26 July 2002
Source: Digital transcript purchased from
Exemplaris.com for $34.00.
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
0001
1
2 IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
3 Alexandria Division
4 x- - - - - - - - - - - - - - - - - -X
:
5 UNITED STATES OF AMERICA :
:
6 -vs- : CRIMINAL ACTION
: NO. 01-455-A
7 ZACARIAS MOUSSAOUI, :
:
8 Defendant. :
:
9 X- - - - - - - - - - - - - - - - - -X
10 Tuesday, June 25, 2002
11 Alexandria, Virginia
12 Transcript of motion proceedings in the
13 above-captioned matter.
14 BEFORE:
15 The Honorable LEONIE M. BRINKEMA, Judge
United States District Court
16
APPEARANCES:
17
FOR THE UNITED STATES:
18
ROBERT A. SPENCER, ESQ.
19 KENNETH M. KARAS, ESQ.
DAVID J. NOVAK, ESQ.
20 UNITED STATES ATTORNEY'S OFFICE
2100 Jamieson Avenue
21 Alexandria, Virginia 223l4-5794
22 * * *
DON McCOY, RMR
23 OFFICIAL COURT REPORTER
(703) 683-3668
24
25
0002
1 APPEARANCES: (Continued)
2 FOR THE DEFENDANT:
3 ZACARIAS MOUSSAOUI (pro se)
4
5 STANDBY COUNSEL:
6 ALAN M. YAMAMOTO, ESQ.
108 N. Alfred Street
7 1st Floor
Alexandria, Virginia 22314
8
9 ANNE CHAPMAN, ESQ.
KENNETH P. TROCCOLI, ESQ.
10 Office of the Federal Public Defender
1650 King Street
11 Suite 500
Alexandria, Virginia 22314
12
13
14 C-O-N-T-E-N-T-S
15 WITNESS: DIRECT CROSS REDIRECT RECROSS
16 (None)
17
EXHBITS: FOR IDENTIFICATION: IN EVIDENCE:
18
(None)
19
20
21
22
23
24
25
0003
1 P-R-O-C-E-E-D-I-N-G-S
2 THE CLERK: Criminal Action No. 01-455-A, United
3 States of America vs. Zacarias Moussaoui.
4 Would counsel please note your appearance for the
5 record.
6 MR. SPENCER: Good morning, Your Honor -- good
7 afternoon, Your Honor. Excuse me. Rob Spencer, Ken Karas,
8 and David Novak for the United States.
9 THE COURT: All right. Mr. Moussaoui, you are
10 here at counsel table. Would you go up to the lectern
11 please, Mr. Moussaoui.
12 Mr. Moussaoui, you are here today for arraignment
13 on the superseding indictment. Have you received a copy of
14 the superseding indictment?
15 MR. MOUSSAOUI: Yes. I received it on Saturday,
16 yes.
17 THE COURT: Do you wish to have a formal
18 arraignment or waive formal arraignment?
19 MR. MOUSSAOUI: I want the formal arraignment.
20 THE COURT: All right, that's fine. Because you
21 received the original indictment some time ago when you had
22 counsel and went over it at that time and waived formal
23 arraignment on the original indictment, I will simply
24 advise you as to the changes in the superseding indictment
25 from the original indictment.
0004
1 You should know that the same six counts are in
2 the superseding indictment.
3 Count one charges you with conspiracy to commit
4 acts of terrorism transcending national boundaries and is a
5 capital offense.
6 Count two is conspiracy to commit aircraft
7 piracy, also a capital offense.
8 Count three is conspiracy to destroy aircraft,
9 also a capital offense.
10 Count four is conspiracy to use weapons of mass
11 destruction. That is also a capital offense.
12 Count five is conspiracy to murder United States
13 employees.
14 And count six is conspiracy to destroy property.
15 The changes from the original indictment that are
16 now in the superseding indictment are as follows:
17 All the changes have occurred in count one only.
18 Counts two through six, as the Court understands it, have
19 remained the same to the extent that they don't incorporate
20 language from count one.
21 On the cover page, rather than December 2001
22 being as the term of the Grand Jury, the superseding
23 indictment comes out of the June 2, 2002, term of the Grand
24 Jury.
25 In terms of count one, the first change is in
0005
1 paragraph 10. Paragraph 10 has been changed solely to
2 change the name from Banihammad Fayez, which appears in the
3 original indictment, to Fayez Banihammad. In no other
4 respects is paragraph 10 of count one changed, other than,
5 I'm sorry, later on in the Overt Acts section of paragraph
6 10, that paragraph has also been deleted.
7 I should say that paragraph 10 of the background
8 is what I just described for you. Then in the Overt Acts,
9 which are part of count one, paragraph 10 of the Overt
10 Acts, which described an address by Usama Bin Laden in
11 1998, has been entirely deleted, which changes the
12 paragraph numbering in the superseding indictment.
13 The old paragraph 17 in the Overt Acts has also
14 been entirely deleted. That paragraph provided discussion
15 of Mr. Atta making inquiries about crop dusting. That is
16 no longer in the superseding indictment.
17 Paragraph 21 has been changed solely by number.
18 It is now 19 in the superseding indictment, and, rather
19 than referring to $4,790 as being wired on June 29, 2000,
20 the sum has been changed to $5,000. So there was a
21 rounding up of the amount of money.
22 In the original indictment, paragraph 24 of the
23 Overt Acts, which describes an August 7, 2000, wire
24 transfer, the sum has also been changed by rounding up from
25 $9,485 in the first indictment to $9,500 in the superseding
0006
1 indictment.
2 Paragraph 25 of the Overt Acts in the original
3 indictment allege that on or about August 30, 2000, $19,985
4 was wired into a Florida SunTrust account in the names of
5 Mohammed Atta and Marwan al-Shehhi. That has been changed
6 to now read as paragraph 23 in the superseding indictment.
7 The date is now August 29, rather than August 30, 2000, and
8 the amount of money, rather than being $19,985, is now
9 $20,000.
10 Paragraph 26 in the original indictment referred
11 to an overt act occurring on or about September 18, 2000,
12 involving a wire transfer of $69,985. That has been
13 changed in the superseding indictment to now being numbered
14 as paragraph 24, and the date has changed from September 18
15 to September 17 of 2000, and the amount of money involved,
16 $70,000.
17 Paragraph 30 of the original indictment has been
18 changed simply to delete the words "in Yemen" and,
19 therefore, now reads as paragraph 28 in the superseding
20 indictment to be on or about August 14, 2000, Ramzi Bin
21 al-Shibh, and then it goes on. It simply leaves out the
22 "in Yemen."
23 Paragraph 53 of the Overt Acts in the original
24 indictment, which alleged that in or about June 2001, in
25 Norman, Oklahoma, Zacarias Moussaoui made inquiries about
0007
1 starting a crop-dusting company, has been completely
2 deleted in the superseding indictment.
3 Paragraph 57 in the original indictment alleged
4 an overt act occurring on June 25, 2001, in Dubai, United
5 Arab Emirates. That 57 has been changed now to paragraph
6 54. The date is now different. It is on or about June 23,
7 2001, and it reads that Mustafa Ahmed al-Hawsawi used a
8 cash deposit to open a checking account at a Standard
9 Chartered Branch in Sharjah, UAE, and an ATM account in
10 connection with the checking account.
11 Paragraph 58 of the original indictment list of
12 overt acts alleges an event on June 25, 2001, at the same
13 Standard Chartered Bank in Dubai, UAE, and it talks about a
14 savings account and a checking account.
15 That paragraph 58 is now paragraph 55, and in the
16 superseding indictment, it alleges on or about June 25,
17 2001, at the same Standard Chartered Bank branch in
18 Sharjah, UAE, Fayez Ahmed (No. 175) used a cash deposit to
19 open a checking account and also opened a savings account,
20 Fayez Ahmed also opened an ATM and VISA card account in
21 connection with the checking account.
22 There's a new paragraph 56 in the superseding
23 indictment. It alleges that on or about June 25, 2001,
24 Mustafa Ahmed al-Hawsawi opened a savings account at the
25 Standard Chartered Bank and a VISA account on the same
0008
1 account.
2 The heading above old paragraph 59 in count one,
3 which read Atta and al-Shehri Purchase a Knife has now been
4 changed to the heading above paragraph 57, and it reads
5 Atta Purchases a Knife.
6 Old paragraph 63, which alleged between July 18
7 and August 1, 2001, Mustafa Ahmed al-Hawsawi caused Fayez
8 Ahmed's VISA and ATM cards to be shipped from the UAE to
9 Fayez Ahmed in Florida has been changed and in paragraph
10 61, which is the corresponding number now in the
11 superseding indictment, it alleges between on or about July
12 18 and August 1, 2001, Mustafa Ahmed al-Hawsawi caused
13 Fayez Ahmed's VISA card -- it leaves out the ATM card -- to
14 be shipped from the UAE to Fayez Ahmed in Florida.
15 Paragraph 65 in the original indictment, which
16 alleged events between on or about July 29 and August 2nd,
17 2001, in Norman, Oklahoma, Zacarias Moussaoui made several
18 telephone calls from public telephones to a number in
19 Duesseldorf, Germany, is now paragraph 63, and alleges that
20 between on or about July 29 and August 4, a difference of
21 two days there, in Norman, Oklahoma, Zacarias Moussaoui
22 made several telephone calls from public telephones to a
23 number in Duesseldorf, Germany.
24 Paragraph 67 has been changed in the new
25 superseding indictment. It is now paragraph 65, and it
0009
1 adds the words "wired approximaly $14,000 to Zacarias
2 Moussaoui." It leaves out the words "in money orders,"
3 which had been included in old paragraph 67.
4 Old paragraph 70, which alleges that on or about
5 August 9 and 10, 2001, Zacarias Moussaoui was driven from
6 Oklahoma to Minnesota, is now paragraph 68 in the
7 superseding indictment and alleges that on or about August
8 10 and August 11, so there's a difference of one day there,
9 Zacarias Moussaoui was driven from Oklahoma to Minnesota.
10 Paragraph 71 in the original indictment read on
11 or about August 10, 2001, in Minneapolis, Minnesota,
12 Zacarias Moussaoui paid approximately $6300 in cash to the
13 Pan Am International Flight Academy. That paragraph is now
14 paragraph 69 in the superseding indictment, and the date
15 has changed by three days. That is, it reads now on or
16 about August 13, 2001, in Minneapolis, Minnesota, Zacarias
17 Moussaoui paid approximately, and the number has changed
18 from $6300 in the original indictment to $6800 in cash to
19 the Pan Am International Flight Academy.
20 Paragraph 73 of the original indictment listed a
21 series of items possessed by Mr. Moussaoui on or about
22 August 16, 2001. From that list of property one item has
23 been deleted in the new superseding indictment. What has
24 been deleted is quote, "a computer disk containing
25 information related to the aerial application of
0010
1 pesticide." That is no longer in the superseding
2 indictment.
3 There is in the heading above paragraph 74 in the
4 new, superseding indictment, the heading now reads A
5 Co-Conspirator Calls Fayez Ahmed From Germany, and that has
6 a new paragraph 74, which reads on or about August 18,
7 2001, a co-conspirator made a telephone call from Germany
8 to Fayez Ahmed in Florida.
9 Old paragraph 76, which alleged that on or about
10 August 22nd, 2001, Fayez Ahmed used his VISA card in
11 Florida to obtain $4900 in cash, which had been deposited
12 into his Standard Chartered Bank account in the UAE the day
13 before. The words "the day before" do not appear in
14 paragraph 75 of the superseding indictment. Instead, they
15 have added the word "previously," and, therefore, that
16 paragraph reads, On or about August 22nd, 2001, Fayez Ahmed
17 used his VISA card in Florida to obtain approximately
18 $4,900 in cash, which had been previously -- that's the new
19 word -- deposited into his Standard Chartered Bank account
20 in UAE.
21 Old paragraph 77, which alleged that on or about
22 August 22, 2001, in Miami, Florida, Ziad Jarrah purchased
23 an antenna for a Global Positioning System. The words "an
24 antenna for" have been deleted in paragraph 76 of the
25 superseding indictment. In all other respects, paragraph
0011
1 76 is the same as paragraph 77.
2 Paragraph 86 of the original indictment has been
3 entirely deleted. That paragraph alleged on or about
4 August 30, 2001, Mohammed Atta purchased a utility tool
5 that contained a knife. That is no longer in the
6 superseding indictment.
7 Old paragraph 91 read, On or about September 6,
8 2001, approximately $8,055 was wired from Fayez Ahmed's
9 Florida SunTrust account to the Standard Chartered Bank
10 account over which al-Hawsawi had power of attorney.
11 Paragraph 91 is now in paragraph 89 of the
12 superseding indictment, and it reads on or about September
13 5, 2001, so the date is one day off, Ahmed Fayez -- I'm
14 sorry -- Fayez Ahmed wired approximately $8,000, so they
15 rounded down the number, from his Florida SunTrust account
16 to the Standard Chartered Bank account over which
17 al-Hawsawi had power of attorney.
18 Paragraph 98 of the original indictment referred
19 to Mr. al-Hawsawi moving approximately $6,534 from the
20 $8,055 in Fayez Ahmed's account. That $8,055 has been
21 reduced to $8,000 in paragraph 96 of the superseding
22 indictment.
23 Paragraphs 100, 101, 102, and 103 of the original
24 indictment had alleged events occurring on or about
25 September 11, 2001.
0012
1 Paragraph 100 is now paragraph 98.
2 Paragraph 101 is now paragraph 99.
3 Paragraph 102 is now paragraph 100.
4 Paragraph 103 is now paragraph 101.
5 All four of those paragraphs in the superseding
6 indictment have changed the language to simply be on
7 September 11, 2001. The superseding indictment gets rid of
8 the language "on or about."
9 The same thing has happened for the old
10 paragraphs 105, 106, and 107. Those are respectively now
11 paragraphs 103, 104, and 105 in the superseding indictment.
12 All three of those paragraphs in the original
13 indictment had read, On or about September 11, 2001. They
14 now read, On September 11, 2001.
15 Paragraph 104 of the original indictment read on
16 or about September 11, 2001, and it then lists some of the
17 alleged hijackers and talks about the hijacking of the
18 various airplanes. 104 is now paragraph 102.
19 Again, it changes the language from on or about
20 September 11, 2001, to simply on September 11, 2001, and it
21 adds slightly different versions of two of the alleged
22 hijackers' names: Waleed M. Al-Shehri, which was
23 W-A-L-E-E-D, middle initial M, and then the last name
24 al-Shehri, A-L-S-H-E-H-R-I. In the superseding indictment
25 it's the same first name, Waleed, and the same last name,
0013
1 but the middle initial of M is now deleted. And the second
2 name, Waleed al-Shehri, in the original indictment, which
3 would have been the same as the first name minus the middle
4 initial of M, is now in the superseding indictment Wail,
5 W-A-I-L, then small al-Shehri, S-H-E-H-R-I.
6 In essence, the only, as we studied it, the only
7 two new overt acts that are entirely new in the superseding
8 indictment are paragraphs 56 and 74.
9 I have read to you all the changes between the
10 superseding indictment and the original indictment.
11 Now, how do you wish -- yes, sir?
12 MR. KARAS: I'm sorry, Your Honor. There are
13 three other minor additions in the superseding indictment.
14 THE COURT: All right.
15 MR. KARAS: Paragraph 4 in the Background
16 section, and it contains a list of countries where al Qaeda
17 has supported other jihad groups. The superseding
18 indictment adds the countries of Malaysia, Singapore, and
19 Indonesia, found at the bottom of page 3.
20 THE COURT: All right, that's fine.
21 MR. KARAS: And in the Overt Acts section, the
22 very first overt act which appears on page 7 lists the
23 camps supported by, the original indictment read provided
24 training camps and guesthouses in Afghanistan. The
25 superseding indictment reads provided and supported
0014
1 training camps and adds to the list of training camps al
2 Farooq, which is the first camp that is listed there.
3 In count four, which appears on page 27, the
4 phrase about seven lines down, "destruction, namely,
5 airplanes intended for use as missiles, bombs, and similar
6 devices," added to the superseding indictment is the
7 following phrase "and other weapons of mass destruction."
8 THE COURT: All right, thank you.
9 All right, Mr. Moussaoui, come back up to the
10 lectern.
11 Mr. Moussaoui, you have had a copy of the
12 superseding indictment for a couple of days, and we have
13 just read to you the changes between the original
14 indictment and the superseding indictment.
15 To the superseding indictment, how do you wish to
16 plead?
17 MR. MOUSSAOUI: Before I address the --
18 THE COURT: Would you simply answer the answer in
19 court --
20 MR. MOUSSAOUI: But you have said that I waived
21 some rights at the beginning of the last indictment. You
22 have said something that I did, that I didn't know.
23 THE COURT: It was done when you still had
24 counsel, and that is a fait accompli.
25 MR. MOUSSAOUI: I want to put on record that I
0015
1 want to go through this proceeding because I reject
2 completely, and I was not informed at the time of this, and
3 I want to be formally first asked if I want to waive my
4 rights to counsel and also standby counsel. I want to
5 address the issue. Then after I will address my plea,
6 because I want to the proceeding to start from zero.
7 THE COURT: Mr. Moussaoui, you don't control the
8 courtroom. I do. And if you are not entering a plea, I
9 will, as I did last time, assume that you are entering a
10 plea of not guilty.
11 MR. MOUSSAOUI: That's not correct, because the
12 issue as to your legal system, when somebody say I have no
13 plea, it's equivalent to nolo contendere, uh, no contest,
14 so it is not the same as not guilty. So when I say no
15 plea, you cannot infer that it's not guilty. When I say no
16 plea, it means no plea.
17 THE COURT: If you plead nolo contendere, you
18 will probably be found guilty. I don't think you want to
19 do that at this stage. In any case, I am going to assume
20 this is a plea of not guilty.
21 MR. MOUSSAOUI: Do not assume. I'm -- I'm here
22 fully aware of what you are saying. I just say that I have
23 no plea.
24 THE COURT: And I'm entering on your behalf a
25 plea of not guilty.
0016
1 Do you wish to have a trial by jury or a trial by
2 the Court?
3 MR. MOUSSAOUI: I repeat again that I do not
4 accept this plea of not guilty. I say no plea.
5 THE COURT: All right. Since the defendant has a
6 right to trial by jury unless it is waived, I will presume
7 that he wants a trial by jury; is that correct, Mr.
8 Moussaoui?
9 MR. MOUSSAOUI: At the present time, yes.
10 THE COURT: All right. We are going to use the
11 original trial date, which means we will begin this trial
12 on September 30th with jury selection, and as soon as the
13 jury has been selected, we will begin opening statements
14 and taking evidence in this case.
15 MR. MOUSSAOUI: I repeat no contest.
16 THE COURT: No contest may result in an almost
17 automatic plea -- I mean, finding of guilt.
18 MR. MOUSSAOUI: I have nothing to plea. I repeat
19 it many time, and it mean no contest. If you have
20 something to prove against me, then prove it. I have
21 nothing to say to the United States. That's all. You are
22 not here to represent me.
23 THE COURT: No, but the Court's job with a pro se
24 defendant is to make sure that you are basically aware of
25 your essential rights, and I'm going to advise you, and,
0017
1 Mr. Yamamoto, I know you are in a difficult position as
2 standby counsel who is not --
3 MR. MOUSSAOUI: You are interfering --
4 THE COURT: Just a minute, Mr. Moussaoui.
5 I will ask you to at least write to Mr. Moussaoui
6 and explain to him the ramifications of a plea of nolo
7 contendere.
8 MR. YAMAMOTO: Yes, Your Honor.
9 MR. MOUSSAOUI: You are interfering with my
10 rights of pro se. First of all, they are not supposed to
11 be in court, because they are interfering, because people
12 don't accept me as fully representing me, okay, because
13 that's what you are doing, just watch. You are undermining
14 my position, my ability to defend myself since the
15 beginning. That's just an example, because you are
16 diminishing my representation by talking to somebody I
17 don't even talk to.
18 This is unbelievable, because since the beginning
19 you are interfering with my right to represent myself. I
20 have no business with these people. I never speak to them.
21 They have tried, in concert with the prosecution, to
22 convict me by denying my basic right to defend myself by
23 not engaging in action on my release. I want to ask this
24 Court to be heard. I want this Court --
25 THE COURT: (Interposing) Mr. Moussaoui --
0018
1 MR. MOUSSAOUI: I have the right to be heard by
2 this Court.
3 THE COURT: First of all, I must tell you that a
4 plea of nolo contendere is completely inconsistent with the
5 multiple times you have indicated that these attorneys are
6 trying to convict you.
7 It strikes this Court that you are the only one
8 in this courtroom, other than the prosecutors, who are
9 really trying to convict you of anything. But we are going
10 to move on. There are some other --
11 MR. MOUSSAOUI: I would --
12 THE COURT: -- housekeeping matters I'm going to
13 take care of today.
14 MR. MOUSSAOUI: You have barred --
15 THE COURT: Mr. Moussaoui, you have been
16 extremely good in the past about stopping when I start to
17 speak. If you can't do that, you will waive your ability
18 to represent yourself. You will note we arranged for you
19 to be sitting at counsel table by yourself as you have
20 requested.
21 We have accommodated you in many respects, and as
22 long as you again comply with the directions of the Court,
23 you will be afforded those opportunities, but you can waive
24 them by misusing them.
25 Now, because we have a new indictment, that
0019
1 supersedes the original indictment, and I will at this time
2 dismiss the original indictment, and the only operative
3 indictment that governs this case is the superseding
4 indictment.
5 We have several pending motions that I want to
6 address today so that we can keep this case moving.
7 Mr. Moussaoui, you may have a seat.
8 One motion that is still open, and actually there
9 are two versions of it, it is reflected as docket numbers
10 124 and 131. These are two defendant's pro se motions to
11 unseal documents referred to in open court.
12 At the April 22nd hearing, Mr. Moussaoui read a
13 handwritten letter. This was still when we were in this
14 issue about Mr. Moussaoui and his relationship with the
15 public defender and his other court-appointed attorney.
16 The documents were turned over to the Court Reporter to
17 assist her in working out the transcript, and I believe a
18 copy of the documents was also sent to the United States.
19 We do not deem those documents to be a formal
20 exhibit or admission in this court, and, therefore, the pro
21 se motions to unseal these documents is denied. They are
22 simply in the vault of the court as a reference item, but
23 they are not a formal pleading, and they are not part of
24 the official record in this case.
25 Secondly, we have the defendant's pro se motion
0020
1 for change of venue, to which the United States, and to
2 limit representation of Government employees in the jury
3 pool. The United States filed its opposition, so I have
4 had a chance now to read all the pleadings in that matter.
5 The motion to change venue is denied.
6 The defendant has essentially argued that he does
7 not feel that venue in this district is appropriate,
8 because, among other things, the jury pool consists of too
9 many United States Government employees who might be
10 prejudiced against him.
11 He also argues that Colorado would be a more
12 appropriate venue because jurors might feel safer, because
13 it is among other things closer to a supermax prison. The
14 defendant also refers to some kind of a survey of Northern
15 Virginia, but the survey is not attached to his pleading;
16 and there is no way of verifying the accuracy of that
17 questionnaire.
18 I did note though from the answers that Mr.
19 Moussaoui described in his pleading that even that
20 questionnaire indicated that 72 percent of the people who
21 were interviewed said they believed they could be fair and
22 impartial.
23 Now he also pointed to another answer, and again
24 I have no way of knowing the veracity of this
25 questionnaire, but it's taking it at this moment at face
0021
1 value, that some 60 percent of the people answering it
2 indicated they thought the defendant was guilty or probably
3 guilty.
4 While those two percentages might appear to be
5 inconsistent, they do not yet give me sufficient concern to
6 believe that an impartial jury cannot be drawn from
7 Northern Virginia.
8 I note that the events of September 11 probably
9 impacted non-Government employees more than it did U.S.
10 Government employees.
11 Certainly, New York State fire fighters, police
12 officers, Port Authority officials, private companies such
13 as Kantor Fitzgerald suffered significant losses, probably
14 I would suspect more so than did the Federal Government in
15 terms of life.
16 The case law is clear that no one particular
17 group should be singled out from jury duty just because
18 they are a member of a particular group. The analysis is
19 always whether an individual juror can put aside his or her
20 own personal beliefs or any pretrial publicity to which
21 they may have been exposed and decide the case in a fair,
22 neutral, and objective manner. That will be the focus of
23 the Court's inquiry throughout the voir dire process, and I
24 am satisfied that we will be able to get, without terrible
25 difficulty, an adequate pool of jurors to hear this case.
0022
1 The cases such as Oklahoma City bombing, where
2 there has been a change of venue, tend to be cases where
3 the greatest impact is a very localized one.
4 I think it was Judge Ellis in the Walker Lindh
5 case who made this observation, and I repeat the
6 observation, that the events on September 11th affected the
7 whole nation; and, therefore, there is no reason to believe
8 that people in Colorado or Utah or Maine would be any less
9 aware of what has gone on than would the people in Northern
10 Virginia.
11 I also note that the Northern Virginia area is an
12 area of highly-skilled, well-educated people, who will
13 certainly have the mental ability to sort through the
14 complex evidence that I expect we will see in this case.
15 For all those reasons, therefore, the motion to
16 change venue is denied, as is the motion to limit
17 representation of Government employees in the jury pool.
18 On the June 13th hearing or at that time,
19 defendant still had court-appointed counsel, and at that
20 time his attorneys filed a motion to compel production of
21 discovery and a motion to suppress statements.
22 Mr. Moussaoui was given the opportunity to look
23 at those motions and decide if he wanted to adopt them
24 himself, change them, or reject them. It is clear that he
25 wants to reject the motion to suppress, and so I am going
0023
1 to deem that motion to have been withdrawn.
2 But I need to advise you, Mr. Moussaoui, that
3 motions to suppress must be made in a timely manner, and if
4 they are not made sufficiently in advance of trial, a
5 defendant may lose his right to move to suppress evidence.
6 Do you understand that? You just have to say yes
7 or no. Do you understand that?
8 MR. MOUSSAOUI: Yes.
9 THE COURT: Yes. All right.
10 Now, I would like you back at the lectern, Mr.
11 Moussaoui. In terms of the motion to compel production of
12 discovery, do you want that motion withdrawn, and do you
13 plan to substitute your own motion to compel discovery?
14 MR. MOUSSAOUI: I have filed a motion to compel
15 the Government to talk about the discovery they have and
16 the surveillance they made on me.
17 THE COURT: All right, so you feel that you have
18 filed your motion for discovery at this point?
19 THE DEFENDANT: No, I will review it, and in due
20 time I will advise you.
21 THE COURT: All right. I will, however, assume
22 that you want the defendant's motion to compel discovery
23 that was filed on your behalf by your former counsel to be
24 withdrawn; is that correct?
25 MR. MOUSSAOUI: Yes, because they have nothing to
0024
1 do with me.
2 THE COURT: All right, it will be --
3 MR. MOUSSAOUI: And I want to be heard on this
4 subject.
5 THE COURT: Wait a minute. It will be
6 withdrawn.
7 There is pending before us, it's docket No. 209,
8 the defendant's pro se emergency motion for immediate
9 release from detention and the dropping of all charges.
10 That type of a motion is not the kind of motion that the
11 Court is going to hear at this point.
12 MR. MOUSSAOUI: Why?
13 THE COURT: The emergency motion for immediate
14 release, I have already addressed in terms of the Bail
15 Reform Act and the nature of the charges filed against you,
16 and the dropping of all charges is not a proper motion. If
17 you want to file a motion to dismiss, you can do so in a
18 more proper format; but the time to test the quality of the
19 Government's evidence is not pretrial. It's at the trial,
20 and the motion is premature in that respect.
21 MR. MOUSSAOUI: It's based on the fact that this
22 is an outrageous prosecution, when the Government have the
23 information that I have nothing to do with September 11,
24 because I was subject of a surveillance by the Government.
25 And the language of the opposition of the
0025
1 Government response to defendant made its motion for
2 immediate release is quite clear. The Government is unable
3 to deny this. They just go about saying indeed the
4 Government is unaware.
5 I want a certification by the Federal Bureau of
6 Investigation that at no point since 2000 that I was under
7 surveillance and especially when I entered the United
8 States, okay, because you can't have the Federal Bureau of
9 Investigation refusing to certify that they were following
10 me, monitoring my telephone communications, monitoring my
11 e-mail, knowing everything I was doing, and when allege,
12 and I asked for an independent examination of my belongings
13 for tracking device and for bugging hearing phone in my
14 belongings, and they refused.
15 So I want the Director of the F.B.I. to certify
16 under threat of perjury that the Federal Bureau of
17 Investigation was not engaged in such surveillance, and
18 that the national center of communication never have any
19 communication between me in Afghanistan and Azerbaijan.
20 I want the Federal Bureau of Investigation to say
21 why they didn't investigate Kinko when I was holder of a
22 receipt dated the 12th of August.
23 Then I want the F.B.I. to certify that they never
24 give order to Oklahoma patrol to not to arrest me, because
25 I was arrested by the patrol, and after committing four
0026
1 offense, and I was released without even a ticket, and the
2 car was not even registered in my name; and they have no
3 proof.
4 THE COURT: All right, Mr. Moussaoui --
5 MR. MOUSSAOUI: So I want certification of all
6 this, and then we can proceed, because it's an outrageous
7 prosecution when you allow them and you are manipulating
8 the court system by denying me access to somebody who could
9 help me, referring to Brother Freeman. He came to the jail
10 to see me. He advised me that my points are very good
11 points, and he know the case, and I want, he was able to
12 see. Now all of a sudden you forbid him to come to see
13 me. What is the point? There is no justice --
14 THE COURT: Mr. Moussaoui, now you are ranging
15 over too many topics. Have a seat, please.
16 Mr. Spencer, I do think, although it's hard to
17 read, some of the requests that Mr. Moussaoui has stated
18 today in court he has put in writing to the Government in a
19 form of a discovery motion.
20 He appears to be asking, among other things, for
21 an all-agency check as to electric surveillance, for
22 example.
23 MR. SPENCER: That's fine, Your Honor. We put
24 our response in our motion response that we are unaware of
25 any such surveillance. I don't think he's entitled to the
0027
1 certification that he is requesting today in court.
2 I think there is one other item of evidence that
3 is the subject of your order today, and I believe you have
4 given us a chance to respond to that, and we will.
5 THE COURT: All right. We will see how this all
6 comes out down the road, but the proper way to file a
7 discovery motion is to make it clear and in writing, not
8 orally in open court.
9 All right, the next thing we have is we have the
10 Government's motion regarding victims' rights pursuant to
11 18 USC 3510(b), which is docket No. 217.
12 In that motion the United States requests that
13 the Court permit victims who may testify during the penalty
14 phase, if there were to be one, to be present in the
15 courtroom or at the closed-circuit locations during the
16 guilt phase.
17 As you know, Congress made a special exception to
18 the normal rule on witnesses in the case of the Oklahoma
19 City bombing case.
20 Mr. Moussaoui, you have not had a chance to
21 respond to that motion. Do you have any objection to it?
22 MR. MOUSSAOUI: Yes.
23 THE COURT: Let me hear your objection. Go up to
24 the lectern.
25 MR. MOUSSAOUI: Can you repeat the case?
0028
1 THE COURT: Yes. The Government is requesting
2 that victims who may testify during the penalty phase, if
3 there were to be one, be permitted if they want to to sit
4 in the courtroom or at the closed-circuit location during
5 the guilt phase of the trial.
6 MR. MOUSSAOUI: Yes, I object.
7 THE COURT: What's the basis for the objection?
8 MR. MOUSSAOUI: The basis that this trial should
9 not be televised in any way to anybody except the people
10 who are in court, because, especially to the victim family,
11 because this will create a pool of people who will see the
12 trial, be able to go to reporter and to act as a reporter
13 of the event to the entire nation and inflame them.
14 This can interfere with my right to a fair trial,
15 because the jury is always subject to receiving from the
16 outside world influence and information about whether or
17 not I'm guilty or not. So I do not want that the victim,
18 especially who have great credential in front of the
19 American people, to be able to claim that the trial is
20 going this way or that way, and so on and so forth. It
21 would be prejudicial for me.
22 THE COURT: All right, well, unfortunately --
23 MR. MOUSSAOUI: And secondly --
24 THE COURT: Wait. There are acts of Congress
25 that have mandated, or have not been passed yet, but I
0029
1 anticipate that we will be required to arrange for a
2 broadcast, closed-circuit broadcast, to victims' families
3 in certain parts of the United States.
4 The concern about juror contamination is not a
5 problem, because the jury is very carefully advised as to
6 what they can and cannot do and the communications they can
7 have.
8 The issue is whether or not there would be any
9 possible taint to the victims' testimony that could be
10 affected by their sitting through the penalty phase of the
11 trial. And, as I said, I think 18 USC 3510(b) certainly
12 indicates that in a unique kind of case it is not
13 inappropriate for the Court to waive that standard rule on
14 witnesses and permit the victims to be in the courtroom.
15 I am, therefore, over your objection, going to
16 grant the Government's motion.
17 Now, the other issue that the Government raised
18 yesterday was their motion to withhold the places of abode
19 of prospective witnesses, and the Government does not want
20 to have to disclose either the county or the township of
21 residence of witnesses.
22 I assume the Government is not opposed to
23 exposing the country of the witness, is that right?
24 MR. NOVAK: That is correct, Your Honor.
25 THE COURT: So the national location is all
0030
1 right, the United States of America or Saudi Arabia or
2 wherever?
3 MR. NOVAK: That's correct.
4 THE COURT: All right. Do you have any position
5 on that, Mr. Moussaoui?
6 MR. MOUSSAOUI: Yes, because I will have no mean
7 to send a potential investigator to see if this person
8 really exists, because they are going to bring people from
9 other country, or maybe under threat by their own
10 Government to testify, to say whatever the U.S. Government
11 wants, and I will have no mean to know if they are really
12 who they are.
13 I do not understand why this should be taken away
14 from me, because we conducted the testimony this morning to
15 a certain person and have the full background of this
16 person, have the name of his father, his mother, and I
17 don't know why the Government now moves to try to suppress
18 this, because it was given to me this morning, and this
19 person was very important in the case. And now they want
20 to take it away.
21 You mean that they can bring anybody they want to
22 say anything they want. They have no way to check if he is
23 really who he is he. So I don't know if this is a parody
24 of justice or what is going, what you are doing here.
25 THE COURT: The Court must always weigh the
0031
1 rights of a defendant to be able to mount an adequate
2 defense against the rights of witnesses to be protected
3 from any potential danger or harm.
4 You have publicly in court sometimes made some
5 pretty strong statements about Americans. I don't know how
6 many of these witnesses are going to be American and how
7 many may be of foreign origin. You will have the names of
8 the witnesses, and if there are specific witnesses that you
9 are trying to talk with, the United States can be ordered
10 to try to make the witness available as long as it's not
11 going to be abusive.
12 I'm going to grant that motion as well. I have
13 the statutory authority to do it under 18 USC 3432. I do
14 find that this is an extraordinary case, that the charges
15 involved in the indictment are extremely serious and
16 suggest that there could be risk to witnesses in this
17 case.
18 I have already indicated we will be using an
19 anonymous jury because of the nature of the case, and I
20 think this ruling is consistent with that approach to this
21 case.
22 All right, the last thing is I did yesterday
23 grant your motion, Mr. Moussaoui, for some extension in the
24 time in which to file pretrial motions. I have granted Mr.
25 Moussaoui until Monday, July 8, to file any additional
0032
1 pretrial motions.
2 I will give the Government until July 15 to
3 respond. That means I'm canceling the hearing date for
4 July 12. If we do need to have oral argument on any of the
5 motions, we will do that on Thursday, July 18 at 1:00
6 o'clock.
7 MR. MOUSSAOUI: I mean that --
8 THE COURT: I'm sorry?
9 MR. MOUSSAOUI: I mean, that you say on July 8.
10 You mean that it's meaningless, because for case as huge as
11 this I would have access to nobody. I don't have even a
12 printer to print the information that are on computer. I
13 don't have even the photography of the hijacker. I have
14 nothing, and I have been prevented to have contact with
15 anybody who can help me.
16 I can't make any phone call. I can't see any
17 adviser, and you are just putting me in my cell and running
18 your show, because I have no meaning way -- no meaningful
19 way to defend myself. This is a parody.
20 THE COURT: Mr. Moussaoui, the whole reason why
21 we have continued to make standby counsel available to you,
22 if you only want to use Mr. Yamamoto to ask him to have his
23 secretary type --
24 MR. MOUSSAOUI: You are not in charge of my
25 defense. I organize my defense with Mr. Freeman, as
0033
1 suitable. Mr. Freeman was able to visit me and to talk to
2 me on different occasion. Why on earth you are decided to
3 prevent him to see me, because he was providing for me
4 legal advice and filing the relevant motion.
5 These people have nothing to do with me. I have
6 waived my right to counsel, and this is nonsense in front
7 of the Supreme Court because if you were to do any decision
8 then after I will ask that it was ineffective assistance, I
9 will be rejected, so I do not want them. I'm pro se. I'm
10 the only one who can defend myself. You are undermining
11 all the time my dignity by referring to these people,
12 okay. They have nothing to do, never in this case.
13 And I have the right to defend myself in a
14 meaningful way, not to be put in Alexandria jail and to be
15 shut down and given two weeks to prepare. It's a constant
16 circus where you involve going and taking testimony of
17 people, seeing what happened and what evidence, seeing the
18 background of the witness.
19 You are just preparing me for the gas chamber.
20 That's what you are doing, because you have no intention at
21 all to allow me to defend myself, and you have taken every
22 avenue, every trick on the book to prevent me to defend
23 myself. The greatest proof is Brother Freeman, who came to
24 see me, and you prevent him now.
25 THE COURT: As we said in our order of yesterday,
0034
1 Mr. Freeman is not qualified to practice law in this
2 court.
3 MR. MOUSSAOUI: He's an adviser. He is not going
4 to be representing me here.
5 THE COURT: In fact, he filed two pleadings, in
6 clear violation of the Court's rules.
7 MR. MOUSSAOUI: I signed them.
8 THE COURT: It doesn't make any difference. He
9 did, too, as your attorney, as your representative.
10 MR. MOUSSAOUI: I saw them. It was not signed by
11 him. His name was on the bottom.
12 THE COURT: Mr. Moussaoui, you are not an
13 attorney, and you don't understand the nuances of the legal
14 system; but in any case, my rulings are as they are.
15 Is there anything further from the United States
16 that we need to address this afternoon?
17 MR. SPENCER: No, thank you, Your Honor.
18 THE COURT: All right, then we will recess
19 court. Mr. Moussaoui is remanded.
20 (Whereupon, at 2:45 o'clock p.m., the hearing in
21 the above-captioned matter was concluded, and court stood
22 in recess.)
23
24
25
0035
1 CERTIFICATE OF OFFICIAL REPORTER
2 COMMONWEALTH OF VIRGINIA )
) ss.
3 CITY OF ALEXANDRIA )
4 I, EDWARD DONOVAN McCOY, Registered Professional
5 & Merit Reporter, and Official Court Reporter for the
6 United States District Court for the Eastern District of
7 Virginia, appointed pursuant to the provisions of Title 28,
8 United States Code, Section 753, do hereby certify that I
9 was authorized to report, and did so report by computerized
10 Stenograph machine the foregoing proceedings;
11 THEREAFTER, my Stenograph notes were reduced to
12 printed form by computer-aided transcription under my
13 supervision; and I further certify that the pages herein
14 numbered contain a true and correct transcription of my
15 Stenograph notes taken herein.
16 DONE and signed, this day of
17 , 2002, in the City of Alexandria,
18 Commonwealth of Virginia.
19
20
21
22
EDWARD DONOVAN McCOY, RMR
23 Official Court Reporter
24
25 * * *