26 July 2002
Source: Digital transcript purchased from
Exemplaris.com for $30.00.
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
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
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15
Anneliese J. Thomson
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