26 July 2002
Source: Digital transcript purchased from
Exemplaris.com for $55.00.
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
0001
1 UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
2 ALEXANDRIA DIVISION
3 UNITED STATES OF AMERICA, . Criminal No. 01-455-A
.
4 vs. . Alexandria, Virginia
. July 25, 2002
5 ZACARIAS MOUSSAOUI, . 1:00 p.m.
a/k/a Shaqil, a/k/a .
6 Abu Khalid al Sahrawi, .
.
7 Defendant. .
.
8 . . . . . . . . . . .
9 TRANSCRIPT OF PLEA HEARING
BEFORE THE HONORABLE LEONIE M. BRINKEMA
10 UNITED STATES DISTRICT JUDGE
11 APPEARANCES:
12 FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA
KENNETH M. KARAS, AUSA
13 DAVID J. NOVAK, AUSA
United States Attorney's Office
14 2100 Jamieson Avenue
Alexandria, VA 22314
15
16 FOR THE DEFENDANT: ZACARIAS MOUSSAOUI (pro se)
17
18
(APPEARANCES CONT'D. ON FOLLOWING PAGE)
19
20
21 COURT REPORTERS: ANNELIESE J. THOMSON, RDR, CRR
KAREN BRYNTESON, RMR, CRR
22 U.S. District Court, Fifth Floor
401 Courthouse Square
23 Alexandria, VA 22314
(703)299-8595
24
(Pages 1 - 56)
25 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
0002
1 APPEARANCES: (Cont'd.)
2 FOR THE DEFENDANT AS FRANK W. DUNHAM, JR.
STANDBY COUNSEL: Federal Public Defender
3 Office of the Federal Public
Defender
4 1650 King Street
Alexandria, VA 22314
5 and
EDWARD B. MAC MAHON, ESQ.
6 P.O. Box 903
107 East Washington Street
7 Middleburg, VA 20118
and
8 ALAN H. YAMAMOTO, ESQ.
108 N. Alfred Street, First Floor
9 Alexandria, VA 22314-3032
and
10 GERALD THOMAS ZERKIN
Assistant Federal Public Defender
11 Office of the Public Defender
One Capital Square
12 830 East Main Street, Suite 1100
Richmond, VA 23219
13 and
JUDY CLARKE
14 Assistant Federal Public Defender
Federal Defenders of Eastern
15 Washington and Idaho
10 N. Post, Suite 700
16 Spokane, WA 99201
17 ALSO PRESENT: PROFESSOR SADIQ REJA
18
19
20
21
22
23
24
25
0003
1 P R O C E E D I N G S
2 THE CLERK: Criminal Case 2001-455-A, United States of
3 America v. Zacarias Moussaoui. Will counsel please note their
4 appearance for the record.
5 MR. SPENCER: Good afternoon, Your Honor. Rob Spencer,
6 Ken Karas, and Dave Novak for the United States
7 (Defendant present.)
8 THE COURT: Good afternoon.
9 Mr. Moussaoui, you are here representing yourself,
10 correct? Mr. Moussaoui?
11 THE DEFENDANT: Correct.
12 THE COURT: All right. All right, Mr. Moussaoui, I'd
13 like you to go to the lectern. I have a few questions I want to
14 ask you.
15 THE DEFENDANT: Allow me a second.
16 THE COURT: All right, Mr. Moussaoui --
17 THE DEFENDANT: Yes.
18 THE COURT: -- have you had a chance to carefully
19 consider the letter which I sent you on July 23, 2002?
20 THE DEFENDANT: Yes, I have a full chance to consider
21 this letter.
22 THE COURT: All right. The United States sent you a
23 letter the same day describing its proposed proffer of the facts,
24 and I assume you've had a chance to read that over as well.
25 THE DEFENDANT: Yes, I did.
0004
1 THE COURT: All right. Now earlier today, you had an
2 opportunity to meet in the cellblock in this courthouse with a
3 Professor Reza from New York Law School; is that correct?
4 THE DEFENDANT: We had a meeting for something like 20
5 minutes, yes.
6 THE COURT: All right. Are you -- is anything that
7 you -- has anything that you discussed with Professor Reza
8 changed your decision about going forward today with a guilty
9 plea?
10 THE DEFENDANT: We discuss, and I will make no comment
11 on this.
12 THE COURT: Well, all right. What I need to know,
13 though, is would you like the Court to postpone this hearing so
14 that you can have more time to consult with Professor Reza?
15 THE DEFENDANT: I'm fully satisfied with the time I
16 have to consider the issue for -- of today.
17 THE COURT: All right. Then if you will go back to
18 your seat for a moment, there are some preliminary matters that
19 we need to address before we get to this matter.
20 I am curious, Professor Reza, are you in the courtroom?
21 PROFESSOR REZA: I am, Your Honor.
22 THE COURT: May I ask you just to approach the lectern
23 for one second?
24 THE DEFENDANT: I just want to say that I do not want
25 this happening.
0005
1 THE COURT: I understand that.
2 THE DEFENDANT: And I object to this.
3 THE COURT: Professor, thank you. Thank you for your
4 attendance.
5 PROFESSOR REZA: Yes, Your Honor.
6 THE COURT: I'm not going to ask you for any
7 substantive comments, but I am concerned because of the multiple
8 pleadings by the standby counsel questioning the competence of
9 Mr. Moussaoui, all I want to know is were you able to engage
10 Mr. Moussaoui in a discussion of federal criminal procedure?
11 PROFESSOR REZA: Your Honor, I appreciate the
12 opportunity that the Court gave me to meet with Mr. Moussaoui. I
13 don't have any representations to make about the time I spent
14 with Mr. Moussaoui today.
15 THE COURT: As a practicing attorney and as a professor
16 of criminal procedure, you're fully familiar with the issues
17 about competence of a defendant to represent himself or to, or to
18 participate in a criminal proceeding?
19 PROFESSOR REZA: I'm familiar with the topic, Your
20 Honor.
21 THE COURT: As a person with some expertise in this
22 area, although I realize you're not a mental health expert, do
23 you have any personal concerns or qualms from that standpoint of
24 Mr. Moussaoui's going forward today with a guilty plea if that is
25 his wish?
0006
1 PROFESSOR REZA: Your Honor, respectfully, I have no
2 representations to make about my time with Mr. Moussaoui.
3 THE COURT: All right, I understand.
4 PROFESSOR REZA: I do, should the Court not accept his
5 plea of guilty today, I do have an argument I would like to make
6 should Mr. Moussaoui permit it, but short of that, I have no
7 representations about my meeting with Mr. Moussaoui today.
8 THE COURT: All right. Well, I want to thank you for
9 traveling from New York to meet with the defendant. At this
10 point, you're not his standby counsel.
11 PROFESSOR REZA: Correct.
12 THE COURT: I'm not sure he would accept you as standby
13 counsel. I asked you to speak solely to assist the Court, if you
14 could, and I understand for various reasons you might not be able
15 to, so thank you for your assistance.
16 PROFESSOR REZA: You're welcome, Your Honor.
17 THE COURT: All right. The preliminary matters which
18 the Court needs to address are motions that have been filed by
19 standby defense counsel raising again their concern that
20 Mr. Moussaoui is not mentally competent to go forward at this
21 time with a guilty plea if that is still his desire and also
22 their concern that the Court -- or their recommendation that the
23 Court hold or direct that there be a custodial, in-patient, full
24 forensic psychiatric evaluation of Mr. Moussaoui.
25 I have received a letter from Mr. Moussaoui's mother
0007
1 urging the Court not to permit the defendant to go forward with a
2 guilty plea without the advice of counsel.
3 Now the record is clear that Mr. Moussaoui has rejected
4 the advice, assistance of counsel. Even as of today, we were
5 trying to make him have access to competent counsel who offered
6 his services. Apparently, Mr. Moussaoui has decided to still
7 continue without that help.
8 That decision, as I said earlier, although unwise, does
9 not necessarily convert to a finding of legal incompetence. I
10 have carefully considered the materials that were submitted by
11 standby defense counsel as well as their doctor reports, but I am
12 satisfied that Mr. Moussaoui is not presently suffering from a
13 mental defect or disease of such a degree as to render him
14 incompetent to represent himself or, assuming he answers the
15 questions appropriately, to enter a knowing and voluntary plea of
16 guilty to any one or all six of the charges.
17 I am particularly impressed with the fact that although
18 Mr. Moussaoui had filed numerous repetitive motions, at the
19 hearing last week, when I advised him that he was not to file any
20 more repetitive motions and if he did so, he might lose his pro
21 se status, Mr. Moussaoui obviously understood the Court's
22 admonition, because we have not received a single writing from
23 him in a week, which is a record.
24 But that indicates to the Court that Mr. Moussaoui is
25 perfectly capable of understanding the Court's directions, and
0008
1 when he chooses to, he can follow those directions. That was
2 similar to earlier in the case, when he was refusing to meet with
3 Dr. Patterson, and I warned him in an order that continued
4 refusal would result in the Court not being able to decide his
5 pro se status. He thereafter met with Dr. Patterson.
6 So although the defendant's pleadings are somewhat
7 confrontational and somewhat unusual, they do not give the Court
8 sufficient basis to make any kind of a finding that this man is
9 not competent to go forward with a guilty plea if that is his
10 desire, and there clearly is no basis in this record at this time
11 to continue or postpone these proceedings for a custodial, for a
12 mental health forensic evaluation. And therefore, having
13 carefully considered the standby defense counsel's papers, I am
14 rejecting that argument. And I am prepared, if Mr. Moussaoui
15 still wishes to enter a guilty plea, to begin that colloquy.
16 Now, Mr. Moussaoui, go back up to the lectern, please.
17 Now, Mr. Moussaoui, a week ago, you indicated to the Court at the
18 end of the hearing that you wished to enter guilty plea or guilty
19 pleas to some or all of the counts in the indictment. Is that
20 still your desire?
21 THE DEFENDANT: Yes, but I would like to say a few word
22 on this subject --
23 THE COURT: All right.
24 THE DEFENDANT: -- to explain to the people around here
25 and who may hear about this.
0009
1 Yes, about a week ago, I decided, and I have after long
2 reflection on the subject to, to enter a plea of guilty. Of
3 course, it should not be misunderstood that by pleading guilty, I
4 endorse the entire indictment, as the law say that a defendant
5 may -- might reject some of the allegation.
6 THE COURT: Correct.
7 THE DEFENDANT: But the law, Rule 11, stipulate that
8 there should be some factual basis, correct. So there is enough
9 factual basis for me to plead guilty in a truthful manner and
10 also to be able to argue about the level, level, level of my
11 guilt, meaning to decide if I should be subject to death penalty,
12 life in prison, or any other sentence.
13 Even the law recognize that in the mitigating factor,
14 you can reach a point that it can become a defense to the charge.
15 So today I truthfully will enter on some of the charge, not all
16 of them, a plea of guilty.
17 But before we go further, I want to go back to the
18 letter you sent to me, if you allow me, of course. Briefly say
19 you explained to me, I read, "Because most guilty pleas are
20 negotiated between defense counsel and the prosecutor, the
21 parties usually have agreed to set a stipulated fact which
22 establish the essential element of the offense or offenses. I
23 believe that such stipulation, stipulation would assist you in
24 thinking about your decision. Therefore, I have asked the
25 government to provide you, to provide you with their proposed
0010
1 factual proffer by the close of business on Tuesday, July 23."
2 So basically, you sent me this different proposal from
3 the government to stipulate certain fact. But I have to say that
4 if I were to agree on these fact, I will not only plead guilty,
5 but I will plead guilty for the death penalty directly, meaning
6 that there will be no need for a sentencing phase, because what
7 we have, what we have put in this document is to say that I agree
8 of everything they have said against me.
9 So I cannot agree on this, but I can agree that there
10 is factual basis in the indictment, and I will go through the
11 indictment to show where are the factual basis of my guilt. And
12 I think that it will be enough according to Rule 11, who say that
13 there should be factual basis to enter a plea of guilty for this
14 Court to accept my plea of guilt.
15 THE COURT: All right. Now, Mr. Moussaoui, you
16 actually, I think, cut me off last week. I was starting to
17 explain something to you. Just listen for a second, because I
18 want to make sure you, you fully understand what you're doing.
19 MR. MOUSSAOUI: Yes, of course.
20 THE COURT: You have several times in your pleadings
21 advised the Court and you've just told me again that there are
22 several allegations or facts in the indictment that you don't
23 dispute.
24 There are two ways a defendant can make that point.
25 One way, which is the way you're talking about right now, would
0011
1 be to enter a guilty plea to that actual charge. However, the
2 other way, and you didn't let me explain this to you last time,
3 is that it is not uncommon in a criminal case or a civil case for
4 the parties to stipulate to the existence of certain facts, and
5 if both sides stipulate to a certain fact, then there is no need
6 for there to be a trial as to that particular fact, because it is
7 conceded. The purpose of a trial is basically to find facts.
8 I want to make sure if you're going forward with a
9 guilty plea to one or some of the counts in this indictment that
10 you understand that you might be able to achieve close to the
11 same result by stipulating to certain facts in the indictment
12 with which you have no dispute.
13 Do you understand that difference?
14 THE DEFENDANT: Yes, I understand fully this different
15 point, but I have to say that the fact that I will enter a guilty
16 plea will also help me to put my argument forward to the jury,
17 because at the moment, it will be very unlikely that a jury will
18 be able to listen to my argument if I were going through a guilt
19 phase, because the government have decided to employ such a
20 tactic against me to inflame -- even in the indictment is
21 completely inflammatory speech.
22 And to deny me any aspect to have any chance to
23 mounting a fair defense, I have been -- I don't know which word
24 to use, but put with some people who pretend to want to help me.
25 And in fact, thet have all the, the mean to mount a very serious
0012
1 defense on my behalf along the line I have dictated, meaning
2 that -- I will not elaborate at the moment. But they are
3 refusing, because they have -- they want to make a showcase,
4 where the government will talk about Moussaoui on September 11,
5 Bin Laden, Bin Laden, and then at the end of the guilt phase,
6 there will be Moussaoui here being taken as a, as a prize, okay?
7 So I have no intention to go through this. I want the
8 people to hear what I have to say, what are my responsibility,
9 what I came to the United States for, what I did in the United
10 States, and if 12 people of America find that I have to be put to
11 jail, to be killed for this what I did, but only for what I did,
12 not for what they claim, okay, and only by directly addressing
13 what I did I will be able to receive a fair -- I mean, I will not
14 even use the word -- but something remotely fair.
15 At the moment, if I go through the guilt phase, I have
16 no chance, because, first of all, this Court denied me the chance
17 to appoint my own lawyer at the first -- in the first place,
18 okay? Then after that, I have been through more than six months
19 of fighting with this Court just to have the right to present
20 myself in a meaningful manner. It's only today, even now until
21 today, people are questioning my ability to defend myself.
22 So for me, it is very simple, okay? Your system of
23 justice belong to you. I have to answer the question to charge
24 against me, did or did not come to the United States to commit an
25 act of terrorism. That's the basic, the bottom line of this
0013
1 charge. That's why these people will decide one day either to
2 put me to death or not, not on if I serve food in the Kandahar
3 for one of the hijacker or if I receive money for somebody who is
4 alleged to be a Bin Laden associate. All this is, will be not --
5 less than not irrelevant but not as much as to know did
6 Mr. Moussaoui came to the United States to commit an act of
7 terrorism. That's why I want to talk to these 12 people, these
8 12 American, who are my enemy, but sometime you can find honest
9 enemy.
10 Here I have dishonest people. Maybe your normal people
11 will be more honest than this Court and this prosecution and this
12 standby lawyer.
13 THE COURT: All right.
14 THE DEFENDANT: So that's where I'm going now.
15 THE COURT: Mr. Moussaoui, you said you -- you
16 indicated that there are certain counts you do wish to enter
17 guilty pleas to. Which counts are they?
18 THE DEFENDANT: So I will enter a guilty plea on the
19 four first count, Count 1, 2, 3, 4, it will be a guilty plea.
20 THE COURT: On the first four?
21 THE DEFENDANT: Yeah, on first four.
22 THE COURT: But not on the fifth and the sixth?
23 THE DEFENDANT: Not on the -- yeah.
24 THE COURT: All right.
25 THE DEFENDANT: For the rest, it will be not guilty.
0014
1 THE COURT: All right. I recognize from your previous
2 appearance before the Court that you have religious convictions
3 that do not permit you to take an oath.
4 THE DEFENDANT: No, I think that was misunderstood.
5 Even the rule, the federal rule doesn't stipulate on the wording
6 questioning to the oath. I will object to take the Bible or
7 something like that, but I can take an oath according to --
8 because if I recall, I mean, maybe a bit vaguely, but the
9 wording, when you take an oath, it should strike your conscience,
10 okay?
11 So me, I will just say in the name of Allah, the most
12 graceful and masterful, I believe in Allah, the prophet, and his
13 messenger, and I will tell the truth to the best of my ability.
14 THE COURT: All right. Let me just ask you this so I
15 have this for our record: You understand that all answers as
16 well as statements that you make during what is called the Rule
17 11 plea colloquy must be complete and truthful?
18 THE DEFENDANT: Yes, to the best of my ability.
19 THE COURT: All right. And do you understand that if
20 you knowingly and willfully lie to the Court in answering any of
21 these questions, you could be prosecuted for perjury by the
22 United States?
23 THE DEFENDANT: I understand fully.
24 THE COURT: Would you hold on just one second, please?
25 I should announce because the Fourth Circuit had
0015
1 pending before it various motions, including an emergency motion
2 for the issuance of an extraordinary writ of mandamus,
3 prohibition, and injunction, that motion has been denied by the
4 Fourth Circuit by an order entered at the direction of Judge
5 Wilkins, at the concurrence of Judge Williams. Judge Gregory
6 concurred in part and dissented in part.
7 And that therefore means that there's no Fourth Circuit
8 impediment to going forward with this proceeding at this time.
9 And, Mr. Moussaoui, you agree to provide truthful --
10 complete and truthful answers to the best of your ability and
11 complete and truthful statements to the best of your ability to
12 the Court during this plea colloquy; is that correct?
13 THE DEFENDANT: Yes, I do.
14 THE COURT: All right. Then I find that your answers
15 to these questions as well as your statement previously indicates
16 that you have taken the equivalent of an affirmation or oath and
17 that all of your questions -- all of your answers and statements
18 will be deemed made under those parameters.
19 I also want to advise you again, as I have in the past,
20 that whatever you say to the Court now in either an answer to a
21 question or in a statement can be used by the government against
22 you at either the guilt or penalty phase of this prosecution. Do
23 you understand that?
24 THE DEFENDANT: Yes, I understand this. If you allow
25 me just a, a small point?
0016
1 THE COURT: Yes, sir.
2 THE DEFENDANT: I have requested to appear in front of
3 the grand jury, because I want to, to say everything I know, but
4 the government refuse, because they know the implication if I
5 were to say. And I request to take the stand and to say to the
6 people of America what I know about, let's say, what you call
7 al Qaeda, okay, and about conspiracy.
8 But the United States government know that they don't
9 want, because they have charged me with this crime, and they
10 don't want the matter to be investigated, because as I've tried
11 to put forward to the people of America and the world, that, in
12 fact, the government knew about the activity of the people who
13 were preparing September 11, and they have decided to arrest me
14 because they knew that I was not directly involved with these
15 people.
16 It doesn't change the fact that -- it doesn't change
17 the fact that I still want to talk about this, meaning that I can
18 provide information to the grand jury relevant to ongoing
19 conspiracy.
20 THE COURT: All right. Now, Mr. Moussaoui, let me stop
21 you at this point. I've heard -- I heard you last time. I'm
22 sure the prosecutors heard you last time.
23 THE DEFENDANT: No.
24 THE COURT: If for no other reason, you might want to
25 ask Professor Reza to try to broker for you a, an opportunity to
0017
1 be debriefed. This Court cannot do that for you, and I'm telling
2 you that that is a nuanced operation that you need a third-party
3 individual to broker for you.
4 You will have opportunities to speak, but right now I
5 need to determine whether or not any of these pleas are going
6 forward.
7 THE DEFENDANT: Proceed.
8 THE COURT: All right. For the record, what is your
9 full name?
10 THE DEFENDANT: Zacarias Moussaoui.
11 THE COURT: Now have you also used the name Shaqil?
12 THE DEFENDANT: Yes, I do.
13 THE COURT: And where did you first -- when did you
14 first start using that name, approximately?
15 THE DEFENDANT: I mean, I can't remember, so --
16 THE COURT: A couple of years?
17 THE DEFENDANT: No, I don't -- I think that shouldn't
18 go more than two year, one year ago, but I don't want, like, to
19 say a date. I mean, I have to be truthful. I can't say exactly,
20 but it's not like very old. That's all I can say.
21 THE COURT: All right. Have you also used the name Abu
22 Khalid al Sahrawi?
23 THE DEFENDANT: Abu Khalid al Sahrawi, yes. That's my
24 what we call a sequnya. It's a war name or it's a name that you
25 will name your son about. So "abu" mean father. "Khalid" will
0018
1 be the name of my son in the future, insha'Allah, God willing.
2 THE COURT: All right. How old are you?
3 THE DEFENDANT: Twenty -- thirty-four.
4 THE COURT: All right. Do you have any difficulties
5 speaking, reading, or understanding English?
6 THE DEFENDANT: No, I don't think so.
7 THE COURT: All right, I don't think so, either, but I
8 have to ask these questions for the record.
9 THE DEFENDANT: I mean, I mean, the first day when I
10 came to court, you asked if I was speaking English, so now I'm
11 happy that you know that I do after knowing that I had a master
12 degree in England.
13 THE COURT: All right.
14 THE DEFENDANT: Thank you.
15 THE COURT: Are you presently under the care of a
16 doctor for any physical or mental condition?
17 THE DEFENDANT: No. No.
18 THE COURT: Are you presently taking any medication for
19 any physical or mental condition?
20 THE DEFENDANT: No.
21 THE COURT: Have you had any medication at all in the
22 last week?
23 THE DEFENDANT: No.
24 THE COURT: All right. Are you presently under the
25 influence of any alcohol or drugs?
0019
1 THE DEFENDANT: No, thank you.
2 THE COURT: All right. Do you understand that in order
3 for the Court to accept any of your guilty pleas, I need to ask
4 you a series of questions that comply with the requirements of
5 Rule 11 of the Federal Rules of Criminal Procedure?
6 THE DEFENDANT: Yes. I've read fully more than twice
7 actually the complete set of Rule 11. I understand it.
8 THE COURT: And what Rule 11 requires is that the Court
9 first of all ask a series of questions to ensure a defendant
10 fully understands what he is doing by pleading guilty, and that
11 colloquy includes a complete understanding of what a defendant is
12 giving up by pleading guilty. Do you understand that?
13 THE DEFENDANT: Yes, I do.
14 THE COURT: And then the Court must also determine
15 whether or not the plea is being made in a voluntary fashion,
16 because a plea that is being forced would not be one that would
17 necessarily be acceptable. Do you understand that?
18 THE DEFENDANT: Yes, I do.
19 THE COURT: All right. Now previously, you've given
20 some explanations as to why you want to plead guilty, and you've
21 indicated that you were worried that if you didn't get a chance
22 to tell your story early in the case, you might somehow be gagged
23 by the Court or you might be put out of the courtroom. You've
24 also expressed in previous proceedings a fear that you might lose
25 your pro se status.
0020
1 Are you pleading guilty today because of any of those
2 fears?
3 THE DEFENDANT: The Court have to consider I do before
4 the Court --
5 THE COURT: I need a yes-or-no answer to the question.
6 THE DEFENDANT: Okay. It's not possible for me to
7 answer in such a short manner, because if you take into account
8 the, the treatment I've been subject, it is, it is logical to
9 assume that you have some incidents, but if you are asking me if
10 somebody has put a gun on my head, no, nobody has put a gun on my
11 head.
12 But I have to say -- I have to take this course of
13 action in order to preserve my life. So this is in my best
14 interest. So I enter this plea of guilty to protect my best
15 interest. That's the most truthful.
16 THE COURT: All right. What you're telling me is
17 you've made a tactical decision that by pleading guilty, you
18 would maximize your chances of avoiding the death penalty with
19 the sentencing jury. Is that basically what you're saying?
20 THE DEFENDANT: I am saying that taking account of my
21 condition and the treatment I've receive, I make this choice in
22 order to save my life; that's correct.
23 THE COURT: All right. Now do you understand that if
24 the Court accepts your guilty plea to any count of the indictment
25 today, as to that count, your guilt will be established, and you
0021
1 cannot come back at the sentencing hearing and say, "I'm not
2 guilty of that offense"?
3 You can, of course, come back and argue the mitigating
4 factor of a reduced or minor role in the offense, and that's what
5 I understand you're trying to do. But if you try to come in at
6 the penalty phase and say, "I wasn't part of that conspiracy," if
7 I have found you guilty of that conspiracy based on your plea,
8 that you can't do. Do you understand that?
9 THE DEFENDANT: I understand that Rule 11 says that in
10 order to, to plead guilty, you have to have some factual basis.
11 Okay?
12 THE COURT: It's not just some. I have to be
13 satisfied, not you, not the government. The Court has to be
14 satisfied that there's enough evidence that is not in dispute to
15 establish your guilt beyond a reasonable doubt for that offense.
16 If the evidence that you agree to is not sufficient to
17 meet that burden, the Court will not accept your guilty plea and
18 cannot under Rule 11. So I want to make sure you understand
19 that.
20 THE DEFENDANT: I understand that the, the nature of
21 the indictment is so vague, okay, where so many other act have
22 been alleged, okay, so then it will be easy in theory for me to
23 plead guilty for 90 percent of the indictment, okay? In theory,
24 I repeat, okay?
25 So if, if I can cover 90 percent of the indictment by
0022
1 saying yes, I'm guilty of this, it will be difficult, I believe,
2 for the Court to deny that there's some factual basis.
3 THE COURT: Well, we'll get to the factual basis down
4 the road. Right now I just want you to understand that's how a
5 guilty plea is done. That is, Rule 11 requires a finding that
6 it's knowing and voluntary and that there is sufficient evidence
7 to support the plea to find the defendant guilty. Do you
8 understand that?
9 THE DEFENDANT: I understand.
10 THE COURT: All right. Do you understand that with a
11 guilty plea, you waive -- essentially waive all
12 non-jurisdictional objections to the prosecution, so many of the
13 various objections you've had to decisions the Court has made
14 along the way, including the Court's denial of your request for a
15 change of venue and that sort of thing, would no longer be an
16 issue that you could raise on appeal. Do you understand that?
17 Because you would be deemed to have waived those types of
18 arguments.
19 THE DEFENDANT: Before I say yes, I understand, I
20 want -- you, you gave me seven different, different set of
21 rights, okay, in your letter.
22 THE COURT: I'm sorry?
23 THE DEFENDANT: You gave me seven different set of
24 rights in your letter.
25 THE COURT: You mean the various rights your giving up
0023
1 with a guilty plea?
2 THE DEFENDANT: Yeah.
3 THE COURT: Right.
4 THE DEFENDANT: And can you tell me which one exactly I
5 will be giving up? Because I have an understanding, okay, for
6 example, the right to counsel, okay?
7 THE COURT: I'm going to go through those with you in a
8 minute. That's not where we are right now. I just want to make
9 sure you understand what I've just asked you.
10 THE DEFENDANT: Yes, I understand that I will be giving
11 up different right.
12 THE COURT: All right. Now Count 1 of the indictment
13 charges you with being a member of a conspiracy to commit acts of
14 terrorism transcending national boundaries. That count exposes
15 you to the possibility of death -- a sentence of death if a death
16 resulted from that conspiracy. Do you understand that?
17 THE DEFENDANT: Yes, I do.
18 THE COURT: In addition, you also could face
19 imprisonment for any term of years or for up to life
20 imprisonment. In other words, those are the various sentencing
21 ranges that apply to that offense. Do you understand that?
22 THE DEFENDANT: I do.
23 THE COURT: All right. Now, Mr. Spencer, just so we're
24 absolutely clear on advising the defendant about his full range
25 of exposures, is there a special assessment for this offense? Is
0024
1 it still the $100 for all of these?
2 MR. SPENCER: Yes, Your Honor.
3 THE COURT: What about the periods of supervised
4 release?
5 MR. SPENCER: May we have just a moment, Your Honor?
6 THE COURT: I know. We have to do this by the --
7 MR. SPENCER: Yes, Your Honor.
8 Five years, Your Honor.
9 THE COURT: Five years? All right.
10 Mr. Moussaoui, do you understand that almost all
11 federal sentences have a prison component, they may have a death
12 component if it's a capital case, and they have what is called a
13 supervised release component. If you receive a term of
14 imprisonment, then when that term of imprisonment has been
15 served, you would go on a period of supervised release.
16 For Count 1, and I'm going to assume for Counts 2, 3,
17 and 4 as well, unless the government advises me otherwise, the
18 maximum period of supervised release would be five years. During
19 that period, if it should ever -- if you should ever get to that
20 point, you would be under the control of a probation officer, and
21 there might be requirements that you do certain things and
22 requirements that you not do certain things.
23 The key factor a defendant needs to understand about
24 supervised release is that if he violates any condition of
25 supervised release, the Court can send him back to prison for as
0025
1 long as that period, which means a five-year exposure. Do you
2 understand that?
3 THE DEFENDANT: Yes, but can I ask you a question about
4 this? Are you saying that if I was to serve a certain time in
5 jail, and when I finish with, I will be -- I will have to stay in
6 the United States for five year, so can people --
7 THE COURT: For up to five years, yes. Supervised --
8 every federal sentence that has a period of imprisonment will
9 also have some period of supervised release that follows it.
10 THE DEFENDANT: And I will have to look for a job.
11 THE COURT: Not necessarily. It would depend what the
12 conditions are. But in any case, I just want you to understand
13 that that is what goes along with a sentence of imprisonment. Do
14 you understand that?
15 THE DEFENDANT: Yeah, I understand the --
16 THE COURT: All right. Now there is also -- is there
17 going to be a fine range for this one? Is that what you're
18 looking at, Mr. Spencer? Mr. Karas?
19 MR. KARAS: Your Honor, Mr. Spencer is looking at the
20 fine range. The other relevant sentencing factor with respect to
21 Count 1 is that any term of imprisonment that is imposed with
22 respect to this count be consecutive to any other terms of
23 imprisonment imposed as to any of the other counts in the
24 indictment, and that is provided for in the statute, 2332b(c)(2).
25 THE COURT: All right. What that means then is if
0026
1 Mr. Moussaoui were found guilty of Count 1 and Count 2, any
2 sentence imposed on Count 1 would have to by law run after the
3 sentence on Count 2, consecutive to it.
4 MR. KARAS: That's correct, Your Honor.
5 THE DEFENDANT: Is it the ruling from you?
6 THE COURT: That's what they're telling me is the law.
7 THE DEFENDANT: Yeah, but I'm talking about you are the
8 law here.
9 THE COURT: No, the law is what the Congress of the
10 United States has said in terms of statutes. I'm relying on the
11 prosecutors, who are the ones who always give us the penalty
12 exposures in a standard plea agreement, and we don't have the
13 standard plea agreement here, as to what your exposure is.
14 THE DEFENDANT: So --
15 THE COURT: Let me repeat. As to Count 1, that
16 conspiracy count exposes you to if a death results, either a
17 sentence of death or a sentence of life imprisonment or a
18 sentence of any term of years.
19 And in addition, you're exposed to an automatic special
20 assessment, which is like a special fine, of $100 -- that cuts
21 across the boards for all felony convictions -- that goes into a
22 victims compensation fund.
23 And in addition, you would be exposed to up to five
24 years of supervised release, which as I said is a period in which
25 you're under the control of a probation officer.
0027
1 And with Count 1, any sentence imposed on Count 1 would
2 have to run consecutive. That means it would not start to run
3 until other sentences had been served.
4 And is there a fine range for this offense?
5 MR. SPENCER: The maximum fine is $250,000.
6 THE COURT: All right, the maximum fine for that
7 offense is $250,000. Do you understand those penalty provisions?
8 THE DEFENDANT: I understand what the prosecution is
9 saying, yeah, but I find it strange that I can't get a ruling
10 from you.
11 THE COURT: I'm telling you those are the, those are
12 the exposures you face for Count 1. Do you understand that?
13 THE DEFENDANT: Yes, I understand.
14 THE COURT: All right. Now with Count 2, Count 2
15 charges you with being involved in a conspiracy to commit
16 aircraft piracy. The standby counsel have raised, and it was
17 raised very recently and so the government had a quick chance to
18 refond to it and, quite frankly, the Court hasn't had as much
19 time as it would normally like to digest that legal argument, but
20 your standby counsel have raised a legitimate argument that the
21 death penalty may not be available for Count 2.
22 What I am prepared to do, unless that changes your
23 decision about pleading at this point, is to advise you as to the
24 ranges that are available and advise you that, in fact, Count 2
25 may not be a death-eligible count. I assume, maybe you didn't,
0028
1 that you read the pleading filed by standby counsel. They raised
2 some significant legal issues as to some of these counts.
3 Did you read their, did you read their memo?
4 THE DEFENDANT: I do not entertain any relation at this
5 stage with, with the standby counsel, so it's impossible for me
6 to have read something I never received.
7 THE COURT: Well --
8 THE DEFENDANT: So --
9 THE COURT: -- you did not receive it?
10 THE DEFENDANT: I didn't -- I don't entertain any
11 relation with them.
12 THE COURT: Well, then you're missing some significant
13 legal issues that they're raising on your behalf. But in any
14 case, I will advise you that Count 2 as it's currently pled and
15 as I think the final ruling of the Court would be, is that it
16 does expose you to the possibility of the death penalty or life
17 imprisonment or any term of years. However, the mandatory
18 minimum, as I understand that offense, would be 20 years of
19 imprisonment. Do you understand that?
20 THE DEFENDANT: I understand.
21 THE COURT: All right. There would again be up to five
22 years of supervised release, a fine of up to $250,000, and a $100
23 special assessment for that count. Do you understand that?
24 THE DEFENDANT: Yes, I understand. But in the letter
25 you addressed me, you didn't, you didn't tell me that Count 2
0029
1 have a minimum period.
2 THE COURT: That issue came up, frankly, after I looked
3 at the position of defense counsel -- standby counsel and then
4 saw the government's response to it.
5 All right. Count 3 is the conspiracy to destroy
6 aircraft, and that is punishable by -- again by a fine of up to
7 $250,000 or a term of imprisonment for not more than 20 years.
8 However, if a death results, which the government has alleged
9 here, then it's punishable by either death or imprisonment for
10 life.
11 Again, I think the five-year supervised release,
12 although it doesn't make sense, still applies even with a life
13 sentence. The $100 special assessment would still apply, and the
14 $250,000 fine would still apply. Do you understand that?
15 THE DEFENDANT: I understand.
16 THE COURT: All right. Count 4 is the conspiracy to
17 use weapons of mass destruction, and there again, if a death
18 results, which is alleged in this indictment, that offense is
19 punishable by death or imprisonment for any term of years or for
20 life imprisonment, with a fine of up to $250,000, five years of
21 supervised release, and a $100 special assessment. Do you
22 understand that?
23 THE DEFENDANT: I understand.
24 THE COURT: All right. Now do you understand that you
25 have an absolute right to plead not guilty to any one or all four
0030
1 of those counts?
2 THE DEFENDANT: Okay. I just want to say that because
3 in the light of the new information you just gave to me, I want
4 to say that, of course, my, my guilty plea is not conditional but
5 is conditional to the fact that there will be a sentencing phase,
6 yes. Because if the government will somehow now manipulate and
7 say that for Count 2, there will be no sentencing death by
8 withdrawing the death penalty and say there is no need, now it
9 will be the judge to decide, I will withdraw, because I want to
10 confront the 12 American people, and that's why I'm pleading like
11 that, okay?
12 So if the government now, because I have not -- I was
13 not informed, okay, were to withdraw the death penalty on Count 2
14 and say that this will be only a mandatory sentence and the judge
15 would rule on this, I will withdraw, and I will plead not guilty.
16 This is consistent with the fact I don't plead guilty
17 on Count 5 and 6, because they are a count who are directly
18 administrated by the judge.
19 THE COURT: Well, do you understand with Counts 5 and
20 6, unless the government chooses to dismiss those counts, they
21 will go forward to trial with a jury?
22 THE DEFENDANT: Yes, I understand this.
23 THE COURT: All right. And it may or may not be the
24 same jury that is going to hear the evidence on the penalty phase
25 of Counts 1 through 4.
0031
1 THE DEFENDANT: It may or may not. That's -- I'm not
2 in charge around here. I learn it.
3 THE COURT: I'm just advising you that don't be
4 surprised at that outcome. I'm not sure yet how we will do that
5 if the government proceeds with Counts 5 and 6.
6 THE DEFENDANT: I know that they, they will do
7 everything it take to convict me.
8 THE COURT: Mr. Spencer?
9 MR. SPENCER: I just want to say for the record, Your
10 Honor, there's no bargain or deal here or agreement whatever. We
11 haven't decided to waive any position possible to us in
12 sentencing at all. We're not accepting a conditional guilty
13 plea, and if that's what he's suggesting, I think the Court needs
14 to query about that farther.
15 THE COURT: If a person pleads guilty, if you continue
16 in your answers to the Court's questions to satisfy me that your
17 plea is a knowing and voluntary plea and if you admit to facts
18 that will support a finding of guilt, then your plea is a plea of
19 guilty, and unless the government agrees to a conditional plea,
20 which would basically be the kind of thing again that is plea
21 bargained, the Court will not accept it; that is, you're found
22 guilty of that offense, and whether it goes to sentencing before
23 a jury or sentencing before the Court you have no control over.
24 THE DEFENDANT: I think this is one interpretation, but
25 I think that I'm pleading guilty on something that is in front of
0032
1 me. I cannot plead guilty of something that was not been
2 submitted to me.
3 So, you know, in order for me to plead guilty, it
4 should be knowing, so I should know what is the, the penalty
5 against me and what are the charge. If the government doesn't
6 tell me what is the penalty, you should not -- I cannot endorse
7 something they are going to do in the future, okay?
8 So at this stage, I plead guilty knowingly, because
9 this is a charge against me, this is a penalty against me, and
10 this is the most logical thing to do. I know that logic doesn't
11 take place around sometime, but I can't plead guilty for
12 something I don't know. That will be nonsense.
13 THE COURT: Well, you're being told what the maximum
14 exposure, what the worst is that could happen to you, which would
15 be a sentence of death.
16 THE DEFENDANT: I'm, I'm not concerned about this. I'm
17 concerned about the fact that the government will manipulate the
18 system of justice to deny me, okay, for this count, Count 2, to
19 appear and to be judged by the 12 jury. If that is their
20 intention, they should say so now, and they say no, he is not
21 going to appear in front of the 12 American, and I will withdraw,
22 and I will plead not guilty on this count. I will plead guilty
23 on all the count who bring me in front of 12 American.
24 I don't know why the government of the United States
25 have a problem to entrust the guilt to 12 American. Do you think
0033
1 they are better?
2 THE COURT: All right. Count 3 exposes you, as I
3 indicated, to conspiracy to destroy aircraft, and I've given you,
4 I believe, the punishments available for that, which is a minimum
5 of 20 years -- I'm sorry, is punishable by fine or imprisonment
6 for not more than 20 years, but if death results, which is what
7 is alleged here, then it's punishable by death or imprisonment
8 for life plus the five-year supervised release period, the
9 $250,000 fine, and the $100 special assessment. Do you
10 understand that?
11 THE DEFENDANT: I do.
12 THE COURT: Now with Count 4, again, your standby
13 counsel have raised an interesting argument. Count 4 charges you
14 with conspiracy to use weapons of mass destruction, and they have
15 made the argument that a domestic aircraft does not qualify under
16 the definitions in the statute as a weapon of mass destruction.
17 We have looked at the government's response that came
18 in today on that issue, and I am satisfied that that argument
19 will not be successful and is not successful.
20 THE DEFENDANT: I mean, that if anybody have been to
21 New York, you will understand they can't be successful, this
22 argument.
23 THE COURT: Well, the difficulty is there's a technical
24 definition under Section 921 of what a destructive device is. A
25 destructive device is defined as it shall not include any device
0034
1 which is neither designed nor redesigned for use as a weapon.
2 The government has argued, I think, adequately that by
3 removing the pilots from the airplane, that constitutes a
4 redesign of the airplane sufficient to render it a destructive
5 device for the definitional limitations of the statute.
6 I accept that argument as making sense, and so --
7 THE DEFENDANT: I don't think so.
8 THE COURT: -- I will deny the defense -- standby
9 defense counsel's motion that that statute would not encompass a
10 domestic airline filled with, with jet fuel that is hijacked and
11 then used to create the impact that it did.
12 Those are the four -- and as to that count, again, if a
13 death results, then the potential penalty to which you are
14 exposed is the possibility of death or imprisonment for any term
15 of years or for life imprisonment, plus a fine of up to $250,000,
16 up to five years of supervised release, and a special assessment
17 of $100. Do you understand that?
18 THE DEFENDANT: I do.
19 THE COURT: Now do you understand that the way in which
20 I am conducting this plea, again, standby counsel have objected
21 to this way, but the government has argued against their
22 position, and I agree with the government on this -- in this
23 respect: The Court is not asking you to admit or deny any of the
24 threshold or aggravating factors that are required to be found by
25 the jury in order for it to consider the penalty of death in your
0035
1 case. Those factors, as you know, were added to the second
2 superseding indictment in its last two pages to comply with the
3 Supreme Court's ruling in Ring.
4 If you are found guilty of the underlying four
5 conspiracies we've described today, then as you appear to
6 understand fully, this case will be set for jury trial, and the
7 jury is going to have two basic -- or actually three basic
8 decisions to make.
9 The first thing the jury has to decide is whether or
10 not the government has proven beyond a reasonable doubt that
11 either, either one or both, but they only need to find one, of
12 the threshold factors alleged in this special finding section of
13 the second superseding indictment have been made out beyond a
14 reasonable doubt. Do you understand that?
15 THE DEFENDANT: I understand what you're saying.
16 THE COURT: And if the jury finds unanimously beyond a
17 reasonable doubt that one or both of the threshold factors have
18 been made, then it moves on to the second stage of the analysis,
19 which is, which is whether or not any of the aggravating -- of
20 the three aggravating factors that have been alleged in the
21 indictment have been proven beyond a reasonable doubt. Do you
22 understand that?
23 THE DEFENDANT: I understand.
24 THE COURT: And in order for the jury to find any of
25 those statutory aggravating factors that are alleged in this
0036
1 case, the jury must be unanimous. Do you understand that?
2 THE DEFENDANT: Yes, I do.
3 THE COURT: All right. Then after that, if the jury
4 has gone that far, you have a right to present any mitigating
5 evidence and make any mitigating arguments that you wish for the
6 jury to consider. Under the statute, for example, a minor or
7 lesser role in the offense is clearly one of the mitigating
8 statutory factors, but you are free to raise any mitigating
9 factor whatsoever, and in fact, the jury is told that they can
10 consider any mitigating factor that they can come up with, even
11 if you never argued it.
12 In other words, those 12 people look at the total
13 amount of evidence before them and can add any mitigating factors
14 that they want. Do you understand that?
15 THE DEFENDANT: Yes, I do. For example, I will be able
16 to point out the existence in the custody of the United States
17 government of a conspirator who, who have worked in this
18 conspiracy, okay? So this also is part of mitigating factor.
19 Because if I should be subject to death penalty, other people
20 should be as well.
21 THE COURT: And that may be an argument that will be
22 successful with the jury. But yes, you'll have a chance to make
23 your arguments.
24 THE DEFENDANT: And also, I will be able to, to point
25 out that the government will say that he was a victim of
0037
1 September 11, as is alleged in the indictment, endorse,
2 participated, and cover the operation. So also, this is
3 something I will raise.
4 THE COURT: Well, we'll get to what you're going to
5 raise down the road. I'm not giving you an advisory opinion now,
6 but I'm indicating that at that trial, you would have a right to
7 raise before the jury any and all proper mitigating factors that
8 you wanted. And as I said, the jury can consider other ones.
9 Then the jury must make their determination, and the
10 issue before the jury is whether or not any one or all of the
11 aggravating factors sufficiently outweigh the mitigating factors
12 to justify the imposition of a death sentence.
13 And in fact, even if there are no mitigating factors,
14 the jury could look at the aggravating factors and still
15 determine there is not sufficient -- that aggravating factors are
16 not sufficient to justify the death penalty. So there's a wide
17 range of discretion that is given to the jury. Do you understand
18 that?
19 THE DEFENDANT: I understand.
20 THE COURT: All right. But what you will not be able
21 to do during the penalty phase of this trial is to come in and
22 say that you were not -- if I have found you guilty of the
23 offense, that you were not part of that conspiracy. Do you
24 understand that? That argument will not -- it is not consistent
25 with an adjudication of guilt.
0038
1 THE DEFENDANT: That's, that's your, your
2 interpretation.
3 THE COURT: No, no, that's how the trial will be run.
4 If you -- you can argue a mitigating role. You can argue that I
5 was on the periphery of this conspiracy, but the jury will get
6 this case with an explicit instruction from the Court that you
7 have admitted being guilty of the conspiracy.
8 THE DEFENDANT: Which one?
9 THE COURT: Count 1, 2, 3, 4, whatever counts we
10 accept, or all four of them.
11 THE DEFENDANT: You, you will tell me where in the
12 indictment it is alleged, at which in the indictment, which point
13 in the indictment it's alleged that I even, I knew about
14 September 11.
15 THE COURT: Well --
16 THE DEFENDANT: It's not even alleged.
17 THE COURT: We're going to move on to --
18 THE DEFENDANT: No, but this is not to be moved. This
19 is essential, okay, in order people to understand my position,
20 okay? I plead guilty to what is in the indictment. I cannot
21 plead guilty to what the, the government is going to allege
22 during trial, okay?
23 Today I have been given a document, a precise document.
24 I read it, and I say that according to Rule 11, I can truthfully
25 say that I had, I had some guilt in the alleged fact who are in
0039
1 this document. For example, they allege that I provide
2 guesthouse. That is possible for me to accept this. It is
3 alleged that I provide training. I can -- it's possible to me to
4 accept this. So there is so many allegation who for me it's
5 possible to accept, but certain of them are not possible.
6 So it is not, it is not proper to say that yes, if I
7 plead guilty, yes, you are on the plane. It doesn't mean. I
8 plead guilty and for what is in the indictment. I cannot plead
9 guilty for something I don't know or is not alleged or -- that's
10 impossible.
11 THE COURT: I explained to you in the letter that was
12 sent to you that the law of conspiracy basically punishes people
13 who join in a common scheme or plan to do something the law
14 forbids. Remember I explained that to you, that what a
15 conspiracy is, it's an agreement between two or more people to do
16 something which the law forbids.
17 THE DEFENDANT: This, this --
18 THE COURT: Do you understand that's what I wrote to
19 you?
20 THE DEFENDANT: Yes, I understand very much that the
21 conspiracy law that say that it's an agreement between two or
22 more people to carry on some action by legal or illegal mean, and
23 the object of the action is, is illegal.
24 So I can, I can plead guilty on this, but it doesn't
25 still put me on the plane. It mean that yes, the law, the law of
0040
1 America prohibited to, to have terrorist activity, to do, to, for
2 example, to provide guesthouse, to provide training.
3 This is all in the indictment, so I'm truthful. I
4 don't cheat, I don't lie, I don't evade. I'm saying yes, I might
5 at some time have engaged in this kind of thing, okay? But it
6 doesn't mean that I'm on the plane.
7 You want me to, to plead guilty to both phase of the
8 element. You are pushing me in order so I will endorse the
9 theory of the government, not factual basis.
10 The Rule 11 is very clear, there should be factual
11 basis for my guilty plea. And I'm asking the Court to allow me
12 to go through the indictment and to show to everybody where are
13 the factual basis for me to enter truthfully a guilty plea.
14 THE COURT: All right, we're going to go through the
15 essential elements now.
16 THE DEFENDANT: That's the one you did of mine --
17 THE COURT: The essential elements involve --
18 THE DEFENDANT: -- according to the wish of the
19 government, but the factual basis is was I or not in Khalden?
20 Was I not in Kandahar? That's the fact. But then what they
21 propose me to endorse is theory.
22 THE COURT: All right. In Count 1, the essence of the
23 agreement, the essence of the conspiracy in Count 1 is a
24 conspiracy occurring in the Eastern District of Virginia, the
25 Southern District of New York, and elsewhere that you, using your
0041
1 own name as well as the names of Shaqil and Abu Khalid al
2 Sahrawi, willfully and knowingly agreed with members and
3 associates of al Qaeda, an international terrorist group
4 dedicated to opposing non-Islamic governments with force and
5 violence, to kill and maim persons within the United States and
6 to create a substantial risk of serious bodily injury to other
7 persons by destroying and damaging structures, conveyances, and
8 other real and personal property within the United States, in
9 violation of the laws of both the states and the United States,
10 and that you did this in circumstances involving conduct that
11 transcended national boundaries and in which facilities of
12 interstate and foreign commerce were used in furtherance of the
13 offense, and the offense obstructed, delayed, and affected
14 interstate and foreign commerce.
15 The victim was the United States government and members
16 of the United States uniformed services, as well as officials,
17 officers, employees, and agents of the government branches,
18 departments, and agencies of the United States, and the
19 structures, conveyances, and other real and personal property
20 were in whole or part owned, possessed, and leased to the United
21 States and its departments and agencies, resulting in the deaths
22 of thousands of persons on September 11, 2001.
23 Now the nature of that conspiracy in Count 1 is an
24 agreement between you and at least one other person, some of whom
25 were members or associates of al Qaeda, and that the agreement,
0042
1 the essence of this conspiracy was to kill and maim persons
2 within the United States and to create substantial risk of bodily
3 injury to such persons by destroying structures and other such
4 things, and that interstate or transnational boundaries were
5 crossed. That's the essence of that conspiracy.
6 Do you understand that, Mr. Moussaoui?
7 THE DEFENDANT: I understand, but I think that you
8 don't understand maybe because of the accent, you know, so rather
9 not to go again through what I just say, I will just point out to
10 your own word, maybe that you will understand your own word.
11 To be guilty of a conspiracy, a defendant need not know
12 all the member of the conspiracy, need not to have been a member
13 of the conspiracy for the entire existence, need not to know all
14 the goal of the conspiracy, and need not himself have committed
15 an overt act. He must, however, have entered a mutual
16 understanding with one or more of the coconspirators with the
17 knowledge of at least some of the unlawful objective of the
18 conspiracy and with the intention of aiding the conspiracy and
19 achieving its unlawful objective or objectives.
20 So you will tell me if I understand wrongly your own
21 word, that somebody can be in a conspiracy without knowing all
22 the member, knowing they exist, all the fact of the conspiracy,
23 but he should know and have agreed about some of unlawful
24 objectives, correct?
25 THE COURT: Correct.
0043
1 THE DEFENDANT: Okay. So to provide, to provide
2 guesthouse, okay, it is in the indictment. It is part of the,
3 the conspiracy.
4 So I can say, for example, it's only an example, yes, I
5 provide guesthouse, but I did not know about September 11.
6 That's your own word. You say that there is no contradiction.
7 THE COURT: It doesn't work that way.
8 THE DEFENDANT: Yeah, you work according to your own
9 word.
10 THE COURT: You still -- the conspiracy here, there are
11 certain objectives or purposes of the conspiracy in Count 1. The
12 first one would be to kill and maim persons within the United
13 States.
14 Now if you're standing in court today and saying that
15 yes, I was a member of al Qaeda, or I had friends in al Qaeda,
16 and maybe I provided a guesthouse to some al Qaeda people, but I
17 never intended or I never agreed to create -- to kill or maim
18 persons in the United States, then you're not agreeing to this
19 particular conspiracy.
20 This conspiracy also indicates to create a substantial
21 risk of serious bodily injury to another person by destroying or
22 damaging structures. If you're saying to the Court you never
23 agreed with anybody to destroy or damage structures or to injure
24 people -- and that's your right to say you never did that -- but
25 what I'm telling you then is I can't accept your guilty plea,
0044
1 because you're not admitting to this offense, and you should not
2 admit to the offense if you don't agree that you did that.
3 THE DEFENDANT: No, I think that that's, of course,
4 your interpretation, because if you go back to Rule 11, it
5 doesn't support your interpretation. The factual basis are it's
6 a very simple thing.
7 THE COURT: But the factual basis, Mr. Moussaoui -- I
8 agree with you that you don't have to agree to necessarily every
9 fact in the government's proffer, but the essence of a conspiracy
10 is that a person joins with one or more people to do something
11 the law forbids. In other words, you have to agree if you're in
12 a conspiracy that you understand the conspiracy's goal is to do
13 X, or if there are five goals, it may be that only knowledge of
14 one or two is sufficient. Otherwise, you're not a member of that
15 conspiracy.
16 So, for example, if you came to the United States to
17 learn how to fly crop duster planes because down the road maybe
18 you were going to poison somebody's water supply, that's not the
19 conspiracy alleged in this case.
20 THE DEFENDANT: You know, you can use a crop duster to
21 destroy heroin crops as well.
22 THE COURT: In any case, what I'm saying to you is I
23 don't think based upon the way you're responding to the Court's
24 questions that you're prepared to admit the essential factual
25 elements that are necessary to find a person guilty of a
0045
1 conspiracy.
2 We could try to move on to another one of these counts
3 if Count 1 is tripping you up, but the simple fact is that unless
4 a person is, in fact -- did, in fact, join with others to achieve
5 certain common goal or purpose, there has to be a commonality
6 there, and if you're not admitting to the commonality, you're not
7 admitting to these conspiracies. Do you understand that?
8 THE DEFENDANT: I understand what you are saying. I
9 disagree, because you are saying, your own words, that --
10 THE COURT: What you may want to do is you may want to
11 stipulate -- it sounds as though you're not disputing that you
12 were at one of these training camps in, in al Qaeda. It sounds
13 as though you're not, you're not disagreeing with some of the
14 facts in the indictment.
15 You may want to therefore consider stipulating to those
16 particular facts, in which case there doesn't have to be any
17 evidence presented on them, but at this point, I don't believe
18 that you are prepared to enter guilty pleas to any of these
19 counts, because you're not admitting to -- or not prepared to
20 admit, it seems to me, to the essence of the conspiracy.
21 Should we try the second, third, or fourth counts?
22 THE DEFENDANT: Go ahead.
23 THE COURT: All right. Count 2 charges that from 1989
24 until July of 2002, in the Eastern District of Virginia, the
25 Southern District of New York, and elsewhere -- and again, you
0046
1 can join a conspiracy at any point. You don't have to have been
2 in it since 1989, but you have to have joined in it at some point
3 during its life -- you, using your own name as well as the name
4 Shaqil and Abu Khalid al Sahrawi, willfully and knowingly agreed
5 with members and associates of al Qaeda, an international
6 terrorist group dedicated to opposing non-Islamic governments
7 with force and violence, to commit aircraft piracy by seizing and
8 exercising control of aircraft in the special aircraft
9 jurisdiction of the United States by force, violence, threat of
10 violence, and intimidation, and with wrongful intent, with the
11 result that thousands of people died on September 11, 2001.
12 Now to be guilty of that conspiracy, you would -- the
13 government would first of all have to prove beyond a reasonable
14 doubt that that specific conspiracy, that is, that there was a
15 conspiracy with members of al Qaeda and others to commit aircraft
16 piracy.
17 No. 2, they'd have to prove that at some point during
18 the existence of that conspiracy, that you, knowing that that was
19 the goal, that is, that this group of people planned to hijack
20 aircraft, joined it. You agreed to help become a part of that.
21 That's the essence of what they would have to agree --
22 prove, that there was the conspiracy and that you knowingly and
23 willfully joined that conspiracy in order to further its goals.
24 Do you understand that?
25 THE DEFENDANT: I understand what you are saying.
0047
1 THE COURT: Now do you have -- are you able to agree to
2 the facts that I've just alleged here or just described for you?
3 That is, do you agree that you joined with members of al Qaeda in
4 a plan to seize and exercise control over aircraft in the special
5 aircraft jurisdiction of the United States?
6 THE DEFENDANT: I'm going to have a recess.
7 THE COURT: All right. I think then that the
8 defendant's answers to these questions indicate that he is not
9 entering guilty pleas, which is his absolute right. That's not
10 in any respect --
11 THE DEFENDANT: I want to recess for, like, ten
12 minutes.
13 THE COURT: You want to think about that?
14 THE DEFENDANT: Yes, I want to recess. Then I will
15 make my, my position --
16 THE COURT: Would you like Professor Reza to talk to
17 you at all?
18 THE DEFENDANT: No, I don't need anything. I just
19 want, like, 15 minutes, and I will be back.
20 THE COURT: All right, we'll take a 15-minute recess.
21 (Recess from 2:03 p.m., until 2:17 p.m.)
22 (Defendant present.)
23 THE COURT: All right, Mr. Moussaoui, you may go back
24 up to the lectern.
25 Mr. Moussaoui, we were addressing the essential
0048
1 elements of Count 2, which is a conspiracy to commit aircraft
2 piracy, and you wanted a recess to think about that.
3 THE DEFENDANT: Yes. But -- Amuseliyyah Mohammad,
4 please be open the Prophet Mohammad.
5 Today we are, we are here because I ask to plead
6 guilty, and there was one -- somebody say to be or not to be,
7 that is the question. And today I say guilty or not guilty, that
8 is the question.
9 Because I want to plead guilty, but you want to tie me,
10 to link me to certain facts who will guarantee my death. And as
11 I say before, in Islam society is forbidden, so I cannot endorse
12 any action who in a direct manner, in a rational manner will
13 conduct my death.
14 And because of the different condition you put on my,
15 on my guilty plea, this condition was not very anticipated,
16 because the Rule 11 talk about factual basis. You, you talk
17 about essential fact, element. That's quite different, because
18 it's a new -- the old judgment, factual basis is for everybody
19 to judge.
20 So the government in its opposition to the standby
21 counsel supplemental memorandum to support the motion to dismiss
22 government notice of intent to seek sentence of death stated,
23 anyway, the government stated that we see no reason why a jury
24 cannot be convened for the sole purpose of deciding the fact, the
25 fact that will determine my sentence, meaning that there is no
0049
1 reason why I should not be in front of a jury and to define what
2 are the fact I'm responsible.
3 I'm referring to United States v. Henry. It's a
4 ruling.
5 So what I say, it seems that I will not be, have this
6 changed, with the different condition that you are putting on me,
7 because what I will agree, okay, it's the same, the same
8 stipulation that the government wanted me to endorse and the same
9 thing were in the notice, notice of special finding, meaning for
10 the death penalty.
11 And I cannot do this, because my own point, like I say
12 clearly and consistently, my own point is to be able to put
13 forward to the American people my role when I came to the United
14 States, what I did and what I didn't do. And that's why I make
15 this move.
16 So rather than to, to take a stead-bone position and
17 because I know that you will not change your mind because you
18 have consistently sided with the government, and I don't want to
19 enter a controversy here, but that's a fact, but dictated by my
20 obligation toward my creator, Allah, to save my life and to
21 defend my life, I have to withdraw my guilty plea.
22 THE COURT: As I told you, Mr. Moussaoui, I have
23 advised you consistently to think carefully about this decision.
24 This is not an unwise decision on your part. You clearly are not
25 admitting to the essential elements of these conspiracies, and
0050
1 you have an absolute right under our criminal justice system to
2 require the government to put its proof before a jury and see
3 whether they have sufficient evidence to convince the jury beyond
4 a reasonable doubt.
5 If they don't have that evidence, you'll be found not
6 guilty. But this is your right, and we will not hold against you
7 in any respect the fact that you attempted -- and the record will
8 reflect, and I'm not going to permit the government during the
9 trial to make reference to the fact that the defendant tried to
10 plead guilty. There has been no guilty plea in this case and --
11 because there has not been a sufficient admission -- of course,
12 we haven't formally gotten to that yet, but it is clear that you
13 are not admitting to the essential elements of the specific
14 conspiracies that are described here.
15 THE DEFENDANT: I have to say that in term of
16 tactically, this also have made many drawback for me, because it
17 will allow in the future, as they have just indicated, these
18 people, referring to the people that you have put on my back,
19 the -- at least these people, I know that they are my enemy.
20 These people, they are coming from the back. It is most
21 disgusting.
22 So, so I will have still to fight their attempt to
23 remove me, because the whole point is to have me removed from my
24 defense. That's why I decided this in the first place, so I
25 could put my, my story forward.
0051
1 So I can -- I believe that in the future they will try
2 again to say that I'm mentally deficient or whatever, okay, but
3 to this point, I'm going to have a change of tactic as well.
4 I'm going to assign them, because in theory you have
5 said that these people are at my service, and they are here to
6 help me. That's what you have consistently say in your order.
7 Okay? So I'm going to assign them to find different witness,
8 because then I will be able to expose them just pretending to
9 want to help me.
10 And I, I have asked the French counselor, the French
11 government to assign Mr. Freeman to be my counsel from the French
12 counselor. This is allowable by the SAM.
13 So if the French counselor decide to assist, assist me,
14 at the moment more than a week they have done nothing to help me,
15 despite me being born and bred in France, but I have too much of
16 a beard, I believe. So --
17 THE COURT: All right. Well, Mr. Moussaoui, you
18 also --
19 THE DEFENDANT: So I just want to say this small change
20 in thing, okay? I want to, still to contact Mr. Freeman. I will
21 talk to Mr. -- the gentleman --
22 THE COURT: Professor Reza?
23 THE DEFENDANT: I will talk to Mr. Reza. But I will
24 not meet with any of these people, because it's just impossible.
25 I will entertain written conversa- -- communication to indicate
0052
1 to them who are the people who are implicated in this conspiracy,
2 the people in Britain, especially a person with the name of
3 Ahmed, Atif Ahmed, who is British agent who have, who have taken
4 a very important part in this conspiracy. And the FBI know about
5 this. And I will apply again to appear in front of the grand
6 jury.
7 But I want to say to everybody for the record that my
8 aim in pleading guilty was to expose all the information I have.
9 And it is unbelievable that in your own society, somebody cannot
10 talk about what he know in a criminal justice system.
11 THE COURT: All right. I would also advise you, I
12 believe that your mother is in court today with the attorney who
13 has been laboring at her side. You have Professor Reza here.
14 There are legal resources available to you, but I understand you
15 will be communicating by mail with standby counsel and I --
16 THE DEFENDANT: I will indicate to them what the name
17 of the witness in order for me either to expose them as what they
18 are or to receive the witness in court. But the only people who
19 are allowed to speak on my behalf are not these people. I want
20 to make it clear these people do not speak on my behalf. Only
21 Brother Freeman speak on my behalf, is the only person. That the
22 record will show it, people will know, Brother Freeman from
23 Houston is the only person entitled to say a word to the outside
24 world on my behalf.
25 THE COURT: All right. Well, you understand my ruling
0053
1 on that. All right. There is nothing further, unless there is
2 anything that the government --
3 THE DEFENDANT: No, I don't understand your ruling on
4 this, sorry.
5 THE COURT: Well, I have -- anything further?
6 THE DEFENDANT: What is your ruling, please?
7 MR. SPENCER: No, there is not.
8 THE COURT: Mr. Freeman, because he is not admitted to
9 practice in this Court and has refused to enter his appearance
10 formally on your behalf so that he is accountable to the Court,
11 is not deemed to be an attorney of record for purposes of the
12 SAM.
13 Now, if the government wants to change the SAM -- this
14 is not the Court's rule, this is the Justice Department's
15 regulations that apply to your incarceration. If the United
16 States doesn't care about Mr. Freeman having access to you,
17 that's up to them, but as long as the SAM is in place, then the
18 Court is required to follow the SAM unless it is changed, and
19 this man cannot appear as an attorney. He's no different from
20 any person on the street, because although he is a lawyer, he is
21 not admitted to practice here. I have told you that and him that
22 numerous times in my orders.
23 THE DEFENDANT: Okay. But there is one thing. The
24 government doesn't say this, because I received this morning the,
25 the memorandum for the Court of Appeal. Inside this the
0054
1 government was saying that, in fact, you have issued an order to
2 bar Mr. Freeman to access me. And in the same, same -- I have
3 the thing with me. If you allow me two minutes, I will produce
4 it.
5 So the government is saying that you are responsible
6 for me not having Mr. Freeman. That's written. And you have to
7 give me two minutes to get something. And you are saying in the
8 letter to Mr. Freeman that I received this morning that you
9 didn't issue the order, so who, who is to believe?
10 Either you are saying now that you didn't issue this
11 order or they have been lying to the Court of Appeals, because
12 they have stated clearly -- I can show it to you -- that they --
13 you have issue an order barring Mr., Mr. Freeman and the Court of
14 Appeal should not repeal this order. That's the statement of the
15 government, so who should I believe?
16 THE COURT: I'll say -- Mr. Moussaoui, I'll say it one
17 more time. The SAM says you get the right to unmonitored visits
18 only with the attorney of record. That's the term that they use.
19 All this Court has said is that Mr. Freeman cannot and
20 does not qualify as an attorney of record because he has
21 consistently made it clear that he is not entering an appearance
22 on your behalf.
23 Moreover, he couldn't without going through -- and he
24 could get admitted to practice here if he followed the local
25 rule. So we have a lawyer who is not admitted to practice in
0055
1 this district, who is not the attorney of record representing
2 you.
3 Therefore, under the SAM, he is no different from any
4 member of the public. Now, members of the public can write to
5 you under the SAM. That letter would be reviewed by an FBI
6 agent, and if there was no objection to it, it would go to you.
7 THE DEFENDANT: Nothing have come to me.
8 THE COURT: You can write -- I'm sorry?
9 THE DEFENDANT: Nothing come to me. I have been months
10 in jail. I don't have one paper.
11 THE COURT: Then no one is writing to you.
12 THE DEFENDANT: No, no, that not correct. That just
13 not the case.
14 THE COURT: Well, Mr. Moussaoui, we've had a very --
15 we had a very civilized hearing today. There is nothing further
16 before the Court, and we are going to recess court for the day.
17 Defendant is remanded at this time.
18 (Which were all the proceedings
19 had at this time.)
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0056
1 CERTIFICATE OF THE REPORTERS
2 We certify that the foregoing is a correct transcript of the
3 record of proceedings in the above-entitled matter.
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Anneliese J. Thomson
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9 Karen Brynteson
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