26 July 2002
Source: Digital transcript purchased from Exemplaris.com for $30.00.
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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 . July 18, 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 ARRAIGNMENT AND MOTIONS 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 17 (APPEARANCES CONT'D. ON FOLLOWING PAGE) 18 19 20 COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR 21 U.S. District Court, Fifth Floor 401 Courthouse Square 22 Alexandria, VA 22314 (703)299-8595 23 24 (Pages 1 - 30) 25 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES 0002 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: ZACARIAS MOUSSAOUI (pro se) 3 STANDBY COUNSEL FOR EDWARD B. MAC MAHON, ESQ. 4 THE DEFENDANT: P.O. Box 903 107 East Washington Street 5 Middleburg, VA 20118 and 6 ALAN H. YAMAMOTO, ESQ. 108 N. Alfred Street, First Floor 7 Alexandria, VA 22314-3032 and 8 GERALD THOMAS ZERKIN Assistant Federal Public Defender 9 Office of the Public Defender One Capital Square 10 830 East Main Street, Suite 1100 Richmond, VA 23219 11 and KENNETH P. TROCCOLI 12 Assistant Federal Public Defender Office of the Federal Public 13 Defender 1650 King Street 14 Alexandria, VA 22314 and 15 JUDY CLARKE Assistant Federal Public Defender 16 Federal Defenders of Eastern Washington and Idaho 17 10 N. Post, Suite 700 Spokane, WA 99201 18 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 Dave Novak for the United States. 7 (Defendant present.) 8 THE COURT: Good afternoon. Mr. Moussaoui is entering 9 the courtroom, and do we have standby counsel here as well? 10 Mr. Zerkin, I see you, Mr. MacMahon, Mr. Yamamoto, and the rest 11 of the attorneys. Thank you. 12 All right. Before we begin, I had filed in chambers 13 this, this afternoon just before this hearing -- and I don't 14 know, Mr. Moussaoui, whether you got a copy of this or not -- the 15 standby counsel's objection to re-arraignment on the second 16 superseding indictment. 17 The basic argument in that position is that because 18 there is a pending standby counsel motion to dismiss the 19 indictment in light of the Supreme Court decision of Ring, that 20 the grand jury had no authority to indict. I'm going to deny 21 that objection, and we will go forward today with the 22 re-arraignment. 23 There is pending a motion addressing the 24 constitutionality of the federal death statute in light of Ring. 25 The response time for the United States has not yet run, and 0004 1 after their response has been filed and any position of the pro 2 se defendant has been filed and any reply brief of standby 3 counsel, I will rule on that issue. 4 I think the United States should consider in its 5 response, however, because I think it will be important to have 6 some law on this issue, its position on the status of 7 nonstatutory aggravating factors in light of Ring and also 8 whether or not Ring suggests that the ultimate factual decision 9 that has to be made before the death penalty can be imposed, that 10 is, that the aggravating factors outweigh the mitigating factors, 11 is somehow implicated or affected by the Apprendi-Ring analysis 12 as well. 13 I think to have a complete picture of the legal issues 14 raised in the defense -- standby counsel's motion, those matters 15 need to be addressed, and I will give standby counsel as well as 16 Mr. Moussaoui an opportunity to respond once we've gotten the 17 government's reply. All right? 18 Now, Mr. Moussaoui, you've filed a motion to improve 19 the security for the life of Zacarias Moussaoui, Docket No. 294, 20 which you were requesting to not have your table so close to 21 various people and to be able to stay at counsel table. I'm 22 denying that request. Your security is completely safe in this 23 courtroom, and you must be speaking from the lectern, because 24 that's where the microphone is. And we have to be able to hear 25 you. So that motion is denied. 0005 1 All right. We now have before us as the most important 2 matter of business a re-arraignment on the second superseding 3 indictment that was just returned this week by the grand jury. 4 To keep the matters clear, I am directing the clerk to put on the 5 cover page of this indictment the word "second" before the words 6 "superseding indictment," so that there is no problem with 7 understanding that this is a second superseding indictment. 8 Now, Mr. Moussaoui, come up to the lectern, please. I 9 have some questions to ask you. 10 Mr. Moussaoui, did you receive a copy of the second 11 superseding indictment? 12 THE DEFENDANT: Yes, I did, yesterday. 13 THE COURT: All right. Did you have a chance to read 14 it over? 15 THE DEFENDANT: Yes. 16 THE COURT: All right. 17 THE DEFENDANT: Very quickly. 18 THE COURT: Do you wish to waive formal arraignment, or 19 do you wish to have a formal arraignment on the superseding 20 indictment? 21 THE DEFENDANT: I want a formal arraignment. 22 THE COURT: All right. Then as I did last time, I will 23 advise you, since the original indictment, which has not changed 24 significantly, is pages 1 through 29 of the second superseding 25 indictment, in fact, those pages are exactly the same -- stay at 0006 1 the lectern, Mr. Moussaoui. 2 THE DEFENDANT: Yes. I need to take the superseding 3 indictment. 4 THE COURT: I can't hear you. You have to be at the 5 lectern. 6 All right. There are two additional pages that the 7 second superseding indictment adds to the first superseding 8 indictment, upon which you have already been arraigned. 9 Therefore, I will formally arraign you solely on the two 10 additional pages. 11 These pages are entitled "Notice of Special Findings." 12 a. The allegations of Counts One, Two, Three, and Four 13 of this indictment are hereby realleged as if fully set forth 14 herein and incorporated by reference. 15 b. As to Counts One, Two, Three, and Four of this 16 indictment, the defendant, Zacarias Moussaoui, (1), was more than 17 18 years of age at the time of the offense. And there's a 18 parenthetical there, Title 18, United States Code, Section 19 3591(a). 20 (2), participated in an act, contemplating that the 21 life of a person would be taken or intending that lethal force 22 would be used in connection with a person, other than one of the 23 participants in the offense, and the victims died as a direct 24 result of the act. Parenthetical to the Code Section, which is 25 Title 18, United States Code, Section 3591(a)(2)(C). 0007 1 (3), intentionally and specifically engaged in an act 2 of violence, knowing that the act created a grave risk of death 3 to a person, other than one of the participants in the offense, 4 such that participation in the act constituted a reckless 5 disregard for human life and the victims died as a direct result 6 of the act. The parenthetical there, reference again to the 7 statute is Title 18, United States Code, Section 3591(a)(2)(D). 8 (4), in committing the offenses described in Counts 9 One, Two, Three, and Four, knowingly created a grave risk of 10 death to one or more persons in addition to the victims of the 11 offense. (Title 18, United States Code, Section 3592(c)(5).) 12 (5), committed the offenses described in Counts One, 13 Two, Three, and Four in an especially heinous, cruel, and 14 depraved manner in that they involved torture and serious 15 physical abuse to the victims. (Title 18, United States Code, 16 Section 3592(c)(6).) 17 And, (6), committed the offenses described in Counts 18 One, Two, Three, and Four after substantial planning and 19 premeditation to cause the death of a person and commit an act of 20 terrorism. (Title 18, United States Code, Section 3592(c)(9).) 21 And these are all pursuant to Title 18, United States 22 Code, Sections 3591 and 3592, which are references to the Federal 23 Death Penalty Act. 24 Those are the changes between the second and the first 25 superseding indictment. 0008 1 Now to the second superseding indictment, 2 Mr. Moussaoui, how do you wish to plead? 3 THE DEFENDANT: In the name of Allah, as this Court 4 know, since I've been indicted, I've been claiming that I have no 5 participation in September 11, but as you just covered briefly 6 this indictment, even if you didn't go in depth, there's many 7 allegation inside this indictment. So I did in the past, I 8 precise take the position to plead no contest, but the Court have 9 refused. 10 My position was dictated by the fact that I'm an 11 affiliate of Muhammad that I will not commit perjury. 12 So today, after some research, I find that even the law 13 and the justice system recognize the complexity of this case and 14 the complexity of life, and I find that I will enter what is 15 called an affirmative plea, a pure plea. 16 It is defined by the Black Dictionary of Law as an 17 equitable plea that affirmatively allege new matter that are 18 outside the bill. A pure plea must track the allegation of the 19 bill, not evade it or mistake its purpose. 20 So by entering this pure plea, I will first have to 21 track the indictment. Then -- or before, make specific statement 22 regarding my involvement, my participation in a known terrorist 23 group since 1995, but -- so I enter formally today a pure plea 24 and affirmatively plea. 25 THE COURT: All right. Now, Mr. Moussaoui, you sent us 0009 1 a while ago sort of a statement or explanation of your 2 understanding of what you were doing by entering a nolo 3 contendere plea. I think I understand where you are confused. 4 THE DEFENDANT: I'm not confused, thank you. 5 THE COURT: I understand that your position is that 6 there are certain statements in the indictment that you do not 7 dispute. 8 THE DEFENDANT: No. 9 THE COURT: And that was the basis for your wanting to 10 plead no contest, because you did not want to appear in the eyes 11 of the jury as if you were not credible. 12 THE DEFENDANT: No, that's not -- I gave example, that 13 it was in different motion I made. I make some example, and I 14 did say, precise strongly petition has been taken either prove 15 innocence or guilty. 16 So today, which is my position, because this reflect 17 the reality of what I did, why I came to the United States, and I 18 should carry with this plea and only with the plea, because he 19 will ensure truth and justice for me and for all people, 20 especially because the conspiracy that I was involved, it's an 21 ongoing conspiracy who have started since around 1995 and it 22 still carries on until this day of this finding of this 23 indictment and my pure plea. 24 So I have specific allegation, substantiate with proof, 25 of course, regarding the existence until today of a group of 0010 1 people who are intend -- who intend to commit terrorist act. 2 THE COURT: Mr. Moussaoui, I'm going to stop you at 3 this point. The plea that you refer to is not recognized in the 4 Federal Rules of Criminal Procedure. Now I've cited you to the 5 rules that apply, and I assume you've looked at them. You plead 6 either guilty, not guilty, or if the Court will accept it, nolo 7 contendere. I have told you I'm not accepting a nolo contendere 8 plea from you, and I am therefore once again entering a no -- not 9 guilty plea on your behalf to this indictment. 10 Now the next question I have for you is you have filed 11 a motion protesting that you don't have enough time, something to 12 the effect of 14 days are not enough to prepare for this case. 13 There have been no substantive changes made to the indictment, 14 but for the record, I want to know whether you want a 15 continuation of your trial date. 16 THE DEFENDANT: Sorry? 17 THE COURT: I would like to know whether you are in any 18 respect requesting a continuance of the trial date. 19 THE DEFENDANT: I have to think about this, because you 20 just put the matter in front of me, and this matter need some 21 thought. 22 THE COURT: Well, if you had been consulting with 23 standby counsel, I'm sure they'd have raised that. 24 THE DEFENDANT: I don't have to consult with people who 25 try -- who have undermined my defense, who demise me. So I like 0011 1 you to stop this, this nonsense game that you are playing here. 2 You are denying me every sense of a notion of justice. 3 THE COURT: All right. 4 THE DEFENDANT: And I don't have to take advice from 5 you concerning the way I defend myself. You have not the best 6 interest for me. 7 THE COURT: Mr. Moussaoui, there's a question pending. 8 THE DEFENDANT: So I told you that I need a recess to 9 think about the matter. 10 THE COURT: Well, we're not giving you a recess. I 11 don't think there's any basis for a continuance. As I said, this 12 only adds to the indictment information that you were provided 13 for in the notice. 14 THE DEFENDANT: I think there is. I've been indicted 15 only -- not less -- on the 25 of last month, and I have been a 16 pro se only from the 13 of, of last month. I think that there's 17 a great case for me to have more time and be allocated an outside 18 court legal assistant, because I've been in this cell and have 19 access to absolutely nothing. I don't even have a printer until 20 today. We are less than three months from a trial, and I can't 21 even print a document. 22 Are you expecting me to spend eight hour or ten hour a 23 day in front of a computer screen, having the room full of 24 computer disk, where I should be provided with some kind of 25 server where I can -- even today, if I were just to try to load 0012 1 the thing on the computer, it will take me until trial date to 2 just load the different disk. You have provide me with the most 3 aging computer. This is a farcical. This is a farce of justice. 4 THE COURT: All right. 5 THE DEFENDANT: And I have a right to justice and to a 6 fair trial. 7 I'm ready to answer all question, and I have been 8 denied to appear in front of the grand jury. I have many, many 9 information to give to the America people about an existing 10 conspiracy, and you are -- and the government is opposing my 11 appearance, apparation (sic) in front of the grand jury. 12 THE COURT: All right. Well, you know that the reason 13 you were not allowed to testify is you were putting conditions -- 14 THE DEFENDANT: No, I did not -- I did send a specific 15 letter -- and it's on the record -- to the prosecution where I 16 fully accept all the condition, and it was sent at the proper 17 time last week on Friday, and they can't even contest it. They 18 received the letter. 19 Now they are evading because they know that I have 20 specific allegation and the knowledge of ongoing conspiracy, and 21 they don't want me to speak about. 22 THE COURT: All right. 23 THE DEFENDANT: Yes, all right. Everything is all 24 right. You're just like making a -- 25 THE COURT: Mr. Moussaoui -- 0013 1 THE DEFENDANT: You are sidetracking me, Mr. Moussaoui, 2 Mr. Moussaoui. This is not justice, okay? Justice come in 3 truth -- 4 THE COURT: All right. 5 THE DEFENDANT: -- and fairness. 6 This is -- 7 THE COURT: Mr. Moussaoui, I have told you many times 8 before -- 9 THE DEFENDANT: Yeah, you told me. I know what you 10 told me. 11 THE COURT: Have a seat for a second, please. 12 THE DEFENDANT: Yeah, don't -- 13 THE COURT: Have a seat, please. 14 THE DEFENDANT: Yes, yes. Have a seat, yes. 15 THE COURT: On Monday, July 15, we had a telephone 16 conference in which Mr. Moussaoui participated from the jail. 17 United States counsel was present on the phone as were standby 18 counsel to address this issue about Mr. Moussaoui's request to 19 appear before the grand jury. 20 Again, because consistently up until apparently quite 21 late, maybe Friday afternoon -- we didn't get a copy of the 22 letter -- the defendant had been insisting on appearing only if 23 it were a public appearance, he wanted the marshals present in 24 the grand jury room, he wanted an attorney who was not licensed 25 to practice to be available to him. Those conditions were 0014 1 rejected by the Court on the record. 2 Now apparently at the last minute, Mr. Moussaoui did 3 change his position on those issues, and that is reflected in 4 that transcript. At the end of that hearing, it was not clear 5 whether counsel and Mr. Moussaoui wanted that transcript made 6 publicly available or not. It was kept under seal because it 7 involved grand jury matters. 8 Mr. Moussaoui, do you want that transcript made public? 9 THE DEFENDANT: Yes, of course. 10 THE COURT: Any objection from the United States? 11 THE DEFENDANT: I want a public trial. 12 THE COURT: Mr. -- 13 MR. SPENCER: No, Your Honor, thank you. 14 THE COURT: All right. And I assume standby counsel 15 have nothing to say about that. 16 MR. ZERKIN: Correct. 17 THE COURT: All right. Then I'll direct Ms. Thomson to 18 make sure that that transcript is available in the normal 19 practice of any of our transcripts for the public if the, if the 20 public is interested. 21 But in any case, in that proceeding, we determined that 22 it was, the grand jury was on the eve of convening, it was too 23 late at that point, and therefore, Mr. Moussaoui's requests to 24 appear before the grand jury were denied. 25 The government is not permitted to use the grand jury 0015 1 to continue investigating once this indictment is returned unless 2 it's a separate case, and so unless there is some mechanism for 3 Mr. Moussaoui to appear legally before a grand jury, at this 4 point that issue would be moot, and it has already been denied in 5 terms of the motions that were pending. 6 All right. The -- there are some remaining issues that 7 have not been addressed by the Court yet. Mr. Spencer, I would 8 like you to make sure -- to bring the Court up to date where the 9 government is in terms of its discovery production. I understand 10 you have begun making some hard copy productions to the 11 defendant. Is that correct? 12 MR. SPENCER: Yes, Your Honor. I think we, we have 13 completely complied with your most recent order. We are 14 producing everything out of Minnesota and Oklahoma that was 15 seized in hard copy to the defendant, and if it is not there 16 already, it is en route. We have printed it out. It amounts to 17 about 70,000 pages, and we are sending that in hard copy to the 18 defendant. 19 THE COURT: All right. That should take care of part 20 of the, of the electronic problem that we have here. 21 The defendant has requested certain certifications -- 22 Mr. Spencer, stay up there. 23 The defendant has requested various certifications from 24 the government as to various investigative things you may or may 25 not have done. You've responded to those various motions. 0016 1 Most of your responses are, are appropriate. I am 2 concerned, however, that in the responses to his request to 3 certify whether or not any government agencies -- United States 4 government agencies have conducted electronic surveillance of 5 him, that those responses do not in my view adequately indicate 6 with enough specificity. 7 I think out of an abundance of caution as to his 8 requests that relate to the FBI and the CIA, what would be 9 appropriate would be an affidavit from an appropriate official 10 from each agency to either confirm or deny that that agency was 11 involved in any kind of electronic surveillance of the defendant 12 up through August 16 of 2001. 13 MR. SPENCER: Very well, Your Honor. 14 THE COURT: I know you object to that, but I think 15 that's appropriate to do. 16 Now in terms of any of those other requests about what 17 surveillance was going on at the other 19 hijackers, the Hamburg 18 cell, or any of that, the defendant does not have standing to 19 raise those issues unless the issues would raise Rule 16 or Brady 20 material, in which case you would have an obligation to produce 21 that. And I am going to require that any Rule 16 or Brady 22 material be turned over to the defendant in hard copy. 23 Mr. Yamamoto is working on getting him a more powerful 24 computer, but until that time, it's important that he have access 25 to this information in hard copy so that he can be reading it, 0017 1 and I would expect -- it sounds like you've already started doing 2 that, but that needs to be done. 3 MR. SPENCER: Well, I don't mean to suggest by saying 4 that that I don't think the Court takes this position, if I might 5 presume, Your Honor, that the items seized from Mr. Moussaoui in 6 Oklahoma and Minnesota constitute Brady material. 7 THE COURT: No, no, I didn't. That's Rule 16. But I 8 said Rule 16 or Brady material. 9 MR. SPENCER: Very well, Your Honor. 10 THE COURT: All right. Now the last thing that I'm 11 going to address this afternoon is the -- Mr. Moussaoui has 12 continued to file motions after the deadline that the Court set. 13 I am, of course, willing to entertain any serious new issue that 14 comes down the road, but -- given the nature of the issues in 15 this case, but, Mr. Moussaoui, it is a waste of your time, which 16 you recognize is precious, and the Court's resources for you to 17 keep raising the same issue time and time again. 18 I have ruled on a bunch of your issues. If you 19 disagree with me, then you can take an appeal. You have already 20 appealed some of these rulings. But to continue filing the same 21 motion will get you nowhere and may very well be construed by the 22 Court as evidence of your inability to properly represent 23 yourself and result in a forfeiture of your pro se status. 24 So I'm putting you on notice that I don't expect any 25 more of those motions to be filed -- 0018 1 THE DEFENDANT: I want to respond to you. 2 THE COURT: -- and if you continue to file them, you 3 could lose your status. 4 THE DEFENDANT: I want to respond. You -- 5 THE COURT: No. There is no need to respond. 6 THE DEFENDANT: All right. 7 THE COURT: I'm putting you on notice. 8 THE DEFENDANT: That's -- 9 THE COURT: Is there anything further that any attorney 10 wants to raise in this case? 11 THE DEFENDANT: Yes. 12 THE COURT: Yes, all right. Mr. Moussaoui -- wait, 13 Mr. Spencer? 14 MR. SPENCER: Your Honor, I want to clarify the Court's 15 previous ruling. Are you ordering the government to print in 16 hard copy everything that's been turned over to the defense so 17 far in this case? 18 THE COURT: No, no. Rule 16 material. 19 MR. SPENCER: Therefore, you're putting on us the 20 affirmative burden of sifting through all the material and 21 finding that stuff? 22 THE COURT: Yes. If this were a civil case, there'd be 23 absolutely no question you'd have an obligation to do that. I 24 think in a death penalty case, where there's so much more at 25 stake than even in a civil case, and given the quantum of 0019 1 evidence, and you all want this case tried in a relatively 2 expeditious fashion, remember, defense counsel originally wanted 3 a trial date in 2003, I think the way to let that all happen in 4 the interests of justice is to put the production burden on the 5 government to get that evidence in a more organized fashion to 6 the defense. I'm going to require you to do that. 7 MR. SPENCER: Can we ask standby counsel to turn back 8 over to us what they have determined to be defense material -- 9 THE COURT: You need to work together on that, because 10 Mr. Moussaoui needs to see that. He has a request to his 11 counsel -- former counsel, and I assume that they've also been 12 producing evidence to him in hard copy. But he doesn't need it 13 twice. That's overloading him as well. So between the two, that 14 information needs to get to him. 15 MR. SPENCER: Well, I'm also concerned that he may 16 not -- as far as I know, he doesn't take any communication 17 whatever from his standby counsel. 18 THE DEFENDANT: Correct. 19 MR. SPENCER: If they turn it over to us, though, what 20 they have determined to be information material to the defense, 21 then we could forward it to the defense -- to the defendant, and 22 he may accept it from us. 23 THE DEFENDANT: Yes, I do. 24 THE COURT: It makes no sense to accept it from the 25 Court or the government, Mr. Moussaoui, if it's the same 0020 1 information from your defense counsel. 2 But I will -- Mr. Zerkin or Mr. MacMahon, do you have a 3 problem working with the government in that respect so that we 4 can get this information to Mr. Moussaoui? 5 MR. MAC MAHON: May it please the Court. 6 THE COURT: Yes. 7 MR. MAC MAHON: Your Honor, if I may, I instinctively 8 would think that we -- we have given Mr. Moussaoui documents that 9 we've printed off in the past, but that would be work product or 10 privileged as to what we thought was relevant. It might 11 represent communications that we had with Mr. Moussaoui that 12 would be covered by the privilege in that regard as well. 13 And we're happy to try to work with the government 14 within, within certain bounds, and they have been helpful trying 15 to give us a lot of discovery, but I think it's -- and you know 16 the volume of the material that we're talking about here. 17 For us to try to, to get together and figure out what's 18 Rule 16, part of the problem we had originally was that when they 19 asked us to tell us what we wanted was that we don't know what 20 they have in terms of what's Brady, what's Rule 16. Lots of it's 21 in foreign languages. And I think it's just an impermissible, in 22 a respectful sense, shift of the burden under Rule 16 to us. 23 And the final problem, of course, is that he won't take 24 anything from us, and if it looks like Mr. Dunham or Zerkin or I 25 or Mr. Yamamoto sifted through something, he more than likely is 0021 1 not going to look at it. He'd actually rather get it from the 2 prosecution. And -- 3 THE COURT: Well, how did you respond -- did you 4 produce any documents in response to Mr. Moussaoui's motion to 5 have standby counsel give him things? 6 MR. MAC MAHON: I believe that we gave him documents. 7 We haven't given him any additional -- he won't receive anything 8 from us, Your Honor. We filed the response that we gave to the 9 Court. 10 But in terms of additional documents, we gave him the 11 list of handwriting and electronic experts as well, though I 12 doubt that that's been received, either. But we just -- it would 13 be a task, literally -- and I -- Mr. Spencer, I'm sure, would 14 agree with me if we printed out everything that we received by 15 CD-ROM in this case, it might fill the whole jail. There's 600 16 videotapes. 17 It's not just enough to order us to print something 18 out. There's just enough material in the SCIF could be printed 19 out that would probably do that, much less what's back at the 20 office. So it's truly a monumental problem. 21 And we don't even know what's on a lot of the 22 videotapes or the audio disks that we've received, either, to 23 make any kind of determination whether something's Brady or 24 whether it's covered by Rule 16 or anything else. And as much as 25 I'd like to help the government with that, I really don't think 0022 1 that we can. 2 THE COURT: Mr. Spencer, we'll start with the 3 fundamentals first. With Rule 16 -- and I think some of this 4 you've already complied with -- any evidence you've seized from 5 the defendant I think you've already turned over to him, right? 6 MR. SPENCER: I believe that's correct, Your Honor, 7 yeah. 8 THE COURT: All right. 9 MR. SPENCER: Yeah. 10 THE COURT: This close to trial you must have a pretty 11 good idea of the documentary evidence the government is going to 12 be using in this case. 13 MR. SPENCER: We are getting there, Your Honor. 14 THE COURT: All right. I think you need to -- although 15 it doesn't normally happen in a criminal case, I think that needs 16 to be produced very quickly to both standby counsel and -- 17 MR. SPENCER: Well, it has been produced, Your Honor, 18 but you're asking -- you're putting an affirmative burden on the 19 government that we don't ordinarily bear, as the Court is well 20 aware. 21 THE COURT: And this is not an ordinary case, all 22 right? 23 MR. SPENCER: I'm aware of that, Your Honor. 24 THE COURT: All right. Let's do -- do the best you 25 can, and just send -- I don't think you need to file with the 0023 1 Court, Mr. Spencer, copies of the discovery you're sending to the 2 defendant -- 3 MR. SPENCER: Very well. 4 THE COURT: -- as long as you give me a running list so 5 that we have a record in the Court official file as to what you 6 tendered to him, that would be sufficient, and we'll see how that 7 works, allright? 8 Obviously, anything that you construe to be Brady -- 9 and you've had to do a Brady sort, as you know, with the 10 classified information -- 11 MR. SPENCER: I don't have a problem with the Brady 12 material at all, Your Honor. 13 THE COURT: All right. 14 MR. SPENCER: I'm well aware of our obligations, and we 15 have lived up to them in this case, and we will continue to do 16 so. 17 THE COURT: All right. And any forensics that the 18 government has at this point, that should be turned over. 19 MR. SPENCER: Every lab report done in this case has 20 been turned over to the defense, Your Honor. 21 THE COURT: Well, when you say "defense," has 22 Mr. Moussaoui gotten it? 23 MR. SPENCER: Well, he's gotten it in electronic copy, 24 as has defense counsel. 25 THE COURT: All right. 0024 1 MR. SPENCER: That's easy for us to print out the lab 2 reports, Your Honor. That's not -- that is not a hard issue in 3 this case. 4 THE COURT: That's what he needs. He needs the hard 5 copies of that sort of material; all right? 6 MR. SPENCER: At the same time, Your Honor, I 7 understand Mr. MacMahon's point, but we don't know what's 8 material to the defenses they see in the case. 9 THE COURT: Well, that's the problem, because also, you 10 have standby counsel may have one theory of defense. 11 Mr. Moussaoui appears to be having a different theory of defense, 12 and I realize that has made it complicated. But you can sort of 13 see where Mr. Moussaoui is going from his pleadings, and to the 14 extent that that material would be appropriate to turn over, you 15 may -- you should be doing so. 16 MR. SPENCER: Very well, Your Honor. 17 THE COURT: All right. 18 MR. SPENCER: But what I would suggest in addition to 19 that is have standby counsel produce to the marshals or to the 20 Court if they don't want us to see it or to some other third 21 party to forward it to Mr. Moussaoui documents that they have 22 already reviewed or evidence that they've already reviewed and 23 found to be material to the defense. I think that would help the 24 process. 25 THE COURT: It might, but it's ridiculous for 0025 1 Mr. Moussaoui -- if he thinks standby counsel have somehow 2 tainted evidence, he will not receive it from them, but he'll 3 take it if the Court sends it or you do or some third party, it 4 makes no sense to me, and I'm not going to burden anyone else 5 with doing that. 6 A perfect example are these forensic experts which I've 7 told you, Mr. Moussaoui, you can have: handwriting expert, 8 fingerprint expert, electronic surveillance expert, no problem 9 with that, but it does -- the Court does not find witnesses for a 10 party. 11 Your attorneys, standby attorneys were directed by the 12 Court to give you the names and curriculum vitae of experienced 13 forensic experts. If you choose not to accept that information, 14 you proceed at your own risk and will not be allowed to complain 15 down the road that you were denied a fair trial, because you're 16 doing it yourself -- to yourself, and that's how I'm going to 17 rule on that. All right? 18 MR. SPENCER: Very well, Your Honor. 19 THE COURT: All right. 20 THE DEFENDANT: I want to address my plea. 21 THE COURT: I've accepted a plea of -- 22 THE DEFENDANT: No -- 23 THE COURT: -- not guilty, Mr. Moussaoui. 24 THE DEFENDANT: No, I didn't make this plea. 25 THE COURT: I know, but I've entered one for you. 0026 1 THE DEFENDANT: I want to enter a plea, I want to enter 2 a plea of guilty. I want to enter a plea today of guilty, 3 because this will ensure to save my life, because this is 4 conspiracy law. It's much more complicated than what you want to 5 make people to believe, because even if I plead guilty, I will be 6 able to prove that I have certain knowledge about September 11, 7 and I know exactly who done it. 8 I know which group, who participated, when it was 9 decided. I have many information. 10 THE COURT: Wait a minute, Mr. Moussaoui. 11 THE DEFENDANT: But it will ensure me to save my life, 12 because the jury will be, will be able to evaluate how much 13 responsibility I have in this. 14 But by carrying on with this farcical justice, I will 15 be put aside soon, because already the standby counsel are 16 speaking on my behalf in open court, where they are here only for 17 protocol and procedure. You allow them to do this and to speak, 18 and I will be soon, ah, removed from my defense, because you 19 already put me on notice, okay, and what will happen to me, I 20 will be certainly gagged during trial, ah, and you will carry on 21 your so-called justice, and the jury will be inflamed, because 22 September 11, it's a very serious affair, and they will, they 23 pronounce my death. 24 I, Moussaoui Zacarias, in the interests to preserve my 25 life, enter with full conscience a plea of guilty, because I have 0027 1 knowledge and I participated in, in al Qaeda. I am member of al 2 Qaeda. 3 THE COURT: Mr. Moussaoui, you have to stop, or I'll 4 have the marshals remove you. 5 THE DEFENDANT: I pledge bayat to Osama bin Ladin. 6 THE COURT: Marshals. 7 Mr. Moussaoui, all right, wait. 8 Leave him one second. 9 I'm going to advise you again that when you speak, the 10 words you say can be used against you in the prosecution. If a 11 defendant stands up in court and says, "I'm guilty of the 12 offense," you may put yourself in a position where you cannot 13 undo those words. 14 When you -- you can put your hands down, Mr. Moussaoui. 15 When you plead -- put them down. 16 THE DEFENDANT: Yeah, but I don't want them to jump on 17 me. 18 THE COURT: No one's going to jump on you if you be 19 quiet when I speak. 20 THE DEFENDANT: Yeah. 21 THE COURT: If you're pleading guilty, let me explain 22 to you again what a guilty plea means in this system. It means 23 you are admitting doing what the government claims you did. You 24 cannot plead guilty and then say, "But I didn't do this and I 25 didn't do that and somebody else did that." 0028 1 I also want you to understand this: It is normal in a 2 criminal case that a defendant has the right to try to plea 3 bargain with the government. Usually his attorneys would do that 4 for him. It is not uncommon even in the most serious cases if a 5 defendant has truly valuable information to the government, that 6 the government considers the value of that information and makes 7 a decision to compromise the case by offering a plea to either a 8 lesser count, or, for example, in a capital case, the government 9 could agree to drop the death penalty. 10 The Court cannot get involved in that. That is 11 something attorneys would do for you. I suppose you could try to 12 negotiate a plea for yourself, and I don't know whether that has 13 been attempted, but this is not the forum in which to do that. 14 Now here's what I'm going to do: If you absolutely 15 want to enter a guilty plea and admit your guilt for the offenses 16 that are alleged in this indictment, I will give you the right to 17 do that, but I want you to take a little time to think about 18 whether that's really what you want to do. You know how to reach 19 the Court. I'll give you at least a week to think about that. 20 THE DEFENDANT: I don't need it. 21 THE COURT: Well, I'm giving the time to you, because 22 you have changed -- 23 THE DEFENDANT: I've been thinking for months. 24 THE COURT: You have changed your mind so many times in 25 this case. 0029 1 THE DEFENDANT: No, I didn't change my mind. You have 2 preventing me to enter the plea I wanted, and now because of my 3 lack of knowledge and I'm not a lawyer, I was not able to, to 4 know that I couldn't enter a pure plea. But anyway, the fact of 5 the reality even now, you know perfectly that there is a guilt 6 phase and there is a penalty phase, okay? And you know that on 7 both, on both account, the government have to prove that I'm 8 guilty to the extent that they pretend I'm guilty, okay? 9 So now I'm saying that for the guilt phase, I'm guilty 10 for the -- yes, the guilt phase. But for the death penalty, we 11 will see. 12 That's also -- I am guilty. I don't want you to have 13 time to manipulate the system again against me, and that I'm sure 14 that in a week time, I will be declare probably insane or, I 15 don't know, some incident in jail. 16 So today the world should know that Moussaoui Zacarias 17 have entered formally a guilty plea fully and completely, and he 18 want to have trial as soon as possible to be able to, to show the 19 extent of his guilt. That's only what matter now. I am guilty. 20 Now the question is how much. 21 THE COURT: All right. I'm going to reconvene this 22 case at 1:00 next Thursday to see if the defendant wants to 23 continue with a guilty plea to the offenses. 24 THE DEFENDANT: Bet on me I will. 25 THE COURT: And if he still does and he can properly 0030 1 answer the Rule 11 colloquy questions, I see no legal impediment 2 to accepting a guilty plea. 3 Mr. Spencer, do you want to be heard on that? 4 MR. SPENCER: No, Your Honor. I see no impediment, 5 either. 6 THE COURT: All right. We'll recess court. 7 (Which were all the proceedings 8 had at this time.) 9 10 CERTIFICATE OF THE REPORTER 11 I certify that the foregoing is a correct transcript of the 12 record of proceedings in the above-entitled matter. 13 14 15 Anneliese J. Thomson 16 17 18 19 20 21 22 23 24 25