22 January 2002
Source: Digital file purchased from Eastern District of Virginia official reporter Anneliese Thomson; (703) 299-8595.

See related case documents: http://cryptome.org/usa-v-zm-cd.htm


                                  UNITED STATES DISTRICT COURT
                              FOR THE EASTERN DISTRICT OF VIRGINIA
                                      ALEXANDRIA DIVISION
               UNITED STATES OF AMERICA,     .       Criminal No. 01-455-A
                    vs.                      .       Alexandria, Virginia
                                             .       January 2, 2002               
               ZACARIAS MOUSSAOUI,           .       9:00 a.m.
               a/k/a Shaqil, a/k/a           .
               Abu Khalid al Sahrawi,        .
                              Defendant.     .      
               .  .  .  .  .  .  .  .  .  .  .
                                   TRANSCRIPT OF ARRAIGNMENT
                            BEFORE THE HONORABLE LEONIE M. BRINKEMA
                                  UNITED STATES DISTRICT JUDGE
               FOR THE GOVERNMENT:           ROBERT A. SPENCER, AUSA
                                             KENNETH M. KARAS, SAUSA
                                             DAVID J. NOVAK, AUSA
                                             United States Attorney's Office
                                             2100 Jamieson Avenue
                                             Alexandria, VA 22314
                            (APPEARANCES CONT'D. ON FOLLOWING PAGE)
                                             U.S. District Court, Fifth Floor
                                             401 Courthouse Square
                                             Alexandria, VA 22314
                                         (Pages 1 - 26)


            1  APPEARANCES: (Cont'd.)
            2  FOR THE DEFENDANT:            FRANK W. DUNHAM, JR.
                                             Federal Public Defender
            3                                Office of the Federal Public
            4                                401 Courthouse Square
                                             Alexandria, VA 22314
            5                                  and
                                             EDWARD B. MAC MAHON, ESQ.

            6                                P.O. Box 903
                                             107 East Washington Street
            7                                Middleburg, VA 20118
            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       















            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 morning, Your Honor.  Rob Spencer, 

            6  Ken Karas, and David Novak for the United States.

            7                           (Defendant present.)

            8            THE COURT:  Good morning.

            9            MR. DUNHAM:  Your Honor, Frank Dunham, the Federal 

           10  Public Defender; Mr. Zerkin from my office; and Mr. Ed MacMahon 

           11  for the defendant, Zacarias Moussaoui.

           12            THE COURT:  All right.  And we'll note that the 

           13  defendant is present. 

           14            Mr. Dunham, before we get started, does your client 

           15  need the assistance of a language interpreter? 

           16            MR. DUNHAM:  We're satisfied, Your Honor, that he 

           17  understands English well enough to proceed without an interpreter 

           18  at the proceedings.

           19            THE COURT:  You've had no difficulty in communicating 

           20  with him? 

           21            MR. DUNHAM:  No difficulty in communicating with him.

           22            THE COURT:  All right. 

           23            All right, this matter is set for the arraignment of 

           24  the defendant, Mr. Dunham.  Does the defendant wish to have a 

           25  formal or informal arraignment? 


            1            MR. DUNHAM:  Your Honor, we will waive formal reading 

            2  of the indictment.  We will ask for a trial by jury, but 

            3  Mr. Moussaoui would like to address the Court himself as to his 

            4  plea.

            5            THE COURT:  Yes, sir.  Mr. Moussaoui, come up to the 

            6  lectern. 

            7            THE DEFENDANT:  Samiya (phonetic).  In the name of 

            8  Allah, I do not have anything to plea, and I enter no plea. 

            9            THE COURT:  All right, sir. 

           10            THE DEFENDANT:  Thank you very much.

           11            THE COURT:  I will interpret that to be a plea of not 

           12  guilty.

           13            MR. DUNHAM:  That's correct, Your Honor.

           14            THE COURT:  All right.  And the defendant having pled 

           15  not guilty, Mr. Dunham, you're requesting a trial by jury? 

           16            MR. DUNHAM:  That's correct, Your Honor.

           17            THE COURT:  All right.  Now we need to set various 

           18  dates at this time.  I advised you-all by an order issued last 

           19  week that I was going to set a trial date today, and hopefully, 

           20  you-all have consulted with each other, that is, the defense and 

           21  the prosecution, about potential dates.  Have you done that? 

           22            MR. DUNHAM:  Yes, Your Honor.  We have consulted, and 

           23  we have agreed on a number of dates except for the trial date, 

           24  and I would like Mr. Zerkin and Mr. MacMahon to be able to 

           25  address from the defense perspective what that trial date ought 


            1  to be.

            2            THE COURT:  All right.  Mr. Zerkin? 

            3            MR. ZERKIN:  Your Honor, do you want us to do that 

            4  first or the government? 

            5            THE COURT:  All right.  Well, Mr. Spencer, unless you 

            6  tell me otherwise -- I'm going to need a point person for each 

            7  side.  I'm going to assume, Mr. Spencer, you're the lead trial 

            8  counsel for the United States? 

            9            MR. SPENCER:  Well, for purposes of the arraignment, 

           10  yes, Your Honor; that's fine.

           11            THE COURT:  All right.  And, Mr. Dunham, I'm going to 

           12  assume that you're the lead counsel for the defense team.

           13            MR. DUNHAM:  Right.  Except on this point, I'm going to 

           14  have Mr. Zerkin do the --

           15            THE COURT:  But for communication purposes so that 

           16  we're not having to call six attorneys if we're trying to set 

           17  something up, we're going to use the two of you as the point 

           18  people for that kind of communication.

           19            MR. SPENCER:  That's fine, Your Honor, for the 

           20  government.

           21            MR. DUNHAM:  And that's fine for the defense, Your 

           22  Honor.

           23            THE COURT:  All right.  Then, Mr. Spencer, let me hear 

           24  from the United States as to your position as to a trial date.

           25            MR. SPENCER:  Your Honor, we're requesting a trial date 


            1  that would -- jury selection would begin on September 30 of this 

            2  year, with the -- we'd like to do it, Your Honor, where we start 

            3  jury selection two weeks before a date certain for the beginning 

            4  of the trial, so the trial would open on October 14, but we would 

            5  begin selecting a jury on September 30. 

            6            And in addition, as Mr. Dunham has indicated, we have 

            7  agreed on a number of motions dates and on a CIPA hearing 

            8  schedule that would be implemented starting 12 weeks before 

            9  trial.  So the preliminary matters I think we've worked out.  We 

           10  just need to work out what the trial date's going to be.

           11            THE COURT:  All right, that's fine. 

           12            MR. ZERKIN:  Good morning, Your Honor.

           13            THE COURT:  Good morning. 

           14            MR. ZERKIN:  The defense feels that it simply cannot 

           15  prepare its case in the time suggested by the United States.  

           16  Your Honor, I would note initially that the government has 

           17  obviously had three months for the preparation of the indictment 

           18  in this case.  One of counsel for the government, Mr. Karas, 

           19  knows a large portion of this case, quite frankly, by rote since 

           20  he tried the case in New York on the Embassy bombing cases, and 

           21  much of that is adopted in the indictment in this case. 

           22            The -- we would suggest to the Court a date of February 

           23  2003.  The indictment itself demonstrates the breadth of the 

           24  allegations here both substantively and also geographically.  It 

           25  is international in scope.  The investigation is -- will be 


            1  international.  At a minimum, it involves France, Germany, 

            2  Britain, Spain, and other places as well, as well as various 

            3  locations in the United States. 

            4            There is a vast amount of discovery, we have been 

            5  advised by the government.  It requires security clearances by 

            6  defense counsel, which will take -- which we don't have yet -- 

            7  will take some weeks at least. 

            8            There are language barriers in each of those places I 

            9  have identified.  The witnesses in other countries, of course, we 

           10  will have to deal with them with interpreters, and as -- I 

           11  believe that that, that simply makes conversation slower and the 

           12  process more arduous, and there is a need to translate documents.  

           13  There are many documents in this case, we understand from the 

           14  government, that are, for example, in Arabic that the government 

           15  has translations of, but as in New York, we will -- the defense 

           16  will have its own translations done, because there tend to be 

           17  some disagreements about the meanings of various words. 

           18            The -- this is true of the guilt phase and also the 

           19  penalty phase.  Mr. Moussaoui's life is not in the United States.  

           20  His life history is in Europe.  He was born in France, lived in 

           21  France, lived in Britain and other places, as we know from the 

           22  indictment. 

           23            Counsel need to familiarize themselves with the history 

           24  of al Qaeda and with the principles of Islam in order to be able 

           25  to meaningfully try this case, and those issues, quite frankly, 


            1  are introduced into the case by the indictment. 

            2            The language from the Court's order relative to the 

            3  hearing today recognizes that based on the representations of 

            4  both the United States and the defense in their joint motion, 

            5  that is, the international scope of the evidence, the potential 

            6  for the death penalty, and the probability that information is 

            7  subject to CIPA.  Your Honor, I would note that in a case that is 

            8  pending in this Court now, United States v. Lentz, which is a 

            9  straightforward domestic homicide case in which the death penalty 

           10  is being sought, there was a ten-month gap between arraignment 

           11  and the scheduled trial date, as I understand that from talking 

           12  to defense counsel. 

           13            It's local facts.  It's a homicide that occurred in the 

           14  area of the District of Columbia.  It's a case in which everyone 

           15  is -- all the evidence is located in the United States, where the 

           16  defendant comes from Indiana, I believe.  It's local facts.  

           17  There's no international or language issues, and it demonstrates 

           18  the fundamental unfairness of scheduling our case for literally 

           19  the same amount of time, ten months from the arraignment.  We 

           20  simply cannot prepare this case in that amount of time. 

           21            Now because the defendant faces the death penalty and 

           22  because we cannot be prepared in that amount of time, a trial 

           23  date in less than a year, we suggest, would violate his Fifth 

           24  Amendment rights, his Eighth Amendment rights, and fundamentally 

           25  his Sixth Amendment rights to the effective assistance of 


            1  counsel, because we believe earnestly that we cannot provide that 

            2  within the time frame suggested by the government. 

            3            Now let me note also that the government has proposed a 

            4  date at the end of September.  I suggest -- I suspect that both 

            5  sides will be requesting that the Court give questionnaires to 

            6  the potential jurors who are coming in which will speed the 

            7  process of jury selection enormously.  It is done typically in 

            8  capital cases in federal court across the country. 

            9            If that is so, they are going to be filling out those 

           10  questionnaires in the area of September 11, the one-year 

           11  anniversary of the crime that underlies this indictment.  So that 

           12  is clearly not the time at which jurors should be filling out 

           13  questionnaires, and indeed, even if, if it weren't for that, we 

           14  all know that the amount of publicity that will be generated in 

           15  this country not only on September 11 but around September 11 of 

           16  2002 will be vast, and that will not be fairly purged by starting 

           17  a trial date on September 30 and starting jury selection then. 

           18            If the case -- if we go beyond that date, we start 

           19  getting then into a question of interrupting the trial at various 

           20  times for holidays.  We'll be in the holiday season.  It will be 

           21  inconvenient for the Court, for witnesses, for the government, 

           22  for counsel, and I suggest that that would be a bad idea as well. 

           23            Your Honor, based upon that, we think it is reasonable, 

           24  when we look at what -- the amount of time afforded in the Lentz 

           25  case, when we look at the vastness of the allegations here, the 


            1  need for the international investigation, the travel and the 

            2  language issues here and everything else I've mentioned, we 

            3  believe that anything close to September 30 is unreasonable.  The 

            4  need to be further away from September 11 is obvious and that in 

            5  order for him to, the defendant to have his constitutional rights 

            6  met, including effective assistance of counsel, we need to move 

            7  into 2003. 

            8            THE COURT:  All right.

            9            MR. ZERKIN:  Thank you.

           10            THE COURT:  Mr. Spencer, do you want to respond to 

           11  that? 

           12            MR. SPENCER:  Just briefly, Your Honor.  Thank you.  

           13  First of all, the Lentz case is, of course, a different case, 

           14  with a different judge, and my understanding of that case is 

           15  there's an amount of forensic testing that needs to be done by 

           16  the defense, and there's lab times that slow things down.  I'm 

           17  not sure that's the case here.

           18            THE COURT:  But do you agree that there are documents 

           19  in Arabic and that there are many witnesses relevant to this case 

           20  overseas? 

           21            MR. SPENCER:  There may be some witnesses overseas, and 

           22  there are documents that are in Arabic, but the Arabic documents 

           23  have been translated by New York, and my understanding is that 

           24  that translation was stipulated to in the Embassy bombings trial 

           25  in New York.  I don't think that's going to be an issue on those 


            1  documents.

            2            THE COURT:  Is it the same documents that are going to 

            3  be used in this case?

            4            MR. SPENCER:  Some of the same, yes.

            5            THE COURT:  So those translations are already in, and 

            6  at least that defense team stipulated to them? 

            7            MR. SPENCER:  Yes, Your Honor.

            8            THE COURT:  All right.

            9            MR. SPENCER:  Further, the publicity issue on near the 

           10  anniversary of September 11 is going to -- the publicity issue is 

           11  going to have to be dealt with by this Court in jury selection no 

           12  matter if we send out the questionnaires, presuming that's going 

           13  to be done, before September or after.

           14            THE COURT:  Let me tell you, the questionnaires will be 

           15  filled out by the jurors in the courthouse, as I did in the Wills 

           16  case.  You get 100 percent return on the questionnaire, it's far 

           17  more controllable by the Court, and you can be sure that's how we 

           18  will do it, but we get -- that comes down the road, all right?

           19            Go ahead. 

           20            MR. SPENCER:  But that publicity issue will be dealt 

           21  with by the Court no matter when we do that, no matter when we do 

           22  the questionnaires, and will ensure that a fair jury is selected 

           23  in this case -- you will, Your Honor, obviously -- but no matter 

           24  when we do it. 

           25            And finally, although ten months may seem like a fairly 


            1  quick turnaround for trial from today, the defense is going to 

            2  have, I suspect, unlimited resources, more resources than the 

            3  defense team in the Lentz case is going to have.  They've got 

            4  three very competent attorneys assigned who will work full time, 

            5  I imagine, as the prosecution will be, between now and trial.  So 

            6  I think the defendant's constitutional right to a fair trial will 

            7  be insured.  Thank you.

            8            THE COURT:  All right.  I've given serious thought to 

            9  the trial date for this case, trying to make sure that I balance 

           10  the needs of the defense to prepare an adequate defense as well 

           11  as the needs of the public to have this case resolved one way or 

           12  the other.  I'm satisfied that with sufficient resources, the 

           13  defense can meet the dates as suggested by the United States. 

           14            I am also concerned about the September 11 anniversary 

           15  date.  I want to make sure we've cleared that.  I think the date 

           16  that the government has suggested does clear that adequately. 

           17            Certainly if the defense teams needs additional 

           18  resources, including even additional counsel, that's something 

           19  the Court can take care of.  There's no reason why you can't be 

           20  working in tandem in preparing the defense of this case.  And if 

           21  you need expert assistance, you need to make immediate requests 

           22  for that so that we can get you interpreters or whatever else is 

           23  needed. 

           24            You mentioned, Mr. Zerkin, the problem about getting 

           25  security clearances.  My experience with the Justice Department 


            1  is they can get preliminary clearances literally overnight.  That 

            2  shouldn't be any delay, and I think Ms. Gunning may even be in 

            3  the building.  If not, we'll make sure you'll get clearances 

            4  expedited, so that shouldn't hold you up. 

            5            I'm going to go ahead, I think the request of the 

            6  government is reasonable.  Frankly, the two to three months of 

            7  extra time that the defense team was requesting was going to bump 

            8  up against holidays.  We have Ramadan, Christian holidays, and 

            9  Jewish holidays all in that two- to three-month time period 

           10  anyway, so I doubt all that time would be as efficiently 

           11  available to you anyway.  So we'll go ahead, I'm going to grant 

           12  that request. 

           13            Now having set that as the trial date, backing up, are 

           14  all the other dates dates amenable to counsel?  Have you agreed 

           15  upon a date for what I would call the argument of any routine 

           16  criminal trial motions? 

           17            MR. SPENCER:  We have, Your Honor.

           18            THE COURT:  All right.  What are you proposing? 

           19            MR. SPENCER:  We've broken those into two different 

           20  dates.  We suggest, Your Honor, that March 29 of this year, the 

           21  defense file preliminary guilt phase motions. 

           22            Then, Your Honor, because the Court has already set the 

           23  date on April 4 of this year, we propose that we have a 

           24  conference.  By that point, we'll know whether the government has 

           25  filed its death penalty notice in the case.  On that date, we 


            1  propose a conference when the Court can schedule death penalty 

            2  and jury issues motions. 

            3            On the 19th of April, we propose that the government 

            4  respond to the defense preliminary motions and that the Court 

            5  hold a hearing on those motions on May 3. 

            6            THE COURT:  All right, let me tell you, Mr. Spencer, 

            7  one concern I have because of the coverage of this case and the 

            8  large audience that it seems to be drawing, I'm trying to shift 

            9  motions from this case from the Friday docket to Thursday --

           10            MR. SPENCER:  All right.

           11            THE COURT:  -- to avoid the pressure on the courthouse 

           12  and on our Marshals Service. 

           13            So you're requesting that there be a general motions 

           14  hearing which would take care of almost all but the CIPA hearing 

           15  motions, correct, on now May 2? 

           16            MR. SPENCER:  No, I envision -- I think we envision, 

           17  Your Honor, on that that those be preliminary motions, legal 

           18  challenges to the indictment, if the defense moves for a change 

           19  of venue, things like that.  The CIPA schedule we propose to 

           20  begin 12 weeks before trial, do that separately.

           21            THE COURT:  I understand that.  I don't see why regular 

           22  criminal motions are taking so long.  I mean, this Court moves 

           23  much faster than that.  I would think if there's going to be an 

           24  attack on the indictment, if there are discovery issues, if 

           25  there's a motion for change of venue, those don't have to wait 


            1  that long.

            2            MR. SPENCER:  Well, I don't think they have to, Your 

            3  Honor, but I think we have a little bit of a luxury because of 

            4  the time to assess -- go through the death penalty protocol and 

            5  assess the death penalty in this case, and I presume that the 

            6  defense and the prosecution are going to be busy from now until 

            7  the end of March on their death penalty submissions to the 

            8  Justice Department.

            9            THE COURT:  It's not going to take three lawyers per 

           10  side to address those issues.  No, I think we need to push this 

           11  up a little bit, because there's no reason why both the 

           12  preparation of the prosecution and the defense can't be going on 

           13  in parallel.  That's why you have multiple attorneys on these 

           14  cases. 

           15            Mr. Dunham, when do you think the defense would be 

           16  ready to file any defense, what I call routine criminal defense 

           17  motions?

           18            MR. DUNHAM:  I don't know that there will be any 

           19  routine, but we're talking about motions that can be filed 

           20  without access to the discovery.  That's what we're talking about 

           21  preliminary motions.

           22            THE COURT:  All right.

           23            MR. DUNHAM:  And one of the problems that we would ask 

           24  the Court to consider is is that the resources you've referred to 

           25  won't really be here for the defense until the middle of 


            1  February, because that's when my staff will report.  As you know, 

            2  we have a new office, and I will be getting my staff at that 

            3  point in time, and there's really no way to expedite that.  I've 

            4  been doing everything I can over the past few months to get this 

            5  open. 

            6            And I think that March 29 is, it doesn't prejudice 

            7  either side to have the motions filed on that date and heard 

            8  subsequent thereto given that fact.

            9            THE COURT:  Well, what I would like to do is we already 

           10  have scheduled a hearing in April on the death issue. 

           11            MR. DUNHAM:  I believe that's a, probably more like a 

           12  conference than a, than a --

           13            THE COURT:  No, my order says oral argument of this 

           14  issue will be held on April 4.  My intention was that the issue 

           15  about whether or not the United States is going to seek the death 

           16  penalty and whether it complies with the statutory requirements, 

           17  whether the notice does, would be held on April 4. 

           18            That was not your understanding of what I issued? 

           19            MR. DUNHAM:  Well, I understood that's what you issued, 

           20  but in talking to people that have done death penalty cases, they 

           21  have told me that this is usually a conference. 

           22            THE COURT:  Well, you're going to have your conference 

           23  at the Justice Department, but there's usually an attack that the 

           24  defense brings on the adequacy of the notice of -- go ahead, 

           25  Mr. Zerkin.


            1            MR. ZERKIN:  May I address that? 

            2            THE COURT:  Yes.

            3            MR. ZERKIN:  That is correct, Your Honor, there is 

            4  indeed an attack on the notice.  The notice is not required, as I 

            5  understand the order that we agreed to, we're not going to get 

            6  the notice on the 29th, I don't believe -- are we?  

            7            MR. NOVAK:  The 29th.

            8            THE COURT:  Yes, you are.

            9            MR. ZERKIN:  If we get it on the 29th, that will 

           10  require the filing of a motion and memorandum, Your Honor, 

           11  attacking the specific aggravating factors that the government 

           12  cites in its notice, so I wouldn't even be able to file a motion 

           13  by the 4th, much less have oral argument on the 4th. 

           14            I mean, we're going to do a full memorandum, which from 

           15  my experience is quite extensive, on the aggravating factors 

           16  cited by the government, moving to strike various factors, and so 

           17  that is something that will take some time to prepare and file.  

           18  It's very often the most extensive motion that I have in a 

           19  capital case.  The government will want to brief that in response 

           20  and before we would be certainly in a position to argue it 

           21  orally. 

           22            I noticed that part of the Court's order, and we 

           23  discussed that in our meeting the other day, and we just didn't 

           24  think that, that having oral argument on the notice is practical 

           25  on the 4th if we're only getting the notice on the 29th.


            1            THE COURT:  But the -- you know yourself that probably 

            2  75 percent of what you'll write in your memorandum is already in 

            3  the computer, because the issues -- there will be fact-specific 

            4  arguments, of course.  Each case has its own facts, but the law 

            5  is essentially the same on all of these issues.

            6            MR. ZERKIN:  Your Honor, the base -- I will, I will 

            7  agree with the Court that in my computer I have as of the last 

            8  one I did the general principles of -- that the courts have 

            9  defined in terms of analyzing aggravating factors, but I don't 

           10  know what aggravating factors the United States is going to bring 

           11  until I get the notice, either, either statutory aggravating 

           12  factors or nonstatutory aggravating factors, which can cover the 

           13  gamut, and so we get into the issue of whether they're 

           14  duplicative or not.  We get into all of these things.

           15            THE COURT:  All right.  Well, then because we've 

           16  already got this scheduled on our own calendar, I'm going to set 

           17  April 4, which you should already sort of have on your book, as 

           18  the date we're going to have oral argument of any of the 

           19  preliminary criminal motions in this case, all right?  That's 

           20  already on the calendar.  We're from a security standpoint 

           21  prepared for it.  That's when we'll do it, all right? 

           22            MR. ZERKIN:  Very good, that's fine.

           23            THE COURT:  All right? 

           24            MR. ZERKIN:  Thank you.

           25            THE COURT:  That means, though, backing up from that 


            1  date, I want to make sure that any and all motions of that 

            2  sort -- and we're not going to have, you know, 2,000 motions 

            3  hearings in this case, so I expect all standard criminal motions, 

            4  such as attacks on the indictment, any change of venue arguments, 

            5  those types of things, and any discovery issues that you've not 

            6  been able to resolve will be raised and discussed at that 

            7  hearing. 

            8            Then we need to go ahead and set -- and I want to do 

            9  this now -- a hearing date for the death notice issue, all right?  

           10  If the government's position is filed on March 29, I'll give the 

           11  defense 20 days to respond to that, and I'll give the United 

           12  States 15 days to respond to that position, all right?  And we'll 

           13  set the argument of that -- I think I've given myself enough days 

           14  here -- Thursday, May 16?  How does that fit on people's 

           15  calendars? 

           16            MR. SPENCER:  That's fine, Your Honor.

           17            MR. DUNHAM:  That's fine with us, Your Honor.

           18            THE COURT:  All right.  And all hearings will be at 

           19  9:00. 

           20            All right, so that takes care of those motions.  Then 

           21  the last things will be the CIPA hearing, correct? 

           22            MR. DUNHAM:  No, Your Honor, we need a date for motions 

           23  based on the discovery.  In other words, after we've received the 

           24  discovery from the government, we need a date for filing any 

           25  motions that are promulgated as a result of reviewing that.


            1            THE COURT:  Well, what kinds of issues do you think 

            2  might arise? 

            3            MR. DUNHAM:  Suppression, for example, may come up as a 

            4  result of discovery that we receive.

            5            THE COURT:  To your knowledge, have there been any 

            6  statements taken from your client that the government intends to 

            7  use against him? 

            8            MR. DUNHAM:  There have been.  We don't know them yet, 

            9  and I don't know whether anything's classified that may relate to 

           10  it.  When we talked last night, we had agreed we'd have a 

           11  preliminary set of motions, and then we'd have another motions 

           12  date that was based on the discovery that we receive.

           13            THE COURT:  All right, how about Thursday, June 20, 

           14  with the understanding that any motions that are going to be 

           15  filed have to be filed sufficiently in advance of that date, 

           16  Mr. Dunham, so the government has 15 days to respond to the 

           17  motion, and the Court has at least five working days from the 

           18  government's response date before the hearing, all right?  So 

           19  we'll just back it up from there, all right? 

           20            MR. DUNHAM:  Okay.  And that --

           21            THE COURT:  We'll get an order -- our order will have 

           22  all these dates in it, but that's what we'll work with, all 

           23  right? 

           24            MR. DUNHAM:  Yes.  And that assumes that we will, of 

           25  course, have the discovery by the time we --


            1            THE COURT:  Well, if you're not getting discovery, I 

            2  expect emergency motions addressing that issue, and we will 

            3  either take care of them in open court or by telephone conference 

            4  on the record, but what I don't want to have happen is there's a 

            5  big discovery dispute and then you-all come in and are asking for 

            6  a three-month continuance because the discovery hasn't been 

            7  forthcoming.  If problems arise and you can't work them out -- 

            8  and I am assuming the government is going to have a relatively 

            9  open file policy on this case, subject to security issues? 

           10            MR. SPENCER:  Well, Your Honor, we intend to comply 

           11  with the law.  We haven't decided yet whether we're going to have 

           12  complete open file or not, but we -- of course, we are aware of 

           13  our discovery obligations, and we'll comply with them.

           14            THE COURT:  All right, but I don't expect to have a 

           15  whole lot of discovery arguments in this case.  If there are 

           16  issues, you-all try to work them out first, but then don't let 

           17  them fester.  Bring them to our attention immediately.

           18            MR. SPENCER:  We will and we have, Your Honor.  

           19            THE COURT:  All right.

           20            MR. SPENCER:  We've already been discussing that with 

           21  Mr. Dunham.

           22            THE COURT:  All right, that's fine. 

           23            All right.  And then in terms of the CIPA dates, 

           24  Mr. Spencer, specifically, do you have them at your fingertips? 

           25            MR. SPENCER:  I do, Your Honor.


            1            THE COURT:  All right.

            2            MR. SPENCER:  We have -- June 28 is the date that we've 

            3  agreed that the government's production of classified material 

            4  will be complete.

            5            THE COURT:  All right.

            6            MR. SPENCER:  Then four weeks later, which I believe is 

            7  July 26, for the defendant's Section 5 filing under CIPA.

            8            THE COURT:  All right.

            9            MR. SPENCER:  Then I had August 9 for the government's 

           10  response, which is a week later, and then I had August 16 for a 

           11  Section 5 hearing.  I take it you'll want to move that to August 

           12  15? 

           13            THE COURT:  15.

           14            MR. SPENCER:  Very well.  Then the government's Section 

           15  6 filing would be due August 23; a week later, August 30, a 

           16  defense response; and then on September 5 would be the Section 6 

           17  hearing. 

           18            THE COURT:  All right.  Mr. Dunham, those dates are 

           19  agreeable to you? 

           20            MR. DUNHAM:  Well, yes, except, Your Honor, if you're 

           21  going to have us file our discovery-based motions on June 1 is 

           22  the way I back it off from the 15 days plus the 5, we really 

           23  should have the classified information discovery by June 1 and 

           24  not June 28 so that if there's any issues raised by that, we can 

           25  include it.


            1            THE COURT:  I think that's fair.  Mr. Spencer, you 

            2  should be able to live with that.

            3            MR. SPENCER:  Yes, Your Honor, that's fine.

            4            THE COURT:  All right, June 1. 

            5            All right, are there any other dates that we need to 

            6  address at this time?  I think that really covers everything. 

            7            Now since the issue of the juror questionnaire was 

            8  raised by Mr. Zerkin, I want both sides to be working on a 

            9  proposed questionnaire.  To the extent possible, you should be 

           10  exchanging questions with each other and hopefully will come to a 

           11  agreement on language so we don't have a long dispute about that. 

           12            As we get closer to the trial date, we may have to set 

           13  if you cannot come to agreement on a joint proposed juror 

           14  questionnaire, then we'll have to flesh that out.  The 

           15  questionnaire, though, will need to be prepared, certainly done 

           16  by the early part of the summer, because we need to get it 

           17  printed, and then we need to, you know, be ready for when the 

           18  jury is brought to the courthouse.

           19            At this point -- I'll discuss with you as we get closer 

           20  to the trial date the mechanics of how the jury selection will 

           21  go, but the jurors will be brought to the courthouse in shifts, 

           22  similar to what I did in the Christopher Wills case, with the 

           23  questionnaires filled out here, and then copies produced for each 

           24  side, with a certain amount of time that you can do sort of a 

           25  desk audit of the questionnaires, submit to the Court those 


            1  persons whom you want stricken for cause, and that first round is 

            2  all done on paper. 

            3            Then there will be individual voir dire of a relatively 

            4  short period of time, usually no more than 10 to 15 minutes per 

            5  person, because the questionnaire is going to give both sides, 

            6  you know, extensive information about the prospective jurors.  So 

            7  I intend to follow the same basic procedure that we did in the 

            8  Wills case, and I think it worked very well. 

            9            Are there any other matters we need to take care of at 

           10  this point?  Mr. Spencer? 

           11            MR. SPENCER:  Your Honor, I have a technical issue.  In 

           12  our joint motion to classify the case as complex, we listed the 

           13  speedy trial date as March 13.  Because there was an initial 

           14  appearance in this case, that should have been February 27.  I 

           15  just wanted to correct that for the record.

           16            THE COURT:  All right, it's corrected, but it makes no 

           17  difference to the Court's analysis that this is both a highly 

           18  unusual and complex case and that the 70-day time period does not 

           19  apply.

           20            MR. SPENCER:  Correct, Your Honor.

           21            THE COURT:  All right.  Mr. Dunham?

           22            MR. DUNHAM:  The only thing I would ask is that you 

           23  think about how much invidual voir dire is going to be needed of 

           24  these jurors.  I understand the Wills case, but there's been 

           25  nothing like this case insofar as pretrial publicity is 


            1  concerned, and there are so many issues cutting across so many 

            2  boundaries here that I think that more than 15 minutes may be 

            3  required.

            4            THE COURT:  I don't think so, and I'll tell you, 

            5  Mr. Dunham, it was interesting, the Wills voir dire began before 

            6  September 11.  September 11 occurred while I was doing individual 

            7  voir dire of the jury, and I therefore actually have had an 

            8  opportunity -- and as you know, the victim in that case was 

            9  Afghani, so we had people from Afghanistan testifying right after 

           10  September 11. 

           11            In my questioning of the jury, it was surprising to me 

           12  how few from the Northern Virginia pool that we had actually had 

           13  any friends or relatives or even knew anybody who'd been hurt at 

           14  the Pentagon, and they were asked questions about whether the 

           15  events of September 11 would affect them in any respect.  Some 

           16  did say yes, and those were excused, but a much smaller 

           17  percentage than what I had anticipated. 

           18            And so from my experience working with jury selection 

           19  right at that time period, in a very volatile case, with issues 

           20  not as connected but close to the issues in that case, because 

           21  there was a kidnapping, which is similar to a hijacking, we had 

           22  no difficulty in getting what I thought was an excellent jury. 

           23            So I'm satisfied that the Northern Virginia population 

           24  will be able to get an excellent jury, and I think it will take 

           25  less time than you expect, but we'll get to that when we get to 


            1  that. 

            2            All right, any other matters? 

            3            MR. SPENCER:  No, thank you, Your Honor.

            4            THE COURT:  All right, then we'll recess court. 

            5                           (Which were all the proceedings

            6                            had at this time.)


            8                     CERTIFICATE OF THE REPORTER

            9       I certify that the foregoing is a correct transcript of the 

           10  record of proceedings in the above-entitled matter. 



                                                  Anneliese J. Thomson