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Text of Moussaoui Hearing

Transcription By Exemplaris
Thursday, July 18, 2002; 5:54 p.m.

Following is the complete transcript of a hearing Thursday in which the defendant, Zacarias Moussaoui, attempted to plead guilty to his alleged role in the Sept. 11 attacks.
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 1                      UNITED STATES DISTRICT COURT
 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   .  .  .  .  .  .  .  .  .  .  .
10                      UNITED STATES DISTRICT JUDGE
                                   KENNETH M. KARAS, AUSA
13                                 DAVID J. NOVAK, AUSA
                                   United States Attorney's Office
14                                 2100 Jamieson Avenue
                                   Alexandria, VA 22314
21                                 U.S. District Court, Fifth Floor
                                   401 Courthouse Square
22                                 Alexandria, VA 22314
24                             (Pages 1 - 30)
 1   APPEARANCES: (Cont'd.)
 4       THE DEFENDANT:            P.O. Box 903
                                   107 East Washington Street
 5                                 Middleburg, VA 20118
 6                                 ALAN H. YAMAMOTO, ESQ.
                                   108 N. Alfred Street, First Floor
 7                                 Alexandria, VA 22314-3032
 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
15                                 JUDY CLARKE
                                   Assistant Federal Public Defender
16                                 Federal Defenders of Eastern
                                   Washington and Idaho
17                                 10 N. Post, Suite 700
                                   Spokane, WA 99201        
 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 
 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. 
 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 
 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). 
 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. 
 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 
 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 
 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 
 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 
 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 --
 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 
 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 
 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. 
 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, 
 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 --
 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 
 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 
 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 
 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 
 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 
 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.
 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 
 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.
 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 
 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." 
 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.
 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 
 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.)
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. 
                                        Anneliese J. Thomson

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