United States v. Moussaoui ( 2010 )

Filed: February 9, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4494
(1:01-cr-00455-LMB)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al
Sahrawi,
Defendant - Appellant.
-------------------------------------
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Amicus Supporting Appellant.
O R D E R
The court amends its opinion filed January 4, 2010, as
follows:
On page 2, attorney information section, the name “Barbara
Lynn Hartung, Richmond, Virginia” is deleted from line 1 following
“ARGUED” and added at lines 7 and 8 following “ON BRIEF” as counsel
for Appellant; the name “Justin S. Antonipillai” is deleted from
line 4 following “ON BRIEF” and added with “ARNOLD & PORTER, LLP,
Washington, D.C.” at lines l and 2 following “ARGUED” as counsel
for Appellant.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
2
Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil,

a/k/a Abu Khalid al Sahrawi,
No. 06-4494
Defendant-Appellant.
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:01-cr-00455-LMB)
Argued: September 25, 2009
Decided: January 4, 2010
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Gregory and Judge Shedd joined.
2 UNITED STATES v. MOUSSAOUI
COUNSEL
ARGUED: Justin S. Antonipillai, ARNOLD & PORTER,
LLP, Washington, D.C., for Appellant. Kevin R. Gingras,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee. ON BRIEF: Robert A. McCarter,
Rebecca L. D. Gordon, Joseph M. Meadows, Robert Alexander
Schwartz, Danielle M. Garten, Whitney A. Moore, ARNOLD
& PORTER, LLP, Washington, D.C.; Barbara Lynn Hartung,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, David J. Novak, Assistant United States At-
torney, David Raskin, Assistant United States Attorney, David
B. Goodhand, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia;
UNITED STATES DEPARTMENT OF JUSTICE, Appellate
Section, Criminal Division, Washington, D.C., for Appellee.
Joshua L. Dratel, LAW OFFICES OF JOSHUA L. DRATEL,
PC, New York, New York; Theresa M. Duncan, Zachary Ives,
FREEDMAN BOYD HOLLANDER GOLDBERG & IVES,
PA, Albuquerque, New Mexico, for Amicus Supporting Ap-
pellant.
OPINION
TRAXLER, Chief Judge:
Zacarias Moussaoui pled guilty to six criminal conspiracy
counts arising from the al Qaeda terrorist organization’s plot to
use commercial aircraft to commit terrorist attacks in this
country, including the attacks that occurred on September 11,
2001.1 In a subsequent sentencing proceeding, the jury
declined to impose the death penalty and the district court sen-
tenced Moussaoui to life imprisonment without the possibility
of release on all six counts, with the sentence on the
1"Al Qaeda" is transliterated from Arabic text. Several spellings may be
acceptable for a single transliterated word. We follow the spelling con-
ventions used by the parties.
UNITED STATES v. MOUSSAOUI 3
first count to be served consecutively to the sentences on the
other counts. In this appeal, Moussaoui challenges the validity
of his guilty plea and his sentences. He has also filed a motion
to remand, based upon the Government’s disclosure of classi-
fied information during the pendency of this appeal. We
affirm Moussaoui’s convictions and sentences in their entirety
and deny his motion to remand.
I. Facts
On August 16, 2001, Moussaoui, a French citizen, was
taken into custody for overstaying his visa after he raised the
suspicions of his instructor at the Pan American International
Flight Academy in Eagan, Minnesota, where he was receiving
pilot training on a jet simulator. Less than a month later, Sep-
tember 11, 2001, nineteen members of al Qaeda hijacked
three commercial airlines and crashed them into the World
Trade Center towers in New York City and the Pentagon in
Virginia. A fourth airplane, apparently destined for the Capi-
tol Building in Washington, D.C., crashed in a field in Penn-
sylvania after its passengers attempted to retake control of the
airplane from the al Qaeda hijackers. Collectively, the 9/11
attacks resulted in the deaths of nearly 3,000 people. Mous-
saoui was still in custody, awaiting deportation, when the
attacks occurred.
A. Procedural History
1. The Indictment
In December 2001, Moussaoui was indicted for his partici-
pation in the conspiracies that led to the 9/11 attacks. The sec-
ond superseding indictment (the "Indictment"), to which he
would later plead guilty, charged him with (1) conspiracy to
commit acts of terrorism transcending national boundaries,
see 18 U.S.C.A. §§ 2332b(a)(2), (c) (West 2000); (2) conspir-
acy to commit aircraft piracy, see 49 U.S.C.A.
§ 46502(a)(1)(A), (a)(2)(B) (West 2007); (3) conspiracy to
4 UNITED STATES v. MOUSSAOUI
destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000
& Supp. 2009); (4) conspiracy to use weapons of mass
destruction, see 18 U.S.C.A. § 2332a(a) (West 2000); (5) con-
spiracy to murder United States employees, see 18 U.S.C.A.
§§ 1114, 1117 (West 2000 & Supp. 2009); and (6) conspiracy
to destroy property of the United States, see 18 U.S.C.A.
§ 844(f), (i) (West 2000 & Supp. 2009). The Indictment iden-
tified 110 overt acts committed by Moussaoui and his al
Qaeda co-conspirators, both in the United States and abroad,
including the 9/11 attacks.
2. Appointment of Counsel
Upon his indictment, the district court appointed Frank
Dunham and Gerald Zerkin, from the Federal Public Defend-
er’s Office, and Edward MacMahon, a private practitioner, to
represent Moussaoui. The court informed Moussaoui that,
although counsel had been appointed for him, he had the right
to retain private counsel if he was able to do so. At the
arraignment on January 2, 2002, Moussaoui entered "no
plea," which the district court interpreted to be a plea of not
guilty. J.A. 55.
On January 7, 2002, the Department of Justice imposed
Special Administrative Measures (SAMs) on Moussaoui.
"SAMs are restrictions placed on a prisoner in the interests of
national security." United States v. Abu Ali, 528 F.3d 210,
243-44 (4th Cir. 2008); 28 C.F.R. § 501.3(a) (2008) (provid-
ing for the imposition of SAMs where the Attorney General
determines that "there is a substantial risk that a prisoner’s
communications or contacts with persons could result in death
or serious bodily injury to persons"). The SAMs were
imposed to prevent Moussaoui from passing coded messages
to or otherwise communicating with other terrorists. The
SAMs permitted Moussaoui to have unmonitored attor-
ney/client and consular communications and mail, monitored
visits and telephone calls with immediate family, and moni-
tored mail with all others. Approved mail would be forwarded
UNITED STATES v. MOUSSAOUI 5
to defense counsel for distribution to Moussaoui and Mous-
saoui would be notified of any seized mail.
Because the case involved classified national security infor-
mation, the Government also sought and received a protective
order (the "Protective Order") under the Classified Informa-
tion Procedures Act (CIPA). See 18 U.S.C.A. app. 3, § 3
(West 2000). Under the terms of the Protective Order, access
to classified information produced by the Government in dis-
covery was restricted to persons with the necessary security
clearances, which included defense counsel. The Protective
Order therefore allowed disclosure of classified information
to defense counsel, but not to Moussaoui personally unless the
Government consented or the district court determined that
making it available was necessary.
The relationship between Moussaoui and his appointed
attorneys was strained at best, and Moussaoui almost immedi-
ately began demanding to proceed pro se, but with the assis-
tance of Muslim counsel. In April 2002, counsel for
Moussaoui filed a motion requesting that the SAMs restric-
tions be lifted to permit Moussaoui to have an unrestricted
visit with "[a]n Islamic scholar, referred to . . . as John Doe."
J.A. 145. Counsel explained that the scholar would consult
with Moussaoui and the attorneys so as to improve the "com-
munication and understanding between them," but that the
scholar was unwilling to undergo the vetting process required
by the SAMs. J.A. 145. The Government opposed the motion,
arguing that the pre-clearance requirement was "one of the
cornerstone requirements of the SAM[s] as it [ ] prevents a
miscreant sympathizer from meeting with Moussaoui and
passing on or receiving deadly information (names of wit-
nesses not yet publicly revealed, etc.), as called for in the al
Qaeda terrorism manual." J.A. 187. The district court ulti-
mately denied the motion, concluding that the Government’s
allegations against Moussaoui were supported by probable
cause and that it would be too dangerous to allow an unnamed
"John Doe" unfettered access to Moussaoui.
6 UNITED STATES v. MOUSSAOUI
At the hearing held on the motion to lift the SAMs, how-
ever, Moussaoui stated that he in fact never had any intention
of speaking with John Doe and that his request was simply an
excuse to come to court so he could move to proceed pro se.
Moussaoui complained that his appointed attorneys had "no
understanding of terrorism, [Islam, or] Mujahedin," J.A. 232,
and that the Government was "preventing any Muslim help"
from reaching him, J.A. 223. Moussaoui told the court that he
intended "to hire[ ] [his] own chosen Muslim lawyer to assist
[him] in matters of procedure and understanding of the . . .
law." J.A. 220. Moussaoui explained, however, that he sought
Muslim counsel only for assistance with witnesses and mate-
rial necessary for his defense, and that no attorney—including
any Muslim counsel chosen by Moussaoui—would ever rep-
resent him. Moussaoui also demanded that the court "not . . .
engage in any communication or relation with [his] Muslim
lawyer, concerning any aspect of [his] case." J.A. 215.
The district court advised Moussaoui that he had the right
to proceed pro se and the right to hire an attorney at his own
expense but that Moussaoui could not pick the attorney to be
appointed for him. The district court explained that because
there was classified information protected by the Protective
Order, Moussaoui would not have "totally unrestricted choice
even if [he had] the money available to hire an attorney,
because the attorneys . . . have to be able to be cleared to
receive some of the information in this case." J.A. 246.
After Moussaoui moved to proceed pro se, appointed coun-
sel requested a competency evaluation. They also filed a
motion seeking to grant Moussaoui full access to the classi-
fied discovery information and seeking relief from the SAMs
if the district court granted Moussaoui’s request to proceed
pro se. In connection with these motions, defense counsel
advised that the Government had added several Muslim attor-
neys to the list of counsel cleared to see Moussaoui at their
request, but that "this process will not work if Mr. Moussaoui
UNITED STATES v. MOUSSAOUI 7
is granted pro se status such that current counsel no longer act
for him." J.A. 444 n.9.
After lengthy proceedings, the district court found that
Moussaoui was competent and that Moussaoui had validly
waived his right to counsel. However, given the complex
nature of the case and the existence of classified discovery
information, the district court determined that "standby" coun-
sel would be required to assist Moussaoui.
Moussaoui told the district court that he had been allowed
to meet with a Muslim attorney who had agreed to represent
him pro bono. Moussaoui made it clear, however, that he still
intended to represent himself, because "it [was] not possible
for [Moussaoui] to entrust [his] life to somebody else." J.A.
527. Moussaoui thus explained that this attorney would only
work as his assistant outside the court, but not as counsel of
record.
Because Moussaoui’s pro bono counsel had not yet made
an appearance, the court ordered existing attorneys to remain
in the case as standby counsel until Moussaoui’s chosen attor-
ney made an appearance. The district court advised Mous-
saoui that any attorney assisting him would have "to comply
with the rules of ethics and behavior," J.A. 527, and associate
local counsel under the district court’s local rules if the attor-
ney was not licensed to practice law in Virginia. The attorney
would also have to pass at least a preliminary FBI background
check before the attorney would be permitted to help Mous-
saoui. The court also informed Moussaoui that Randall
Hamud, a Muslim attorney hired by Moussaoui’s mother, was
in the courtroom, but Moussaoui refused to meet with him.
Problems persisted between Moussaoui and his appointed
attorneys, so the district court dismissed MacMahon and
appointed Alan Yamamoto as additional standby counsel. The
court ruled that if pro bono counsel had not entered an
appearance by June 28, 2002, an additional standby attorney
8 UNITED STATES v. MOUSSAOUI
would be appointed to replace the federal public defenders.
The district court advised Moussaoui that Yamamoto was
available to help him "locate witnesses and evidence," and
that Yamamoto would "be invaluable to any pro bono counsel
. . . unfamiliar with the practices of this Court." J.A. 575.
Moussaoui immediately objected and identified Charles
Freeman, a Muslim attorney from Texas, as his attorney of
choice. However, in keeping with his prior statements, Mous-
saoui explained that "Bro[ther] Freeman [was] only a legal
consultant" and that Moussaoui would "never, under any cir-
cumstance, use him [or] appoint him as a standby lawyer."
J.A. 628. Moussaoui requested that appointed counsel be dis-
missed and that Freeman be allowed to appear as his "legal
consultant" or "advisor" at upcoming proceedings. J.A. 629.
Freeman, however, did not enter an appearance by June 28,
as required by the district court, nor had he passed the FBI
background check by that date. The district court therefore
denied Moussaoui’s motion to remove appointed counsel and
to allow Freeman to assist him. The court explained that
Mr. Freeman is not licensed to practice law in the
Commonwealth of Virginia, has not been admitted to
practice before this court, has not been admitted to
practice in this case pro hac vice as required by [the
local rules], and has not entered an appearance in
this case. He may already have violated [the local
rules] by submitting two pleadings, which have been
filed for administrative purposes only, but will not
be considered by the Court. Because Mr. Freeman
has not been qualified to lawfully represent the
defendant in this court, he may not sit inside the well
of the court at the defendant’s June 25, 2002 re-
arraignment. He may, however, attend court pro-
ceedings as a member of the public.
J.A. 657. The following day, Freeman advised the court in
writing that:
UNITED STATES v. MOUSSAOUI 9
I never intended to assist Bro[ther] Moussaoui by
appearing as any so-called standby counsel because
I refuse to be a toothless paper tiger amounting to
absolutely no counsel at all. Unless and until Bro[-
ther] Moussaoui asks me to represent him as his law-
yer, if he ever asks, I will only provide out-of-court
legal assistance to him solely on federal law.
J.A. 659-60 (footnotes omitted). Freeman made it clear that he
was "not, by filing th[e] pleading, entering any appearance at
all in the . . . prosecution," J.A. 659 n.1, and that the "request
should not be construed by anyone as an appearance before
this Honorable Court because it is not," J.A. 663 n.8.
At this point in the proceedings, then, Moussaoui had
rejected the help of Yamamoto (in addition to the initial three
appointed attorneys), and Moussaoui had rejected all attempts
by the court, appointed counsel, the Government, and his
mother to assist him in obtaining Muslim counsel. In addition,
Freeman, whose services Moussaoui had sought, had refused
to enter an appearance and assume the role of standby coun-
sel. Concluding that no appointed attorney would ever satisfy
Moussaoui, the court ruled that the federal public defenders
and Yamamoto would remain as standby counsel, and reap-
pointed MacMahon. The court encouraged Moussaoui to "re-
consider his refusal to communicate with these lawyers, who
[were] poised to help him obtain experts, locate witnesses and
even provide the paper supplies he needs to mount his
defense." J.A. 787. The court warned Moussaoui that his
"continued unreasonable refusal to interact with standby
counsel [was] only hurting his defense." J.A. 787-88.
Throughout the remainder of the proceedings, Moussaoui
periodically renewed his complaints concerning Freeman,
asserting that the court’s refusal to allow the access he
demanded left him with no "meaningful way to defend" him-
self. J.A. 695. The district court repeatedly advised Mous-
saoui that he was not entitled to advisory counsel of his
10 UNITED STATES v. MOUSSAOUI
choice, particularly where such counsel was unwilling to enter
a formal appearance and be bound by the rules of the court.
See United States v. Singleton, 107 F.3d 1091, 1100-03 (4th
Cir. 1997) (finding that a pro se defendant does not have a
right to an intermediate accommodation such as "advisory"
counsel).
3. The July 2002 Guilty Plea Attempt
On July 18, 2002, Moussaoui informed the court that he
had knowledge of the 9/11 attacks, knew "exactly who d[id]
it, . . . which group, who participated, [and] when it was
decided," and wanted to plead guilty. J.A. 858-59. Moussaoui
stated that he believed that the guilty plea would "save [his]
life, because the jury [would] be . . . able to evaluate how
much responsibility [he] ha[d]." J.A. 858. After warning
Moussaoui that his words could be used against him and sug-
gesting that the Government might enter into plea negotia-
tions with him, the district court gave Moussaoui a week to
consider his decision. Defense counsel again challenged
Moussaoui’s competency and renewed their concerns regard-
ing Moussaoui’s access to the classified discovery, asserting
that "there is exculpatory evidence which has not been pro-
vided to him and that his plea of guilty may mean that he
might never have the benefit of such information to use to
contest his guilt." J.A. 866.
At the scheduled Rule 11 hearing, see Fed. R. Crim. P. 11,2
2
The district court first offered to postpone the hearing to allow Mous-
saoui additional time to consult with Professor Sadiq Reza from the New
York Law School, another Muslim attorney who had met with Moussaoui
in an effort to establish a relationship. Moussaoui declined. He did, how-
ever, persist in his demands regarding access to Freeman, and the court
again advised Moussaoui that access was contingent upon Freeman’s com-
pliance with the requisite rules and orders governing such representation:
I’ll say it one more time. The SAM[s] say[ ] you get the right to
unmonitored visits only with the attorney of record. . . . All this
UNITED STATES v. MOUSSAOUI 11
Moussaoui again expressed his belief that the jury might find
him more credible and decline to impose the death penalty if
he pled guilty. However, Moussaoui was ultimately unwilling
to admit to the facts necessary to support a guilty plea to the
charged conspiracies and withdrew his request.
B. The First Appeal
Beginning in September 2002, Moussaoui sought access to
several al Qaeda associates in the custody of the United States
government (the "enemy combatant witnesses" or "ECWs"),
who Moussaoui believed would be helpful to his defense. The
district court agreed, and ordered the Government to produce
three of the ECWs for depositions under Rule 15,3 but denied
access to the remainder because Moussaoui had failed to
establish that they would provide material, admissible testi-
mony. See United States v. Moussaoui, 382 F.3d 453, 458 n.4
(4th Cir. 2004) ("Moussaoui II"). As discussed in more detail
below, we reversed the district court’s decision granting
Moussaoui access to the ECWs and remanded the case for the
preparation of substitutions that would provide Moussaoui
with substantially the same ability to make his defense. See id.
at 456-57. On March 21, 2005, the Supreme Court denied
review of our decision.
Court has said is that Mr. Freeman cannot and does not qualify
as an attorney of record because he has consistently made it clear
that he is not entering an appearance on your behalf. . . . [H]e
could get admitted to practice here if he followed the local rule.
So we have a lawyer who is not admitted to practice in this dis-
trict, who is not the attorney of record representing you. There-
fore, under the SAM[s], he is no different from any member of
the public. Now, members of the public can write to you under
the SAM[s]. That letter would be reviewed by an FBI agent, and
if there was no objection to it, it would go to you.
J.A. 1040-41.
3
Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that
a court may order depositions of witness to preserve testimony for trial
"because of exceptional circumstances and in the interest of justice."
12 UNITED STATES v. MOUSSAOUI
During the pendency of the earlier appeal, the district court
revoked Moussaoui’s right to proceed pro se. Since October
2003, the district court had received over twenty filings from
Moussaoui, "most of which [were] not proper requests for
appropriate judicial relief." J.A. 1368. These filings "in-
clude[d] veiled, and in some cases overt, threats to public offi-
cials, attacks on foreign governments, attempts to
communicate with persons overseas, and efforts to obtain
materials unrelated to this case." J.A. 1368.4 After the district
court specifically warned Moussaoui that he might lose his
right to continue pro se if he continued this course, Mous-
saoui filed two additional improper pleadings, and the district
court revoked Moussaoui’s pro se status.5 Moussaoui would
later testify that his writings were intentionally designed to
promote his agenda of disseminating propaganda about al
Qaeda’s war against the United States.
C. The Guilty Plea
On March 29, 2005, eight days after the United States
Supreme Court denied certiorari review of our decision in
Moussaoui II, Moussaoui informed the court that he wanted
to enter an unconditional plea of guilty to all counts in the
Indictment.
4
See e.g., J.A. 1287 ("Emergency Strike by Slave of Allah Mujahid
Zacarias Moussaoui to counter Dirty Insider Dealing by Fat Megalo Dun-
ham for his Chief Pay Persecution Master Ashcroft (a/k/a United Satan
Chief Liar) and to Have Fat Megalo Out of 9/11 Circus Trial"); J.A. 1359
("$100000 Cash in for ‘Victim Impact’ Extravaganza (a/k: Sucking Scav-
enger made in U.S.A.)"); J.A. 1358 ("20th Hijacker $100000 American
Tax Payers for 3000+ Americans Dead Head Account").
5
See J.A. 1374 (20th Hijacker: Leonie You Bitch, But ZM must get the
Wicked Tyran Congress 9/11 Report!"); J.A. 6289 ("20th Hijacker: Real
Bitch of Leonie Brinkema position on Uncle Sam").
UNITED STATES v. MOUSSAOUI 13
1. The Rule 11 Proceeding
In light of the prior attempt to plead guilty and the publicity
surrounding the case, the district court first held, with the con-
sent of the Government, an ex parte hearing with Moussaoui
and Yamamoto to discuss the guilty plea.6 Yamamoto advised
the court that Moussaoui was "now willing to accept responsi-
bility for the events of 9/ll." 2 Supp. J.A. 55.7 Yamamoto rep-
resented that he had discussed with Moussaoui his appeal
rights regarding the ECWs and advised Moussaoui that those
issues would be waived, except with regard to the penalty
phase. Moussaoui stated that he had received a letter from
defense counsel and had "plenty of discussion[s] with Mr.
Yamamoto." 2 Supp. J.A. 45. According to Moussaoui, "they
have pour[ed] on me all their so-called legal advice. . . . So
I have heard them, I have read them, I understand what they
say, but we do not agree. That’s all. But somehow they can’t
take that I don’t . . . agree with them." 2 Supp. J.A. 44-45.
Moussaoui stated that he was "voluntar[ily] choosing this
course of action" and exercising his "privilege . . . to plead
guilty [and] testify on [his own] behalf." 2 Supp. J.A. 44-45.
With regard to the effect of a guilty plea on Moussaoui’s right
to assert other claims, Moussaoui told the district court:
We could stay all day here, and I would flood you
with reasons, and you have no interest in it. What is
certain . . . is I’ve listened to their advice, read. . .
the Blackledge v. Perry8 case [they sent] with the
6
Although Moussaoui initially refused to communicate with any of his
appointed counsel, he later testified that he began communicating with
Yamamoto because Yamamoto was polite to him.
7
The parties have submitted numerous joint appendices in this appeal.
Unclassified appendices are designated "J.A." Classified appendices are
designated "J.A.C." Supplemental appendices are so designated, with,
where necessary, the number of the supplemental appendix noted –- i.e.,
"2 Supp. J.A."
8
Moussaoui was referring to Blackledge v. Perry, 417 U.S. 21, 29-30
(1974), discussed infra, which addresses the effect of a guilty plea on the
right to challenge pre-plea constitutional violations.
14 UNITED STATES v. MOUSSAOUI
statement of the Supreme Court, who made abso-
lutely clear that once you have pled guilty, you can-
not raise any . . . claim relating to deprivation of
constitutional rights . . . that occur[s] prior to the
entry of the guilty plea. This is the word of the
Supreme Court.
2 Supp. J.A. 59.
The district court found no indication that Moussaoui had
been coerced to plead guilty, noting that "[i]f anything, the
coercion has been for him not to plead." 2 Supp. J.A. 67. The
court further found that Moussaoui had received "full advice
of counsel," but observed that "[a] defendant in our system
has an absolute right to reject that advice. It does not make
him incompetent, and it does not make him unwise, and in
some cases, who knows, it might have been the better deci-
sion." 2 Supp. J.A. 67. Satisfied that Moussaoui was compe-
tent, the district court concluded that Moussaoui understood
the ramifications of pleading guilty and that Moussaoui’s plea
was knowing and voluntary.
On April 22, 2005, the district court conducted a public
plea colloquy under Rule 11 of the Federal Rules of Criminal
Procedure, reviewing each of the six counts charged and
advising Moussaoui of the maximum penalties he faced.
Moussaoui confirmed that he had received a copy of the
Indictment long ago and "kn[ew] very much what it’s talking
about." J.A. 1419. The district court explained to Moussaoui
that he would be waiving his right to subsequently challenge
his guilt and his right to raise other issues that arose prior to
the guilty plea, including the issues regarding access to the
ECWs.
Yamamoto advised the court that he had also discussed the
consequences of the guilty plea with Moussaoui and that
Moussaoui "appear[ed] to understand it." J.A. 1434. Yama-
moto also advised that Moussaoui had "responded appropri-
UNITED STATES v. MOUSSAOUI 15
ately when [he had] spoken to him" and, while they had
"disagreements . . . with respect to certain items[,] [t]hose dis-
agreements were appropriate disagreements." J.A. 1434.
2. The Statement of Facts
In connection with his guilty plea, a written statement of
facts (the "Statement of Facts") was prepared, detailing the
facts pertaining to al Qaeda’s plans for terrorist attacks in the
United States, Moussaoui’s association with al Qaeda, and the
steps Moussaoui took to prepare for the operation and to pro-
tect it after he was detained. When he signed the document,
Moussaoui added the designation "20th Hijacker" to his sig-
nature. J.A. 1413. A summary of the Statement of Facts, as
adopted and executed by Moussaoui, follows.
Al Qaeda is "an international terrorist group" founded by
Usama Bin Laden (hereinafter "Bin Laden"), that is "dedi-
cated to opposing the United States with force and violence."
J.A. 1409. The head of its military committee was Moham-
med Atef, a/k/a Abu Hafs al-Masri (hereinafter "al-Masri").
Al Qaeda members pledge "bayat" to Bin Laden and al
Qaeda, J.A. 1409, meaning that they "give allegiance to Bin
Laden and the group." J.A. 1671. Since 1996, al Qaeda has
been headquartered in Afghanistan, but it associates with ter-
rorists in other parts of the world to further its goals.
In the mid-1990s, Bin Laden issued a fatwah (or religious
ruling) declaring jihad (or war) against the United States and
its allies, sanctioning the killing of United States military and
civilians alike. In furtherance of these aims, "Bin Laden and
al Qaeda provided and supported training camps and guest-
houses in Afghanistan, including camps known as al Farooq
and Khalden." J.A. 1409. The training "camps were used to
instruct members and associates of al Qaeda and its affiliated
groups in the use of firearms, explosives, chemical weapons,
and other weapons of mass destruction." J.A. 1409.
16 UNITED STATES v. MOUSSAOUI
In connection with al Qaeda’s declaration of war, "al Qaeda
members conceived of an operation in which civilian com-
mercial airliners would be hijacked and flown into prominent
buildings, including government buildings, in the United
States." J.A. 1410. In preparation for the attacks, "al Qaeda
associates entered the United States, received funding from
abroad, engaged in physical fitness training, and obtained
knives and other weapons with which to take over airliners."
J.A. 1410. Some of these "associates obtained pilot training,
including training on commercial jet simulators, so they
would be able to fly hijacked aircraft into their targets." J.A.
1410. "Bin Laden personally approved those selected to par-
ticipate in the operation, who were willing to die in further-
ance of their religious beliefs and al Qaeda’s agenda." J.A.
1410.
Moussaoui was a member of al Qaeda and pledged bayat
to Bin Laden. He trained at al Qaeda’s Khalden Camp and
managed an al Qaeda guesthouse in Kandahar, "a position of
high respect within al Qaeda." J.A. 1410. Moussaoui commu-
nicated directly with Bin Laden and al Masri while in Afghan-
istan. He "knew of al Qaeda’s plan to fly airplanes into
prominent buildings in the United States" and "agreed to
travel to the United States to participate in the plan." J.A.
1410. As he did with the other hijackers, Bin Laden person-
ally selected Moussaoui to participate in the planes operation
and approved Moussaoui to attack the White House, which
had been Moussaoui’s dream.
In preparation for the operation, the al Qaeda leadership
first sent Moussaoui to Malaysia to explore flight training.
They also provided him with information about flight schools
in the United States. In September 2000, Moussaoui contacted
Airman Flight School in Norman, Oklahoma. Moussaoui’s
intent was to obtain pilot training to further "al Qaeda’s plan
to use planes to kill Americans." J.A. 1411. "On February 23,
2001, Moussaoui traveled from London to Chicago and then
on to Norman, Oklahoma," where he enrolled at Airman
UNITED STATES v. MOUSSAOUI 17
Flight School and began pilot training on small planes. J.A.
1411. Like his co-conspirators, he joined a gym and pur-
chased knives, intentionally selecting knives with blades short
enough to pass through airport security.
In the summer of 2001, Moussaoui was instructed by an al
Qaeda associate to train on larger jet planes. Ramzi Bin al-
Shibh, another al Qaeda operative, sent Moussaoui a wire
transfer of money from Germany to the United States to pay
for the flight training. Shortly thereafter Moussaoui enrolled
at the Pan American International Flight Academy in Eagan,
Minnesota, and began simulator training for a Boeing 747-
400. Moussaoui told another al Qaeda associate that his simu-
lator training would be completed before September 2001.
At the time of his arrest, Moussaoui was in possession of
knives, flight manuals for the Boeing 747-400, a flight simu-
lator computer program, fighting gloves and shin guards, a
piece of paper referring to a handheld Global Positioning Sys-
tem ("GPS"), software that could be used to review pilot pro-
cedures for the Boeing 747-400, and a hand-held aviation
radio. When questioned after his arrest, Moussaoui "lied to
federal agents to allow his al Qaeda ‘brothers’ to go forward
with the operation." J.A. 1412. He "falsely denied being a
member of a terrorist organization and falsely denied that he
was taking pilot training to kill Americans." J.A. 1412. He
told the "agents that he was training as a pilot purely for his
personal enjoyment and that, after completion of his training,
he intended to visit New York City and Washington, D.C., as
a tourist." J.A. 1412. The attacks of 9/11 happened less than
a month after Moussaoui’s arrest.
At the ex parte guilty plea proceeding, Moussaoui advised
the court that he had read the Statement of Facts "more than
probably ten time[s]." 2 Supp. J.A. 45. Moussaoui made a sin-
gle correction to the Statement of Facts, changing the date
that he told his al Qaeda associate that he would finish jet
simulator training from "by August 20, 2001" to "before Sep-
18 UNITED STATES v. MOUSSAOUI
tember 2001." 2 Supp. J.A. 45-46. At the public Rule 11 hear-
ing, Moussaoui confirmed that he had received a revised copy
of the Statement of Facts, which had been corrected in accor-
dance with his request at the ex parte hearing.
3. Acceptance of the Plea
At the conclusion of the Rule 11 hearing, the district court
made the following findings and conclusions:
I have previously found based on a rather unusual
hearing that was done on the record with Mr. Mous-
saoui and Mr. Yamamoto present that I am fully sat-
isfied that Mr. Moussaoui is completely competent
to enter his guilty pleas today. The defendant has
acted against the advice of his counsel, but he has
clearly exhibited both today and earlier this week a
complete understanding of the ramifications of his
guilty pleas.
Mr. Moussaoui is an extremely intelligent man.
He has actually a better understanding of the legal
system than some lawyers I’ve seen in court. I reread
the transcript from the plea hearing of two-and-a-
half years ago, and he . . . understood then and I have
no reason to believe he does not understand now the
nature of conspiracy law.
The full reasons for my finding the defendant
competent, I think, are adequately expressed in the
transcript of that hearing . . . but I am satisfied, Mr.
Moussaoui, that you have entered these guilty pleas
in a knowing and voluntary fashion. You have inten-
tionally disregarded the advice of counsel. That is
your right in our legal system.
The Court is also satisfied that the written state-
ment of facts which you have had several days to
UNITED STATES v. MOUSSAOUI 19
carefully go over and you have had the advice and
consultation of Mr. Yamamoto is more than suffi-
cient evidence to establish your guilt beyond a rea-
sonable doubt as to all six counts.
J.A. 1435-36.
D. The Sentencing Proceeding
Because the Government sought the death penalty under
the Federal Death Penalty Act ("FDPA"), see 18 U.S.C.A.
§§ 3591-3599 (West 2000 & Supp. 2009), the district court
conducted a bifurcated capital sentencing proceeding before a
jury. The first phase ("Phase I") was to determine whether the
Government had proven a statutory death-eligibility factor,
and the second phase ("Phase II") was to determine whether
the death penalty would be imposed.
During Phase I, the Government presented extensive evi-
dence regarding the conspiracies alleged in the Indictment,
including evidence of the activities of the 9/11 hijackers and
Moussaoui in the months preceding the 9/11 attacks, the simi-
larities between Moussaoui’s actions and those of the 9/11
hijackers, and the overlap between the al Qaeda leadership
directing them all. Moussaoui also testified, confirming his
participation in the conspiracies.
Moussaoui testified that al-Masri asked him to be a part of
the planes operation in the winter of 1999. Moussaoui ulti-
mately agreed and began training for his mission, which was
to fly a fifth plane on 9/11 into the White House. Moussaoui
specifically denied he was scheduled to be a fifth hijacker on
the flight that crashed in Pennsylvania, testifying that he
signed the Statement of Facts as the "20th hijacker" as "a bit
of fun," "[b]ecause everybody used to refer to [him] as the
20th hijacker." J.A. 3877.
When sent to Malaysia to obtain flight training, Moussaoui
was hosted by members of Jemaah Islamiyah (hereinafter
20 UNITED STATES v. MOUSSAOUI
"JI"), an al Qaeda-affiliated terrorist group. Moussaoui testi-
fied that he had problems with JI when he was in Malaysia –
he talked too much about his mission and was involved in an
unnecessary purchase of explosives. Because of those prob-
lems, the al Qaeda leaders temporarily excluded Moussaoui
from the planes operation. Although he was later re-included
in the operation, his position remained under review. Accord-
ing to Moussaoui, time was of the essence and al-Masri told
him to "just go to America" and that he would "be informed
of what [he] need[ed] to know in due time." J.A. 3954. Mous-
saoui testified that al-Masri told him to communicate with
Khalid Sheikh Mohammed (hereinafter "KSM"), the so-called
"mastermind" of the planes operation.
In February 2001, Moussaoui arrived in the United States
with $35,000 in cash and a fake business letter given to him
by a JI member to use as cover for his presence in this coun-
try. He immediately traveled to Airman Flight School to begin
his pilot training. Moussaoui contacted the Pan Am Flight
Academy in May 2001 and was offered enrollment for
$8,300, for classes beginning in mid-August 2001. Moussaoui
sent the school a $1,500 deposit. Mustafa Ahmed al-
Hawsawi, an al Qaeda operative, first transmitted money to
Bin al-Shibh in Germany, who in turn transmitted money to
Moussaoui. Moussaoui informed KSM that he would be out
of jet simulator training before September 2001. Moussaoui’s
roommate, Hussein al-Attas, accompanied him on the trip to
Minnesota, where he began his training on August 13 at Pan
Am. Moussaoui told al-Attas that they would go to New York
City when he completed his training "to see the sites." J.A.
3226. Before he left for the United States, Moussaoui bought
knives to use to take over the plane and, if necessary, kill pas-
sengers or flight attendants. He was in the process of obtain-
ing a GPS device when he was arrested.
Moussaoui testified that he did not know specifics of the
planned operation, but knew there were other al Qaeda asso-
ciates in the United States and that the hijacking plot was in
UNITED STATES v. MOUSSAOUI 21
the works when he was arrested. Moussaoui knew that the
White House was a target, as were the World Trade Center
towers, and he knew that additional planes would fly as part
of the mission. Because he had been told that there was time
pressure for him to finish his training and because he had con-
veyed the message that he would be ready before September,
Moussaoui expected the attacks to occur shortly after August
2001. Moussaoui testified that he lied to the agents when he
was arrested "because I’m al Qaeda" and "at war with this
country," J.A. 3881, and because he "wanted [his] mission to
go ahead," J.A. 3882. While he was in custody, the 9/11
hijackers finalized their plans, bought plane tickets and
knives, and returned unused money to al-Hawsawi.
The substituted statements of KSM and several other terror-
ists were also admitted as evidence during the sentencing pro-
ceedings. Although much of this evidence was inculpatory,
portions contradicted Moussaoui’s testimony that he was sup-
posed to participate in the 9/11 strikes, instead indicating that
Moussaoui was to fly in a planned second wave of attacks.
Other portions of this evidence confirmed problems Mous-
saoui had in Malaysia and the United States while preparing
for his mission, portraying Moussaoui as an unpredictable
operative prone to violations of al Qaeda’s rules regarding
operational security.
According to KSM, Bin Laden first pursued the idea of the
planes operation in 1998. KSM stated that the planes opera-
tion included plans for a first and second wave of attacks and
that "the original plan called for Moussaoui to lead the [sec-
ond] attack operation in the [United States]." J.A. 3998.9 The
first wave of attacks was to be carried out by Arab al Qaeda
associates on the East Coast. The second wave of attacks was
to be carried out by non-Arab associates (such as Moussaoui)
on the West Coast because KSM believed the non-Arabs
9
For ease of reading, all internal quotations marks from the statements
have been omitted.
22 UNITED STATES v. MOUSSAOUI
would still be able to operate in the heightened security
expected after the first wave. For this reason, KSM stated that
Moussaoui would not have been used in the first wave even
if a hijacker pulled out. KSM stated that Moussaoui’s prepara-
tions for the "second wave attack . . . entailed the same steps
as the September 11 hijackers: getting flight lessons, purchas-
ing knives, etc.," J.A. 3988, and that the efforts for the second
wave began in parallel with the first wave. KSM confirmed
that Moussaoui was sent to Malaysia to obtain flight training
in late 1999, and that he caused problems with the JI group.
KSM did not think Moussaoui was "a suitable operative" and
asked Bin Laden and al-Masri to remove him from the opera-
tion. J.A. 4023. However, "Moussaoui lobbied [al-Masri] and
Bin Laden to use him in operations, and their pressure com-
pelled [KSM] to include him in the second wave plan." J.A.
4021.
KSM also confirmed that Moussaoui was sent to the United
States for flight training and that he was Moussaoui’s contact.
After several security missteps by Moussaoui, however, KSM
became exasperated and turned Moussaoui over to Bin al-
Shibh. According to KSM, "Moussaoui did not have any par-
ticular personality flaws, but . . . had a different state of mind
from other operatives because he had been raised in the
[W]est." J.A. 4026. In particular, he had a "high level of self-
confidence" and "a hard time taking instructions." J.A. 4026.
Nonetheless, "[d]espite [this] admittedly problematic person-
ality, [KSM] tasked Moussaoui to take flight lessons in prepa-
ration for the second wave attacks." J.A. 4019. According to
KSM, the "plan for a second wave attack ended with Mous-
saoui’s arrest." J.A. 4022.10
10
The statements of al-Hawsawi and al-Kahtani were also presented to
the jury during this phase. Among other things, both witnesses provided
statements indicating that al-Kahtani was sent to the United States in
August 2001 to "complete the group" of 9/11 hijackers. J.A. 4063. This
was consistent with Moussaoui’s testimony that he was not the 20th
hijacker.
UNITED STATES v. MOUSSAOUI 23
At the conclusion of Phase I, the jury found the requisite
death eligibility factor and moved on to Phase II, to determine
whether to impose the death penalty. During this phase,
Moussaoui again exercised his right to testify and, among
other things, elaborated upon his relationship with counsel.
Moussaoui told the jury that he wanted to advance two argu-
ments in his defense: first, that "jail [was] a greater punish-
ment than . . . being sentenced to death, and [that] martyrdom,
execution, [would] be a reward" and, second, that the jury
"could save [an] American life by keeping [him] alive
because they could use [him] as a bargaining chip, so if one
day some American serviceman [is] taken hostage in Iraq or
Afghanistan, they could . . . exchange Moussaoui [for] the
American soldier." J.A. 4433. Moussaoui testified that the
"jury might spare the death penalty to their enemy, but . . . not
to a coward liar," J.A. 4480, and that "by testifying truthfully,
I will save my life," J.A. 4482. Moussaoui criticized counsel’s
plan to assert that he was mentally ill, which he believed
would not "explain [his] train[ing] on the 747-400, [the] large
amount of cash [he was given], or his traveling to Malaysia."
J.A. 4435.
Moussaoui also addressed the passionate and offensive
documents that he had filed during the course of his prosecu-
tion, including pleadings asserting that the district court judge
was trying to kill him, referring to them as "psychological
warfare pro[pa]ganda." J.A. 4429. Moussaoui explained to the
jury that "when I saw something that I believe[d] I could
exploit or I could [use to] psychologically damage you, what-
ever, by propaganda, I will do it." J.A. 4484. Moussaoui also
admitted that he told his psychologist that his pro se pleadings
were being published and that "Muslim people around the
world have . . . been made happy or have been motivated by
them." J.A. 4484.
Moussaoui’s sentencing strategy appears to have worked.
The jury declined to impose the death penalty. In addition, not
a single juror found that Moussaoui suffered from a psychotic
24 UNITED STATES v. MOUSSAOUI
disorder, or that his testimony about his plan to fly a plane
into the White House was unreliable or contradicted by his
other statements. Moussaoui was sentenced by the district
court to six terms of life imprisonment without the possibility
of release, with the sentence on the first count to be served
consecutively to the remaining five.
At no point during the sentencing proceedings, nor prior to
the actual sentencing, did Moussaoui seek to withdraw his
guilty plea. On the contrary, Moussaoui twice took the stand
and confirmed his guilt. Four days after he avoided the death
penalty and was sentenced to life imprisonment, however,
Moussaoui filed a motion to withdraw his plea, claiming that
his "understanding of the American legal system was com-
pletely flawed" and asking for a new trial "[b]ecause I now
see that it is possible that I can receive a fair trial . . . even
with Americans as jurors and that I can have the opportunity
to prove that I did not have any knowledge of and was not a
member of the plot to hijack planes and crash them into build-
ings on September 11, 2001." 2 Supp. J.A. 435 (internal quo-
tation marks omitted). In other words, Moussaoui sought to
withdraw his guilty plea (and contradict the sworn testimony
he had just given) because he had been successful in the pen-
alty phase proceedings. Moussaoui also claimed that he had
proceeded pro se only because "the [SAMs] prevented me
from seeking and obtaining a Muslim lawyer of my choice"
and that "Brother Charles Freeman, a Muslim attorney, was
not permitted to be my lawyer." J.A. 5622.
The district court denied the motion to withdraw the guilty
plea. See Fed. R. Crim. P. 11(e) (providing that "[a]fter the
court imposes sentence, the defendant may not withdraw a
plea of guilty or nolo contendere, and the plea may be set
aside only on direct appeal or collateral attack."). This appeal
followed.
II. Discussion
"[A] guilty plea is a grave and solemn act to be accepted
only with care and discernment." Brady v. United States, 397
UNITED STATES v. MOUSSAOUI 25
U.S. 742, 748 (1970). It "comprehend[s] all of the factual and
legal elements necessary to sustain a binding, final judgment
of guilt and a lawful sentence." United States v. Broce, 488
U.S. 563, 569 (1989).
In order for a guilty plea to be valid, the Constitution
imposes "the minimum requirement that [the] plea be the vol-
untary expression of [the defendant’s] own choice." Brady,
397 U.S. at 748. Because it operates as a waiver of important
constitutional rights, the plea must also be entered "know-
ingly, and intelligently, ‘with sufficient awareness of the rele-
vant circumstances and likely consequences.’" Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005) (quoting Brady, 397 U.S.
at 748). It must reflect "a voluntary and intelligent choice
among the alternative courses of action open to the defen-
dant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). In
evaluating the constitutional validity of a guilty plea, "courts
look to the totality of the circumstances surrounding [it],
granting the defendant’s solemn declaration of guilt a pre-
sumption of truthfulness." Walton v. Angelone, 321 F.3d 442,
462 (4th Cir. 2003) (internal citation omitted).
When Moussaoui executed the Statement of Facts at the
Rule 11 hearing in April 2005, he clearly admitted "that he
committed the acts charged in the [I]ndictment." Brady, 397
U.S. at 748. He confirmed that he had been advised of and
understood that his guilty plea would bar any challenge to
pre-plea constitutional violations. He also represented that he
was entering the plea knowingly, voluntarily, and with (but
against) the advice of his counsel. During the sentencing pro-
ceeding, Moussaoui confirmed the admissions made in the
Statement of Facts, adding that his specific mission was to fly
a fifth plane into the White House on 9/11.
Nevertheless, Moussaoui now challenges his guilty plea,
asserting (1) that various pre-plea rulings by the district court
violated his constitutional rights, rendering his plea involun-
tary as a matter of law; (2) that his plea was not knowingly
26 UNITED STATES v. MOUSSAOUI
entered because he had not yet been made privy to certain
classified, exculpatory evidence when he pled guilty; (3) that
his plea was not properly counseled because counsel were
prohibited from discussing the substance of this classified,
exculpatory evidence with him at the time of the plea; (4) that
his plea should not have been taken in the absence of further
competency evaluations; and (5) that the plea colloquy other-
wise failed to comply with Rule 11 of the Federal Rules of
Criminal Procedure. We address each claim seriatim.
A. The "Voluntarily Entered" Challenge
We begin with Moussaoui’s claim that his plea was invol-
untary as a matter of law because the district court issued sev-
eral pre-plea rulings that violated his Fifth and Sixth
Amendment rights to obtain counsel of his choice; to have
personal, pretrial access to classified, exculpatory evidence; to
communicate with his counsel about this evidence; to effec-
tively proceed pro se; to be present during critical stages of
the proceedings; and to have compulsory process to present
the ECWs at trial. These claims, all of which preceded his
guilty plea, are not cognizable on appeal.
"When a defendant pleads guilty, he waives all nonjurisdic-
tional defects in the proceedings conducted prior to entry of
the plea." United States v. Bundy, 392 F.3d 641, 644 (4th Cir.
2004). The "guilty plea represents a break in the chain of
events which has preceded it in the criminal process." Tollett
v. Henderson, 411 U.S. 258, 267 (1973). Thus, the defendant
who has pled guilty "has no non-jurisdictional ground upon
which to attack that judgment except the inadequacy of the
plea," Bundy, 392 F.3d at 644-45, or the government’s "power
to bring any indictment at all," Broce, 488 U.S. at 575; see
United States v. Bluso, 519 F.2d 473, 474 (4th Cir. 1975) ("A
guilty plea is normally understood as a lid on the box, what-
ever is in it, not a platform from which to explore further pos-
sibilities."); see also Blackledge v. Perry, 417 U.S. 21, 29-30
(1974) ("[W]hen a criminal defendant enters a guilty plea, he
UNITED STATES v. MOUSSAOUI 27
may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. Rather, a person complaining of such
antecedent constitutional violations is limited . . . to attacks on
the voluntary and intelligent nature of the guilty plea, through
proof that the advice received from counsel was not within the
range of competence demanded of attorneys in criminal
cases." (internal quotation marks and citations omitted)).
Relying on United States v. Hernandez, 203 F.3d 614 (9th
Cir. 2000), Moussaoui maintains that his alleged constitu-
tional violations rendered his guilty plea involuntary. In Her-
nandez, the Ninth Circuit held that a district court’s error in
denying the defendant’s request to represent himself rendered
the defendant’s subsequent guilty plea involuntary. See id. at
626-27. In so doing, the court noted that the error at issue was
structural, meaning that it "undermine[d] the integrity of the
trial mechanism itself."11 Id. at 626. Thus, the court reasoned
that the refusal by the district court to allow the defendant to
represent himself left the defendant only with a choice "be-
tween pleading guilty and submitting to a trial the very struc-
ture of which would be unconstitutional." Id. at 626 (emphasis
omitted). Moussaoui argues that his guilty plea is invalid for
the same reason.
With all due respect, we are not persuaded by the analysis
in Hernandez. As noted above, a guilty plea is constitutionally
valid if it "represents a voluntary and intelligent choice among
the alternative courses of action open to the defendant."
Alford, 400 U.S. at 31. The Hernandez court’s conclusion that
the defendant’s guilty plea was involuntary was based on a
faulty premise, namely, that his only alternative was to submit
to an unconstitutional trial. This premise fails to account for
the fact that if the defendant proceeded to trial and was con-
victed, he could seek an appellate remedy for the constitu-
11
An error that qualifies as "structural" is not subject to harmless-error
analysis. See Neder v. United States, 527 U.S. 1, 7 (1999).
28 UNITED STATES v. MOUSSAOUI
tional violations he alleged. See Bundy, 392 F.3d at 645 ("[A]
defendant might rationally choose to proceed to trial for the
sole purpose of preserving a pretrial issue for appellate
review."). Had Moussaoui been convicted after a trial, he, too,
could have sought to vindicate his claims on appeal. Thus, the
rulings Moussaoui now challenges, even if erroneous, did not
render his guilty plea involuntary.12
In sum, Moussaoui, having pled guilty, has waived all non-
jurisdictional errors leading up to his conviction except those
affecting the adequacy of his plea. It is to those claims, affect-
ing the adequacy of his plea, that we now turn.
B. The "Unknowing and Uncounselled" Challenge
Moussaoui’s challenge to the adequacy of his plea arises
out of the district court’s handling of the classified discovery
and the effect this had upon his guilty plea. Specifically,
12
Moussaoui incorrectly maintains that the Supreme Court in United
States v. Dominguez Benitez, 542 U.S. 74 (2004), suggested that a guilty
plea is invalidated by a prior error if it is structural. Dominguez Benitez
described the showing that defendants must make to satisfy the
substantial-rights prong on plain-error review of alleged Rule 11 viola-
tions. Although the Court suggested the prong would be satisfied if Rule
11 violations were structural, see id. at 81, Rule 11 violations clearly relate
to the adequacy of a guilty plea, see United States v. Wood, 378 F.3d 342,
349 (4th Cir. 2004) (explaining that the district court’s plea colloquy with
a defendant is the proceeding that conclusively "establish[es] that the
defendant knowingly and voluntarily enters his plea"). Dominguez Benitez
did not suggest that an error not concerning a guilty plea’s adequacy could
invalidate the plea simply because the error was structural.
In fact, the notion that a structural error occurring prior to a guilty plea
invalidates the subsequent guilty plea would be at odds with the result in
Tollett v. Henderson, 411 U.S. 258 (1973), wherein the defendant sought
to invalidate his guilty plea on the basis that blacks were systematically
excluded from the grand jury that indicted him. Although the Supreme
Court has subsequently clarified that such exclusion would amount to
structural error, see Vasquez v. Hillery, 474 U.S. 254, 262-64 (1986), the
Tollett Court held that the defendant’s claim, even if true, would not inval-
idate his guilty plea. See Tollett, 411 U.S. at 266-68.
UNITED STATES v. MOUSSAOUI 29
Moussaoui asserts that the district court violated CIPA,13 and
that these violations resulted in a guilty plea that was neither
knowing nor properly counseled. The guilty plea was not
knowingly entered, Moussaoui argues, because the district
court and the Government denied him personal access to
material and exculpatory evidence during the discovery pro-
cess, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The guilty plea was not properly counseled, he argues,
because defense counsel, to whom the information had been
provided, were not allowed to discuss the substance of it with
him prior to his pleading guilty, in violation of Geders v.
United States, 425 U.S. 80 (1976).14
1. The CIPA Process
a.
Under Rule 16 of the Federal Rules of Criminal Procedure,
the Government must produce, among other things, items
"material to preparing the defense." Fed. R. Crim. P.
16(a)(1)(E)(i). However, "[a]t any time the court may, for
good cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief," and "may permit a party to
show good cause by a written statement that the court will
inspect ex parte." Fed. R. Crim. P. 16(d). "‘[G]ood cause’
includes the protection of information vital to the national
security." United States v. Aref, 533 F.3d 72, 78 (2d Cir.
2008) (internal quotation marks omitted).
13
In particular, Moussaoui asserts that the district court erred in allow-
ing the Government to produce classified, documentary discovery to his
defense counsel in lieu of to him personally, and erred in allowing the
Government to produce classified summaries of highly classified reports
at issue in the prior appeal. He also asserts that the district court erred in
restricting communications with his counsel under the Protective Order.
14
As noted earlier, Moussaoui’s constitutional claims under Brady and
Geders, as well as his claims that CIPA was violated, are barred by his
guilty plea. See Tollett, 411 U.S. at 267. Unlike the other pre-plea claims,
however, these claims also form the basis for his challenge to the ade-
quacy of the plea itself, which is cognizable on appeal.
30 UNITED STATES v. MOUSSAOUI
"Originally enacted by Congress in an effort to combat the
growing problem of graymail, a practice whereby a criminal
defendant threatens to reveal classified information during the
course of his trial in the hope of forcing the government to
drop the charge against him," United States v. Abu Ali, 528
F.3d 210, 245 (4th Cir. 2008), CIPA provides procedures for
protecting classified information without running afoul of a
defendant’s right to a fair trial.15 Section 4 of CIPA governs
discovery of classified information by a defendant, and is the
most pertinent provision in Moussaoui’s challenge. It pro-
vides that:
[t]he court, upon a sufficient showing, may authorize
the United States to delete specified items of classi-
fied information from documents to be made avail-
able to the defendant through discovery under the
Federal Rules of Criminal Procedure, to substitute a
summary of the information for such classified docu-
ments, or to substitute a statement admitting relevant
facts that the classified information would tend to
prove. The court may permit the United States to
make a request for such authorization in the form of
a written statement to be inspected by the court
alone.
15
Classified information includes "any information or material that has
been determined by the United States Government . . . to require protec-
tion against unauthorized disclosure for reasons of national security." 18
U.S.C.A. app. 3, § 1. "Upon motion of the United States, the court shall
issue an order to protect against the disclosure of any classified informa-
tion disclosed by the United States to any defendant in any criminal case."
18 U.S.C.A. app. 3, § 3 (emphasis added). The Government’s right to pro-
tect such information is absolute, and we do not second guess such deter-
minations. See Abu Ali, 528 F.3d at 253 ("’[W]e have no authority[ ] to
consider judgments made by the Attorney General concerning the extent
to which the information . . . implicates national security. Similarly, nei-
ther the prosecutorial decisions . . . nor the possibility of graymail . . .
comes within our purview.’" (quoting United States v. Fernandez, 913
F.2d 148, 154 (4th Cir. 1990)).
UNITED STATES v. MOUSSAOUI 31
18 U.S.C.A. app. 3, § 4; see In re Terrorist Bombings of U.S.
Embassies in E. Afr., 552 F.3d 93, 121 (2d Cir. 2008) (CIPA
§ 4’s "provisions on discovery . . . complement those of Rule
16(d)" by "giv[ing] trial judges adequate guidance to protect
against the unauthorized disclosure of classified information
in the custody of the federal courts." (internal quotation marks
omitted)). Section 4 "allows the district court to authorize the
government to redact information from classified documents
before providing such documents to the defendant during pre-
trial discovery." United States v. Moussaoui, 333 F.3d 509,
514 n.6 (4th Cir. 2003) ("Moussaoui I) (emphasis added); see
also Aref, 533 F.3d at 78 (CIPA § 4 "clarifies [the] district
courts’ power under [Rule] 16(d)(1) to issue protective orders
denying or restricting discovery for good cause."); United
States v. Smith, 780 F.2d 1102, 1105 n.7 (4th Cir. 1985) (en
banc) (noting that CIPA § 4 "provides a procedure by which
the court can delete portions of classified documents to be dis-
covered by a defendant. Substitutions are also permitted under
certain circumstances.").
Sections 5 and 6 of CIPA "establish[ ] a pretrial procedure
for ruling upon the admissibility of classified information."
Smith, 780 F.2d at 1105. The defendant must notify the gov-
ernment and the court of classified information he expects to
use, and the defendant is prohibited from "disclos[ing] any
information known or believed to be classified . . . until the
United States has been afforded a reasonable opportunity to
seek a determination pursuant to the procedure set forth in
section 6 of [CIPA]." 18 U.S.C.A. app. 3, § 5. "Once the
defendant gives notice of his intention to introduce classified
information, the United States may request a [section 6] hear-
ing at which the court shall determine the ‘use, relevance, or
admissibility of classified information that would otherwise
be made during the trial or pretrial proceeding.’" Smith, 780
F.2d at 1105 (quoting 18 U.S.C.A. app. 3, § 6(a)).16 If the
16
This hearing must be conducted in camera if the government certifies
"that a public proceeding may result in the disclosure of classified infor-
32 UNITED STATES v. MOUSSAOUI
court authorizes "the disclosure of specific classified informa-
tion under the procedures established by [section 6], the
United States may move that, in lieu of the disclosure of such
specific classified information," the court approve the use of
a substitution in the form of "a statement admitting relevant
facts that the specific classified information would tend to
prove," or "a summary of the specific classified information."
18 U.S.C.A. app. 3, § 6(c)(1); see also Smith, 780 F.2d at
1105. "The court shall grant such a motion of the United
States if it finds that the statement or summary will provide
the defendant with substantially the same ability to make his
defense as would disclosure of the specific classified informa-
tion." 18 U.S.C.A. app. 3, § 6(c)(1) (emphasis added).17
b.
The parties in this case were aware from the outset that
voluminous classified information pertaining to al Qaeda and
the 9/11 attacks would require special handling under CIPA.
In January 2002, the district court issued the Protective
Order, pursuant to Rule 16(d)(1) and CIPA § 3. Under the
Protective Order, classified information would be produced
by the Government only to persons possessing the requisite
security clearance, a category that included Moussaoui’s
appointed counsel but excluded Moussaoui. All other "per-
mation." 18 U.S.C.A. app. 3 § 6(a). The government must also "provide
the defendant with notice of the classified information that is at issue." 18
U.S.C.A. app. 3, § 6(b)(1). If the classified information has been produced
to the defendant, it must be specifically identified. If it has not been made
available to the defendant, it "may be described by generic category, in
such form as the court may approve." Id.
17
Section 6(c) hearings must also be conducted in camera at the govern-
ment’s request, and the government may require that the court examine in
camera and ex parte "an affidavit of the Attorney General certifying that
disclosure of classified information would cause identifiable damage to
the national security of the United States and explaining the basis for the
classification of such information." 18 U.S.C.A. app. 3, § 6(c).
UNITED STATES v. MOUSSAOUI 33
son[s] whose assistance the defense reasonably require[d]
[could] only have access to classified information . . . after
obtaining from the Court—with prior notice to the
government—an approval for access to the appropriate level
of classification on a need to know basis." J.A. 97-98.
Defense counsel were also prohibited from "disclos[ing] such
information or documents to [Moussaoui] without prior con-
currence of counsel for the government, or, absent such con-
currence, prior approval of the Court." J.A. 104.
The parties agree that the effect of the Protective Order was
that Moussaoui’s defense counsel would have access to classi-
fied information produced under CIPA § 4, but could not
show or discuss the contents of the material with Moussaoui
who, as an admitted al Qaeda terrorist already detained on
immigration violations, would not be granted the necessary
clearance. The Protective Order, however, did not preclude
Moussaoui from ever having access to material or exculpatory
evidence. On the contrary, Moussaoui would be given per-
sonal access to classified information "if such access should
be determined by the Court to be necessary." J.A. 101.
The parties agreed upon a schedule for handling the classi-
fied information issues, providing deadlines for the filing of
section 5 designations by the defense and section 6 requests
by the Government. The final section 6 hearing to resolve all
remaining classified issues was to be completed several weeks
prior to trial.
In June 2002, Moussaoui’s motion to proceed pro se was
granted, complicating the manner in which the district court
and counsel had intended to handle the classified information
produced in discovery. Because of the complexity of the case,
the district court opted to exercise its discretion to appoint
standby counsel to assist the court and Moussaoui with these
matters. See McKaskle v. Wiggins, 465 U.S. 168, 178-79
(1984); United States v. Gallop, 838 F.2d 105, 110 (4th Cir.
1988). In September 2002, the handling of classified informa-
34 UNITED STATES v. MOUSSAOUI
tion was further complicated when Moussaoui began seeking
access to the ECWs. Faced with an issue of first impression,
the court issued a new set of discovery orders protecting cer-
tain classified information pertaining to these witnesses pend-
ing decisions on the issue of whether Moussaoui would be
granted access to the witnesses for Rule 15 depositions or
whether suitable substitutions could be prepared under CIPA
§ 6(c).
After an interlocutory appeal from the district court’s order
granting access to the ECWs, we initially remanded the matter
to allow the Government to propose CIPA § 6(c) substitutions
for the ECWs testimony and directed the district court to
determine whether the proposed substitutions "‘w[ould] pro-
vide the defendant with substantially the same ability to make
his defense as would’ the disclosure ordered by the district
court." United States v. Moussaoui, No. 03-4162, 2003 WL
1889018 (4th Cir. Apr. 14, 2008) (unpublished order) (quot-
ing CIPA § 6(c)(1)).
The Government’s proposed CIPA § 6(c) substitutions for
the testimony of the ECWs were thereafter taken from
answers to questions recorded in "highly classified reports
. . . intended for use in the military and intelligence communi-
ties" and not "with this litigation in mind." Moussaoui II, 382
F.3d at 458 n.5. "Portions of the[se] reports concerning Mous-
saoui and the September 11 attacks [were] excerpted and set
forth in documents prepared for purposes of this litigation."
Id. These documents were "deemed summaries by the parties
and the district court." Id. (internal quotation marks and alter-
ations omitted). The summaries were then "provided to
defense counsel in conformance with the Government’s obli-
gations under Brady v. Maryland, 373 U.S. 83 (1963). The
proposed substitutions [were] based on the . . . summaries."
Id. (internal quotation marks and alterations omitted). The
Government presented these highly classified reports, along
with the summaries for comparison, to the district court ex
UNITED STATES v. MOUSSAOUI 35
parte. The summaries themselves remained classified pending
the appeal process but were produced to defense counsel.
Upon its ex parte review, the district court was impressed
with the accuracy of the classified summaries, see id. at 478
n.30, but felt that the classified reports that led to the pro-
posed substitutions were unreliable and that the substitutions
were also flawed, see id. at 459. Thus, the district court
ordered the Government to produce the witnesses for Rule 15
depositions. When the Government refused to produce the
witnesses, the district court ruled that "Moussaoui had ade-
quately demonstrated that the witnesses could provide testi-
mony that, if believed, might preclude a jury from finding
Moussaoui eligible for the death penalty" and dismissed the
death notice. Id. at 459. "[B]ecause proof of Moussaoui’s
involvement in the September 11 attacks was not necessary to
a conviction, and because the witnesses’ testimony, if
believed, could exonerate Moussaoui of involvement in those
attacks," the district court also ruled the Government would
be prohibited "from making any argument, or offering any
evidence, suggesting that [Moussaoui] had any involvement
in, or knowledge of, the September 11 attacks." Id. at 459-60
(internal quotation marks omitted).
On September 13, 2004, we issued our decision affirming
the district court’s conclusion "that the [ECWs] could provide
material, favorable testimony on Moussaoui’s behalf." Mous-
saoui II, 382 F.3d at 456. With regard to the substitutions, we
agreed that they were inadequate but rejected the district
court’s implicit conclusion that no adequate substitutions
could be crafted because the classified summaries were inher-
ently inadequate. See id. at 478. In particular, we noted the
Government’s "profound interest in obtaining accurate infor-
mation from the witnesses and in reporting that information
accurately to those who can use it to prevent acts of terrorism
and to capture other al Qaeda operatives, . . . considerations
[that] provide[ed] sufficient indicia of reliability to alleviate
the concerns of the district court." Id. We found that the clas-
36 UNITED STATES v. MOUSSAOUI
sified summaries did "provide an adequate basis for the cre-
ation of" substitutions, id. at 479, and "remand[ed] with
instructions for the district court and the parties to craft substi-
tutions under certain guidelines." Id. at 457.
Accordingly, when we remanded to the district court in the
previous appeal, the CIPA process was well underway, but
incomplete. The classified, exculpatory information had been
produced by the Government to defense counsel pursuant to
the terms of the Protective Order. In accordance with our
holding that Moussaoui was entitled to such evidence in a
suitably unclassified form for use at trial, the district court
was poised to finalize this process, with the input and assis-
tance of counsel for both parties and Moussaoui, when Mous-
saoui notified the district court of his desire to enter an
unconditional plea of guilty to all counts.
2. The Brady Claim
Moussaoui first complains that the Protective Order issued
under CIPA allowed the Government to deprive him of excul-
patory material under Brady v. Maryland, 373 U.S. 83 (1963).
In particular, Moussaoui asserts that he was deprived of per-
sonal access to the statements of multiple individuals which
could have demonstrated that he was not slated to participate
in the 9/11 attacks and that he was slated to participate, if at
all, in the second wave of attacks, which never occurred.
Moussaoui contends that this evidence was exculpatory
because it could have demonstrated that he was not involved
in the 9/11 terrorist attacks at all.
In Brady, the Supreme Court held "that the suppression by
the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution." 373 U.S. at 87. In order to
prevail on a true Brady claim, however, it is not enough sim-
ply to say that favorable evidence was withheld. The accused
UNITED STATES v. MOUSSAOUI 37
must prove (1) that the "evidence at issue [is] favorable to the
accused, either because it is exculpatory, or because it is
impeaching"; (2) that the "evidence [was] suppressed by the
[government], either willfully or inadvertently"; and (3) that
the evidence was material to the defense, i.e., "prejudice must
have ensued." Strickler v. Greene, 527 U.S. 263, 281-82
(1999); see also Giglio v. United States, 405 U.S. 150, 154-55
(1972) (including impeachment evidence within the scope of
materials that Brady requires prosecutors to disclose).
The Brady right, however, is a trial right. It requires a pros-
ecutor to disclose evidence favorable to the defense if the evi-
dence is material to either guilt or punishment, and exists to
preserve the fairness of a trial verdict and to minimize the
chance that an innocent person would be found guilty. See
Brady, 373 U.S. at 87; United States v. Ruiz, 536 U.S. 622,
628 (2002) (noting that Brady rights are provided as part of
the Constitution’s "‘fair trial’ guarantee"); id. at 634 ("The
principle supporting Brady was ‘avoidance of an unfair trial
to the accused.’") (Thomas, J., concurring) (quoting Brady,
373 U.S. at 87).
When a defendant pleads guilty, those concerns are almost
completely eliminated because his guilt is admitted. See
Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam)
(explaining that a defendant’s admission of guilt in a guilty
plea is "so reliable that, where voluntary and intelligent, it
quite validly removes the issue of factual guilt from the case")
(first emphasis added); Matthew v. Johnson, 201 F.3d 353,
361 (5th Cir. 2000) (explaining that "[t]he Brady rule’s focus
on protecting the integrity of trials suggests that where no trial
is to occur, there may be no constitutional violation"); Orman
v. Cain, 228 F.3d 616, 617 (5th Cir. 2000) ("Brady requires
a prosecutor to disclose exculpatory evidence for purposes of
ensuring a fair trial, a concern that is absent when a defendant
waives trial and pleads guilty.").
In Ruiz, the Supreme Court considered whether a guilty
plea is invalidated by a prosecutor’s failure to provide excul-
38 UNITED STATES v. MOUSSAOUI
patory impeachment information to a defendant prior to the
plea. See 536 U.S. at 625. In holding that it is not, the Court
recognized that due process considerations do not require
prosecutors to disclose all information that might be of use to
a defendant in deciding whether to plead guilty. See id. at
629-30. The Court noted that it had permitted courts to accept
guilty pleas where the defendant lacked knowledge of many
different circumstances, including the strength of the govern-
ment’s case. See id. at 630-31. The Court also reasoned that
the value to the defendant of requiring disclosure of impeach-
ment evidence was relatively low compared to the substantial
interference that such a requirement could cause to ongoing
criminal investigations and the protection of government wit-
nesses. See id. at 631-32.
To date, the Supreme Court has not addressed the question
of whether the Brady right to exculpatory information, in con-
trast to impeachment information, might be extended to the
guilty plea context. Compare United States v. Conroy, 567
F.3d 174, 179 (5th Cir. 2009) (per curiam) (rejecting claim
that the Supreme Court’s rejection of a Brady challenge in
Ruiz based upon "impeachment evidence implie[d] that excul-
patory evidence is different and must be turned over before
entry of a plea"), with McCann v. Mangialardi, 337 F.3d 782,
787-88 (7th Cir. 2003) (stating that "[t]he Supreme Court’s
decision in Ruiz strongly suggests that a Brady-type disclo-
sure might be required" in circumstances where the prosecu-
tion "ha[s] knowledge of a criminal defendant’s factual
innocence but fail[s] to disclose such information to a defen-
dant before he enters into a guilty plea."); Matthew, 201 F.3d
at 364 (considering question of whether a pre-plea nondisclo-
sure of exculpatory evidence might render a plea invalid
under the Due Process Clause irrespective of Brady). In Jones
v. Cooper, 311 F.3d 306, 315 n.5 (4th Cir. 2002), however,
we held that Ruiz foreclosed any claim by the defendant that
the prosecutor’s failure to disclose information potentially rel-
evant as mitigation evidence in the death-penalty phase of
defendant’s trial served to invalidate his guilty plea.
UNITED STATES v. MOUSSAOUI 39
Whether our decision in Jones is sufficient to dispose of the
claim before us here is a close one. We need not resolve it,
however, because even if we were to assume that the prosecu-
tion’s failure to disclose material exculpatory evidence at the
plea stage could result in an unknowing plea in certain narrow
circumstances, Moussaoui cannot demonstrate that his guilty
plea was entered unknowingly for this reason.
The inquiry in any challenge to a guilty plea is whether the
plea was entered voluntarily, and whether the related "waiver
of [the defendant’s] right to receive from prosecutors exculpa-
tory . . . material" was made "‘knowing[ly], intelligent[ly],
[and] with sufficient awareness of the relevant circumstances
and likely consequences.’" Ruiz, 536 U.S. at 628-29 (quoting
Brady, 397 U.S. at 748) (alterations in original). In short,
Moussaoui fails to demonstrate that his waiver of the pur-
ported right to exculpatory evidence prior to pleading guilty
was not made knowingly and intelligently, with sufficient
awareness of the relevant circumstances and likely conse-
quences.
First, with regard to the documentary classified informa-
tion, Moussaoui when he first attempted to plead guilty in
2002 was advised that there was "exculpatory evidence which
ha[d] not been provided to him and that his plea of guilty may
mean that he might never have the benefit of such information
to use to contest his guilt." J.A. 866. A month later, the dis-
trict court denied Moussaoui’s pro se motion for access to
classified evidence, advising him that the process of review-
ing the classified discovery was ongoing, that the United
States had declassified and was continuing to declassify docu-
ments, and that "[p]resumably, [he] has had or will have
access to the declassified discovery so long as it is not subject
to a separate protective order." J.A. 1126.
Volume 2 of 2
42 UNITED STATES v. MOUSSAOUI
Second, with regard to the classified information pertaining
to the ECWs, Moussaoui had personally sought access to the
ECWs because he believed they might possess helpful infor-
mation. From then until remand from our decision in Mous-
saoui II, the district court and this court confirmed his belief,
making it clear that the ECWs could indeed offer material,
exculpatory evidence on his behalf, but ruling that Mous-
saoui’s constitutional right to this evidence could be met with
appropriate substitutions under CIPA § 6(c). In doing so, we
even went so far as to explain why the ECW statements were
exculpatory and we remanded for the preparation of substitu-
tions with Moussaoui’s assistance and input. See Moussaoui
II, 382 F.3d at 456 (affirming the district court’s conclusion
"that the [ECWs] could provide material, favorable testimony
on Moussaoui’s behalf"); id. at 473 (noting, among other
things, that the witness statements "tend[ed] to exculpate
Moussaoui [as they] undermine[d] the theory . . . that Mous-
saoui was to pilot a fifth plane into the White House" and
were "consistent with Moussaoui’s claim that he was to be
part of a post-September 11 operation"); id. at 474 (noting
that the statements indicated that "Moussaoui’s operational
knowledge was limited, a fact that is clearly of exculpatory
value as to both guilt and penalty" and "support[ed] Mous-
saoui’s contention that he was not involved in the September
11 attacks").
Thus, unlike in the traditional Brady context, or even those
cases relied upon by Moussaoui for a Brady-type pre-plea
right to exculpatory evidence, the Government did not sup-
press favorable evidence from the defense, much less evi-
dence of factual innocence. On the contrary, the Government
produced the evidence, in accordance with the Protective
Order, to defense counsel pending the final CIPA § 6(a) and
§ 6(c) determinations on remand and Moussaoui was aware
that this evidence had been so produced. See Moussaoui II,
382 F.3d at 458 n.5, 462 n.14 (noting that the classified sum-
maries had "been provided to defense counsel in conformance
with the Government’s obligations under Brady" and that
UNITED STATES v. MOUSSAOUI 43
there was "no evidence before us that the Government pos-
sess[ed] exculpatory material that ha[d] not been disclosed to
the defense"). When the Supreme Court denied review of our
opinion and the case was returned to the district court, Mous-
saoui was well aware that there was classified, exculpatory
evidence yet to be produced to him personally and he knew
why the material was exculpatory. Rather than wait for the
process to be completed, Moussaoui made the strategic deci-
sion to plead guilty immediately. He even went so far as to
confirm with the district court that, because the substitutions
for the ECWs testimony had not yet been completed, he
would retain the right to challenge the final substitutions on
appeal if he received the death penalty.
"[T]he law ordinarily considers a waiver knowing, intelli-
gent, and sufficiently aware if the defendant fully understands
the nature of the right and how it would likely apply in gen-
eral in the circumstances—even though the defendant may
not know the specific detailed consequences of invoking it."
Ruiz, 536 U.S. at 629. Under the circumstances, we have no
trouble concluding that Moussaoui entered his guilty plea
knowingly, and with sufficient awareness of the relevant cir-
cumstances and likely consequences of his decision, and that
the district court did not err in accepting his plea prior to com-
pletion of the CIPA process. Clearly, the plea "represent[ed]
a voluntary and intelligent choice among the alternative
courses of action open to [him]." Alford, 400 U.S. at 31.18
18
Finally, we note that the CIPA process actually continued after the
guilty plea in preparation for the sentencing proceeding, and the exculpa-
tory, classified information was made available for Moussaoui’s use in an
appropriate form. Moussaoui thereafter testified, confirmed his guilt to the
offenses as charged, and contradicted the supposed exculpatory statements
of the ECWs as they related to his intended participation in the 9/11
strikes. The Brady material that Moussaoui claims he was entitled to pre-
plea was either produced post-plea or was cumulative to evidence that was
produced. Yet, Moussaoui did not seek to withdraw his guilty plea until
after he had successfully defended against the sentence of death. Evidence
is material, and prejudice ensues for purposes of Brady, "only if there is
44 UNITED STATES v. MOUSSAOUI
3. The "Advice of Counsel" Claim
For similar reasons, we also reject Moussaoui’s claim that
the district court constructively denied him his right to coun-
sel by restricting defense counsel’s ability to discuss the clas-
sified exculpatory evidence with him prior to his acceptance
of the guilty plea, rendering his plea invalid.
"Since Gideon v. Wainwright, 372 U.S. 335 (1963), it has
been clear that a guilty plea to a felony charge entered without
counsel and without a waiver of counsel is invalid." Brady,
397 U.S. at 748 n.6; see Broce, 488 U.S. at 569 ("[W]hen the
judgment of conviction upon a guilty plea has become final
and the offender seeks to reopen the proceeding, the inquiry
is ordinarily confined to whether the underlying plea was both
counseled and voluntary."); see McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970) ("[A] defendant pleading guilty to
a felony charge has a federal right to the assistance of coun-
sel."). The waiver of constitutional rights accompanying a
guilty plea has to be a "knowing, intelligent act[ ] done with
sufficient awareness of the relevant circumstances and likely
consequences," Brady, 397 U.S. at 748, and "an intelligent
assessment of the relative advantages of pleading guilty is fre-
quently impossible without the assistance of an attorney," id.at 748 n.6.
Where a defendant alleges ineffective assistance of counsel,
he must ordinarily "demonstrate that counsel performed defi-
ciently and that, but for counsel’s errors, the defendant would
not have pled guilty and would instead have insisted on pro-
ceeding to trial." United States v. Faris, 388 F.3d 452, 459
a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 682 (1985). Because Moussaoui has also
failed to demonstrate a reasonable probability that disclosure of the classi-
fied information would have altered his decision to plead guilty, his Brady
claim would also fail on the merits.
UNITED STATES v. MOUSSAOUI 45
(4th Cir. 2004). "This standard derives from the test for inef-
fective assistance of counsel set forth in Hill v. Lockhart, 474
U.S. 52, 58-59 (1985), which relied in turn on the standards
announced in Strickland v. Washington, 466 U.S. 668, 687
(1984)." Id. at 459 n.4.
However, "[i]n unusual circumstances, a defendant may
obtain reversal of his conviction based on the inadequacy of
counsel even in the absence of a showing that would satisfy
Hill or Strickland." Id. (citing United States v. Cronic, 466
U.S. 648, 659-60 (1984)). Such a constructive denial of coun-
sel results from circumstances where "the performance of
counsel [is] so inadequate that, in effect, no assistance of
counsel is provided" at all. Cronic, 466 U.S. at 654 n.11; see
Lenz v. Washington, 444 F.3d 295, 303-04 (4th Cir. 2006)
(stating that a constructive denial of counsel "arises only
when a lawyer entirely fails to subject the prosecution’s case
to meaningful adversarial testing, and thus might as well be
absent from the proceedings") (internal quotation marks and
citations omitted); Childress v. Johnson, 103 F.3d 1221, 1228
(5th Cir. 1997) (applying Cronic to the guilty plea context).19
Moussaoui contends that the Protective Order construc-
tively denied him counsel under Cronic because it prohibited
counsel from discussing the substance of the exculpatory evi-
dence with him prior to his guilty plea. See Geders, 425 U.S.
at 91 (holding that trial court’s order barring defendant from
consulting with defense counsel during an overnight recess
deprived defendant of his Sixth Amendment right to counsel).
19
Moussaoui does not argue that counsel’s performance was deficient or
that he was prejudiced by it. There was no requirement that the Govern-
ment produce the classified, exculpatory evidence to defense counsel in
the pretrial process under CIPA § 4 in the first instance. In addition,
Moussaoui had categorically rejected all defense counsel as his enemy and
made it clear that he was uninterested in communicating with his counsel
or following their advice.
46 UNITED STATES v. MOUSSAOUI
To the extent we would adopt some Cronic-like standard
for guilty pleas, however, Moussaoui falls well short of dem-
onstrating that his guilty plea was entered under circum-
stances amounting to "no assistance of counsel" at all. Cronic,
466 U.S. at 654 n.11. In fact, Moussaoui cannot even demon-
strate that his plea was uncounselled on the matter of exculpa-
tory evidence.
First, the restrictions on counsel’s ability to communicate
with Moussaoui regarding pretrial discovery matters were not
so onerous as to render counsel effectively absent during the
guilty plea proceeding. The right to communicate with coun-
sel at any point in the proceedings is not absolute. "[I]n cer-
tain contexts there can be an important need to protect a
countervailing interest, which may justify a restriction on
defendant’s ability to consult with his attorney if the restric-
tion is carefully tailored and limited." In re Terrorist Bomb-
ings, 552 F.3d at 127 (internal quotation marks omitted); see
United States v. Hung, 667 F.2d 1105, 1107-08 (4th Cir.
1981) (per curiam) (holding that protective order prohibiting
defense counsel from disclosing contents of certain docu-
ments did not violate defendant’s Fifth or Sixth Amendment
rights where trial court allowed defense counsel to review
Jencks Act material to assist in determining whether material
should be disclosed, but precluded counsel from consulting
with defendant about the material); United States v. Bell, 464
F.2d 667, 671-72 (2d Cir. 1972) (counsel barred from disclos-
ing sensitive airport hijacker profiling system); cf. Morgan v.
Bennett, 204 F.3d 360, 368 (2d Cir. 2000) (barring counsel
from disclosing identity of a cooperating witness to the defen-
dant); United States v. Herrero, 893 F.2d 1512, 1526-27 (7th
Cir. 1990) (barring counsel from revealing name of a confi-
dential informant to the defendant).
That principle applies in this case. The Government’s inter-
est in protecting the classified information during the discov-
ery and appeal process justified the limited restrictions upon
Moussaoui’s right to communicate with counsel pending
UNITED STATES v. MOUSSAOUI 47
completion of the CIPA process and preparation of unclassi-
fied substitutions. Cf. Abu Ali, 528 F.3d at 254 ("A defendant
and his counsel, if lacking in the requisite security clearance,
must be excluded from hearings that determine what classified
information is material and whether substitutions crafted by
the government suffice to provide the defendant adequate
means of presenting a defense and obtaining a fair trial.")
(emphasis added).
Second, Moussaoui has failed to demonstrate that he was
completely denied counsel’s advice regarding the evidence at
issue, or that counsel’s advice was so lacking that it amounted
to none at all. As discussed previously, Moussaoui knew that
the exculpatory information existed and had been produced to
his counsel, knew the substance of the information, and knew
that the process for evaluating and declassifying that informa-
tion was ongoing. He was also well aware that the process
would be completed upon our remand to the district court
from the previous appeal. In any event, the Protective Order
did not preclude defense counsel from advising Moussaoui
that the evidence existed, as they did prior to the July 2002
guilty plea attempt, or from providing advice on how the clas-
sification review process would be completed. In fact, it
appears from the record that Yamamoto and Moussaoui did
discuss the issue, but Moussaoui disagreed with counsel about
the effect of his plea upon the substitution process and Mous-
saoui made the informed and strategic decision to plead guilty
before the process was completed. For its part, the district
court employed a cautious manner of dealing with Mous-
saoui’s guilty plea. At the ex parte plea proceeding, the court
ensured that Moussaoui had received the advice of his counsel
on these matters. Moussaoui made it clear at this hearing and
the public Rule 11 hearing that he had met with his attorneys,
who had advised that he not plead guilty, but that he was
freely and voluntarily choosing to reject that advice.
While a guilty plea must be counseled in the sense that the
defendant has a right to effective assistance of counsel in
48 UNITED STATES v. MOUSSAOUI
making the decision, in the end it is the "defendant [who] has
‘the ultimate authority’ to determine ‘whether to plead
guilty.’" Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting
Jones v. Barnes, 463 U.S. 745, 751 (1983)); see also Miller
v. Angliker, 848 F.2d 1312, 1322 (2d Cir. 1988) ("[T]he right
to decide whether to plead guilty . . . belongs to the defendant,
not to counsel."); cf. Roe v. Flores-Ortega, 528 U.S. 470, 485
(2000) ("Like the decision whether to appeal, the decision
whether to plead guilty (i.e., waive trial) rested with the
defendant."). It is counsel’s duty to ensure that the defendant
is sufficiently aware of the facts and circumstances surround-
ing the plea so that the defendant can make a reasonably
informed decision. Here, Moussaoui has failed to demonstrate
the type of complete denial of counsel rising to the level of
a constructive denial of counsel under the Sixth Amendment.
On the contrary, it appears that counsel was determined to
effectively represent Moussaoui, and did so, in spite of Mous-
saoui’s uncooperative behavior and indeed belligerence
towards them.
III. Failure to Hold Competency Hearing
Moussaoui’s next claim is that the district court erred when
concluding that his plea was knowing and voluntary because
the court failed to hold a competency hearing before accept-
ing his plea.
"Before a court may accept a guilty plea, it must ensure that
the defendant is competent to enter the plea." United States v.
Damon, 191 F.3d 561, 564 (4th Cir. 1999). The standard for
competence to plead guilty is the same as that for competence
to stand trial: whether the defendant "has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding – and whether he has a rational as well
as factual understanding of the proceedings against him."
Dusky v. United States, 362 U.S. 402, 402 (1960) (per
curiam); Godinez v. Moran, 509 U.S. 389, 402 (1993) (apply-
ing standard to guilty plea context).
UNITED STATES v. MOUSSAOUI 49
The district court should hold a competency hearing when
it has reasonable cause to believe that a defendant may suffer
from a mental disease or defect that interferes with his ability
to understand the nature and consequences of entering a plea
of guilty. See 18 U.S.C.A. § 4241(a) (West Supp. 2008). "To
prevail, the defendant must establish that the trial court
ignored facts raising a bona fide doubt regarding [his] compe-
tency to stand trial." Walton v. Angelone, 321 F.3d 442, 459
(4th Cir. 2003) (internal quotation marks omitted). The dis-
trict court should examine "all of the record evidence pertain-
ing to the defendant’s competence, including: (1) any history
of irrational behavior; (2) the defendant’s demeanor at and
prior to sentencing; and (3) prior medical opinions on compe-
tency." United States v. General, 278 F.3d 389, 397 (4th Cir.
2002). However, "there are no fixed or immutable signs
which invariably indicate the need for further inquiry to deter-
mine fitness to proceed." Walton, 321 F.2d at 459 (internal
quotations omitted). A district court’s decisions on compe-
tency, as well as its denial of requests for further competency
evaluations, are reviewed for an abuse of discretion. See
United States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007);
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Moussaoui’s counsel first requested a competency evalua-
tion in April 2002, in connection with Moussaoui’s request to
proceed pro se. Counsel acknowledged that they had not
planned to ask for an evaluation for purposes of the defense
but felt it was warranted for purposes of the request to pro-
ceed pro se. The district court observed that Moussaoui was
"obviously a very smart" man, J.A. 262, and "appear[ed] to
know and understand what [he was] doing," J.A. 263. How-
ever, the district court agreed to order an evaluation "out of
an abundance of caution" and held Moussaoui’s motion to
proceed pro se in abeyance pending the results. J.A. 514.
Dr. Raymond Patterson was appointed to perform the com-
petency evaluation. When Moussaoui refused to cooperate,
the district court advised Moussaoui that his refusal was
50 UNITED STATES v. MOUSSAOUI
"merely frustrating his own goal of representing himself" and
that "his meeting with Dr. Patterson [was] necessary before
any decision [could] be made on his pending motion." 2 Supp.
J.A. 11. Moussaoui was also advised that "[i]f [he] contin-
ue[d] to refuse to meet with Dr. Patterson, he may be sent to
the Federal Correctional Center at Butner, North Carolina, the
federal facility specializing in forensic psychiatric evalua-
tions," for evaluation. 2 Supp. J.A. 11. Moussaoui thereafter
agreed to an interview with Dr. Patterson.
Dr. Patterson concluded that "there [did] not appear to be
a history or current symptoms consistent with a mental dis-
ease or defect that would interfere with [Moussaoui’s] volun-
tary, intelligent, and knowing appreciation of the potential
consequences of waiving counsel." J.A. 5758. Defense coun-
sel retained two mental health experts, neither of whom met
with or personally interacted with Moussaoui, who presented
contrary opinions based upon reports of a family history of
mental illness, a report that Moussaoui had been deemed inel-
igible for military service in France because of psychiatric
issues noted during his medical examination, Moussaoui’s pro
se filings, and Moussaoui’s solitary confinement. The defense
experts also critiqued Dr. Patterson’s conclusions and opined
that further evaluation was needed.
On June 13, 2002, the district court reviewed the mental
health reports and denied defense counsel’s request for further
evaluations of Moussaoui, noting the following:
[I]t was out of an abundance of caution that I
decided to have the mental evaluation performed of
Mr. Moussaoui, because although his style, his writ-
ing style may be a bit more dramatic that would a
lawyer’s style be, . . . , Mr. Moussaoui does come
from a different culture where things are done differ-
ently than we, and he is, in fact, in a much smaller
section of that culture than even that culture itself as
a whole. Cultural differences may appear irrational
UNITED STATES v. MOUSSAOUI 51
to different cultures. It doesn’t mean the person is
insane from a psychological standpoint. I think it’s
. . . very significant that the day-to-day observations
of the people in the Alexandria Jail consistently
negate any question about there being any serious
mental illness or disease from Mr. Moussaoui.
J.A. 514. The district court also considered the potential
impact of solitary confinement but noted that Moussaoui had
been dressed appropriately with proper hygiene when
observed by others and that the jailers had provided no evi-
dence of decompensation caused by the restrictions. Addition-
ally, the court noted, "I’ve certainly seen Mr. Moussaoui now
two or three times in court and read all of his papers. And as
I said, I don’t see any basis to prolong this issue. I am com-
fortable in deciding the competency issue based upon the
quantum of information that is before me." J.A. 516. Among
other things, the court also noted that Moussaoui understood
and complied when he was informed that he might be sent to
Butner for a competency evaluation if he did not cooperate
with Dr. Patterson. The court ruled that Moussaoui had "suffi-
cient present ability to consult with his attorneys with a rea-
sonable degree of rational understanding and rationally
functioning understanding of the proceedings against him,"
and that he was competent to proceed pro se under the Dusky
standard. J.A. 518.
On several occasions over the next four years, the district
court addressed renewed challenges to Moussaoui’s compe-
tency, each time in conjunction with proceedings in which the
court personally observed and interacted with Moussaoui.
In July 2002, when Moussaoui first decided to plead guilty,
defense counsel again raised the question of his competency
to do so and submitted additional reports of the two defense
experts, along with a third expert. Counsel also requested that
the district court order access to Moussaoui for themselves
and a mental health expert. The district court ruled that there
52 UNITED STATES v. MOUSSAOUI
was no new evidence to support a claim that Moussaoui was
not competent and that forcing Moussaoui to receive standby
counsel and their mental health expert would deprive Mous-
saoui of the limited privacy to which he had insisted and fur-
ther damage the relationship between Moussaoui and defense
counsel. At the Rule 11 hearing, the district court ruled as fol-
lows:
I have carefully considered the materials that were
submitted by standby defense counsel as well as
their doctor reports, but I am satisfied that Mr.
Moussaoui is not presently suffering from a mental
defect or disease of such a degree as to render him
incompetent to represent himself or, assuming he
answers the questions appropriately, to enter a know-
ing and voluntary plea of guilty to any one or all six
of the charges. I am particularly impressed with the
fact that although Mr. Moussaoui had filed numerous
repetitive motions, at the hearing last week, when I
advised him that he was not to file any more repeti-
tive motions and if he did so, he might lose his pro
se status, Mr. Moussaoui obviously understood the
Court’s admonition, because we have not received a
single writing from him in a week, which is a record.
But that indicates to the Court that Mr. Moussaoui is
perfectly capable of understanding the Court’s direc-
tions, and when he chooses to, he can follow those
directions. That was similar to earlier in the case,
when he was refusing to meet with Dr. Patterson,
and I warned him in an order that continued refusal
would result in the Court not being able to decide his
pro se status. He thereafter met with Dr. Patterson.
So although the defendant’s pleadings are somewhat
confrontational and somewhat unusual, they do not
give the Court sufficient basis to make any kind of
a finding that this man is not competent to go for-
ward with a guilty plea if that is his desire, and there
clearly is no basis in this record at this time to con-
UNITED STATES v. MOUSSAOUI 53
tinue or postpone these proceedings for a custodial,
for a mental health forensic evaluation.
J.A. 993-94.
When Moussaoui pled guilty in April 2005, Moussaoui’s
counsel again challenged entry of the plea without further
competency evaluations but did not ask for a full evaluation
at Butner. The district court again rejected the challenge, reit-
erating that:
despite the fact that we may disagree about things,
this defendant has always struck this Court as articu-
late, intelligent, fully understanding the proceedings,
and although his world view may be significantly
different from ours and therefore at times perhaps
difficult to understand, in my view, that does not . . .
make a basis for arguing that he is incompetent.
2 Supp. J.A. 51. In addition, Yamamoto, the only defense
counsel with whom Moussaoui would communicate, did not
directly call into question Moussaoui’s competency to plead
guilty. Yamamoto stated that his "discussions with [Mous-
saoui had] been calm, rational. He knows what we’re talking
about. All that – those things are, are as the Court indicates.
Whether or not there’s some . . . mental health issues other
than his ability to relate to me, I don’t know." 2 Supp. J.A. 55.
The district court also rejected the claim that Moussaoui’s
confinement had affected his ability to proceed, noting that
"any human being locked up under the conditions in which he
has been housed would naturally at times [get] frustrated and
angry. That again does not equate to incompetence." 2 Supp.
J.A. 51. The district court was satisfied that Moussaoui was
competent to enter a guilty plea and scheduled the Rule 11
proceeding.
At the public Rule 11 proceeding, the district court noted
its previous determination, adding that it was "fully satisfied
54 UNITED STATES v. MOUSSAOUI
that Mr. Moussaoui is completely competent to enter his
guilty pleas today. The defendant has acted against the advice
of his counsel, but he has clearly exhibited both today and
earlier this week a complete understanding of the ramifica-
tions of his guilty pleas." J.A. 1435; see also 2 Supp. J.A. 67
(noting that "[a] defendant in our system has an absolute right
to reject [advice of counsel]" and "[i]t does not make him
incompetent [or] unwise."). Yamamoto confirmed that Mous-
saoui, in discussing the plea, had "responded appropriately
when I’ve spoken to him. He has had disagreements with me
with respect to certain items. Those disagreements were
appropriate disagreements." J.A. 1434.
Given this extensive record, we find no abuse of discretion
in the district court’s determination that Moussaoui was com-
petent to proceed with his guilty plea and that further evalua-
tions were unnecessary. The district court had the benefit of
multiple reports of evaluating and consulting mental health
specialists regarding Moussaoui’s competency to proceed
over the years and, at the time of the plea, Yamamoto con-
firmed that Moussaoui’s interactions with him had been calm,
rational, and appropriate. Most compelling, however, is that
the district court had the unique benefit of extensive personal
interactions with Moussaoui over the years leading up to his
plea, most of which occurred while Moussaoui was represent-
ing and speaking for himself. In addition, the district court
had the opportunity to observe Moussaoui represent himself
at the Rule 15 deposition of a JI operative, during which
Moussaoui conducted himself rationally and intelligently,
conducted cross-examination of the witness, and made cogent
objections, many of which were sustained by the district
court. We also find significant the extensive discussion
regarding Moussaoui’s waiver of appellate rights, during
which Moussaoui confirmed his understanding that a guilty
plea precluded his raising constitutional arguments on appeal:
What is certain, okay, is I’ve listened to their
advice, read . . . the Blackledge v. Perry case [they
UNITED STATES v. MOUSSAOUI 55
sent] with the statement of the Supreme Court, who
made absolutely clear that once you have pled guilty,
you cannot raise any – you cannot raise claim relat-
ing to deprivation of constitutional rights . . . that
occur prior to the entry of the guilty plea. This is the
word of the Supreme Court.
2 Supp. J.A. 59.
Clearly, Moussaoui "ha[d] sufficient present ability to con-
sult with his lawyer with a reasonable degree of rational
understanding" and "a rational as well as factual understand-
ing of the proceedings against him." Dusky, 362 U.S. at 402(internal quotation marks omitted). As noted by the district
court, Moussaoui has a view that is significantly and cultur-
ally different from ours, but there is nothing to indicate that
the district court’s observations should have reasonably
caused it to believe that Moussaoui was suffering from a men-
tal disease or defect that interfered with his ability to under-
stand the nature and consequences of entering a plea of guilty.
See Banks, 482 F.3d at 743 (noting that "[w]e defer . . . to the
district court because it is in a superior position to adjudge the
presence of indicia of incompetency constituting reasonable
cause to initiate a hearing"); United States v. West, 877 F.2d
281, 285 n.1 (4th Cir. 1989) (finding no abuse of discretion
where "district court, having observed and talked with [defen-
dant] at numerous prior hearings, found no reasonable cause
to believe he was unfit to stand trial" and, thus, denied motion
to determine mental competence).
IV. Challenges to the Rule 11 Proceeding
Moussaoui’s final challenges to his guilty plea are based
upon his assertion that the district court violated Rule 11 by
(1) failing to inform him of the nature of the charged conspir-
acies, in particular, that they encompassed the 9/11 attacks;
(2) failing to ensure that there was an adequate factual basis
for his plea, including a basis for venue in the Eastern District
56 UNITED STATES v. MOUSSAOUI
of Virginia; and (3) failing to inform him of the possible sen-
tences he would face.
Rule 11 "governs the duty of the trial judge before accept-
ing a guilty plea." Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). It requires the judge to address the defendant "to
ensure that he understands the law of his crime in relation to
the facts of his case, as well as his rights as a criminal defen-
dant." United States v. Vonn, 535 U.S. 55, 62 (2002); see also
United States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004)
(explaining that the plea colloquy is the avenue by which the
court conclusively "establish[es] that the defendant knowingly
and voluntarily enters his plea"); United States v. Standiford,
148 F.3d 864, 868 (7th Cir. 1998) ("The whole point of the
Rule 11 colloquy is to establish that the plea was knowingly
and voluntarily made."). We "accord deference to the trial
court’s decision as to how best to conduct the mandated collo-
quy with the defendant." United States v. DeFusco, 949 F.2d
114, 116 (4th Cir. 1991).
Because Moussaoui’s claims are raised for the first time on
appeal, our review is for plain error. See Vonn, 535 U.S. at 71.
Moussaoui must therefore establish (1) error; (2) that was
plain; and (3) that affected his substantial rights, i.e., "a rea-
sonable probability that, but for the error, he would not have
entered the plea." United States v. Dominquez Benitez, 542
U.S. 74, 83 (2004); see United States v. Olano, 507 U.S. 725,
731-32 (1993). Even then, the court will not "correct the for-
feited error . . . unless [it] seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Olano,
507 U.S. at 731-32.
A. Nature of the Charges
Moussaoui claims that the district court failed to inform
him of the nature of the charges and ensure that he understood
them. See Fed. R. Crim. P. 11(b)(1)(G). Specifically, he con-
tends that the Indictment charged him with participation in the
UNITED STATES v. MOUSSAOUI 57
9/11 attacks, but he was led to believe that he was pleading
guilty to a different conspiracy. We disagree.
As an initial premise, we reject Moussaoui’s claim that the
Indictment charged him only with conspiring to personally
participate in the 9/11 attacks as a 9/11 hijacker. The Indict-
ment charged Moussaoui with six conspiracy counts arising
out of al Qaeda’s plan to hijack airplanes and fly them into
designated targets, and the Indictment identified 110 overt
acts taken by the conspirators in furtherance of that plan.
These overt acts included the actions taken by Moussaoui and
the co-conspirators in preparation for such attacks and the
9/11 attacks themselves, which resulted in the deaths of nearly
3,000 people.20 Based upon the deaths resulting from the 9/11
attacks, the Indictment also included special findings required
under the FDPA to authorize the death penalty. Thus, the
charged conspiracies were not agreements to carry out the
9/11 attacks specifically; the 9/11 attacks were overt acts
taken after Moussaoui’s arrest by his co-conspirators in fur-
therance of the charged conspiracies. They also served as the
basis for the Government’s decision to seek the death penalty.
During the plea colloquy, the district court properly
informed Moussaoui of the nature of these charges and
ensured that he understood them. The district court went over
each count in the Indictment, which Moussaoui represented
he had received long ago and "kn[ew] very much what [it
was] talking about." J.A. 1419. See Bousley v. United States,
523 U.S. 614, 618 (1998) (noting that providing the defendant
with a copy of the indictment "give[s] rise to a presumption
that the defendant was informed of the nature of the charge
against him"). In addition, Moussaoui was informed, among
20
Counts One through Four and Six alleged that the conspiracies
resulted in the deaths of thousands of persons on 9/11. Count Five alleged
that the conspiracy involved the intent to kill officers and employees of the
United States, including members of the Department of Defense stationed
at the Pentagon.
58 UNITED STATES v. MOUSSAOUI
other things, of the Government’s burden of proof, including
the requirement that it prove that Moussaoui "knowingly and
intentionally entered into acts in furtherance of the conspirac-
[ies], "knew about the conspirac[ies]," and "purposely joined
[them]." J.A. 1425. Finally, the court correctly advised Mous-
saoui that the Government would "have to prove that at least
one of the specific overt acts . . . listed in the [I]ndictment was
committed either by [him] or by some other member of the
conspirac[ies]." J.A. 1426.21
The court also addressed the Statement of Facts with Mous-
saoui. Moussaoui represented that he had read the Statement
of Facts "more than ten times," had "pondered . . . each para-
graph," and found the document to be factually accurate. J.A.
1431. He requested a single correction to paragraph 15,
changing the date that he told his al Qaeda associate that he
would finish jet simulator training from "by the 20th of
August," 2001, to "before September 2001." 2 Supp. J.A. 45-
46. The Statement of Facts laid out what the Government
could prove at trial and was fully consistent with the charges
in the Indictment, including a description of the 9/11 attacks
as an object of the conspiracies and Moussaoui’s admission
that he lied to ensure the success of his co-conspirators. See
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)
(en banc) ("Statements of fact by a defendant in a Rule 11
proceeding may not ordinarily be repudiated."); Burket v.
Angelone, 208 F.3d 172, 191 (4th Cir. 2000) ("Absent clear
and convincing evidence to the contrary, [a defendant] is
bound by the representations he made during the plea collo-
quy."). At no point did Moussaoui deny that he was a part of
the conspiracies, or deny that the conspiracies resulted in the
9/11 attacks.
21
In addition, the district court had engaged in an extensive discussion
of conspiracy law and its application to the charges at the Rule 11 hearing
held in July 2002. See Vonn, 535 U.S. at 75 ("[T]here are circumstances
in which defendants may be presumed to recall information provided to
them prior to the plea proceeding.").
UNITED STATES v. MOUSSAOUI 59
Notwithstanding these representations, Moussaoui now
claims that the Statement of Facts and plea colloquy misled
him into believing that he was not pleading guilty to any con-
spiracy that included 9/11, and that his confusion on this point
was evidenced by various statements he made both pre-plea
and post-plea. We are unpersuaded.
The elements of a conspiracy charge are: (1) an agreement
among the defendants to do something which the law prohib-
its; (2) the defendants’ knowing and willing participation in
the agreement; and (3) an overt act by one of the conspirators
in furtherance of the agreement’s purpose. See United States
v. Hedgepath, 418 F.3d 411, 420 (4th Cir. 2005). Because it
is the agreement to commit the crime that creates the conspir-
acy, the defendant need not know the details of the underlying
crime or "the entire breadth of the criminal enterprise." United
States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc).
"A conspirator need not have had actual knowledge of the co-
conspirators," and "a conspiracy conviction must be upheld
even if the defendant played only a minor role in the conspir-
acy." United States v. Morsley, 64 F.3d 907, 919 (4th Cir.
1995); see also United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993) ("It is of course elementary that one may be
a member of a conspiracy without knowing its full scope, or
all its members, and without taking part in the full range of
its activities or over the whole period of its existence."). The
defendant "may be liable for conspiracy even though he was
incapable of committing the substantive offense." Salinas v.
United States, 522 U.S. 52, 64 (1997).
In the Statement of Facts, Moussaoui admitted, among
other things, that he "knew of al Qaeda’s plan to fly airplanes
into prominent buildings in the United States and he agreed
to travel to the United States to participate in the plan." J.A.
1410. He admitted that "Bin Laden personally selected [him]
to participate in the operation to fly planes into American
buildings and approved Moussaoui attacking the White
House." J.A. 1410. He also admitted that an al Qaeda asso-
60 UNITED STATES v. MOUSSAOUI
ciate provided him with information about flight training, that
he pursued such "training as a pilot in furtherance of al
Qaeda’s plan to use planes to kill Americans," and that he
advised an al Qaeda associate that he would complete his
training before September 2001. J.A. 1411.
Because Moussaoui had denied specific knowledge of the
9/11 hijackers, their activities, or the details of the planes
operation in the United States, the Statement of Facts con-
tained admissions placing him in the general conspiracies to
hijack planes and use them to strike prominent buildings. It
did not, however, involve admissions that Moussaoui knew
the specifics of the operation, such as the precise date, the
range of targets, and the identities of all the hijackers. The lat-
ter, however, were not necessary for his conviction, nor was
his guilty plea contingent upon them—a fact that had been
earlier recognized by the district court and this court in pub-
lished opinions. See United States v. Moussaoui, 282 F. Supp.
2d 480, 484 (E.D. Va. 2003) (noting that "the United States
correctly contends that it need not prove the defendant’s par-
ticipation in the September 11 attacks to obtain a conviction
in this case."); Moussaoui II, 382 F.3d at 473 (noting argu-
ment "that even if the witnesses’ testimony would tend to
exonerate Moussaoui of involvement in the [9/11] attacks,
such testimony would not be material because the conspira-
cies with which Moussaoui is charged are broader than
[9/11]"). However, the Statement of Facts did include facts
pertaining to the overt acts engaged in by his co-conspirators
on 9/11, as well as an admission that Moussaoui "lied to fed-
eral agents to allow his al Qaeda ‘brothers’ to go forward with
the operation." J.A. 1412. Thus, Moussaoui admitted facts
sufficient to plead guilty to the conspiracy charges without
foreclosing defense strategies during the death penalty phase
that would directly focus upon Moussaoui’s degree of culpa-
bility for the deaths that occurred on 9/11.
Moussaoui’s pre-plea denials regarding his specific
involvement in 9/11 also lend no support to his claim that he
UNITED STATES v. MOUSSAOUI 61
was confused or misled about the nature of the conspiracy
charges to which he was pleading guilty. Pre-plea denials of
guilt, of course, would be the usual case where guilty pleas
are entered after an arraignment. In addition, Moussaoui never
admitted knowing the particulars of the planes operation.
After he was asked to and agreed to become a participant in
the planes conspiracy, he was sent here to train and await fur-
ther instructions. While doing so, Moussaoui was kept sepa-
rate from the other hijackers. But this was fully consistent
with the operational trade craft of al Qaeda and Moussaoui’s
training as an al Qaeda soldier, cf. United States v. Squilla-
cote, 221 F.3d 542, 574 (4th Cir. 2000) (explaining that the
fact that persons "were not always aware of the others’ activi-
ties . . . would not prevent the jury from determining that a
single conspiracy existed," as this was "part of the standard
operating procedure for those engaged in espionage"), and
does not indicate that Moussaoui was "confused" about the
Indictment or at the guilty plea proceeding.
We also reject Moussaoui’s claim that his post-plea state-
ments demonstrate the failure of the district court to ensure
his understanding of the nature of the charges and the confu-
sion he labored under during the Rule 11 proceeding. After
the district court accepted Moussaoui’s guilty plea, the court
turned to address motions and issues pertaining to the upcom-
ing capital sentencing proceeding. In connection with the lat-
ter, Moussaoui advised the court that he wanted to "file [a]
motion regarding ineffective assistance of defense counsel."
J.A. 1438.22 Part of his complaint was that defense counsel
were pursuing a strategy that he was incompetent and had a
22
As discussed in some detail above, Moussaoui vehemently opposed
defense counsel’s representation of him, both as counsel of record and as
standby counsel, throughout the proceedings and refused to cooperate with
the court, counsel, his mother, or Muslim counsel who had stepped for-
ward to assist him. Although his hostile actions had resulted in the revoca-
tion of his right to proceed pro se by the time of the guilty plea
proceeding, he continued to conduct himself as if he were pro se, and was
given a great deal of latitude in this regard.
62 UNITED STATES v. MOUSSAOUI
minor role in 9/11, instead of advancing his desire to argue,
in mitigation, that he did not come "into the United States to
participate in[ ] 9/11" at all. J.A. 1441. Clearly seeking to dis-
tance himself for purposes of the sentencing proceeding from
the 9/11 attacks, and the deaths that served as the basis for a
possible sentence of death under the FDPA, Moussaoui
asserted a new theory of his role as an al Qaeda terrorist—that
he "was being trained on the 747[-]400 to eventually use this
plane as stated in this [S]tatement of [F]act[s] to strike the
White House" but that his "aim" was to free Sheikh Omar
Abdel Rahman," (a/k/a the "Blind Sheikh"), an al Qaeda asso-
ciate who was being held in custody in Florence, Colorado,
and that this "was a different conspiracy tha[n] 9/11." J.A.
1440 (emphasis added). In doing so, however, Moussaoui
reiterated that he was "guilty of a broad conspiracy to use [a]
weapon of mass destruction to hit the White House." J.A.
1440. He simply added that he was only to do so "if the
American government refuse[d] to negotiate" to free the Blind
Sheikh, and asserted that the 9/11 attacks were "not my con-
spiracy." J.A. 1440-41.
Although Moussaoui refers to his "Blind Sheikh" strategy
as a "different conspiracy" from the so-called "9/11 conspir-
acy," we fail to see how his strategic post-plea claims could
somehow render invalid the guilty plea he had just entered to
the broader conspiracies. The district court had just reviewed
the Indictment with Moussaoui, as well as the Statement of
Facts that was sufficient to establish Moussaoui’s participa-
tion in the al Qaeda conspiracies to hijack planes and fly them
into buildings in the United States. At no point during the
post-plea discussion did Moussaoui indicate that he was con-
fused about the crimes to which he had just pled guilty. On
the contrary, Moussaoui reiterated that he had pled guilty to
the "broader conspiracy to use [an] airplane as [a] weapon of
mass destruction" to hit the White House and that he was
"being trained on the 747[-]400 to eventually use this plane
as stated in this statement of fact to strike the White House."
J.A. 1440. Far from exhibiting confusion, Moussaoui’s state-
UNITED STATES v. MOUSSAOUI 63
ment seems more to demonstrate his understanding that his
responsibility for 9/11 remained an important issue for sen-
tencing and just how well he understood the distinction
between the broad conspiracies to which he had pled guilty
and the 9/11 overt acts upon which his eligibility for the death
penalty rested.23
Finally, we find it significant that Moussaoui never sought
to rescind the admissions he had just made, nor to withdraw
his guilty plea during the nearly year-long period that elapsed
between his plea and the conclusion of the sentencing pro-
ceeding. See Fed. R. Crim. P. 11(d)(2)(B) ("A defendant may
withdraw a plea of guilty . . . after the court accepts the plea,
but before it imposes sentence if . . . the defendant can show
a fair and just reason for requesting the withdrawal."). On the
contrary, Moussaoui abandoned his "Blind Sheikh" strategy
and declined to pursue the "second wave" strategy, opting
instead to admit his responsibility for 9/11 in the belief that
the jurors would spare his life if he accepted responsibility
and gave them reasons to believe that death would be a
reward.
23
We also note that we had just discussed such a distinction in Mous-
saoui II and may well have mapped out Moussaoui’s strategy for the sen-
tencing at the time. In addressing the Government’s argument that, even
if exculpatory as to 9/11, the ECWs "testimony would not be material
because the conspiracies with which Moussaoui is charged are broader
than September 11," we noted "the possibility that Moussaoui may assert
that the conspiracy culminating in the September 11 attacks was distinct
from any conspiracy in which he was involved" and that "even if the jury
accept[ed] the Government’s claims regarding the [broader] scope of the
charged conspiracy, testimony regarding Moussaoui’s non-involvement in
September 11 [would be] critical to the penalty phase. If Moussaoui had
no involvement in or knowledge of September 11, it is entirely possible
that he would not be found eligible for the death penalty." Moussaoui II,
382 F.3d at 473. Thus, our opinion would have alerted Moussaoui to the
issue of the scope of the conspiracy and the benefits he might derive at
sentencing from arguing that the conspiracy in which he was involved was
"distinct" from the 9/11 attacks.
64 UNITED STATES v. MOUSSAOUI
To conclude, we hold that the district court properly
informed Moussaoui of the nature of the charged conspiracies
and ensured that he understood them. Regardless of the pre-
cise role the al Qaeda leadership intended Moussaoui to play,
or what role he believed he would ultimately play, the facts
admitted by Moussaoui were within the scope of the conspira-
cies charged. There is no indication that Moussaoui, clearly
the intelligent and knowledgeable man he was observed to be
by the district court, was laboring under any confusion when
he signed the Statement of Facts and entered his valid plea of
guilty to the conspiracies as charged.
B. Factual Basis For the Plea
Moussaoui’s contention that there was an insufficient fac-
tual basis for his guilty plea similarly rests upon his early
denials of an intended role in the 9/11 attacks and his claim
that the Indictment charged him only with conspiring to par-
ticipate in them. This argument fails for the same reasons pre-
viously discussed.
Rule 11(b)(3) requires the district court to "determine that
there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3).
The requirement "ensures that the court make clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime." United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). "The
requirement to find a factual basis is designed to protect a
defendant who is in the position of pleading voluntarily with
an understanding of the nature of the charge but without real-
izing that his conduct does not actually fall within the
charge." United States v. Mastrapa, 509 F.3d 652, 660 (4th
Cir. 2007) (internal quotation marks omitted). "[T]he trial
court has wide discretion when determining whether a factual
basis exists." DeFusco, 949 F.2d at 120. "[I]t need only be
subjectively satisfied that there is a sufficient factual basis for
a conclusion that the defendant committed all of the elements
UNITED STATES v. MOUSSAOUI 65
of the offense." United States v. Ketchum, 550 F.3d 363, 366
(4th Cir. 2008) (internal quotation marks omitted).
The Statement of Facts adopted by Moussaoui and his rep-
resentations during the plea colloquy were fully consistent
with the charged conspiracies and provided an adequate fac-
tual basis for acceptance of the plea. There was no require-
ment that Moussaoui personally admit to participating in the
9/11 attacks, or that he was intended to be a part of those
attacks. And, as noted above, the fact that he was kept sepa-
rate from the other hijackers and did not know the specifics
of the planes operation was, in the circumstances of this case,
fully consistent with the operational trade craft of al Qaeda
and Moussaoui’s training. Cf. Squillacote, 221 F.3d at 574.
Accordingly, we find no error in this regard.
Moussaoui’s claim that there was no factual basis for venue
in the Eastern District of Virginia, because there was no fac-
tual basis connecting him to the 9/11 attacks, also fails. Venue
is proper in any district in which some act in furtherance of
the conspiracy was committed. See United States v. Al-Talib,
55 F.3d 923, 928 (4th Cir. 1995). Assuming, without decid-
ing, that the district court would even be bound to find a fac-
tual basis for venue during the plea colloquy, Moussaoui is
not entitled to relief because at least one overt act taken by the
al Qaeda conspirators took place at the Pentagon, in the East-
ern District of Virginia.
C. The Possible Sentences
Finally, Moussaoui asserts that the district court errone-
ously advised him during the plea colloquy that his only sen-
tencing options were life imprisonment and death, whereas
the district court should have informed Moussaoui that a term
of years was a possible sentence as well.
As part of the Rule 11 colloquy, the district court "must
inform the defendant of, and determine that the defendant
66 UNITED STATES v. MOUSSAOUI
understands, . . . any maximum possible penalty, including
imprisonment, fine, and term of supervised release; [and] any
mandatory minimum penalty." Fed. R. Crim. P. 11(b)(1)(H)
& (I). The district court complied with this requirement,
informing Moussaoui that he faced a maximum possible pen-
alty of life without parole or death.
V. Sentencing
Finally, Moussaoui raises several challenges to his sen-
tence. Before addressing Moussaoui’s challenges, we believe
it would be helpful to first outline the operation of the Federal
Death Penalty Act and describe the proceedings that took
place in this case.
A.
Under the FDPA, the Government must prove a threshold
eligibility factor before a defendant may be sentenced to death.24
See 18 U.S.C.A. § 3591(a)(2) (West 2000). If the jury unani-
mously finds that the Government has established that thresh-
old fact, the jury must make specific findings about the
existence of aggravating factors and any mitigating factors
and must weigh those factors to determine whether the factors
"justify a sentence of death. Based upon this consideration,
the jury by unanimous vote . . . shall recommend whether the
defendant should be sentenced to death, to life imprisonment
without possibility of release or some other lesser sentence."
18 U.S.C.A. § 3593(e). In this case, the district court at Mous-
saoui’s request bifurcated the sentencing proceeding, so that
24
The death-eligibility factor asserted by the Government was that
Moussaoui "intentionally participated in an act, contemplating that the life
of a person would be taken or intending that lethal force would be used
in connection with a person, other than one of the participants in the
offense, and the victim died as a result of the act." 18 U.S.C.A.
§ 3591(a)(2)(C). The "act" that the Government identified was Mous-
saoui’s lies to law enforcement following his arrest, which concealed al
Qaeda’s ongoing plot.
UNITED STATES v. MOUSSAOUI 67
the jury would first decide whether the Government had
proven the threshold eligibility factor and then in a separate
proceeding would determine whether a death sentence was
justified. The Government and the defense had the opportu-
nity to make opening and closing statements during both
phases of the sentencing proceeding.
As outlined above, the FDPA contemplates that the jury
will decide whether a defendant should be sentenced to death,
to life imprisonment, or to a lesser, term-of-years sentence.
Counsel for Moussaoui, however, made the strategic determi-
nation that the best chance for avoiding a death sentence was
to convince the jury that Moussaoui would spend the rest of
his life in prison if the jury declined to impose the death pen-
alty. Accordingly, before opening statements in the first phase
of the sentencing, defense counsel requested that the district
court instruct the jury that if the jury did not unanimously rec-
ommend a death sentence, the district court would then
impose a sentence of life imprisonment without the possibility
of release. The district court agreed and, at the beginning of
the phase I proceedings, gave verbatim the instruction
requested by Moussaoui. See J.A. 1591 ("If you fail to unani-
mously find that the government has proved [that Moussaoui
is death-eligible] beyond a reasonable doubt, your delibera-
tions are over. The Court will then sentence the defendant to
life imprisonment without the possibility of release."). Coun-
sel for Moussaoui emphasized during the first-phase opening
statements that Moussaoui would receive a life sentence if he
was found not to be eligible for the death penalty, describing
Moussaoui as "the man behind [him] in the prison jumpsuit
that he will wear for the rest of his life." J.A. 1626. The dis-
trict court drove the point home, instructing the jury (again,
at Moussaoui’s request) before the first-phase closing argu-
ments that if the jury failed to find Moussaoui to be death-
eligible, "[t]he Court will then sentence the defendant to life
imprisonment without the possibility of release." J.A. 4368.
The jury unanimously found Moussaoui to be death-eligible
on all three counts for which the Government sought the death
68 UNITED STATES v. MOUSSAOUI
penalty, thereby necessitating the second phase of the sen-
tencing proceedings.
Counsel for Moussaoui continued this strategy into the sec-
ond phase, when the jury was required to make and weigh
specific findings as to aggravating and mitigating factors.
During this phase, Moussaoui and the Government stipulated
that if the jury did not unanimously recommend a death sen-
tence, the district court would "impose a mandatory sentence
of life imprisonment without the possibility of parole," J.A.
6507, and the district court gave the jury a similar instruction.
Defense counsel’s strategy was evidenced during closing
argument, when counsel exhorted the jury to "confine [Mous-
saoui] to a miserable existence until he dies, not the death of
a jihadist that he clearly wants, but the long, slow death of a
common criminal." J.A. 5481. Defense counsel identified the
fact that "if [Moussaoui] is not sentenced to death, [he would]
be incarcerated in prison for the rest of his life, without the
possibility of release" as a factor mitigating against imposi-
tion of the death penalty. J.A. 6737.
At Moussaoui’s request, however, the jury was not asked
to decide unanimously whether Moussaoui should receive life
imprisonment – as opposed to a lesser sentence—in the event
it did not unanimously recommend the death penalty. The dis-
trict court instead repeated its previous instructions, informing
the jury that if it did not unanimously impose a sentence of
death, Moussaoui would be sentenced to life imprisonment
without the possibility of release. See J.A. 4408G-H ("If the
jury has found at least one of the three statutory aggravating
factors, then its final job will be to decide whether the defen-
dant should be sentenced to death or life imprisonment with-
out possibility of release."); J.A. 5557 ("If you do not
unanimously determine that a sentence of death is justified as
to any particular count, that determination constitutes a deci-
sion by the jury that the defendant be sentenced to life impris-
onment without the possibility of release for that particular
UNITED STATES v. MOUSSAOUI 69
count. And you shall then record your determination with
regard to that count on the special verdict form.").
At the conclusion of the second phase, the jury unani-
mously found that the Government had proven certain statu-
tory aggravating factors for each capital count, as well as
several non-statutory aggravating factors. Several jurors also
found that Moussaoui had proven several mitigating factors
by a preponderance of the evidence, including five jurors who
found that the requirement that Moussaoui at least be sen-
tenced to life imprisonment was a mitigating factor. Ulti-
mately, the jury did not unanimously agree to recommend the
death penalty.
The district court sentenced Moussaoui the day after the
jury returned its verdict. The court adopted the information in
the presentence report and utilized a total offense level of 58
and criminal history category of VI, which yielded an advi-
sory guidelines range of life imprisonment. Defense counsel
informed the court that they believed that sentence to be a
"proper" one. J.A. 5599. At that time, three family members
of victims of the 9/11 attacks addressed the court regarding
the terrible effects of the attacks. Given the opportunity to
allocute, Moussaoui denounced one of the family members as
a hypocrite before the district court ruled that the response
was an inappropriate political statement. The district court
sentenced Moussaoui to life imprisonment without possibility
of release on all six counts with the sentence on Count One
to be served consecutively to the sentences on the other
counts. In so doing, the district court characterized its sen-
tence as "appropriate and fair." J.A. 5613.
B.
On appeal, Moussaoui argues that district court erred by
denying his motions for acquittal on the death-eligibility ques-
tion. Moussaoui contends that the Government’s evidence
was insufficient to establish as the statutory death-eligibility
70 UNITED STATES v. MOUSSAOUI
factor that Moussaoui committed an act directly resulting in
death. Moussaoui also argues that the Government’s theory of
death eligibility, if upheld, would render the FDPA unconsti-
tutional as applied to him. Because the jury did not sentence
Moussaoui to death, we need not consider these claims. The
jury’s rejection of the death penalty means that Moussaoui’s
claims are now moot, cf. United States v. Partida, 385 F.3d
546, 560 n.10 (5th Cir. 2004) (rejecting sufficiency-of-the-
evidence claim as moot where defendant was acquitted of the
count being challenged), or, at the very least, that any error
was harmless, see Fed. R. Crim. P. 52(a) ("Any error . . . that
does not affect substantial rights must be disregarded.").
Moussaoui, however, contends that he was prejudiced by
the denial of his motion for acquittal because under 18
U.S.C.A. § 3594 (West 2000), the jury’s determination that he
was death-eligible, combined with the fact that the jury did
not unanimously recommend a death sentence, required the
district court to impose a sentence of life imprisonment. We
disagree.
As discussed above, § 3593(e) provides that if a jury finds
a defendant to be eligible for the death penalty, the jury must
then by unanimous vote "recommend whether the defendant
should be sentenced to death, to life imprisonment without
possibility of release or some other lesser sentence." 18
U.S.C.A. § 3592(e). Section 3594, in turn, provides that
"[u]pon a recommendation under section 3593(e) that the
defendant should be sentenced to death or life imprisonment
without the possibility of release, the court shall sentence the
defendant accordingly. Otherwise, the court shall impose any
lesser sentence that is authorized by law." 18 U.S.C.A. § 3594(emphasis added). Because the jury (at Moussaoui’s request)
was not asked whether it unanimously agreed that Moussaoui
should be sentenced to life imprisonment, the jury did not
make the § 3593(e) recommendation that would have trig-
gered an automatic life sentence under § 3594. We therefore
reject Moussaoui’s claim that the submission of the death-
UNITED STATES v. MOUSSAOUI 71
eligibility question to the jury and the jury’s subsequent
refusal to impose the death penalty combined to require the
district court to impose a life sentence.
Independent of his § 3594 argument, however, Moussaoui
contends that the district court wrongly25 believed that a life
sentence (as opposed to a term-of-years sentence) was man-
dated after the jury did not unanimously recommend a sen-
tence of death. Moussaoui therefore contends that a remand
for resentencing is required. See, e.g., United States v. Daiagi,
892 F.2d 31, 33 (4th Cir. 1989) ("[T]he defendant should be
accorded a right to press his petition for a probationary sen-
tence before a court which has not incorrectly assumed that it
absolutely lacks the power to impose such a sentence.").
Because Moussaoui raises this argument for the first time on
appeal, we review for plain error only. See United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005); Fed. R. Crim. P.
52(b).
Under plain error review, "we must affirm unless an appel-
lant can show that (1) an error was made, (2) it was plain, and
(3) it affected the appellant’s substantial rights." United States
v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Even if the
appellant makes that showing, "the correction of plain error
lies within our discretion, which we do not exercise unless the
error seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings." Id. (internal quotation marks
omitted).
In this case, Moussaoui cannot show that a plain error even
occurred. An error is plain if it is "clear" or "obvious." United
States v. Olano, 507 U.S. 725, 734 (1993). As support for his
25
The Government does not argue on appeal that Moussaoui was in fact
subject to a mandatory life sentence under any of the counts to which he
pleaded guilty. Accordingly, for purposes of this appeal, we will assume
without deciding that none of the charges carried a mandatory life sen-
tence.
72 UNITED STATES v. MOUSSAOUI
claim of error, Moussaoui relies on statements made by the
district court when accepting Moussaoui’s guilty plea. See,
e.g., J.A. 1421 ("You are aware that the first four counts
essentially expose you to the possibility of a death sentence
or life imprisonment without the possibility of parole?"). The
Federal Rules of Criminal Procedure, however, require a dis-
trict court before accepting a guilty plea to inform the defen-
dant of the maximum sentences he faces. See Fed. R. Crim.
P. 11(b)(1)(H) ("Before the court accepts a plea of guilty . . . .
the court must inform the defendant of, and determine that the
defendant understands . . . any maximum possible penalty,
including imprisonment, fine, and term of supervised release
. . . ."). When these statements are read in the context of the
Rule 11 proceeding, it is apparent that the district court was
simply fulfilling its Rule 11 obligation to inform Moussaoui
about the maximum sentences he faced. See J.A. 1419 ("I
need to go over the indictment with you at this time, the spe-
cific charges that are included in the indictment, the maximum
sentences to which you are exposed with any finding of guilt
. . . . (emphasis added)). These statements therefore provide
no support for Moussaoui’s claim that the district court
wrongly believed that a life sentence was mandated once the
jury declined to sentence Moussaoui to death. And because
Moussaoui has not demonstrated that the district court in fact
believed that Moussaoui was not eligible for a term-of-years
sentence, he has not carried his burden of establishing the
existence of a plain error.26 See United States v. Massenburg,
26
Moussaoui also points to statements made by the district court during
the 2002 Rule 11 hearing on Moussaoui’s first (but ultimately withdrawn)
attempt to plead guilty, when the court explained that the charges carried
two "and only two" possible penalties: "either life imprisonment without
the possibility of parole or the death penalty." J.A. 524. Putting aside the
fact that these statements were likewise made in a Rule 11 proceeding
where the court was required to explain the maximum sentences, we ques-
tion the relevance to our plain-error inquiry of statements made by the dis-
trict court in connection with an aborted guilty plea that took place four
years before the actual, effective guilty plea. Moreover, it is only by virtue
of the sentencing discretion given district courts by the Supreme Court in
United States v. Booker, 543 U.S. 220 (2005), that Moussaoui can even
UNITED STATES v. MOUSSAOUI 73
564 F.3d 337, 343 (4th Cir. 2009) ("[T]he defendant bears the
burden of satisfying each of the elements of the plain error
standard.").
Moreover, even if Moussaoui could establish that the dis-
trict court wrongly believed that Moussaoui could not be sen-
tenced to a term of years, we would not exercise our
discretion to correct the error. As discussed above, counsel for
Moussaoui repeatedly argued to the jury that Moussaoui
would spend the rest of his life in prison if the jury did not
sentence him to death, and counsel specifically requested that
the jury not be asked to recommend, as provided for in
§ 3593, life imprisonment or a lesser sentence. After the dis-
trict court at sentencing explained that the guidelines calcula-
tion called for a life sentence, counsel for Moussaoui
specifically agreed that life imprisonment was warranted:
"We believe the sentence is a proper sentence, that he should
spend the rest of his life incarcerated for his participation in
this conspiracy." J.A. 5599. Because Moussaoui insisted
throughout the proceedings below that he would and should
receive a life sentence, it would not be appropriate to recog-
nize and correct the alleged error in this case. In this regard,
we agree with the sentiments expressed by the Second Circuit
when presented with a similar argument:
[B]ecause defendants, in successfully avoiding the
death penalty, made a tactical decision to concede
the singular non-capital alternative of a life sentence,
we conclude that they cannot now argue that the
imposition of such a sentence constitutes plain error.
Indeed, if we were to entertain an argument that
afforded defendants the possibility of a lesser sen-
argue that he could have been sentenced to a sentence of a term of years.
Because the first Rule 11 proceeding took place in 2002, when the Sen-
tencing Guidelines were still mandatory, the district court’s statements
accurately reflected the sentencing options then available.
74 UNITED STATES v. MOUSSAOUI
tence than the one the jury was told would be
required when it voted to spare defendants the death
penalty, that ruling, and not the challenged life sen-
tences, would raise concerns about the fairness,
integrity, and repute of the capital proceeding.
United States v. Quinones, 511 F.3d 289, 322 (2d Cir. 2007)
(citations and footnote omitted).
VI. The Motion to Remand
Finally, we briefly address a renewed motion filed by
Moussaoui, seeking to remand this case to the district court
for consideration of classified information that was discov-
ered and produced by the Government to this court and the
district court after this appeal was filed.
In connection with the previous proceedings and appeal
regarding Moussaoui’s access to the ECWs for Rule 15 depo-
sitions, the Government advised the district court and this
court that there were no recordings of the interrogations of the
ECWs by the intelligence agencies. Specifically, in May
2003, in connection with a CIPA hearing conducted by the
district court on remand from this court for consideration of
substitutions in lieu of access to the witnesses, the district
court ordered the Government to determine whether interro-
gations of the witnesses had been recorded. On May 9, 2003,
the Government filed a CIA declaration representing that
there were no recordings.
After we issued our opinion in Moussaoui II and Mous-
saoui pled guilty, the district court similarly ordered the Gov-
ernment to determine whether recordings existed of
interrogations of additional ECWs (sought in connection with
the sentencing proceeding). On November 14, 2005, the Gov-
ernment filed a second CIA declaration representing that there
were no such recordings.
UNITED STATES v. MOUSSAOUI 75
On October 25, 2007, during the pendency of the current
appeal, the Government sua sponte notified the court of the
existence of three recordings (two videotapes and one short
audiotape) of interviews of one of the ECWs. The Govern-
ment produced transcripts of the two video recordings to us
ex parte, asserting that they "ha[d] no bearing on the Mous-
saoui prosecution" because they "contain[ ] no mention of
Moussaoui or any details of the [9/11] plot." J.A. 5629B.27
The Government explained that "[t]he transcript of the audio
tape previously existed and was contained within an intelli-
gence cable." J.A. 5629C.
In December 2007, the Government also disclosed that it
had learned that hundreds of hours of videotapes of al Qaeda
operative Abu Zubaydah had been destroyed in the fall of
2005. Although Moussaoui had sought access to Zubaydah
prior to pleading guilty, the district court found that the
defense had failed to demonstrate that Zubaydah could pro-
vide material, admissible testimony.28 The Government also
discovered the existence of two videotapes of an al Qaeda
operative to whom Moussaoui had first sought access after
pleading guilty. The transcript of one videotape was submit-
ted ex parte to the court, along with the substitution for the
27
A redacted copy of the letter was provided to defense counsel. The
transcripts were submitted ex parte under CIPA § 4 because they "address-
[ed] . . . national security matters for which defense counsel lack[ed] a
need to know." J.A. 5629C.
28
In a subsequent letter, the Government advised that a former prosecu-
tor in Moussaoui’s case may have been told in late February or early
March 2006 about videotapes of Abu Zubaydah and their destruction. The
prosecutor was one of three AUSAs working on the Moussaoui case, but
does not recall being told this information. Another AUSA, who was not
on the prosecution team, learned of the videotapes in connection with
work he performed on an unrelated project and recalls bringing the matter
to the prosecutor’s attention, again in connection with work unconnected
with Moussaoui’s case. In any event, this alleged notification also post-
dated Moussaoui’s guilty plea and involved a witness that the district court
had previously determined was not material.
76 UNITED STATES v. MOUSSAOUI
witness’s testimony prepared for the sentencing proceeding.
The second videotape had not yet been located.
Moussaoui filed a motion for limited remand, requesting
that we remand the case to the district court for an investiga-
tion and determination of what recordings existed, the content
of the recordings, and whether the Government had access to
them to determine whether this could have affected the know-
ing and voluntary nature of Moussaoui’s guilty plea. In Janu-
ary 2008, we denied Moussaoui’s motion for a limited remand
and denied Moussaoui’s motion for access to the classified
tapes and transcripts.
After our decision, the Government located the second vid-
eotape of the al Qaeda associate to whom Moussaoui had
sought access post-plea, and submitted this transcript to us ex
parte as well. As represented by the Government, this tran-
script also makes no mention of Moussaoui or any details of
the September 11 terrorist attacks.29
Since our decision, an Acting United States Attorney was
appointed to investigate missing or destroyed tapes of al
Qaeda detainee interrogations. In July 2008, the Government
requested an extension of its briefing deadline pending its
receipt of information from the tapes investigation that might
or might not be relevant to the issues that had been raised in
Moussaoui’s motion to remand and on appeal. Although no
new information was disclosed at the time, Moussaoui
renewed his motion for limited remand. We denied the motion
as premature, without prejudice to Moussaoui’s right to raise
the issue again after briefing. He has now done so.
We have reviewed the classified information submitted by
the Government ex parte and in camera since our prior deci-
29
Counsel for Moussaoui filed a motion for partial relief from the Pro-
tective Order to allow them to discuss this classified information with
Moussaoui, which we also denied.
UNITED STATES v. MOUSSAOUI 77
sion pertaining to the motion to remand, and find no need for
further proceedings before the district court. We previously
denied Moussaoui’s motion to remand based upon the three
recordings of the ECW that Moussaoui sought access to pre-
plea, satisfied from our in camera and ex parte review that
they presented no information relating to Moussaoui, the
planes operation, or the 9/11 attacks. Accordingly, even if we
were to allow a challenge to the guilty plea for an alleged
Brady violation, the information produced is not Brady materi-
al.30 We have also reviewed in camera and ex parte transcripts
of the recordings of the ECW to whom Moussaoui first sought
access post-plea and find them to be similarly devoid of any
exculpatory material.
Moussaoui’s request that we remand to the district court for
further inquiry into the destruction of the Zubaydah record-
ings was denied in our prior ruling. Moussaoui first sought
access to Zubaydah prior to his guilty plea but was denied
access based upon the district court’s determination that he
was not a material witness. Contrary to Moussaoui’s attempts
to suggest otherwise, the district court made its determination
based upon an ex parte review of the interrogation summaries
submitted by the Government and did not inquire about or
order the production of recordings of Zubaydah. The issues
surrounding the existence of recordings of Zubaydah were
30
To the extent that Moussaoui argues that the existence of these record-
ings may have impacted his decision to plead guilty because it might have
affected his evaluation of the reliability of the summaries of this witness’s
testimony, we are unpersuaded. We previously explained why the intelli-
gence summaries, upon which the substitutions were to be based, carried
sufficient indicia of reliability to alleviate concerns in this regard. See
Moussaoui II, 382 F.3d at 478. Although we, like the district court,
inquired at the time about the existence of recordings that could be com-
pared to the source material, our decision was not dependent upon the
absence of any such recordings. Furthermore, as noted earlier, Moussaoui
short-circuited this entire CIPA process by demanding to plead guilty
before it was completed. And, once the process was completed and the
substitutions provided, Moussaoui made no effort to withdraw his plea.
78 UNITED STATES v. MOUSSAOUI
first raised on May 2, 2005, when the district court asked the
Government to disclose whether interrogations of detainees
existed in connection with Moussaoui’s motion for reconsid-
eration of the district court’s earlier denial of access to Zubay-
dah. In the fall of 2005, the Government agreed to produce
discovery of any statements by Zubaydah relating to the 9/11
operation or to Moussaoui, although it continued to oppose
access to him. It was also in the fall of 2005 that the tapes
were allegedly destroyed. However, this all occurred well
after Moussaoui entered his guilty plea and waived his right
to challenge such pre-plea rulings by the district court. And
there is nothing to indicate that Zubaydah actually possessed
evidence that would have been material or favorable to Mous-
saoui during the guilt phase.
For the foregoing reasons, even if we were to allow a
Brady-type challenge to his guilty plea based solely upon the
failure of the prosecution to produce exculpatory evidence,
Moussaoui has failed to demonstrate that the Government
withheld exculpatory material that would have caused Mous-
saoui to forego his guilty plea and proceed to trial, much less
evidence of his actual innocence. Should that change, as a
result of the ongoing tapes investigation or otherwise, Mous-
saoui, like every other criminal defendant, has collateral ave-
nues for raising such claims. In the meantime, the finality of
the guilty plea, entered knowingly, intelligently, and with suf-
ficient awareness of the relevant circumstances and likely
consequences, stands.
VII. Conclusion
For the reasons set forth above, we affirm Moussaoui’s
convictions and sentences in their entirety. We also deny his
renewed motion to remand for further proceedings.
AFFIRMED