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United States v. Moussaoui: 

Jury Instructions for Penalty Phase Part Two 

Hon. Leonie M. Brinkema

Eastern District of Virginia 

April 24, 2006 

The following instructions were prepared by the Eastern District of Virginia’s 

United States District Judge Leonie M. Brinkema for jurors deciding the sentence 

of a capital defendant convicted of conspiracy with perpetrators of the September 

11, 2001, attacks on New York and Washington, in United States v. Moussaoui, 

No. 1:01-cr-455 (E.D. Va. Dec. 11, 2001). The defendant pleaded guilty, and the 

jury previously found that he lied to federal agents knowing deaths would result. 

Jury Instructions for Part Two of the Bifurcated Penalty Phase 

Closing Instruction One: 

Introduction to the Closing Instructions for Part II 

Members of the Jury, you have now heard all of the evidence in the case, as well 

as the final arguments of the lawyers for the Government and for the Defendant. 

It becomes my duty, therefore, to instruct you on the rules of law that you must 

follow in arriving at your decision as to the appropriate sentence for the Defendant. Regardless of any opinion you may have as to what the law may be—or 

should be—it would be a violation of your oaths as jurors to base your decision 

upon any view of the law other than that given to you in these instructions. 

The decision as to the appropriate sentence is left exclusively to the jury. I 

will not be able to change any decision you reach in this regard. You, and you 

alone, will decide whether or not the Defendant should be sentenced to death or 

to life imprisonment without the possibility of release. Thus, I again stress the 

importance of your giving careful and thorough consideration to all evidence before you. I also remind you of your obligation to follow strictly the applicable 

law. 

The instructions I am giving you now are a complete set of instructions on 

the law applicable to the decision in this phase of sentencing. I have prepared 

them to ensure that you are clear in your duties at this extremely serious stage of 

the case. I have also prepared a Special Verdict Form for each capital count that 

you must complete. 

Closing Instruction Two: 

Aggravating and Mitigating Factors Generally 

Although the law leaves it to you the jury to decide in your sole discretion 

whether the Defendant should be sentenced to death, the law narrows and channels your discretion in specific ways, particularly by requiring you to consider 

and weigh any “aggravating” and “mitigating” factors present in this case. These 

factors have to do with the nature and circumstances of the crime itself and the 

personal traits, character, and background of the Defendant, and other facts and 

circumstances that may be relevant to your decision. “Aggravating factors” are 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

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those facts or circumstances that would tend to support imposition of the death 

penalty as to a particular defendant. “Mitigating factors” are those facts that suggest that some punishment less than the death penalty is sufficient to do justice 

with respect to a particular defendant. 

Your task is not simply to decide whether aggravating and mitigating factors 

exist in this case. Rather, you are called upon to evaluate any such factors and to 

weigh them against each other to make a unique, individualized, and reasoned 

moral judgment about the appropriateness of the death penalty as a punishment 

for each capital offense for the Defendant. In short, the law does not assume that 

the Defendant before you at this phase of the trial should be sentenced to death. 

That decision is committed to the jury based on its careful weighing of the aggravating and mitigating factors as found by the jury. 

Closing Instruction Three: 

Burden of Proof for Aggravating Factors 

The burden to prove the existence of an aggravating factor is on the Government, 

and the existence of an aggravating factor must be proved beyond a reasonable 

doubt to your unanimous satisfaction. 

Proof beyond a reasonable doubt means that the jury may not base any finding on mere suspicion or conjecture. However, reasonable doubt does not mean 

that the Government must establish the aggravating factor beyond all possible 

doubt. 

Closing Instruction Four: 

Stipulations 

The lawyers have stipulated to a great deal of evidence in this case, including the 

testimony of witnesses who could not testify in person. I remind you that, when 

the attorneys on both sides stipulate or agree on the existence of a fact, the jury 

must, unless otherwise instructed, accept the stipulation and regard the fact as 

proved. 

Closing Instruction Five: 

Information Introduced During Sentencing Hearing 

You may consider any information that was presented during either sentencing 

phase. In deciding what the facts are, you may have to decide what testimony you 

believe and what testimony you do not believe. You may believe all of what a 

witness said, or only part of it, or none of it. Moreover, in your consideration of 

the evidence, you are not limited to the bald statements of the witnesses. In other 

words, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts which you find have been proved, 

such reasonable inferences as you feel are justified in the light of experience. 

An inference is not a suspicion or a guess. It is a reasoned, logical decision to 

conclude that a disputed fact exists on the basis of another fact that you know 

exists. There are times when different inferences may be drawn from facts, 

whether proved by direct or circumstantial evidence. The Government asks you 

to draw one set of inferences, while the defense asks you to draw another. It is for 

you, and you alone, to decide what inferences you will draw. 
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The process of drawing inferences from facts is not a matter of guesswork or 

speculation. An inference is a deduction or conclusion that you, the jury, are 

permitted to draw—but not required to draw—from the facts that have been established by either direct or circumstantial evidence. In drawing inferences, you 

should exercise your common sense. So, while you are considering the information presented to you, you are permitted to draw, from the facts that you find to 

be proved, such reasonable inferences as would be justified in light of your experience. 

Remember that any statements, objections, or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those 

things that are most significant or most helpful to their side of the case, and in so 

doing to call your attention to certain facts or inferences that might otherwise 

escape your notice. In the final analysis, however, it is your own recollection and 

interpretation of the information that controls in the case. What the lawyers say is 

not binding upon you. Also, during the course of the sentencing proceeding, I 

occasionally made comments to the lawyers, asked questions of a witness, and 

admonished a witness concerning the manner in which he or she should respond 

to the questions of counsel. Do not assume from anything I may have said that I 

have any opinion concerning any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the 

trial in arriving at your own findings as to the facts. 

Closing Instruction Six: 

Credibility of Witnesses 

You have had an opportunity to observe all of the witnesses, except for the witnesses whose testimony was presented by stipulation. It is now your job to decide 

how believable each witness was in his or her testimony. You are the sole judges 

of the credibility of each witness and of the importance of his or her testimony. 

It must be clear to you by now that you are being called upon to resolve various factual issues in the face of the different pictures painted by the Government 

and the defense which cannot be reconciled. You will now have to decide where 

the truth lies, and an important part of that decision will involve making judgments about the testimony of the witnesses you have listened to and observed. In 

making those judgments, you should carefully scrutinize all of the testimony of 

each witness, the circumstances under which each witness testified, and every 

matter in evidence that may help you to decide the truth and the importance of 

each witness’s testimony. 

Your decision whether or not to believe a witness may depend on how the 

witness impressed you. Was the witness candid, frank, and forthright? Or did the 

witness seem as if he or she was hiding something, being evasive or suspect in 

some way? How did the way the witness testified on direct examination compare 

with how the witness testified on cross-examination? Was the witness consistent 

in his or her testimony or did the witness contradict himself or herself? Did the 

witness appear to know what he or she was talking about, and did the witness 

strike you as someone who was trying to report his or her knowledge accurately? 

How much you choose to believe a witness may be influenced by the witness’s bias. Does the witness have a relationship with the Government or the De-
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fendant that may affect how he or she testified? Does the witness have some incentive, loyalty, or motive that might cause him or her to shade the truth, or does 

the witness have some bias, prejudice, or hostility that may have caused the witness—consciously or not—to give you something other than a completely accurate account of the facts to which the witness testified? 

Even if the witness was impartial, you should consider whether the witness 

had an opportunity to observe the facts he or she testified about, and you should 

also consider the witness’s ability to express himself or herself. Ask yourselves 

whether the witness’s recollections of the facts stand up in light of all other evidence. 

In other words, what you must try to do in deciding credibility is to size a 

person up in light of his or her demeanor, the explanations given, and all the 

other evidence in the case, just as you would in any important matter where you 

are trying to decide if a person is truthful, straightforward, and accurate in his or 

her recollection. In deciding the question of credibility, remember that you 

should use your common sense, your good judgment, and your experience. 

Inconsistencies or discrepancies in the testimony of a witness, or between the 

testimony of different witnesses, may or may not cause the jury to discredit such 

testimony. Two or more persons witnessing an incident or a transaction may see 

or hear it differently; an innocent misrecollection, like failure of recollection, is 

not an uncommon experience. In weighing the effect of a discrepancy, always 

consider whether it pertains to a matter of importance or an unimportant detail, 

and whether the discrepancy results from innocent error or intentional falsehood. 

After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves. 

Closing Instruction Seven: 

Expert Witnesses 

During this last phase of this sentencing proceeding, you heard the testimony of 

numerous expert witnesses, whose areas of expertise are indicated in parentheses 

after their names. These expert witnesses include: Special Agent James Fitzgerald (FBI–hijacked flights), Special Agent Jacqueline MaGuire (FBI–Flight 

77/Pentagon), Detective Sgt. Ray Guidetti (Flight 93), James Cash (NTSB–Flight 

93), James E. Aiken (prisons/corrections), Jan Vogelsang (mental health), Dr. 

Xavier Amador (mental health), Dr. Paul Martin (indoctrination/cults), Michael 

First (mental health), and Dr. Raymond Patterson (mental health). 

If scientific, technical, or other specialized knowledge might assist the jury in 

understanding the evidence or in determining a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, training, or education may testify 

and state an opinion concerning such matters. 

Merely because an expert witness has expressed an opinion does not mean, 

however, that you must accept this opinion. As with any other witness, it is up to 

you to decide whether you believe this testimony and choose to rely upon it. Part 

of that decision will depend on your judgment about whether the witness’s background or training and experience is sufficient for the witness to give the expert 

opinion that you heard. You must also decide whether the witness’s opinions 

were based on sound reasons, judgment, and information. 
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Closing Instruction Eight: 

Written Summaries—Use As Evidence 

During the trial of this case, the testimony of several enemy combatant witnesses 

was presented to you through written summaries that were read into the record 

and introduced as exhibits. Although you did not have the ability to observe the 

witness’s demeanor as he testified, you must approach these statements with the 

understanding that they were made under circumstances designed to elicit truthful statements from the witnesses. Such testimony is entitled to the same consideration, and is to be judged as to credibility and weighed and otherwise considered by the jury, in so far as possible, in the same way as if the witness had been 

present and had testified from the witness stand. 

In evaluating the truthfulness of these statements, you should consider all 

other evidence in this case, including all exhibits, regardless of which side may 

have produced the exhibit, and all other witnesses’ testimony, including summarized statements of other enemy combatant witnesses, that tends to either corroborate or contradict the accuracy of the enemy combatant witness’s statements. 

It is solely up to the jury to decide how much, if any, of any witness’s testimony 

to credit. 

Closing Instruction Nine: 

Testimony of Defendant 

The law permits a defendant, if he so desires, to testify in his own behalf. A defendant who wishes to testify is a competent witness and his testimony is to be 

judged in the same way as that of any other witness. 

Closing Instruction Ten: 

Courtroom Security 

You may have noticed extra security in the courtroom during the course of the 

trial. The added security was merely a precautionary measure by the U.S. Marshals due to the high-profile nature of the case. Please do not let their presence 

influence your decision-making process regarding the appropriate penalty for Mr. 

Moussaoui. 

Closing Instruction Eleven: 

Separate Deliberations 

You must deliberate and determine the appropriate sentence for each of the 

Counts separately. Although I will be discussing the Counts as a group, your 

findings regarding the aggravating factors and all other issues pertaining to these 

Counts must treat each of these Counts separately. It is possible that even though 

all of the Counts are connected with the broader offense you may find differences 

that would justify different sentences on different Counts. 

The instructions I am about to give you, as well as the Special Verdict Form 

you will be completing, will first address your findings, if any, regarding the 

statutory aggravating factors identified by the Government with regard to each 

Count. The instructions and the Special Verdict Form thereafter address your 

findings, if any, as to each Count regarding the existence of non-statutory aggra-
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vating factors and mitigating factors, as well as the weighing of aggravating and 

mitigating factors. 

Closing Instruction Twelve: 

Statutory Aggravating Factors 

As I told you earlier, during this phase you will first be asked to determine 

whether the Government has proved at least one statutory aggravating factor beyond a reasonable doubt. You must unanimously find that at least one of the 

statutory aggravating factors offered by the Government is established beyond a 

reasonable doubt to further consider imposition of the death penalty against the 

Defendant. You are permitted to find more than one statutory aggravating factor 

for each count. Thus, you must fully consider each statutory aggravating factor 

and indicate on the Special Verdict Form whether the Government has proved 

each beyond a reasonable doubt. Finally, let me reiterate that if, with respect to 

any capital count, you do not unanimously find that the Government has proved 

beyond a reasonable doubt at least one statutory aggravating factor, your deliberations as to that particular count are concluded. 

The statutory aggravating factors alleged by the Government are: 

1. The Defendant, in the commission of the offense, knowingly created a 

grave risk of death to one or more persons in addition to the victims of 

the offense. 

2. The Defendant committed the offense in an especially heinous, cruel, or 

depraved manner in that it involved torture or serious physical abuse to 

the victim or victims. 

3. The Defendant committed the offense after substantial planning and 

premeditation to cause the death of a person or commit an act of terrorism. 

I will define each for you now. 

Closing Instruction Thirteen: 

Grave Risk of Death to Others 

The first statutory aggravating factor alleged by the Government with regard to 

the capital counts is that, in the commission of the particular offenses, the Defendant knowingly created a grave risk of death to one or more persons in addition 

to the deceased victims identified in the particular capital count. 

To establish the existence of this factor, the Government must prove beyond 

a reasonable doubt that the Defendant, in committing the offense described in the 

capital count you are considering, knowingly created a grave risk of death to one 

or more persons in addition to the deceased victims identified in the particular 

count. 

“Knowingly” creating such a risk means that the Defendant was conscious 

and aware that his conduct in the course of committing the offense might have 

this result. The Defendant’s conduct cannot merely have been the product of ignorance, mistake, or accident. Knowledge may be proved like anything else. You 

may consider any statements made and acts done by the Defendant, including his 

testimony from both phases of this proceeding and his statements when he 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

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pleaded guilty to the capital offenses, and all facts and circumstances in evidence 

that may aid in a determination of the Defendant’s knowledge. 

“Grave risk of death” means a significant and considerable possibility that 

another person might be killed. In order to find that the Government has proved 

this factor beyond a reasonable doubt, you must unanimously agree on a particular person or a class of persons who were placed in danger by the Defendant’s 

actions. 

“Persons in addition to the victims” include innocent bystanders in the zone 

of danger created by the Defendant’s acts, but do not include other participants in 

the offense. 

Your finding as to this statutory aggravating factor must be indicated in the 

appropriate space in the Special Verdict Form. 

Closing Instruction Fourteen: 

Commission of Offense in Especially Heinous, Cruel, or Depraved Manner 

The second statutory aggravating factor alleged by the Government for each 

capital offense is that the Defendant committed the offense in an especially heinous, cruel, or depraved manner, in that it involved torture or serious physical 

abuse to the victims. You may not find this factor to exist unless you unanimously agree on which alternative—torture or serious physical abuse—has been 

proved beyond a reasonable doubt. In other words, all twelve of you must agree 

that it involved torture and was thus heinous, cruel, or depraved; or all twelve of 

you must agree that it involved serious physical abuse to the victim and was thus 

heinous, cruel, or depraved. Of course, all twelve of you may agree on both. 

The word “especially” means highly or unusually distinctive, peculiar, particular, or significant, when compared to other killings. 

“Heinous” means extremely wicked or shockingly evil, where the killing was 

accompanied by such additional acts of torture or serious physical abuse of the 

victim as to set it apart from other killings. 

“Cruel” means that the Defendant intended to inflict a high degree of pain by 

torturing the victim in addition to killing the victim. 

“Depraved” means that the Defendant relished the killing or showed indifference to the suffering of the victim, as evinced by torture or serious physical abuse 

of the victim. 

“Torture” includes mental as well as physical abuse of the victim. In either 

case, the victim must have been conscious of the abuse at the time it was inflicted, and the Defendant must have specifically intended to inflict severe mental 

or physical pain or suffering upon the victim in addition to the killing of the victim. 

“Serious physical abuse” means a significant or considerable amount of injury or damage to the victim’s body. Serious physical abuse—unlike torture—

may be inflicted either before or after death and does not require that the victim 

be conscious of the abuse at the time it was inflicted. However, the Defendant 

must have specifically intended the abuse in addition to the killing. 

Pertinent factors in determining whether a killing was especially heinous, 

cruel, or depraved include: an infliction of gratuitous violence upon the victim 

above and beyond that necessary to commit the killing, the needless mutilation of 
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the victim’s body, the senselessness of the killing, and the helplessness of the 

victim. 

For each of the capital counts you are considering, in order to find that the 

Government has satisfied its burden of proving beyond a reasonable doubt that 

the Defendant committed the offenses in an especially heinous, cruel, or depraved manner in that it involved torture or serous physical abuse to the victim, 

you may only consider the actions of the Defendant; you may not consider the 

manner in which any codefendants committed the offenses. 

Your finding as to this statutory aggravating factor must be indicated in the 

appropriate space in the Special Verdict Form. 

Closing Instruction Fifteen: 

Substantial Planning and Premeditation 

The third statutory aggravating factor alleged by the Government for each capital 

offense is that the Defendant committed the offense after substantial planning 

and premeditation to cause the death of a person or to commit an act of terrorism. 

“Planning” means mentally formulating a method for doing something or 

achieving some end. 

“Premeditation” means thinking or deliberating about something and deciding whether to do it beforehand. 

“Substantial” planning and premeditation means a considerable or significant 

amount of planning and premeditation. 

“An act of terrorism” is an act calculated to influence or affect the conduct of 

government by intimidation or coercion, or to retaliate against government conduct. 

To find that the Government has satisfied its burden of proving beyond a reasonable doubt that the Defendant engaged in substantial planning and premeditation to either cause the death of a person or to commit an act of terrorism, you 

must agree unanimously on the particular object of the substantial planning and 

premeditation, either to cause the death of aperson, to commit an act of terrorism, 

or to do both. 

Your finding as to this statutory aggravating factor must be indicated in the 

appropriate space in the Special Verdict Form. 

Closing Instruction Sixteen: 

Non-Statutory Aggravating Factors 

For any count for which you have unanimously found beyond a reasonable doubt 

the existence of one or more statutory aggravating factors, you must then consider for that count whether the Government has proved the existence of any of 

the non-statutory factors with regard to that count. Before you may consider an 

alleged non-statutory aggravating factor in your deliberations on the appropriate 

punishment for the Defendant on the particular capital count, you must unanimously agree both that the Government has proved beyond a reasonable doubt 

the existence of the alleged non-statutory aggravating factor and that the nonstatutory factor alleged by the Government is in fact aggravating. The law permits the jury to consider only those aggravating factors specifically alleged by 

the Government in its Notice to Seek the Death Penalty. 
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The non-statutory aggravating factors alleged by the Government with regard 

to each of the capital counts are: 

1. On or about February 23, 2001, defendant, ZACARIAS MOUSSAOUI, 

entered the United States, for the purpose of gaining specialized knowledge in flying an aircraft in order to kill as many American citizens as 

possible. 

2. The actions of defendant, ZACARIAS MOUSSAOUI, resulted in the 

deaths of approximately 3,000 people from more than 15 countries. 

3. The actions of defendant, ZACARIAS MOUSSAOUI, resulted in serious 

physical and emotional injuries, including maiming, disfigurement, and 

permanent disability, to numerous individuals who survived the offense. 

4. As demonstrated by the victims’ personal characteristics as individual 

human beings and the impact of their deaths upon their families, friends, 

and co-workers, the defendant, ZACARIAS MOUSSAOUI, caused injury, harm, and loss to the victims, their families, their friends, and their 

co-workers. 

5. The actions of defendant, ZACARIAS MOUSSAOUI, were intended to 

cause, and in fact did cause, tremendous disruption to the function of the 

City of New York and its economy as evinced by the following: 

a. The deaths of 343 members of the New York City Fire Department, 

including the majority of its upper management, and the loss of approximately 92 pieces of fire-fighting apparatus including fire engines, ladder companies, ambulances, and other rescue vehicles; 

b. The deaths of 37 Port Authority officers, the deaths of 38 Port 

Authority civilian employees, the destruction of the headquarters of 

the Port Authority, and the loss of approximately 114 Port Authority 

vehicles; 

c. The deaths of 23 New York City police officers and the loss of numerous vehicles used by the New York Police Department to fight 

crime; 

d. The deaths of 3 New York state court officers; 

e. The death of 1 Special Agent of the Federal Bureau of Investigation 

(FBI); 

f. The death of 1 Master Special Officer of the United States Secret 

Service, the destruction of the New York field office for the United 

States Secret Service, the loss of 184 vehicles used by the United 

States Secret Service, including 7 armored limousines, the loss of all 

of the weapons stored in the New York field office for the United 

States Secret Service, the destruction of communication equipment 

used by the New York field office for the United States Secret Service, and the destruction of evidence stored in the New York field office for the United States Secret Service, which was to be used in 

criminal prosecutions; 

g. The destruction of the United States Customs building, which housed 

all components of the United States Customs Service in New York 

City, the destruction of the laboratory utilized by the United States 
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Customs Service in its northeast region, the loss of 50 vehicles used 

by the United States Customs Service to fight crime, the loss of the 

majority of the weapons stored in the New York field office for the 

United States Customs Service, the destruction of communication 

equipment used by the New York field office for the United States 

Customs Service, and the destruction of evidence stored in the New 

York field office for the United States Customs Service, which was 

to be used in criminal prosecutions; 

h. The destruction of the offices of the New York field division of the 

Bureau of Alcohol, Tobacco, and Firearms (ATF), the loss of 15 vehicles used by the ATF to fight crime, the destruction of the regional 

firearms center used to examine all firearms collected as evidence by 

the ATF as well as approximately 400 firearms which had been 

seized as evidence in criminal prosecutions, and the destruction of 

approximately 100 weapons used by ATF Special Agents to fight 

crime; 

i. The destruction of the offices of the New York field division of the 

Internal Revenue Service, the loss of 7 vehicles used by the Internal 

Revenue Service to fight crime, and the destruction of evidence 

stored in the New York field office of the Internal Revenue Service; 

j. The destruction of the offices of the New York field division of the 

Office of Inspector General (Office of Investigation) for the Department of Housing and Urban Development (HUD), the loss of 5 vehicles used by HUD, the destruction of approximately 46 weapons 

used by HUD to fight crime, and the destruction of evidence stored 

in the New York field office of HUD, which was to be used in criminal prosecutions; 

k. The destruction of the Office of Emergency Operations Center, 

which was designed to coordinate the response to large-scale emergencies in the City of New York; 

l. The disruption of service on train and subway lines, including the E 

line, subway lines 1 and 9, and the Port Authority Trans-Hudson 

(PATH) lines; 

m. The closure of parks, playgrounds, and schools in lower Manhattan; 

n. The displacement of businesses located in the World Trade Center 

and the economic harm to each of the businesses; 

o. The disruption of telephone service in Manhattan; 

p. The destruction of approximately 12 million square feet of office 

space; 

q. Property loss costing several billion dollars; 

r. The temporary closure of the New York Stock Exchange (NYSE) 

and the New York Mercantile Exchange (NYMEX); 

s. The temporary closure of state and federal courthouses in Manhattan; 

and, 

t. The delay of the meeting of the United Nations General Assembly 

and a special meeting of the United Nations called to address 

UNICEF issues. 
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6. The actions of defendant, ZACARIAS MOUSSAOUI, were intended to 

cause, and in fact did cause, tremendous disruption to the function of the 

Pentagon as evinced by the following: 

a. The destruction of the Naval Operations Center and the loss of the 

majority of its staff; 

b. The destruction of the Naval Intelligence Plot and the loss of the majority of its staff; 

c. The destruction of the Army Resource Management Center and the 

loss of its staff; 

d. The destruction of 400,000 square feet and the damage of over 1 million square feet of office space; 

e. The destruction of a portion of the Pentagon which had just been 

renovated at the cost of $250 million; and, 

f. The destruction of computers, other technological equipment, furniture, and safes specifically designed for use by the Pentagon because 

of its unique role as the center of military operations for the United 

States of America. 

7. The defendant, ZACARIAS MOUSSAOUI, has demonstrated a lack ofremorse for his criminal conduct. 

For each count, you should determine in turn whether each of the nonstatutory aggravating factors has been proved, to your unanimous satisfaction, 

beyond a reasonable doubt. Your findings regarding the non-statutory aggravating factors should be indicated on the Special Verdict form. 

After you have completed your findings regarding the existence of nonstatutory aggravating factors, you should proceed to consider whether any mitigating factors exist. 

Closing Instruction Seventeen: 

Mitigating Factors 

Before you may consider the appropriate punishment for any capital count for 

which you have unanimously found at least one statutory aggravating factor 

proved, you must consider any mitigating factor or factors. A mitigating factor is 

not a justification or excuse for the defendant’s conduct. Instead, a mitigating 

factor is a fact about the defendant’s life or character, or about the circumstances 

surrounding the particular capital offense, or any other fact or circumstance, that 

would suggest, in fairness, that a sentence of life imprisonment without the possibility of release is a more appropriate punishment than a sentence of death. 

Unlike aggravating factors, which you must unanimously find proved beyond 

a reasonable doubt for you to consider them in your deliberations, the law does 

not require unanimity with regard to mitigating factors. Any one juror who is 

persuaded of the existence of a mitigating factor must consider it in his or her 

sentencing decision. 

It is the Defendant’s burden to establish any mitigating factors which he has 

submitted, but only by a preponderance of the evidence. This is a lesser standard 

of proof under the law than proof beyond a reasonable doubt. A mitigating factor 

is established by a preponderance of the evidence if its existence is shown to be 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

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more likely so than not so. In other words, a preponderance of the evidence 

means such evidence that, when considered and compared with that opposed to 

it, produces in your mind the belief that what is sought to be established is more 

likely true than not true. The Defendant has submitted the following mitigating 

factors for you to consider: 

1. That if he is not sentenced to death, Zacarias Moussaoui will be incarcerated in prison for the rest of his life, without the possibility of release. 

2. That Zacarias Moussaoui has maintained a non-violent record for the 

past four years while incarcerated in the Alexandria Detention Center, 

with minimal rules violations. 

3. That the Federal Bureau of Prisons has the authority and ability to maintain Zacarias Moussaoui under highly secure conditions. 

4. That given his conduct, and the likely conditions of his maximum security confinement, Zacarias Moussaoui will not present a substantial risk 

to prison officials or other inmates if he is sentenced to life imprisonment 

without the possibility of release. 

5. That a sentence of life in prison without the possibility of release, under 

the strict conditions the Bureau of Prisons is likely to impose, will be a 

more severe punishment for Zacarias Moussaoui than a sentence of 

death. 

6. That Zacarias Moussaoui believes that his execution will be part of his 

Jihad and will provide him with the rewards attendant to a martyr’s 

death. 

7. That the execution of Zacarias Moussaoui will create a martyr for radical 

Muslim fundamentalists, and to al-Qaeda in particular. 

8. That Zacarias Moussaoui’s unstable early childhood and dysfunctional 

family resulted in his being placed in orphanages and having a home life 

without structure and emotional and financial support eventually resulting in his leaving home due to his hostile relationship with his mother. 

9. That Zacarias Moussaoui’s father had a violent temper and physically 

and emotionally abused his family. 

10. That Zacarias Moussaoui’s father abandoned Zacarias and his siblings, 

leaving Zacarias’s mother to support and raise their children on their 

own. 

11. That Zacarias Moussaoui was subject to racism as a youngster because of 

his Moroccan background, which affected him deeply. 

12. That Zacarias Moussaoui’s mother had a violent uncle or men unrelated 

to the family living in the home with the family. 

13. That Zacarias Moussaoui’s two sisters and his father all suffered from 

psychotic illnesses. 

14. That even though Zacarias Moussaoui arrived in England with no money 

and lived in a homeless shelter, he endured the hardship and through perseverance graduated with a masters degree from South Bank University. 

15. That his mother’s failure to provide her children with any meaningful religious training or practice left Zacarias Moussaoui without the theological or intellectual basis to resist the preachings and propaganda of radical 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

13 

Muslim fundamentalists in London who provided him with a sense ofgroup identity he never had. 

16. That Zacarias Moussaoui suffers from a psychotic disorder, most likely 

schizophrenia, paranoid subtype. 

17. That Zacarias Moussaoui’s role in al-Qaeda while in Afghanistan was as 

a security clerk at a guesthouse and as a driver for persons staying at the 

guesthouse. 

18. That Zacarias Moussaoui’s testimony about his plan to fly a plane into 

the White House is unreliable and is contradicted by his statements about 

other plots he was involved in. 

19. That Zacarias Moussaoui’s role in the 9/11 operation, if any, was minor. 

20. That Zacarias Moussaoui was incarcerated on the day of the 9/11 attacks. 

21. That Zacarias Moussaoui was an ineffectual al-Qaeda operative. 

22. That other persons who were equally culpable in the offense, whether indicted or not, will not be punished by death and/or have not been the subject of a capital prosecution. 

23. That other factors in the background or character of Zacarias Moussaoui 

suggest that life without the possibility of release is the most appropriate 

punishment. 

In the portion of the Special Verdict Form relating to mitigating factors, you 

are asked to report as to each listed mitigating factor the total number of jurors 

who find that particular mitigating factor established by a preponderance of the 

evidence. Do not consider mitigating factors with regard to counts for which you 

have not found at least one statutory aggravating factor. 

In addition to the listed mitigating factors, the law requires each juror to consider any other factors that he or she believes mitigate against imposition of a 

death sentence and that have been proved by a preponderance of the evidence. 

Indeed, each juror may consider any other factor, whether specifically argued by 

defense counsel or not, that he or she believes to be mitigating, if such a factor 

has been established by a preponderance of the evidence in his or her judgment. 

Such mitigating factors should be written on the Special Verdict Form in the appropriate space provided and the number of jurors who find that factor should be 

recorded. 

In short, your discretion in considering mitigating factors is much broader 

than your discretion in considering aggravating factors. 

Closing Instruction Eighteen: 

Equally Culpable Mitigating Factor 

One of the mitigating circumstances alleged by the Defendant is the relative culpability of other co-conspirators who participated in the conspiracies but will not 

be punished by death. The Defendant alleges that Richard Reid, Mounir elMotassadeq, Abdelghani Mzoudi, Khalid Sheikh Mohammed, Ramzi Bin alShibh, Mustafa Ahmed al-Hawsawi, Ammar al-Baluchi, Walid Muhammed Salih 

Bin al-Attash, and Mohammed Manea Ahmad al-Qahtani are persons who participated in the conspiracies and will not be punished by death. You may consider 

any or all of these persons in relation to this mitigating factor if you find by a 

preponderance of the evidence, that 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

14 

(1) he participated in conduct which contributed to the conspiracy; 

(2) he is equally as culpable as the Defendant or more culpable than the Defendant; and 

(3) he will not be punished by death for that killing. 

Of course, you must separately consider the relative culpability of each of 

these persons to the Defendant in determining whether the mitigating factor exists and, if so, in weighing that factor. 

Closing Instruction Nineteen: 

Weighing Aggravation and Mitigation 

If you find unanimously and beyond a reasonable doubt that the Government 

proved the existence of at least one statutory aggravating factor with regard to 

that count; and after you then determine unanimously whether the Government 

proved the existence of the non-statutory aggravating factors with regard to that 

count beyond a reasonable doubt, and whether the Defendant proved the existence of any mitigating factors by a preponderance of the evidence, you will then 

engage in a weighing process with regard to that count. You are to conduct this 

weighing process separately with regard to each of the capital counts for which 

you have found at least one statutory aggravating factor. Do not consider this 

weighing process with regard to counts for which you have not found at least one 

statutory aggravating factor. 

In determining the appropriate sentence, all of you must weigh the aggravating factor or factors that you unanimously found to exist with regard to that 

count—whether statutory or non-statutory—and each of you must weigh any 

mitigating factors that you individually or with others found to exist with regard 

to that count. You are not to weigh the threshold finding that you found during 

part one of this process, nor may you consider any aggravating circumstances 

that have not been identified by the Government as a statutory or non-statutory 

aggravating factor. You may, however, consider any of the evidence that you 

heard in the first phase as either supporting or not supporting aggravating or 

mitigating factors, and whether the aggravating factors sufficiently outweigh any 

mitigating factors. In engaging in the weighing process, you must avoid any influence of passion, prejudice, or undue sympathy. Your deliberations should be 

based upon the evidence you have seen and heard and the law on which I have 

instructed you. 

Again, whether or not the circumstances in this case justify a sentence ofdeath is a decision that the law leaves entirely to you. 

The process of weighing aggravating and mitigating factors against each 

other, or weighing aggravating factors alone, if you find no mitigating factors, to 

determine the proper punishment, is not a mechanical process. In other words, 

you should not simply count the number of aggravating and mitigating factors 

and reach a decision based on which number is greater; instead, you should consider the quality of each factor and give it such weight or value you find it deserves. 

The law contemplates that different factors may be given different weights or 

values by different jurors. Thus, any juror may find that one mitigating factor 

outweighs any or all aggravating factors combined, or that the aggravating factor 
United States v. Moussaoui: Jury Instructions for Penalty Phase Part Two 

15 

or factors proved do not, standing alone, justify imposition of a sentence of death. 

Alternatively, you may unanimously find that a particular aggravating factor sufficiently outweighs all mitigating factors combined to justify a sentence of death. 

The jurors are to decide what weight or value is to be given to a particular aggravating or mitigating factor in your decision-making process. Bear in mind that in 

order to find that a sentence of death is appropriate for a particular count, the jurors must be unanimous in the conclusion that the aggravating factor or factors 

proved as to that count sufficiently outweigh any mitigating factors found (or, in 

the absence of any mitigating factors, that the aggravating factor or factors are 

sufficient to justify a sentence of death). 

If you unanimously conclude with regard to a particular count that the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor 

or factors found to exist to justify a sentence of death, or, in the absence of any 

mitigating factors, that the aggravating factor or factors alone are sufficient to 

justify a sentence of death, the death penalty statute provides that you are to record your determination that death is justified with regard to that count on the 

Special Verdict Form. 

If you do not unanimously determine that a sentence of death is justified as to 

any particular count, that determination constitutes a decision by the jury that the 

Defendant be sentenced to life imprisonment without the possibility of release for 

that particular count, and you shall then record your determination with regard to 

that count on the Special Verdict Form. You are never required to impose a sentence of death. 

Closing Instruction Twenty: 

Consequences of Deliberation 

At the end of your deliberations, your verdict must be unanimous in order to sentence the Defendant to death. 

If you cannot unanimously agree that the Defendant should be sentenced to 

death, then the Court will impose a sentence of life imprisonment without the 

possibility of release. 

Closing Instruction Twenty-One: 

Justice without Discrimination 

In your consideration of whether the death sentence is justified, you must not 

consider the race, color, religious beliefs, national origin, or sex of either the Defendant or the victims. You are not to return a sentence of death unless you 

would return a sentence of death for the crime in question without regard to the 

race, color, religious beliefs, national origin, or sex of either the Defendant or any 

victim. 

To emphasize the importance of this consideration, the Special Verdict Form 

contains a Certification Statement. Each juror should carefully read the statement, and sign in the appropriate place if the statement accurately reflects the 

manner in which each of you reached your decision. 
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16 

Closing Instruction Twenty-Two: 

Duty to Deliberate 

It is your duty as jurors to discuss the issue of punishment with one another in an 

effort to reach agreement, if you can do so without surrendering your honestly 

held conviction. Each of you must decide this question for yourselves, but only 

after full consideration of the evidence with the other members of the jury. While 

you are discussing this matter, do not hesitate to re-examine your own opinion, 

and to change your mind if you become convinced that you are wrong. But do 

not give up your honest beliefs as to the weight or the effect of the evidence 

solely because others think differently or simply to get the case over with. 

Closing Instruction Twenty-Three: 

Special Verdict Form 

For each capital count, I have prepared a form entitled “Special Verdict Form” to 

assist you during your deliberations. You are required to record your decisions on 

this form. 

Section I of the Special Verdict Form contains space to record your findings 

on the statutory aggravating factors, and Section II contains space to record your 

findings on non-statutory aggravating factors. Section III of the Special Verdict 

Form contains space to record your findings on mitigating factors. Section IV of 

the form contains space to record your findings with regard to the weighing of 

aggravating factors and mitigating factors. Section V contains the Certification 

Statement. 

You are each required to sign the Special Verdict Forms. The Court will 

place the signed form under seal and a redacted copy of the form, identifying you 

by your juror numbers only, will be made available to counsel for the parties and 

to the public. 

Closing Instruction Twenty-Four: 

Concluding Instruction 

If you want to communicate with me at any time during your deliberations, 

please write down your message or question and pass the note to the Court Security Officer, who will bring it to my attention. I will respond as promptly as possible, either in writing or by having you return to the courtroom so that I can address you orally. I caution you, however, with any message or question you 

might send, that you should not tell me any details of your deliberations or how 

any of you are voting as to a particular issue. 

Let me remind you again that nothing I have said in these instructions—and 

nothing that I have said or done during the trial—has been said or done to suggest to you what I think your decision should be. The decision is your exclusive 

responsibility.