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, 
2 

Washington, D.C.” at lines l and 2 following “ARGUED” as counsel 

for Appellant. 

For the Court - By Direction 

 /s/ Patricia S. Connor 

 Clerk 
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.
COUNSEL

ARGUED: Justin S. Antonipillai, ARNOLD & PORTER, 

LLP, Washington, D.C., for Appellant. Kevin R. Gingras, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, 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 Attorney, 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 Appellant.

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 sentenced 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 conventions used by the parties. 

2 UNITED STATES v. MOUSSAOUI
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 classified 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, September 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 Capitol Building in Washington, D.C., crashed in a field in Pennsylvania 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. Moussaoui was still in custody, awaiting deportation, when the

attacks occurred.

A. Procedural History

1. The Indictment

In December 2001, Moussaoui was indicted for his participation in the conspiracies that led to the 9/11 attacks. The second 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) conspiracy to commit aircraft piracy, see 49 U.S.C.A.

§ 46502(a)(1)(A), (a)(2)(B) (West 2007); (3) conspiracy to

UNITED STATES v. MOUSSAOUI 3
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) conspiracy 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 identified 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 Defender’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) (providing 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 attorney/client and consular communications and mail, monitored

visits and telephone calls with immediate family, and monitored mail with all others. Approved mail would be forwarded

4 UNITED STATES v. MOUSSAOUI
to defense counsel for distribution to Moussaoui and Moussaoui would be notified of any seized mail.

Because the case involved classified national security information, the Government also sought and received a protective

order (the "Protective Order") under the Classified Information 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 discovery 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 immediately began demanding to proceed pro se, but with the assistance of Muslim counsel. In April 2002, counsel for

Moussaoui filed a motion requesting that the SAMs restrictions 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 "communication 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 witnesses not yet publicly revealed, etc.), as called for in the al

Qaeda terrorism manual." J.A. 187. The district court ultimately 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.

UNITED STATES v. MOUSSAOUI 5
At the hearing held on the motion to lift the SAMs, however, 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 material necessary for his defense, and that no attorney—including

any Muslim counsel chosen by Moussaoui—would ever represent 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 counsel requested a competency evaluation. They also filed a

motion seeking to grant Moussaoui full access to the classified 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 attorneys to the list of counsel cleared to see Moussaoui at their

request, but that "this process will not work if Mr. Moussaoui

6 UNITED STATES v. MOUSSAOUI
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" counsel 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 attorney made an appearance. The district court advised Moussaoui 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 attorney 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 Moussaoui. 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

UNITED STATES v. MOUSSAOUI 7
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, Moussaoui explained that "Bro[ther] Freeman [was] only a legal

consultant" and that Moussaoui would "never, under any circumstance, use him [or] appoint him as a standby lawyer."

J.A. 628. Moussaoui requested that appointed counsel be dismissed 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 rearraignment. He may, however, attend court proceedings as a member of the public.

J.A. 657. The following day, Freeman advised the court in

writing that:

8 UNITED STATES v. MOUSSAOUI
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 lawyer, 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 counsel. 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 reappointed MacMahon. The court encouraged Moussaoui to "reconsider 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" himself. J.A. 695. The district court repeatedly advised Moussaoui that he was not entitled to advisory counsel of his

UNITED STATES v. MOUSSAOUI 9
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 suggesting that the Government might enter into plea negotiations with him, the district court gave Moussaoui a week to

consider his decision. Defense counsel again challenged

Moussaoui’s competency and renewed their concerns regarding Moussaoui’s access to the classified discovery, asserting

that "there is exculpatory evidence which has 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.

At the scheduled Rule 11 hearing, see Fed. R. Crim. P. 11,2

2The district court first offered to postpone the hearing to allow Moussaoui 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, however, persist in his demands regarding access to Freeman, and the court

again advised Moussaoui that access was contingent upon Freeman’s compliance 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

10 UNITED STATES v. MOUSSAOUI
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 testimony. 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 district, who is not the attorney of record representing you. Therefore, 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. 

3Rule 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." 

UNITED STATES v. MOUSSAOUI 11
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 "include[d] veiled, and in some cases overt, threats to public officials, 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, Moussaoui 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 Dunham 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 Scavenger 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"). 

12 UNITED STATES v. MOUSSAOUI
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 consent 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 responsibility for the events of 9/ll." 2 Supp. J.A. 55.7

 Yamamoto represented 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

6Although 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. 

7The 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." 

8Moussaoui 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. 

UNITED STATES v. MOUSSAOUI 13
statement of the Supreme Court, who made absolutely clear that once you have pled guilty, you cannot 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 decision." 2 Supp. J.A. 67. Satisfied that Moussaoui was competent, 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. Yamamoto also advised that Moussaoui had "responded appropri14 UNITED STATES v. MOUSSAOUI
ately when [he had] spoken to him" and, while they had

"disagreements . . . with respect to certain items[,] [t]hose disagreements 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 protect it after he was detained. When he signed the document,

Moussaoui added the designation "20th Hijacker" to his signature. 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 "dedicated to opposing the United States with force and violence."

J.A. 1409. The head of its military committee was Mohammed 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 terrorists 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 guesthouses 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.

UNITED STATES v. MOUSSAOUI 15
In connection with al Qaeda’s declaration of war, "al Qaeda

members conceived of an operation in which civilian commercial 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 participate in the operation, who were willing to die in furtherance 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 communicated directly with Bin Laden and al Masri while in Afghanistan. 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 personally 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

16 UNITED STATES v. MOUSSAOUI
Flight School and began pilot training on small planes. J.A.

1411. Like his co-conspirators, he joined a gym and purchased 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 alShibh, 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 simulator 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 simulator computer program, fighting gloves and shin guards, a

piece of paper referring to a handheld Global Positioning System ("GPS"), software that could be used to review pilot procedures 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 single 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 SepUNITED STATES v. MOUSSAOUI 17
tember 2001." 2 Supp. J.A. 45-46. At the public Rule 11 hearing, Moussaoui confirmed that he had received a revised copy

of the Statement of Facts, which had been corrected in accordance 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. Moussaoui and Mr. Yamamoto present that I am fully satisfied 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-ahalf 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 intentionally disregarded the advice of counsel. That is

your right in our legal system.

The Court is also satisfied that the written statement of facts which you have had several days to

18 UNITED STATES v. MOUSSAOUI
carefully go over and you have had the advice and

consultation of Mr. Yamamoto is more than sufficient evidence to establish your guilt beyond a reasonable 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 evidence 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 similarities 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 ultimately 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

UNITED STATES v. MOUSSAOUI 19
"JI"), an al Qaeda-affiliated terrorist group. Moussaoui testified 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 problems, 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. According 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. Moussaoui 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 country. 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 alHawsawi, 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 passengers or flight attendants. He was in the process of obtaining 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 associates in the United States and that the hijacking plot was in

20 UNITED STATES v. MOUSSAOUI
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 conveyed 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 terrorists were also admitted as evidence during the sentencing proceedings. Although much of this evidence was inculpatory,

portions contradicted Moussaoui’s testimony that he was supposed 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 Moussaoui 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 operation included plans for a first and second wave of attacks and

that "the original plan called for Moussaoui to lead the [second] 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

9For ease of reading, all internal quotations marks from the statements

have been omitted. 

UNITED STATES v. MOUSSAOUI 21
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 preparations for the "second wave attack . . . entailed the same steps

as the September 11 hijackers: getting flight lessons, purchasing 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 operation. J.A. 4023. However, "Moussaoui lobbied [al-Masri] and

Bin Laden to use him in operations, and their pressure compelled [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 alShibh. According to KSM, "Moussaoui did not have any particular 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 selfconfidence" and "a hard time taking instructions." J.A. 4026.

Nonetheless, "[d]espite [this] admittedly problematic personality, [KSM] tasked Moussaoui to take flight lessons in preparation for the second wave attacks." J.A. 4019. According to

KSM, the "plan for a second wave attack ended with Moussaoui’s arrest." J.A. 4022.10

10The 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. 

22 UNITED STATES v. MOUSSAOUI
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 arguments in his defense: first, that "jail [was] a greater punishment 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 prosecution, 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, whatever, 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

UNITED STATES v. MOUSSAOUI 23
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 completely 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 buildings on September 11, 2001." 2 Supp. J.A. 435 (internal quotation 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 penalty 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

24 UNITED STATES v. MOUSSAOUI
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 voluntary 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 "knowingly, and intelligently, ‘with sufficient awareness of the relevant 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 defendant." 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 presumption 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 proceeding, 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 involuntary as a matter of law; (2) that his plea was not knowingly

UNITED STATES v. MOUSSAOUI 25
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 otherwise 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 involuntary as a matter of law because the district court issued several 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 effectively 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 nonjurisdictional 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, whatever is in it, not a platform from which to explore further possibilities."); see also Blackledge v. Perry, 417 U.S. 21, 29-30

(1974) ("[W]hen a criminal defendant enters a guilty plea, he

26 UNITED STATES v. MOUSSAOUI
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 constitutional violations rendered his guilty plea involuntary. In Hernandez, 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 "between pleading guilty and submitting to a trial the very structure 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 convicted, he could seek an appellate remedy for the constitu11An error that qualifies as "structural" is not subject to harmless-error

analysis. See Neder v. United States, 527 U.S. 1, 7 (1999). 

UNITED STATES v. MOUSSAOUI 27
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 nonjurisdictional errors leading up to his conviction except those

affecting the adequacy of his plea. It is to those claims, affecting 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,

12Moussaoui 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 violations. 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 invalidate his guilty plea. See Tollett, 411 U.S. at 266-68. 

28 UNITED STATES v. MOUSSAOUI
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 process, 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).

13In particular, Moussaoui asserts that the district court erred in allowing 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. 

14As 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 adequacy of the plea itself, which is cognizable on appeal. 

UNITED STATES v. MOUSSAOUI 29
"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 provides that:

[t]he court, upon a sufficient showing, may authorize

the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the

Federal Rules of Criminal Procedure, to substitute a

summary of the information for such classified documents, 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.

15Classified information includes "any information or material that has

been determined by the United States Government . . . to require protection 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 information 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 protect such information is absolute, and we do not second guess such determinations. 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, neither 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)). 

30 UNITED STATES v. MOUSSAOUI
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 pretrial 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 discovered 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 government 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] hearing 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

16This hearing must be conducted in camera if the government certifies

"that a public proceeding may result in the disclosure of classified inforUNITED STATES v. MOUSSAOUI 31
court authorizes "the disclosure of specific classified information 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 information." 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 "permation." 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.

17Section 6(c) hearings must also be conducted in camera at the government’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). 

32 UNITED STATES v. MOUSSAOUI
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 concurrence of counsel for the government, or, absent such concurrence, 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 classified 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 personal 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 classified 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 informaUNITED STATES v. MOUSSAOUI 33
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 certain classified information pertaining to these witnesses pending 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] provide 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) (quoting 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 communities" and not "with this litigation in mind." Moussaoui II, 382

F.3d at 458 n.5. "Portions of the[se] reports concerning Moussaoui 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 alterations omitted). The summaries were then "provided to

defense counsel in conformance with the Government’s obligations 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

34 UNITED STATES v. MOUSSAOUI
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 proposed 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 adequately demonstrated that the witnesses could provide testimony 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." Moussaoui 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 inherently inadequate. See id. at 478. In particular, we noted the

Government’s "profound interest in obtaining accurate information 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 clasUNITED STATES v. MOUSSAOUI 35
sified summaries did "provide an adequate basis for the creation of" substitutions, id. at 479, and "remand[ed] with

instructions for the district court and the parties to craft substitutions 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 assistance of counsel for both parties and Moussaoui, when Moussaoui 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 exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963).

In particular, Moussaoui asserts that he was deprived of personal 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 simply to say that favorable evidence was withheld. The accused

36 UNITED STATES v. MOUSSAOUI
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 prosecutor to disclose evidence favorable to the defense if the evidence 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 exculUNITED STATES v. MOUSSAOUI 37
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 government’s case. See id. at 630-31. The Court also reasoned that

the value to the defendant of requiring disclosure of impeachment evidence was relatively low compared to the substantial

interference that such a requirement could cause to ongoing

criminal investigations and the protection of government witnesses. See id. at 631-32.

To date, the Supreme Court has not addressed the question

of whether the Brady right to exculpatory information, in contrast 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 exculpatory 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 disclosure might be required" in circumstances where the prosecution "ha[s] knowledge of a criminal defendant’s factual

innocence but fail[s] to disclose such information to a defendant before he enters into a guilty plea."); Matthew, 201 F.3d

at 364 (considering question of whether a pre-plea nondisclosure 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 relevant as mitigation evidence in the death-penalty phase of

defendant’s trial served to invalidate his guilty plea.

38 UNITED STATES v. MOUSSAOUI
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 prosecution’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 exculpatory . . . 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 purported right to exculpatory evidence prior to pleading guilty

was not made knowingly and intelligently, with sufficient

awareness of the relevant circumstances and likely consequences.

First, with regard to the documentary classified information, 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 district court denied Moussaoui’s pro se motion for access to

classified evidence, advising him that the process of reviewing the classified discovery was ongoing, that the United

States had declassified and was continuing to declassify documents, 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.

UNITED STATES v. MOUSSAOUI 39
Volume 2 of 2
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 information. From then until remand from our decision in Moussaoui 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 Moussaoui’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 substitutions 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 Moussaoui 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] Moussaoui’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 suppress favorable evidence from the defense, much less evidence 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 summaries had "been provided to defense counsel in conformance

with the Government’s obligations under Brady" and that

42 UNITED STATES v. MOUSSAOUI
there was "no evidence before us that the Government possess[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, Moussaoui 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 decision 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, intelligent, and sufficiently aware if the defendant fully understands

the nature of the right and how it would likely apply in general 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 circumstances and likely consequences of his decision, and that

the district court did not err in accepting his plea prior to completion 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

18Finally, we note that the CIPA process actually continued after the

guilty plea in preparation for the sentencing proceeding, and the exculpatory, 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 preplea 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

UNITED STATES v. MOUSSAOUI 43
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 counsel by restricting defense counsel’s ability to discuss the classified 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 counsel."). 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 frequently 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 deficiently and that, but for counsel’s errors, the defendant would

not have pled guilty and would instead have insisted on proceeding 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 classified information would have altered his decision to plead guilty, his Brady

claim would also fail on the merits. 

44 UNITED STATES v. MOUSSAOUI
(4th Cir. 2004). "This standard derives from the test for ineffective 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 counsel 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 constructively denied him counsel under Cronic because it prohibited

counsel from discussing the substance of the exculpatory evidence 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).

19Moussaoui does not argue that counsel’s performance was deficient or

that he was prejudiced by it. There was no requirement that the Government 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. 

UNITED STATES v. MOUSSAOUI 45
To the extent we would adopt some Cronic-like standard

for guilty pleas, however, Moussaoui falls well short of demonstrating that his guilty plea was entered under circumstances amounting to "no assistance of counsel" at all. Cronic,

466 U.S. at 654 n.11. In fact, Moussaoui cannot even demonstrate that his plea was uncounselled on the matter of exculpatory 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 counsel at any point in the proceedings is not absolute. "[I]n certain 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 restriction is carefully tailored and limited." In re Terrorist Bombings, 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 documents 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 disclosing 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 defendant); United States v. Herrero, 893 F.2d 1512, 1526-27 (7th

Cir. 1990) (barring counsel from revealing name of a confidential informant to the defendant).

That principle applies in this case. The Government’s interest in protecting the classified information during the discovery and appeal process justified the limited restrictions upon

Moussaoui’s right to communicate with counsel pending

46 UNITED STATES v. MOUSSAOUI
completion of the CIPA process and preparation of unclassified 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 information 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 classification 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 Moussaoui 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 Moussaoui’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

UNITED STATES v. MOUSSAOUI 47
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 surrounding 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 Moussaoui’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 accepting 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) (applying standard to guilty plea context). 

48 UNITED STATES v. MOUSSAOUI
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] competency to stand trial." Walton v. Angelone, 321 F.3d 442, 459

(4th Cir. 2003) (internal quotation marks omitted). The district court should examine "all of the record evidence pertaining 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 competency." 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 determine fitness to proceed." Walton, 321 F.2d at 459 (internal

quotations omitted). A district court’s decisions on competency, 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 evaluation 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 proceed 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. However, 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 competency evaluation. When Moussaoui refused to cooperate,

the district court advised Moussaoui that his refusal was

UNITED STATES v. MOUSSAOUI 49
"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] continue[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 evaluations," 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 disease or defect that would interfere with [Moussaoui’s] voluntary, intelligent, and knowing appreciation of the potential

consequences of waiving counsel." J.A. 5758. Defense counsel 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 ineligible 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 writing 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 differently 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

50 UNITED STATES v. MOUSSAOUI
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 evidence of decompensation caused by the restrictions. Additionally, 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 comfortable 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 "sufficient present ability to consult with his attorneys with a reasonable 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 competency, 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

UNITED STATES v. MOUSSAOUI 51
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 Moussaoui of the limited privacy to which he had insisted and further damage the relationship between Moussaoui and defense

counsel. At the Rule 11 hearing, the district court ruled as follows:

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 knowing 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 repetitive 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 directions, 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 forward with a guilty plea if that is his desire, and there

clearly is no basis in this record at this time to con52 UNITED STATES v. MOUSSAOUI
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, reiterating that:

despite the fact that we may disagree about things,

this defendant has always struck this Court as articulate, 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 [Moussaoui 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

UNITED STATES v. MOUSSAOUI 53
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." 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 Moussaoui, 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 competent to proceed with his guilty plea and that further evaluations 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 confirmed 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 representing 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

54 UNITED STATES v. MOUSSAOUI
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 relating 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 consult with his lawyer with a reasonable degree of rational

understanding" and "a rational as well as factual understanding 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 culturally 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 mental disease or defect that interfered with his ability to understand 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 [defendant] 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 conspiracies, 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

UNITED STATES v. MOUSSAOUI 55
of Virginia; and (3) failing to inform him of the possible sentences he would face.

Rule 11 "governs the duty of the trial judge before accepting 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 defendant." 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 colloquy 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 reasonable 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 forfeited 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 contends that the Indictment charged him with participation in the

56 UNITED STATES v. MOUSSAOUI
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 Indictment 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 furtherance 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

20Counts 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. 

UNITED STATES v. MOUSSAOUI 57
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 Moussaoui 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 Moussaoui. Moussaoui represented that he had read the Statement

of Facts "more than ten times," had "pondered . . . each paragraph," 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 colloquy."). 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.

21In 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."). 

58 UNITED STATES v. MOUSSAOUI
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 conspiracy 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 prohibits; (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 conspiracy, 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 coconspirators," and "a conspiracy conviction must be upheld

even if the defendant played only a minor role in the conspiracy." 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 assoUNITED STATES v. MOUSSAOUI 59
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 contained 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 latter, 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 published 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 participation in the September 11 attacks to obtain a conviction

in this case."); Moussaoui II, 382 F.3d at 473 (noting argument "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 conspiracies 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 federal 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 culpability 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

60 UNITED STATES v. MOUSSAOUI
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 further instructions. While doing so, Moussaoui was kept separate 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. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (explaining that the

fact that persons "were not always aware of the others’ activities . . . 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 statements demonstrate the failure of the district court to ensure

his understanding of the nature of the charges and the confusion 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 upcoming capital sentencing proceeding. In connection with the latter, 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

22As 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 forward to assist him. Although his hostile actions had resulted in the revocation 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. 

UNITED STATES v. MOUSSAOUI 61
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 distance 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 associate 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 conspiracy." J.A. 1440-41. 

Although Moussaoui refers to his "Blind Sheikh" strategy

as a "different conspiracy" from the so-called "9/11 conspiracy," 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 participation 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 confused 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 state62 UNITED STATES v. MOUSSAOUI
ment seems more to demonstrate his understanding that his

responsibility for 9/11 remained an important issue for sentencing 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 proceeding. 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. 

23We also note that we had just discussed such a distinction in Moussaoui II and may well have mapped out Moussaoui’s strategy for the sentencing 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. 

UNITED STATES v. MOUSSAOUI 63
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 precise 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 conspiracies 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 factual 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 participate in them. This argument fails for the same reasons previously 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 realizing 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

64 UNITED STATES v. MOUSSAOUI
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 representations during the plea colloquy were fully consistent

with the charged conspiracies and provided an adequate factual basis for acceptance of the plea. There was no requirement 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 separate 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 factual 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 deciding, that the district court would even be bound to find a factual 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 Eastern District of Virginia.

C. The Possible Sentences

Finally, Moussaoui asserts that the district court erroneously advised him during the plea colloquy that his only sentencing 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

UNITED STATES v. MOUSSAOUI 65
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 penalty of life without parole or death.

V. Sentencing

Finally, Moussaoui raises several challenges to his sentence. 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 unanimously finds that the Government has established that threshold 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 Moussaoui’s request bifurcated the sentencing proceeding, so that

24The 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 Moussaoui’s lies to law enforcement following his arrest, which concealed al

Qaeda’s ongoing plot. 

66 UNITED STATES v. MOUSSAOUI
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 opportunity 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 determination 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 penalty. 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 recommend 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 unanimously find that the government has proved [that Moussaoui

is death-eligible] beyond a reasonable doubt, your deliberations are over. The Court will then sentence the defendant to

life imprisonment without the possibility of release."). Counsel 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 district court drove the point home, instructing the jury (again,

at Moussaoui’s request) before the first-phase closing arguments that if the jury failed to find Moussaoui to be deatheligible, "[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

UNITED STATES v. MOUSSAOUI 67
penalty, thereby necessitating the second phase of the sentencing proceedings.

Counsel for Moussaoui continued this strategy into the second 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 sentence, 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 [Moussaoui] 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 imposition 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 district 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 defendant should be sentenced to death or life imprisonment without 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 decision by the jury that the defendant be sentenced to life imprisonment without the possibility of release for that particular

68 UNITED STATES v. MOUSSAOUI
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 unanimously found that the Government had proven certain statutory 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 sentenced to life imprisonment was a mitigating factor. Ultimately, 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 advisory 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 sentence 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 question. Moussaoui contends that the Government’s evidence

was insufficient to establish as the statutory death-eligibility

UNITED STATES v. MOUSSAOUI 69
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 unconstitutional 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-theevidence 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 triggered an automatic life sentence under § 3594. We therefore

reject Moussaoui’s claim that the submission of the death70 UNITED STATES v. MOUSSAOUI
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 mandated after the jury did not unanimously recommend a sentence 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 sentence 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 appellant 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 reputation 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

25The 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 sentence. 

UNITED STATES v. MOUSSAOUI 71
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 district court before accepting a guilty plea to inform the defendant 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 specific 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,

26Moussaoui 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 question the relevance to our plain-error inquiry of statements made by the district 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

72 UNITED STATES v. MOUSSAOUI
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 district court wrongly believed that Moussaoui could not be sentenced 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 district court at sentencing explained that the guidelines calculation 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 recognize 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 senargue 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 Sentencing Guidelines were still mandatory, the district court’s statements

accurately reflected the sentencing options then available. 

UNITED STATES v. MOUSSAOUI 73
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 sentences, 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 discovered 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 depositions, 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 interrogations 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 Moussaoui pled guilty, the district court similarly ordered the Government to determine whether recordings existed of

interrogations of additional ECWs (sought in connection with

the sentencing proceeding). On November 14, 2005, the Government filed a second CIA declaration representing that there

were no such recordings.

74 UNITED STATES v. MOUSSAOUI
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 Government produced transcripts of the two video recordings to us

ex parte, asserting that they "ha[d] no bearing on the Moussaoui 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 intelligence 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 provide 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 submitted ex parte to the court, along with the substitution for the

27A 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. 

28In a subsequent letter, the Government advised that a former prosecutor 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 postdated Moussaoui’s guilty plea and involved a witness that the district court

had previously determined was not material. 

UNITED STATES v. MOUSSAOUI 75
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 investigation 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 knowing and voluntary nature of Moussaoui’s guilty plea. In January 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 videotape 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 transcript 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 deci29Counsel for Moussaoui filed a motion for partial relief from the Protective Order to allow them to discuss this classified information with

Moussaoui, which we also denied. 

76 UNITED STATES v. MOUSSAOUI
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 preplea, 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 material.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 recordings 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

30To the extent that Moussaoui argues that the existence of these recordings 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 intelligence 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 compared 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. 

UNITED STATES v. MOUSSAOUI 77
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 reconsideration of the district court’s earlier denial of access to Zubaydah. 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 Moussaoui 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 Moussaoui 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, Moussaoui, like every other criminal defendant, has collateral avenues for raising such claims. In the meantime, the finality of

the guilty plea, entered knowingly, intelligently, and with sufficient 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

78 UNITED STATES v. MOUSSAOUI