7 March 2006
Source: Digital transcript purchased from
Exemplaris.com. Files digitally signed
by reporter.
Other trial transcripts: http://cryptome.org/usa-v-zm-dt2.htm
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA, . Criminal No. 1:01cr455
.
vs. . Alexandria, Virginia
. March 6, 2006
ZACARIAS MOUSSAOUI, . 10:00 a.m.
a/k/a Shaqil, a/k/a .
Abu Khalid al Sahrawi, .
.
Defendant. . EXCERPT
.
. . . . . . . . . . .
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE LEONIE M. BRINKEMA
UNITED STATES DISTRICT JUDGE
VOLUME I
APPEARANCES:
FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA
DAVID J. NOVAK, AUSA
DAVID RASKIN, AUSA
United States Attorney's Office
2100 Jamieson Avenue
Alexandria, VA 2231430
FOR THE DEFENDANT: GERALD THOMAS ZERKIN
KENNETH P. TROCCOLI
Assistant Federal Public Defenders
Office of the Federal Public
Defender
1650 King Street
Alexandria, VA 22314
(APPEARANCES CONT'D ON FOLLOWING PAGE)
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
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1 APPEARANCES: (Cont'd.)
2 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ.
P.O. Box 903
3 107 East Washington Street
Middleburg, VA 20118
4 and
ALAN H. YAMAMOTO, ESQ.
5 643 South Washington Street
Alexandria, VA 22314-3032
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7 ALSO PRESENT: MARJORIE FARGO
GREG MILLER
8 SHEILA MYRICK
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COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR
10 U.S. District Court, Fifth Floor
401 Courthouse Square
11 Alexandria, VA 22314
(703)299-8595
12 and
KAREN BRYNTESON, FAPR, RMR, CRR
13 Brynteson Reporting, Inc.
2404 Belle Haven Meadows Court
14 Alexandria, VA 22306
(703)768-8122
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1 P R O C E E D I N G S
2 (Defendant and Jury in.)
3 * * * * *
4 THE COURT: All right, but the rest of us, the 17 of you
5 are going to be the jury. At the end of the case, as I said, if
6 all 17 of you are still here, five of you will randomly be
7 selected as alternates, and so it will only be 12 of you who will
8 actually decide the first phase of this case. And I'll give you
9 more details about how all that's going to work in a few minutes.
10 What I wanted to do, however, was to begin by giving you
11 some instructions, and if Juror 402 and -- are you 379? Good.
12 If you would look to your right, gentlemen, you'll see a
13 stack of notebooks and pens. If you'd like to take one for
14 yourself and then pass them down the row?
15 Due to the complexity of the case, I will permit you to
16 take notes. Many judges don't let jurors take notes. I usually
17 do, and I want to just give you some preliminary instructions
18 about how you'd handle your notes.
19 You are instructed that your notes are only a tool to
20 aid your own individual memory, and you should not compare your
21 notes with those of other jurors in determining the content of any
22 testimony or in evaluating the importance of any evidence.
23 Notes are not evidence and are by no means a complete
24 outline of the proceedings or even a list of the highlights of the
25 trial. Above all, your memory should be your greatest asset when
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1 it comes time to deliberate and render a decision in this case.
2 It is also important to remember that the 12 of you who
3 will ultimately decide this case are 12 coequal judges, because
4 jurors are really judges. The job of a juror is to actually judge
5 the facts of the case and render a decision based upon those
6 facts.
7 And I always tell jurors I wish I had 12 black robes I
8 could give to the jury to wear while they're sitting in this box
9 as a special reminder to each person in that box of the very
10 special role you play in your legal system.
11 Now, each of your individual memories of the trial
12 evidence and conclusions on that -- of that evidence, based -- I'm
13 sorry -- and conclusions based on that evidence is worthy of
14 respect and consideration by all the other jurors. The
15 conclusions of those jurors who have taken extensive notes are not
16 to be considered any more or less valid than the conclusions of
17 those jurors who took fewer notes or none at all.
18 You should put your juror number on your notebook, and
19 you may over the course of this trial need more than one notebook.
20 You're not to take those notebooks out of the courthouse. During
21 recesses and breaks, if you leave your notebooks in the jury box,
22 they'll not be bothered, and overnight my courtroom deputy,
23 Ms. Arnott, will collect them and return them to you in the
24 morning.
25 Now, I want to give you some preliminary instructions
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1 because some of you have not been jurors, in fact, many of you
2 have not been jurors before, and I just want you to know what you
3 can be expecting during the course of these proceedings.
4 A trial is divided into several parts. The first part
5 involves jury selection, and, obviously, we have just completed
6 that part. After lunch the next phase will begin, and that is
7 called opening statements. This is the time when an attorney for
8 each side will provide the jury with an overview of the case from
9 that side's perspective.
10 Because the government has the burden of proof in a
11 criminal case, it goes first in each part of the trial. So the
12 government will make the first opening statement, and then the
13 defense will make its opening statement. Each side has been
14 allowed approximately 45 minutes in which to make its opening
15 statement.
16 Now, the jury needs to be careful in how it approaches
17 what the lawyers say during their opening statements, as well as
18 whenever the lawyers are speaking during the trial. Specifically,
19 unless a lawyer is announcing a stipulation, which I will explain
20 to you in a minute what that is, what a lawyer says either in an
21 opening statement or in a question to a witness or in an objection
22 or in closing argument is not evidence.
23 If you think about it, the lawyers weren't there on the
24 scene. They didn't take a -- promise to tell the truth in court,
25 although they're officers of the court, but they're not witnesses.
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1 Instead, their job throughout the trial is to bring out the
2 evidence by asking the appropriate question of a witness or by
3 tendering the correct -- an appropriate exhibit.
4 Now, after opening statements, we will have a 20-minute
5 break and then begin the evidence portion of the trial. The
6 government will put its evidence on first. Evidence consists of
7 three categories of information. These would be called
8 stipulations, physical evidence, and witness testimony.
9 When we speak about a stipulation, that means that the
10 attorneys on both sides have agreed to the existence of a fact,
11 and the jury must, unless otherwise instructed, accept the
12 stipulation and regard the fact as proved.
13 Physical evidence includes such things as photographs,
14 objects, and documents. Now, some of the documents that will be
15 introduced into evidence in this case have been redacted. That
16 means that portions of the documents have been blacked out to
17 remove certain information, some of which may be about our
18 national security. The redactions were made consistent with the
19 law and under the supervision and approval of the Court. You may
20 not draw any inferences whatsoever from any redaction, nor may you
21 hold any bias against either party due to the redactions.
22 Lastly, you will be presented with witness testimony.
23 Normally in a criminal case, witnesses testify in the courtroom,
24 and this box that all of you have sat in during the voir dire is
25 the witness box. Now, when a person is in the courtroom actually
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1 testifying, we call that live testimony.
2 Sometimes, however, a witness is not available to come
3 to the courthouse to testify in person. If the parties know about
4 a witness's unavailability in advance, they can arrange under Rule
5 15 of the Federal Rules of Criminal Procedure to conduct a
6 videotaped deposition of that witness. That involves having the
7 witness take the same affirmation to tell the truth as do live
8 witnesses in the courtroom, and then being questioned in exactly
9 the same manner as a live witness, that means having lawyers for
10 both sides ask questions.
11 Now, Rule 15 videotaped deposition testimony will be
12 introduced during this trial. You should also know that when
13 those depositions were taken, the defendant was acting as his own
14 attorney. I had also insisted that the defendant have the
15 assistance of counsel for those depositions. Therefore, you will
16 see both the defendant and his standby counsel asking questions of
17 the witness.
18 Since that time, the defendant's right to represent
19 himself has been revoked. You should draw no inference of any
20 kind for or against the defendant from the fact that he once
21 represented himself and no longer does.
22 Another unusual form of witness testimony in this case
23 may come from six men designated as enemy combatants. For
24 national security reasons, these six witnesses cannot testify live
25 in this courtroom, nor were the parties able to take their
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1 depositions under Rule 15. Instead, you will receive their
2 testimony as written stipulations, which will be explained to you
3 in detail if they are entered into evidence. You may not draw any
4 inferences or hold any bias against any party due to the form in
5 which these witnesses' statements will come into evidence.
6 Now, after the government presents all its evidence,
7 then the defendant may present any evidence he has. In a criminal
8 case, there is no burden on a defendant to present any evidence;
9 however, he has a right to produce evidence if he wants to. If
10 the defendant puts on evidence, the government may present
11 rebuttal evidence.
12 Once the evidence portion of the trial is over, the next
13 part of the trial is closing arguments. The government makes the
14 first closing argument, then the defense makes his closing
15 argument, and because it bears the burden of proof, the government
16 is allowed a rebuttal argument. During closing arguments, the
17 lawyers will argue for the conclusions they believe the jury
18 should find from the evidence presented during the trial.
19 After all the closing arguments have been completed, it
20 then becomes my job to give you the specific instructions about
21 the law which you must apply to this case, and then we give the
22 case to you, the jury, for deliberation.
23 Now, during the trial, a lawyer may object to a question
24 or a piece of evidence or some other matter going on during the
25 trial. It is a lawyer's job to object when he or she believes
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1 that there is a problem with a question or a witness's answer or
2 an exhibit or something else going on in the trial, and it's the
3 Court's job to rule on such objections.
4 If I find merit to the objection, you will hear me say
5 either "objection granted" or "objection sustained." Those
6 phrases mean the same thing.
7 If I find no merit, I will say either "objection denied"
8 or "objection overruled." And those two phrases mean the same
9 thing.
10 The jury should not hold against a party the fact that
11 an attorney has made an objection or draw any inference for or
12 against a party based on how the Court ruled on the objection.
13 The Court approaches objections in the same spirit as an umpire in
14 a sporting event, that is, to keep the enterprise conducted within
15 the rules and not to help one side win or the other side lose.
16 Lastly, because of the number of complex issues in this
17 case and the need to coordinate exhibits and witness schedules,
18 some of the trial lawyers may not be in the courtroom when trial
19 sessions start or may have to leave the courtroom while the trial
20 is in progress. I have given them permission to do this in order
21 to keep the trial on schedule. You should draw -- I'm sorry, you
22 should not draw any inferences against a party because of a --
23 that party's lawyer's late entry or early leaving of the
24 courtroom.
25 I want to give you a brief overview of what is involved
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1 in this first phase of this case. On April 22, 2005, the
2 defendant in this case, Zacarias Moussaoui, pled guilty to three
3 counts which subject him to a possible sentence of death. Briefly
4 summarized, those counts are, Count 1, conspiracy to commit acts
5 of terrorism transcending national boundaries; Count 3, conspiracy
6 to destroy aircraft; and Count 4, conspiracy to use weapons of
7 mass destruction.
8 Because the defendant has pled guilty, there is no
9 question about whether he is guilty of the crimes for which he was
10 charged. You have been selected to serve as jurors solely to
11 decide the defendant's punishment.
12 Under federal law, the punishment for each of these
13 three charges can be death or life imprisonment without the
14 possibility of release. There is no parole in the federal system.
15 Your conclusion that the defendant be sentenced to death or life
16 imprisonment will be binding on the Court, and I will sentence the
17 defendant according to your conclusion.
18 The punishment hearing itself is divided into two
19 phases. The purpose of the first phase, which is what we are
20 starting today, is to make a threshold finding on the defendant's
21 eligibility for the death penalty. The first issue you must
22 decide is whether the defendant was at least 18 years of age at
23 the time of the September 11, 2001 attacks.
24 I understand that the parties have stipulated that the
25 defendant was at least 18 years of age at that time. If so, you
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1 are bound by that stipulation, and again, I will discuss all of
2 that with you in more detail later on.
3 And the reason for that is under the federal law, the
4 death penalty cannot be applied to someone under the age of 18 at
5 the time the offense was committed, and that's why I have to give
6 that to you.
7 Now, the second issue you must determine is whether the
8 defendant intentionally participated in an act, contemplating that
9 the life of a person would be taken or intending that lethal force
10 would be used in connection with a person other than one of the
11 participants in the offense, and that the victims of September 11
12 died as a direct result of that act.
13 I will define this threshold finding in more detail at
14 the end of the first phase before you deliberate; however, because
15 this threshold finding will be the focus of the first phase, I
16 want to summarize in a little bit more detail what the government
17 must prove at this first phase of the proceeding.
18 The government has informed the Court that the act upon
19 which it will rely is that the defendant lied to federal agents at
20 the time of his arrest in the October 16-17, 2001 time period,
21 which was approximately three weeks before the September 11
22 attacks occurred. Therefore, the government must prove three
23 essential things:
24 One, that the defendant intentionally -- yes,
25 Mr. Spencer?
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1 MR. SPENCER: Yes. August, not October.
2 THE COURT: I'm sorry, August 16-17.
3 MR. SPENCER: Thank you, Your Honor, August.
4 THE COURT: Let me go back. The government has informed
5 the Court that the act upon which it will rely is that the
6 defendant lied to federal agents at the time of his arrest on
7 August 16 and 17, 2001, which was approximately three weeks before
8 the September 11 attacks occurred. Therefore, the government must
9 prove three essential elements on this -- in this phase:
10 One, that the defendant intentionally lied to federal
11 agents at the time of his arrest on August 16 through 17 of 2001;
12 Two, that the defendant did so contemplating that the
13 life of a person would be taken or intending that lethal force
14 would be used in connection with a person, other than one of the
15 participants in the offense; and
16 Three, that at least one victim died on September 11,
17 2001, as a direct result of the defendant's lies.
18 The burden of proof for this threshold finding rests on
19 the government. To that end, you must decide whether or not the
20 government has proved the threshold finding beyond a reasonable
21 doubt. If you fail to unanimously find that the government has
22 proved this threshold finding beyond a reasonable doubt, your
23 deliberations are over. The Court will then sentence the
24 defendant to life imprisonment without the possibility of release.
25 On the other hand, if you determine unanimously that the
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1 government has proven this threshold finding beyond a reasonable
2 doubt, then we will proceed to the second phase, during which
3 evidence of aggravating and mitigating factors will be presented
4 and the ultimate decision as to the appropriate sentence reached.
5 Accordingly, during the first phase of the proceeding,
6 you should not consider whether death is the appropriate
7 punishment. Instead, you should focus solely upon whether the
8 government has proven the threshold finding beyond a reasonable
9 doubt.
10 I stress the importance of giving careful and thorough
11 consideration of all the evidence you will receive during this
12 trial. In making these very difficult decisions in this case
13 about punishment, you must be guided by reason and not by bias,
14 prejudice, or sympathy for or against either the defendant, the
15 government, or the victims, or by any public opinion.
16 You are to act impartially and objectively in deciding
17 the issues before you, with your sole goal being to render a fair
18 and just decision based on the law received from the Court and the
19 facts as you have found them based on the evidence presented only
20 in the courtroom. Anything you have seen, heard, or read about
21 this case outside of the courtroom must be entirely disregarded by
22 you in making your decisions.
23 Now, this last instruction addresses juror conduct. You
24 must scrupulously follow these instructions concerning your
25 conduct throughout the trial.
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1 No. 1 -- and you've heard this from me a million times
2 and probably I'll start every day asking you the same thing, but
3 it is important -- you must avoid any media coverage or any
4 comment, whether from friends, family members, in the media or
5 elsewhere, about this case, the defendant, and the war on
6 terrorism in any form, including TV, radio, printed media, the
7 Internet, et cetera. And this also includes works of fiction or
8 entertainment. The movie Syriana, for example, would be
9 inappropriate for you to see while this case is in progress, and
10 any of the many pieces of fiction that are out there now that
11 address some of the issues circulating around this case.
12 No. 2, you may not discuss or communicate in any form
13 with anyone anything about this case, what you see or hear in the
14 courtroom, or your thoughts about the trial until you are excused
15 as a juror.
16 Moreover, I need to caution you at this point you may be
17 exposed to some national security information that has not been
18 fully declassified. Therefore -- and we will advise you if and
19 when that happens. There may be some information in this case
20 that you may never disclose.
21 Three, none of the court staff or the United States
22 Marshal's Service personnel may talk with you about any issue
23 related to this case or answer any questions you might have
24 related to this case, and you should not communicate with them
25 about the case or ask them such questions.
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1 Their interactions with you will be limited solely to
2 helping you with logistical arrangements such as meals and
3 transportation, or where to find things in this building. I mean,
4 those types of very neutral pieces of information, of course
5 they're here to help you with.
6 If any of you believe that this rule as to juror and
7 staff conduct has been violated, or you have any questions or
8 concerns about your jury service, the proper procedure is for you
9 to write me a note using your juror number, not your name, and
10 that will get to me, and then I can respond to you.
11 Now, it is extremely important that a juror keep an open
12 mind throughout the trial. Until all of the evidence has been
13 presented and you have heard all the arguments of counsel and
14 received all the instructions of the Court, you do not have a
15 complete picture of the case. Therefore, while the trial is in
16 progress, do not discuss trial issues with the other jurors or in
17 any respect start deliberating.
18 If you start to think about issues and make up your mind
19 about them, it's harder to change your mind if new evidence comes
20 in that should be properly considered by you, so we try to ask
21 jurors -- we do ask jurors to keep an open mind throughout the
22 trial.
23 Now, lastly, the subject matter and the decisions at
24 issue in this trial are of the gravest nature. Nevertheless,
25 there may be times when I or one of the trial participants do or
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1 say something that causes laughter. Everyone in this courtroom is
2 a human being, and laughter is a normal and healthy human
3 reaction, particularly to tension.
4 Even in the midst of one of the world's greatest
5 tragedies, the play Hamlet, there are moments of comic relief.
6 That interjection of humor in Hamlet does not change that play
7 into a comedy.
8 If there is humor or laughter during this trial, the
9 extremely serious nature of this trial is not in any respect
10 diminished.
11 Now, we're going to recess at this time, and as I
12 indicated to you earlier, Inspector Parks from the Marshal's
13 Service is going to brief you about transportation arrangements,
14 and my courtroom deputy, Ms. Arnott, is going to assist you with
15 food arrangements. And they will show you where you're going to
16 go for your lunch.
17 We are going to be together for a great deal of time. I
18 will do what I can to make this as comfortable for you. If you
19 need breaks before the allotted time, a lot of us are looking at
20 you, and that's one of the reasons, if you get our attention, we
21 will obviously break earlier.
22 If there are any difficulties, hopefully we can work
23 them out for you, but it is important that our jurors be
24 comfortable, be well rested, feel comfortable in the courthouse,
25 and if there's anything going on that is of concern to you, do not
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1 hesitate to write me.
2 All right, counsel, do I need to raise any other issues
3 with the jury at this time?
4 MR. SPENCER: No, thank you, Your Honor.
5 MR. ZERKIN: Thank you, Your Honor.
6 THE COURT: And any objection to the instructions?
7 MR. SPENCER: None, Your Honor.
8 MR. ZERKIN: None.
9 THE COURT: All right. Mr. Yamamoto?
10 MR. YAMAMOTO: Your Honor, I have an administrative
11 matter.
12 THE COURT: All right. Should I excuse the jury first?
13 MR. YAMAMOTO: Yes, Your Honor.
14 THE COURT: All right. Then we're going to excuse the
15 jury at this time, and we'll stay in session to address that
16 matter.
17 You can go with the court security poeple into the jury
18 room, please.
19 (Jury out.)
20 THE COURT: All right. Mr. Yamamoto?
21 MR. YAMAMOTO: Your Honor, Mr. Moussaoui has asked that
22 the Court reconsider his motion for pro se status.
23 THE COURT: That issue has been considered many, many
24 times. It's over and done with. It's denied, and we will proceed
25 with this trial with full counsel in place.
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1 MR. YAMAMOTO: Thank you.
2 THE COURT: All right, we'll recess court until 2:00.
3 (Recess from 12:15 p.m., until 2:00 p.m.)
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5 CERTIFICATE OF THE REPORTERS
6 We certify that the foregoing is a correct transcript of the
7 record of proceedings in the above-entitled matter.
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Anneliese J. Thomson
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13 Karen Brynteson
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