know that I never received
25 this letter.
0029
1 So this person on the 23rd of April, the next day, sent
2 a letter saying I'm a pro bono lawyer. I will work for you free
3 of charge, and I'm a Muslim so-and-so. And I never see this
4 letter until this person decided to drive from very far away to
5 the jail and met me.
6 So they did not put the name forward. He came by
7 himself. And if he didn't came to the jail personally, I believe
8 that I will never have heard of him or later on, maybe today.
9 THE COURT: Well, if Mr. Hamud went to the jail, would
10 you meet with him?
11 THE DEFENDANT: No, I will not meet with him. I say
12 that I have for the moment, let's say my eye on this lawyer, and
13 there is very minor detail to confirm with this lawyer. And then
14 after, I will proceed with him if we have to proceed further.
15 THE COURT: All right.
16 THE DEFENDANT: Can I, can I say one thing? It's my
17 address in London, okay? I live in London, 23-A Lambert Road,
18 23-A Lambert, L-a-m-b-e-r-t, Road, SW 2.
19 I have to say that this address is crucial in this
20 case.
21 THE COURT: All right. Now wait, Mr. Moussaoui.
22 Before you start talking, let me finish the Faretta colloquy with
23 you.
24 THE DEFENDANT: Okay.
25 THE COURT: I've warned you before and I've got to tell
0030
1 you again, whenever you speak, you are creating a permanent
2 record which the United States may use in its prosecution or
3 further investigation of this case. Any attorney would advise
4 you not to volunteer information.
5 I'm going to -- this is the last time I'm going to warn
6 you about that, because you may make it impossible for any lawyer
7 or for yourself down the road to mount an adequate defense if
8 you've committed, while you're under the penalty of perjury to
9 statements on the record. Do you understand that?
10 THE DEFENDANT: I understand fully. And I believe
11 that, quite to the opposite, this address will, might see me
12 leaving the jail today, yes, if I will be, after I've responded
13 to your question, an opportunity to explain the significance of
14 this address.
15 THE COURT: All right. Well, let me finish with these
16 questions.
17 Do you understand that if you are permitted to
18 represent yourself, you will have to fully comply with all the
19 rules of evidence, criminal procedure, and the orders and
20 directions of this Court, even if you disagree with them?
21 THE DEFENDANT: I do understand.
22 THE COURT: All right. Do you understand that when you
23 are acting as your own attorney, you cannot be making speeches
24 and, and trying to testify if the testimony is not under the
25 penalty of perjury? That means, among other things, for example,
0031
1 when you make an opening statement to the jury or to the judge,
2 depending on how this case is tried, you can't give a long,
3 rambling discussion of things for which there will not be
4 evidence that supports it that comes in properly during the
5 trial. Do you understand that?
6 THE DEFENDANT: I understand fully.
7 THE COURT: All right. Do you understand that in
8 questioning any witnesses either in direct or cross examination,
9 the examination must at all times be courteous, it cannot get
10 personal, and name calling and that sort of thing cannot happen?
11 THE DEFENDANT: I do not use this kind of language
12 anyway so . . .
13 THE COURT: All right. Do you understand that if you
14 refuse or fail to follow the directions of the Court or your
15 conduct is inappropriate to the Court, your ability to represent
16 yourself could be stopped at any time?
17 THE DEFENDANT: I'm fully aware of this.
18 THE COURT: All right. Do you understand that if you
19 act as your own attorney, you may not be able to appreciate
20 appellate issues that develop during the trial, and you may not
21 know how to note an objection at a proper time to protect those
22 issues for the record?
23 THE DEFENDANT: Can you precise this, please?
24 THE COURT: Yes, sir. There may be a statement that's
25 hearsay. A witness may be giving an answer that would violate
0032
1 the rule on hearsay, but you wouldn't know that because you're
2 not a trained lawyer, and you wouldn't know to make the objection
3 at that time. And if objections are not made at a timely manner
4 during the trial so that the judge can correct the problem, it's
5 much more difficult on appeal to have that error addressed by the
6 appellate court.
7 THE DEFENDANT: Yeah, I'm fully aware of this.
8 THE COURT: All right. Are you aware that by being
9 your own attorney, it will become more difficult for you to have
10 access to evidence, access to witnesses, access to legal research
11 because of the restrictions under which you are presently housed?
12 THE DEFENDANT: Absolutely.
13 THE COURT: All right. Whereas if you had an attorney,
14 as you have until recently working for you, these lawyers are
15 able to see information, to contact witnesses, and to do things
16 that you cannot do from your cell. Do you understand that?
17 THE DEFENDANT: I do.
18 THE COURT: Do you understand that the Court still,
19 even if I permit you to go pro se, the Court has the option of
20 having standby counsel appointed, and you don't have the right to
21 insist on a particular standby attorney?
22 THE DEFENDANT: Yes, but if I cannot have my -- choose
23 my own lawyer, hire my own lawyer, what is the position of the
24 Court?
25 THE COURT: If an attorney enters his appearance in
0033
1 this case and he's licensed to practice in this Court or he
2 retains or associates with an attorney who can practice here,
3 then that lawyer will be permitted to help you during the trial,
4 yes.
5 THE DEFENDANT: Yes. Because you, I'm sure, fully
6 understand that the position now to have these people as standby
7 lawyer, it's not feasible, practical, because capital death need
8 a very close relationship with the, with the lawyer in order that
9 he know the information that the defendant have and have many
10 information, and I will never share any information, because in
11 fact, I believe that they are working against me.
12 So anyway, for the moment, I hope and I have complete
13 reason to believe that I will be able to secure the, the service
14 of this lawyer that we have mentioned before, and that will be
15 the person who will act as standby lawyer. And I want to put
16 clearly on the record that these people, I will never meet them
17 again, like I told you before, and I will never change my
18 position, okay?
19 My life is at risk, and I will never compromise it.
20 This life is very precious to me. It's given by God. And I'm
21 not going to, to play with this.
22 And concerning the change of plea, they have --
23 THE COURT: We're not there yet, please. All right.
24 Do you feel that anybody has put any force or pressure
25 on you to waive your right to counsel or to make your decision to
0034
1 terminate these attorneys as your attorneys?
2 THE DEFENDANT: Absolutely not. I make this decision
3 fully and freely. And I will make many indication on record
4 through letter that I wanted to do this for a long time, and I
5 have fight my way through to try to be able to represent myself.
6 And that's what I intend to do. And nobody -- because anyway, I
7 met nobody except these people who try to prevent me, and I'm
8 fully aware and freely made this decision.
9 THE COURT: All right. Mr. Spencer or Mr. Karas,
10 whichever one of you is arguing this issue, do you have any
11 additional questions you want the Court to pose to the defendant?
12 MR. KARAS: May we just have a moment, Your Honor?
13 THE COURT: Yes, sir.
14 And, Mr. Moussaoui, I want to just correct one thing.
15 Actually, Counts 1 and 4 are punishable by any term of years and
16 life or death, but Counts 2 and 3 only have the life or death
17 option, so we're just correct about that.
18 THE DEFENDANT: Thank you.
19 THE COURT: Yes, sir.
20 MR. KARAS: Yes, Your Honor. Thank you. Your Honor,
21 we think in the circumstances of this case, we would ask the
22 Court to advise Mr. Moussaoui of some of the unique conditions
23 that are at issue in this case.
24 THE COURT: All right, I will do that, although they're
25 not necessarily going to be the case totally across the boards.
0035
1 MR. KARAS: I understand, Your Honor.
2 THE COURT: All right. Mr. Moussaoui, I want to just
3 advise you that there will be clearly information that is covered
4 by both CIPA, which would be national security types of
5 information, as well as sensitive airport information that could
6 be relevant to your defense to which you will not be able to get
7 access. Do you understand that?
8 THE DEFENDANT: I understand this.
9 THE COURT: And that it may very well be, I don't again
10 know who this other attorney is who may be helping you, he may
11 not be qualified to have access to that information, either, but
12 if he is -- and this really doesn't change the dynamic of whether
13 Mr. Moussaoui is pro se or with counsel -- there is still always
14 going to or probably going to be some kind of a bar between even
15 counsel and Mr. Moussaoui, given the nature of the information.
16 But you understand you make a bad situation more
17 difficult by being pro se?
18 THE DEFENDANT: That's from your standpoint, from your
19 point of view maybe. But I have information that make very
20 plausible, very believable that maybe if when you declare me fit
21 to represent myself, I will be able to make immediately a motion,
22 and it might be at the great surprise of many that I will be able
23 to leave, because I have information very clear, very simple
24 information who will say that this case is not as it is presented
25 at the moment.
0036
1 THE COURT: All right.
2 THE DEFENDANT: So I will not say it now, but I have
3 information, secret information, if you wanted to say, that are
4 exculpatory for me.
5 THE COURT: All right. Do you understand that -- and
6 this would have been the case, frankly, whether Mr. Moussaoui had
7 counsel or not, but I would just go out on the record on this --
8 that there will be no identification of the names, addresses, or
9 any identifiers of any of the proposed jury members? Do you
10 understand that?
11 THE DEFENDANT: I understand, as long as I can identify
12 where I used to live and if all the address that belong to me --
13 THE COURT: I'm sorry, I didn't understand that last --
14 THE DEFENDANT: I say that as long as I'm able to say
15 the address that I used to live personally.
16 THE COURT: Where you lived?
17 THE DEFENDANT: Yeah, where I lived, that will be no
18 problem.
19 THE COURT: No, but I'm saying the people who are
20 chosen to be jurors in this case, who are being considered for
21 the jury pool, you will not have their names and addresses or
22 anything that would identify them. Do you understand that?
23 THE DEFENDANT: I do not wish them.
24 THE COURT: All right. You understand -- we actually
25 are functioning under this now, but it will continue, and that
0037
1 is, if you are pro se, any pleadings that you file with the
2 Court -- and I know you have a motion pending to unseal your
3 pleadings -- that the procedure we will follow and we've been
4 following is that whenever you file anything with the Court, for
5 a brief, initial period, it will be filed under seal to give the
6 United States an opportunity to make sure there's nothing in the
7 pleading that in their view poses a threat to national security
8 or is inappropriate for a public record.
9 They will have a short time to, to advise the Court if
10 there's a problem. If there is no problem, the document will
11 then be published -- publicly posted on the website and part of
12 the case file. You understand that that will be more of a
13 problem for you if you're writing pro se motions than it would
14 be, for example, if you had counsel filing motions?
15 THE DEFENDANT: Can you, can you precise this? I mean,
16 I understand, but I want to, if you would elaborate a bit on
17 this?
18 THE COURT: All right. Right now when your attorneys,
19 Mr. Dunham or Mr. MacMahon or Mr. Zerkin, if they file a motion
20 with the Court, unless there is what might be classified
21 information in that motion, as soon as it reaches the courthouse
22 and the necessary processing is done, that motion is filed in the
23 public case file, and it is being posted on our website. All
24 right?
25 THE DEFENDANT: Yes.
0038
1 THE COURT: Now there are some of your -- some of the
2 motions that your attorneys have filed for which that does not
3 happen. They're filed under seal, because there are sensitive
4 issues that are being raised in those motions that the public
5 should not be seeing at least at that time.
6 With the pro se motions that you've been filing, we are
7 giving the government a brief opportunity to review the document.
8 There is a concern on the government's part that you might be
9 sending messages or signals. I understand you don't agree with
10 that, but the Court is balancing that concern against your right
11 to a free, public, open trial. And so what we're doing is giving
12 the government a brief opportunity to conduct its review, and if
13 they do not detect any problems, then your document is published
14 like any other pleading. And roughly the time frame is not more
15 than a day or two lag time.
16 But that would, that would be more of an issue if all
17 the pleadings we're receiving are pro se. Do you understand
18 that?
19 THE DEFENDANT: Yes. Can I briefly say that, for
20 example, if they object, they will have the right to suppress my
21 document?
22 THE COURT: Not to suppress it. I would still be
23 considering it. If you're asking me to do something in a motion,
24 I'm still going to look at it, and I'm going to make them respond
25 to it, but if they feel that you've sent a signal or said
0039
1 something improper, or if, for example, in a motion you were to
2 list 20 names of people who might be endangered because you've
3 put their name out there, there are many reasons why a court --
4 and not just in your case, in any case -- will seal documents.
5 It doesn't mean it's suppressed in the sense that
6 nothing's going to be done about it, but it does mean it's not
7 going to be out there in the public light.
8 THE DEFENDANT: Yes, but my defense, to stand on this,
9 stand on my ability for the people at large to know what, what is
10 the case. For example, it's very simple. I live in twenty- --
11 THE COURT: Well --
12 THE DEFENDANT: Yeah, but I want to give a very simple
13 example what is appropriate. I will not give a name of anybody,
14 okay? I want just to say my address. That's all I'm going to
15 say.
16 THE COURT: That's in London?
17 THE DEFENDANT: Yes. My address number is 23-A Lambert
18 Road, SW 2. And this address have been put on --
19 THE COURT: Wait.
20 THE DEFENDANT: -- this address have been raided by
21 British armed police.
22 MR. KARAS: Your Honor, please.
23 THE DEFENDANT: That's why they don't want me to speak.
24 THE COURT: Mr. Moussaoui, Mr. Moussaoui, just a
25 second.
0040
1 First of all, when I'm talking, no one else talks.
2 THE DEFENDANT: I was talking.
3 THE COURT: Number two, when another attorney stands
4 up -- you're acting like an attorney now, and you have to behave
5 like one -- when an attorney stands up, the rule of court is the
6 discussion stops, we hear what the objection is, because
7 otherwise, the Court cannot rule on the objection. And that's
8 the kind of example, if that were to happen during the trial, the
9 marshals would be removing you from the courtroom. I don't want
10 that to happen. So just a second.
11 I don't need this kind of detail right now. All I'm
12 telling you is we've been proceeding this way, as you know, and
13 we are going to continue to proceed this way. And I'm just
14 telling you there's going to be a short lag time.
15 You would have a right, if the government were to
16 say, "We don't want this pleading to be in the public record,"
17 you would have a right to file an opposition for me to read so
18 that I could make a decision as to whether or not that pleading
19 could be publicly posted. I'm just letting you right now
20 understand what some of the restrictions and limitations would be
21 if you were to represent yourself.
22 Do you understand that? You just have to say yes or
23 no. That's the answer.
24 THE DEFENDANT: Yes, I understand.
25 THE COURT: All right.
0041
1 THE DEFENDANT: And I would like to know one thing:
2 Now that I, I am potentially my own lawyer, I would like to know
3 if it's possible for me to apply for the Court for immediate
4 release.
5 THE COURT: Let me just get to that.
6 THE DEFENDANT: Yes.
7 THE COURT: Let me finish the issue of the Faretta
8 colloquy first. I think that answers the essential questions of
9 limitations on the defense.
10 Was there anything else you wanted the Court to
11 address?
12 MR. KARAS: The only thing, Your Honor --
13 THE COURT: Yes.
14 MR. KARAS: -- was the possibility of restrictions on
15 Mr. Moussaoui's presence in the courtroom, potential physical
16 restraints that the government may ask the Court to impose.
17 THE COURT: That's not unique as to whether someone's
18 pro se or represented by counsel.
19 MR. KARAS: Only to the extent that it may affect in
20 his mind his ability to carry out his case being his own lawyer
21 in court.
22 THE COURT: Well, we have a lectern rule, which
23 Mr. Moussaoui has so far always abided by. We don't let any
24 lawyer walk around the courtroom, approach a witness, approach
25 the jury.
0042
1 And in some cases, I leave it to the Marshals Service,
2 which are the security experts. If they feel that any kind of a
3 restraint is appropriate, that can be done whether a person is
4 pro se or not.
5 Do you understand that, Mr. Moussaoui?
6 THE DEFENDANT: I understand. I have no problem as
7 long as nobody try to suppress this one, meaning my mouth, so I
8 can speak in order to defend myself.
9 THE COURT: The mouth can be suppressed if it's out of
10 control, but I don't expect that's going to happen. So as long,
11 again, as I said, if you listen to the Court, if I ask you to
12 remain quiet or to stop talking and you do so, there will be no
13 difficulty. Do you understand, Mr. Moussaoui?
14 THE DEFENDANT: I understand this.
15 THE COURT: All right. Mr. Dunham, are there any
16 additional questions? I know you had suggested some. I'm not
17 clearing the courtroom, so if there are any of those questions
18 you want the Court to ask --
19 MR. DUNHAM: May I have just one moment, Your Honor?
20 THE COURT: Yes, sir.
21 MR. DUNHAM: And also, before you make a final
22 determination, could I be heard for about three seconds?
23 THE COURT: Yes.
24 MR. DUNHAM: Your Honor, I am concerned that we're a
25 little bit ambiguous and equivocal on this. I think Question
0043
1 No. 3 on our list ought to be answered, ought to be asked and
2 answered, because I think it's not clear that the waiver of
3 counsel is told here.
4 THE COURT: I think you've written that question a
5 little bit too firmly. My understanding is the Court always has
6 discretion into how to handle these situations.
7 MR. DUNHAM: That's correct, Your Honor. But the
8 answer during the colloquy so far has been fine except that it,
9 it appears that Mr. Moussaoui is still expecting the assistance
10 of counsel in some way.
11 THE COURT: All right.
12 MR. DUNHAM: And that, that really is not a waiver of
13 counsel under the Sixth Amendment. I mean, if the Court could
14 say if you waive counsel, you waive counsel. I mean, I
15 understand that the Court has discretion, but if it's a counsel
16 waiver, it's a counsel waiver. It's not an
17 I've-got-somebody-that-might-enter-the-case-later routine.
18 THE COURT: All right.
19 MR. DUNHAM: And that's, that's what I'm suggesting.
20 THE COURT: All right. Mr. Moussaoui, just so we're
21 clear, do you understand that if you waive counsel, that means
22 you're giving up your right to have a lawyer represent you in
23 court?
24 THE DEFENDANT: Yes. I'm giving the right to have a
25 lawyer, but I'm taking the right to represent myself. That's
0044
1 what I'm doing.
2 THE COURT: You want to be your own lawyer?
3 THE DEFENDANT: Yes, that's what I want. I don't want
4 to give up the right to have somebody defending me and me being
5 in jail, you understand? Meaning that I'm, I'm taking the right
6 to defend myself, okay? I don't want then later on to be said
7 remove and have these people declared my lawyer, no. I will
8 defend myself, and the lawyer chosen by me will act as a standby
9 lawyer.
10 And if in the very unlikely but for some kind of
11 reason, okay, I will be removed and it's not my intention to do
12 anything to give excuses so I will be removed, but for some kind
13 of a reason, it might happen, this lawyer, only this lawyer will
14 act as my lawyer.
15 But these people, who should never represent me, only
16 the lawyer chosen by me will represent me in any case, because it
17 will be too easy today to declare me as lawyer -- as my own
18 lawyer and tomorrow to remove me.
19 THE COURT: If this attorney whom you've spoken with
20 does not wish to help you in this case any further than what he
21 has done, you may be completely on your own, and you're not
22 willing to talk to Mr. Hamud. Are you comfortable proceeding
23 that way?
24 THE DEFENDANT: Absolutely, because the simplicity of
25 the reality of the case make it that, in fact, I, I believe that
0045
1 we might never go to trial.
2 THE COURT: All right.
3 THE DEFENDANT: Yes. Because I have asked specifically
4 the right to testify, to take the stand to explain why. Because
5 this question has been put on the side, but it is a crucial
6 question, why I have declared that these people are working for
7 the government. I should explain, because my credibility have
8 been undermined by him saying -- by them saying that I am, let's
9 say, crazy.
10 So if people could hear, hear from me the very
11 rational, logical reason why I believe these people are acting
12 undercover against my most fundamental interest, people will
13 regain credibility. And when I speak, okay, they will pay due
14 respect to what I say.
15 At the moment, what will happen, it's in the press
16 everywhere, in the potential jury pool, people will have the
17 impression when I speak, they will say maybe he's crazy, okay?
18 So you have no credibility like that.
19 So I ask this Court to give me the right, like I ask in
20 the motion about two day ago, the right to testify, explain very
21 briefly, I'm not talking about a two-hour testimony or full
22 account, okay, asking the right to take the stand and to explain
23 in very rational, simple manner, very briefly why these people
24 have the mean to set me free. They have the information with
25 them so the charge will be dismissed today.
0046
1 That's all I am asking. They have the mean. They have
2 the information required to have the government either dismiss
3 the case or withdraw the case or you setting me free.
4 And I know that my credibility is at risk when I'm
5 saying just this now, because if I can't prove this now, people
6 will say really he make all the time new story, Mr. Moussaoui.
7 THE COURT: All right.
8 THE DEFENDANT: And I say I can take this and talk for
9 ten minutes and put very, very logical argument, where people
10 will say Mr. Moussaoui is correct.
11 THE COURT: All right. Now, Mr. Moussaoui, this is an
12 example of your not understanding how procedure works. Let me
13 just tell you we're not hearing any speeches at this point.
14 There's no testimony at this point. The case is not in trial.
15 There are motions that can be made that address
16 particular issues, but no such motion is pending right now. A
17 defendant can't simply get up in a pretrial matter and start
18 talking about the case. It doesn't happen.
19 No, wait, let me finish. I don't need you to explain
20 to me why you are making the decision to represent yourself, why
21 you do not want these attorneys to represent you any longer, not
22 for purposes of the Faretta evaluation. I don't need that, and
23 I've already indicated that I have found you competent. So
24 there's no issue about your competency.
25 And I want you to understand that because you have a
0047
1 right to represent yourself, the Court doesn't hold that against
2 you. As long as you follow the Court's directions and, and act
3 appropriately for the courtroom, there is no issue of problems
4 with our attitude towards you.
5 And frankly, we're not playing this case to the press.
6 The jury pool for this case will be carefully questioned. While
7 I suspect most people will have heard something about the case,
8 you'll be surprised at the number of people who won't have that
9 much detailed understanding of it. And so I'm not going to give
10 you that opportunity at this time.
11 If you have information that you want to file in
12 writing with the Court, I will look at it, but I'm not going to
13 have you talk about your relationship with your attorneys in open
14 court at this time since I'm addressing this issue in a different
15 context.
16 All right, Mr. Dunham, I've asked that question. I'm
17 satisfied because the Faretta colloquy is a, is a loose colloquy,
18 there's no magic formula for it, I'm satisfied on the basis of
19 Mr. Moussaoui's answers to these questions, although as I've told
20 you, Mr. Moussaoui, several times now, I think it is unwise for
21 any defendant to proceed without counsel, especially in a case of
22 this degree of significance and seriousness, and although you
23 will never agree with the Court on this point, I must tell you
24 that the attorneys who were working for you and have been working
25 for you up to five or ten minutes ago have worked very vigorously
0048
1 and diligently.
2 You may or may not know, because probably you haven't
3 gotten a copy of it yet, they filed just before the hearing a
4 motion to suppress certain statements that apparently you've
5 made. I haven't looked at it, but I assume it's a motion to
6 suppress statements. They've filed this afternoon a motion for
7 discovery. They have been going through discovery. They've
8 arranged for a computer for you, which apparently you have not
9 accepted from them.
10 But all that being the case, I'm satisfied that you
11 understand what you are doing by waiving your right to counsel,
12 that you are doing so at this point for sufficiently rational
13 reasons, unwise but rational, and I'm going to make the finding
14 that this is a valid waiver and therefore allow you to proceed
15 pro se.
16 Now the next issue is what I do about standby counsel.
17 You're not going to like this decision.
18 MR. DUNHAM: Your Honor, we'd like to be heard on that
19 before --
20 THE COURT: All right, Mr. Moussaoui, have a seat for a
21 second. Go back to your seat, please.
22 Mr. Dunham?
23 MR. DUNHAM: This may be the one thing that we agree
24 with Mr. Moussaoui on this afternoon. If he's going to be
25 allowed to proceed pro se and he has beliefs as strong as he has
0049
1 expressed that we're working against his interests and that we're
2 working with the prosecutor to help kill him, because that's what
3 he says, to me it's almost an Eighth Amendment violation to
4 require us to stay in this case as standby counsel, to send him
5 off in the Alexandria Jail, in solitary confinement, knowing that
6 we're out there doing things.
7 If he's not -- doesn't have a mental problem now, he
8 will with that thought process running through his mind that
9 we're looking at discovery about him, that we're doing things in
10 this case, that even if he's not consulting with us and not using
11 our services, that we're out there investigating, talking to
12 witnesses.
13 Your Honor, it's not fair to him. If you're going to
14 find him competent and you're going to allow him to proceed, you
15 can't require him to proceed with us in the case, with his -- his
16 belief is mentally sound, that's what's been determined by you,
17 that this belief that we're trying to kill him is a real belief,
18 it's a rational belief, it's not the product of a mental illness.
19 Now if he believes those things, to require us to hang
20 around and be part of his life and be part of his case is, is not
21 right. We do not have a death grip on this case. We all of us
22 want to do whatever the Court wants us to do, because we want to
23 be of service to the Court. That's why we're here. We're
24 officers of the Court. We want to do what's right.
25 But in this particular circumstance, we don't believe
0050
1 that it's right for us to remain in this case in any capacity,
2 and Mr. Moussaoui should not be subjected to that. And that's
3 our position.
4 THE COURT: All right. Mr. Moussaoui, come on back.
5 Does the United States want to be heard on this issue
6 as to these attorneys remaining as the standby counsel?
7 MR. KARAS: Yes, Your Honor, very briefly. Given the
8 circumstances of where we are in this case, barely three months
9 from the beginning of trial, and given the uncertainty of
10 Mr. Moussaoui's proposed standby counsel in terms of his capacity
11 to be cleared to review the classified materials, we do think it
12 prudent at this point to keep defense counsel as standby counsel
13 if for no other reason than to review the classified materials
14 and keep this trial on schedule. If it turns out circumstances
15 change and that standby counsel that Mr. Moussaoui proposes
16 satisfies the requirements of a security clearance, then maybe
17 the issue can be revisited as long as it isn't going to affect
18 the schedule of this trial.
19 THE COURT: All right.
20 MR. MAC MAHON: Your Honor, can I briefly be heard on
21 this point in response?
22 THE COURT: Yes, Mr. MacMahon. You need to be at the
23 lectern.
24 Mr. Moussaoui, go back to your seat, please.
25 MR. MAC MAHON: May it please the Court, Your Honor, I
0051
1 agree with what Mr. Dunham has said about foisting us on
2 Mr. Moussaoui at this time, and we had prepared a motion with
3 respect to the classified evidence and some of the other
4 particularly sensitive evidence that you've already ruled that
5 Mr. Moussaoui can't see at all.
6 I just don't believe it's appropriate for us to be
7 standby counsel for Mr. Moussaoui when none of us have any
8 idea -- he's very proud of the fact that none of his attorneys
9 have any idea what his theory of the case is or what the defense
10 of this case is.
11 So I'm not sure, though I understand Mr. Karas's
12 concerns and they're sincere, I don't know how if Mr. Dunham and
13 I and Mr. Zerkin and the rest of the staff that's worked so hard
14 on this case has the ability and goes reviewing all of this
15 evidence, what are we going to do with it? We don't have any
16 idea what, if it's his case, what we're even going to find or
17 what we're supposed to do with it.
18 So I respectfully would urge the Court to realize the
19 limitations that even the standby counsel role that Mr. Karas
20 proposes and the government has in their brief are unrealistic in
21 this situation in which we find ourselves today.
22 THE COURT: Well, I understand that, but, but I'm going
23 to keep you-all in the case as standby counsel because of the
24 following: There is apparently at least one attorney out there
25 who may be interested in helping Mr. Moussaoui. He may be able
0052
1 to look at the work you-all have done and convince Mr. Moussaoui
2 that some of the issues you've raised -- again, I haven't read
3 your motion to suppress yet, but there may be some merit to
4 pursuing that consistent with the approach that Mr. Moussaoui
5 wants to take to his defense.
6 I think it is important to have some continuation of a
7 sorting through the discovery. My understanding both from my own
8 CIPA 4 review that I'm conducting right now as well as what
9 you-all told me is in your pleadings, there's a mountain of
10 discovery, but from what I can see, a lot of it is not relevant
11 to any possible issues in this case.
12 The very fact that you're sorting it is going to give
13 the next attorney, if another attorney comes on board, somewhat
14 of a running start.
15 So I am going to request that you remain in, but I am
16 also going to make every effort to work with finding another
17 attorney who can fulfill the roles of standby counsel for
18 Mr. Moussaoui.
19 MR. MAC MAHON: Well, we'll keep working, Your Honor.
20 THE COURT: And just to set the record straight,
21 Mr. Dunham, I did not mean to suggest that there was a rational
22 basis to assume that you-all were out to try to do Mr. Moussaoui
23 in. I don't want that to be misconstrued.
24 What I meant was given Mr. Moussaoui's background, his
25 belief system as I understand it, and the fact that like it or
0053
1 not, this is the American legal system, you're appointed by the
2 Court. As Dr. Patterson said, it is not a totally irrational
3 conclusion to distrust court-appointed attorneys if you come into
4 this courtroom with a certain view of the universe. It's not a
5 view that any of us here share, but there are people out there
6 with that view.
7 And I did not mean to suggest that the Court believes
8 that you are out to undermine Mr. Moussaoui or that you-all have
9 not been diligent and totally professional in your efforts to
10 represent him. All right?
11 MR. MAC MAHON: Can I ask one further question, Your
12 Honor?
13 THE COURT: Yes, sir.
14 MR. MAC MAHON: With respect to the, the leave you
15 granted to the government to review Mr. Moussaoui's pleadings
16 that he filed, there is a legitimate concern on behalf of this
17 attorney and I'm sure the rest of the counsel here that we have
18 the opportunity to view these pleadings ourself for, for personal
19 security reasons given what's been written in some of these prior
20 ones, Your Honor, that the fact that -- I know you may not
21 believe it, Mr. Dunham and I certainly know we're not in a
22 conspiracy, but we don't know what he believes and what he puts
23 in these motions and who may read them some day, and we want to
24 have the right to look at those motions ourselves.
25 Though I'm sure Mr. Spencer, if I called him, would say
0054
1 I'll get that deleted out of that motion for you, but I don't
2 think this is a fanciful concern, Your Honor. We would ask that
3 as standby counsel, we also have the right to review these
4 pleadings and ask that redactions be made before they go public.
5 THE COURT: I'll permit that.
6 MR. MAC MAHON: Thank you, Your Honor.
7 THE COURT: All right.
8 All right, Mr. Moussaoui, you can come back up to the
9 lectern. All right, Mr. Moussaoui, I have some logistical
10 questions I want to ask you. As you know, there were efforts
11 being made and we got the jail to get a second room for you. We
12 were making arrangements with the Federal Public Defender's
13 Office to get you a computer. My understanding is you have not
14 accepted that computer yet. Is that right?
15 THE DEFENDANT: You are saying that I didn't accept it?
16 Can you repeat, please?
17 THE COURT: Well, putting that aside, do you want a
18 computer?
19 THE DEFENDANT: Yes. I have been asking for access to
20 the material for quite a long time, but is it possible for, for
21 me to respond to what just have been said?
22 THE COURT: No. And I often don't let lawyers respond
23 to other lawyers, either. I want to get to the point. Do you --
24 all right, you do want the computer?
25 THE DEFENDANT: Yes. I want access to the material.
0055
1 THE COURT: All right. Now you're going to have to get
2 that -- the Federal Public Defender has the computer for you.
3 THE DEFENDANT: I can buy my own computer as soon as I
4 will have, it will be -- I can buy it through the government. I
5 will give the money for the government, and the government will
6 provide the computer.
7 I have expressed very clearly, no uncertain term that I
8 will not deal with these people. So it's -- I mean, that --
9 THE COURT: But do you understand it's a court
10 computer? It's not their computer.
11 THE DEFENDANT: Yeah, but why should I go through them?
12 I mean, that if you put a computer in the room, I will access it,
13 but I will not entertain any relation with them.
14 And again, why is it, why is it I am prevented in this
15 court to respond to, they say that I make story that they are in
16 a conspiracy?
17 THE COURT: The reason --
18 THE DEFENDANT: I can --
19 THE COURT: The reason why you can't respond is it's
20 not relevant. I've decided the issue. You won your motion.
21 That's the end of it. And I proceed in my courtroom that way all
22 the time. A lawyer wins a motion, the other side wants to add
23 something to the record, I tell them no.
24 We're not here for speeches. We're here to resolve
25 factual disputes that are raised in litigation. And that's why
0056
1 I'm telling you that you may have one view of what you can do in
2 court. I run the court. It goes my way.
3 Now I have indicated there is a computer available for
4 you. It's from the Administrative Office of the Court's funds.
5 If you want the computer, Captain Mitchell arranged for you to
6 have a second room where you can start accessing the disks that
7 you do have a right to see at this point, but someone has to get
8 the computer to you. Can a simple secretary or technician from
9 the PD's Office just bring you the computer and plug it in for
10 you?
11 THE DEFENDANT: No. I'm not dealing with them. I have
12 expressed this. I'm not going to change my, my decision every
13 day.
14 THE COURT: All right. Then unless you get a computer
15 for yourself, you won't have access.
16 THE DEFENDANT: No. The jail can put the computer in
17 place. Captain Mitchell is quite able.
18 THE COURT: All right. So if Captain Mitchell plugs it
19 in, you will be able to use the computer?
20 THE DEFENDANT: Absolutely.
21 THE COURT: All right. We'll take care of that.
22 THE DEFENDANT: Can I ask a question?
23 THE COURT: Yes, sir.
24 THE DEFENDANT: You have said that this Court is here
25 to resolve factual -- to, to resolve facts.
0057
1 THE COURT: At the appropriate time. This is not the
2 time.
3 THE DEFENDANT: Yes. Today it was -- I filed a motion,
4 is it correct, that I say that I wanted to dismiss my lawyer and
5 that my lawyer were in a conspiracy. Is not the case that it's
6 very relevant for me to explain why I believe that these people
7 are in a conspiracy?
8 THE COURT: No. Mr. Moussaoui, I've ruled on as much
9 of that motion as you need to have ruled on, and they will
10 eventually, I hope quickly, be out of this case. You are winning
11 your motion. You don't need to say anything more.
12 But since you're raising your motions, we have now
13 quite a series of pro se motions that you have filed that are
14 under seal. Some of them need to be responded to.
15 What I am going to do is all of the motions that
16 Mr. Moussaoui has filed that have not been turned over to the
17 government, in other words, they currently exist in the Court's
18 file only, will be turned over this afternoon to the United
19 States.
20 Now I'm giving you, Mr. Spencer and your team, until
21 9:00 Monday morning -- and the same will apply to defense
22 counsel -- former defense counsel -- to review those motions for
23 anything that you feel needs to be redacted. Unless I have a
24 clear statement from either side that there's a problem, all
25 those motions will be posted to the website and become part of
0058
1 the public file. All right?
2 Unless, Mr. Moussaoui, you've changed your position.
3 Originally you wanted all of those motions, with one exception,
4 to be unsealed. Is that still your view?
5 THE DEFENDANT: Yes. I do want, but how can I have a
6 public trial where the very people that I believe are working
7 against me are able to censure my work? Because my ability to
8 defend myself rely on my ability that the general public will
9 know the very simple fact. I'm not going to give name of
10 anybody, but if these people are able to censure me and these
11 people are also able to censure me and when I am in court, I'm
12 told that I can't say a very simple thing who can see me being
13 free, going with my mother very soon, maybe today or in a few day
14 time, I'm not able.
15 So I want to say to the, the public in general, okay, I
16 have very simple information, will compel, I'm talking about
17 compelling the government to withdraw the case, okay? And I am
18 not able to say it.
19 Why is it I can't say in very simple way why these
20 people have been retaining information that they have since
21 December, will compel the government to withdraw the case? And
22 that's why -- why do you not allow one lawyer to withdraw from
23 the case and have another Muslim lawyer in his place? Why is it
24 that only them -- these two lawyer, why only them are on the
25 case? Why one will withdraw and one will be -- the Muslim will
0059
1 be take his place?
2 THE COURT: All right.
3 THE DEFENDANT: Because you, you are relying on your
4 ability to censure me completely, and have no need to say,
5 because if I was saying something now, you would remove me from
6 the courtroom, and I know that. Okay?
7 And my ability to defend myself to get free, I'm saying
8 to everybody here, okay, is to be able to for ten minutes say --
9 five minutes, two minutes, okay, to say a very simple thing why
10 the government will be compelled to withdraw the case today.
11 THE COURT: All right. Mr. Moussaoui, again, this is
12 not the appropriate time for that.
13 Now look, you have before you -- before me there is a
14 motion for change of venue. That was provided to the government.
15 You've had it for some time.
16 I am assuming that you have, because you've told this
17 to Dr. Patterson, you've changed your mind about waiving a trial
18 by jury. Is that correct? You still want a jury trial?
19 THE DEFENDANT: I will in due time consult with my
20 lawyer, but at the moment, the balance is that I will not have a
21 trial by a judge. I will trial by a jury because of my
22 experience now.
23 And I want to very clearly say that the day when I say
24 that I want it by a judge, it was because I had the impression
25 because of the complexity of the evidence and so on and so forth
0060
1 that a judge will be more able to understand, but also, I believe
2 that the jury as a large will be more appropriate to render a
3 fairer judgment.
4 So after consultation, I will give a definite response,
5 but at the moment, I have to say that it will be by a jury.
6 THE COURT: All right. Then the motion for change of
7 venue is not moot, and the government is required to respond to
8 that motion by June 24, which gives you ten days. You've
9 actually had it longer than that.
10 I believe that today's hearing essentially resolves all
11 of the other pending motions by the defendant other than the
12 general motion to unseal all the documents that have been filed,
13 and I'm going to resolve that on Monday, after I see if there's
14 any objection to any of the motions or any portions of those
15 motions being public. I will want the government to respond --
16 and defense counsel, I think I said this -- by 9:00 Monday
17 morning.
18 And the fact that the defendant may have used some
19 possibly inappropriate language in describing his counsel, I
20 don't necessarily think has to be stricken. I mean, sometimes
21 tough things get written. But if it's scurrilous or libelous,
22 then there's a legitimate reason for that not to be in the
23 public --
24 MR. DUNHAM: We're concerned that it might be a target,
25 Your Honor. That's what I'm talking about.
0061
1 THE COURT: I understand that, all right.
2 Now in terms of the other issue that is still pending
3 before the Court that was briefed both by defense counsel, by
4 Mr. Moussaoui, and by the government, which I will now address on
5 the rec -- on the papers and give you an opinion on is the
6 adequacy of the death notice. That has been fully briefed. I
7 don't think there's any other briefings necessary for that. I'm
8 not going to hear argument on that. I'll resolve that on the
9 papers that have been filed.
10 Mr. Moussaoui, let me advise you you have pending
11 appeals before the Fourth Circuit. That's between you and the
12 Fourth Circuit, but I should advise you you may want to consider
13 some of those issues may now be moot. To the extent you think
14 they are, you would be in better graces with the Fourth Circuit
15 if you don't take up their time unnecessarily on issues that are
16 no longer the case. That's up to you. But if you wish to
17 withdraw any of those appeals, you can advise them of that.
18 You should know also -- this is again where not being
19 an attorney or having an attorney to advise you puts you at a
20 disadvantage -- the law does not permit what are called
21 interlocutory appeals. Every ruling that you get that you don't
22 like or disagree with doesn't mean you can immediately get an
23 appeal. I mean, you can go ahead and file it, but the Court of
24 Appeals usually is only going to resolve issues that have to be
25 resolved, such as a motion to -- how the court rules on a motion
0062
1 to suppress for the government or some of the -- there are very
2 few interlocutory appeals that you can take in a criminal case.
3 That is, the case goes forward. When the whole case is
4 over, then the appeal can be, appeal can be raised and all the
5 issues looked at. But I'm just advising you to, again, this is
6 an example of where the help of a lawyer would be valuable to
7 you.
8 THE DEFENDANT: Yes, but the appeal that I filed is
9 concerning due process of law, so it's not something trivial. I
10 mean, it was not respected in my case.
11 THE COURT: I understand.
12 THE DEFENDANT: Okay?
13 THE COURT: I'm just advising you that, that you need
14 to just be cautious in how you use the Court of Appeals.
15 Now, Mr. Dunham, did you file copies of a motion for
16 discovery and a motion to suppress with Mr. Moussaoui?
17 MR. DUNHAM: I believe they're sent to him like
18 everything else, but I'll check to be sure.
19 THE COURT: I'm make sure, because we've been sending
20 you things, you get copies of the two motions that were filed
21 today. You may choose to adopt them or adapt them or reject
22 them, but since you are currently acting as your own attorney,
23 I'm not going to address either the motion for discovery or the
24 motion to suppress unless you send me a note that you want me to;
25 all right? Because they're filed for the record by your former
0063
1 counsel, but I don't believe the Court is going to -- needs to
2 address them unless you want me to, and you may very well want to
3 have those issues addressed.
4 THE DEFENDANT: I want you to reject them, because they
5 are not entitled to, to file thing on my behalf.
6 THE COURT: All right.
7 THE DEFENDANT: And I would like them to stop
8 presenting them as my lawyer, writing for the defendant. Okay?
9 They are not for me. Okay?
10 And I have a question.
11 THE COURT: Go ahead.
12 THE DEFENDANT: Is it the case that you have the power
13 to release me from jail?
14 THE COURT: A defendant has a right to a bond hearing;
15 that is correct.
16 THE DEFENDANT: No, I'm talking have you got the power
17 to, to release me from jail today? I'm asking you a very simple
18 question.
19 THE COURT: The Court has the power to order a
20 defendant released, of course. That is its power.
21 THE DEFENDANT: Okay.
22 THE COURT: But that's not before the Court today.
23 THE DEFENDANT: Yeah, but so I would like to introduce
24 an emergency motion, okay, so I will be -- I want in writing, you
25 see, and I want to introduce an emergency motion to have the
0064
1 Court to release me today, because I have compelling reason to
2 prove in court and would like a pen and, and a piece of paper to
3 write this motion, because I know that if it's not written, it
4 will not be accepted, because my oral statement is not enough,
5 and I have a compelling reason to say that this government, okay,
6 have -- was following me since I enter the United States of
7 America, and they were engaging in a cover operation against me
8 and potentially the 19 hijacker, okay, and I have proof that they
9 were carrying an undercover operation against me, because my
10 address and many other elements inside my case prove that they
11 were following me and they were following -- let's not talk about
12 the 19 hijacker.
13 I can prove that since the day I am in the United
14 States of America and before -- but I don't want to talk about
15 things that happened abroad, okay, but since I am in America, I
16 have been under surveillance. My address have been raided by
17 British armed police in 1998, okay, 1998 following the Embassy
18 bombing. It's 23-A Lambert Road. The second address was on my
19 note. It's 5 Hubert Grove --
20 THE COURT: All right. Mr. Moussaoui, this is
21 irrelevant to this case. I'll let you file whatever motions you
22 want and we'll consider them in that format, but unless there's
23 anything further that we need to address today, I think this case
24 is off and moving. We're still on track.
25 Now wait, I want to set a date for any additional
0065
1 motions. And Mr. Dunham and Mr. MacMahon, I don't expect to see
2 any more motions from you-all. I mean, you're basically just
3 going to continue monitoring the discovery. And hopefully if we
4 do get a standby attorney, you can pass that along.
5 MR. MAC MAHON: We won't file anything else.
6 MR. DUNHAM: Your Honor, until we're relieved, I assume
7 we need to continue to prepare as if we might have to try this
8 case.
9 THE COURT: That is always an eventuality, yes.
10 MR. DUNHAM: So we do need to be doing -- we won't be
11 filing motions, of course, because Mr. Moussaoui is now his own
12 lawyer.
13 THE COURT: Right.
14 MR. DUNHAM: But we expect to be doing everything else
15 we would do in order to prepare to try a case until Your Honor
16 tells us that we don't have to do that.
17 THE COURT: That is correct.
18 MR. DUNHAM: Okay.
19 THE COURT: Now any further pretrial motions,
20 Mr. Moussaoui, that you want the Court to consider --
21 THE DEFENDANT: Yes.
22 THE COURT: -- including a motion to dismiss the
23 indictment or any other motions as well as any motions the
24 government has at this point must be filed by close of business
25 Monday, June 24. And I'll have this in an order to you. The
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1 oppositions to those motions must be filed by July 5. And we are
2 still scheduled for a motions hearing on July 11. That has not
3 changed. All right?
4 I strongly suggest, Mr. Moussaoui, and I'm going to put
5 them in the envelope to you, that you look at what is in the
6 contents of the motion for discovery and the defense motion to
7 suppress. And to the extent that you may want to use any portion
8 of that, you may re-present it to me in your own motion if you
9 feel it's appropriate. If you don't want to raise those motions,
10 you don't have to, but let me advise you the Federal Rules of
11 Criminal Procedure require that such motions as a motion to
12 suppress be filed pretrial. And if you fail to file such a
13 motion, you may lose your right to protest if the government
14 introduces evidence or statements against you that might
15 otherwise have been subject to a motion to suppress.
16 Do you understand that?
17 THE DEFENDANT: I understand that. And I have asked
18 them for the ability to have a piece of paper and pen so it will
19 be put on the record that I wanted to file an emergency motion to
20 be free today, because I said to you, okay, I have physical
21 evidence that the government was monitoring my movements since I
22 entered the United States of America. For some kind of reason,
23 you are not addressing this issue. It's not on me to say why.
24 But I have expressed clearly that I have inside the case what was
25 found on me the day I was arrested in Minnesota, there is a
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1 compelling reason to say that the government knew who I was when
2 I entered the United States of America, were closely monitoring
3 me, okay, any of my movement, and they decided to arrest me and
4 not the other person who was at the school because they knew that
5 I was not in contact with these people who are supposed to have
6 done the hijacking.
7 For this reason, the government know that I'm not
8 linked to the hijacker, and I can prove it by just looking at my
9 address, it's a different address, and the different material.
10 There is physical evidence inside my belonging that show that the
11 government was monitoring me. And I wonder why is it not with
12 this address, because the people in America, they want to know
13 who done September 11th and if I am responsible.
14 THE COURT: All right.
15 THE DEFENDANT: Today you want to proceed like nothing,
16 I have said nothing, and I will be put in jail. I've been in
17 jail for two months without contact with nobody, seeing nobody.
18 I don't know what will happen to me in jail, okay? Because of
19 the implication of what I'm saying and I have no chance to
20 elaborate so people can think -- know that what I'm saying, it is
21 correct.
22 THE COURT: All right. Well, Mr. Moussaoui --
23 THE DEFENDANT: It is rational. You see?
24 THE COURT: I know. But you're not making, you're not
25 adding anything to the discussion. I'm going to end the hearing
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1 at this time unless there's any additional matters that have to
2 be addressed.
3 Mr. Spencer?
4 MR. SPENCER: None, Your Honor. Thank you.
5 THE COURT: All right. I am going to continue with the
6 CIPA 4 review. This may throw the CIPA matters into limbo, I
7 think it does at this point, but let's continue progressing as if
8 the case has not changed posture. And we will remand the
9 defendant at this time back into the custody of the United States
10 marshal.
11 (Which were all the proceedings had at
12 this time.)
13
14 CERTIFICATE OF THE REPORTERS
15 We certify that the foregoing is a correct transcript of the
16 record of proceedings in the above-entitled matter.
17
18
19
Anneliese J. Thomson
20
21 _____________________________________
Karen Brynteson
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