*1 America, UNITED STATES Appellant,
Plaintiff - Shaqil, MOUSSAOUI,
Zacarias a/k/a Sahrawi, Khalid al Abu
a/k/a Appellee,
Defendant - Studies, Security for National
Center Appellee. Supporting
Amicus
No. 03-4792. Appeals, Court of
United States
Fourth Circuit. Dec. 2003.
Argued: Sept.
Decided: *3 WILKINS,
Before Judge, Chief GREGORY, WILLIAMS Circuit Judges. in part,
Affirmed in part, vacated by published remanded opinion. Chief Judge WILKINS judgment announced the of the court and wrote an opinion, which Judge concurs, WILLIAMS and in which Judge GREGORY except concurs toas Part Judge V.C. WILLIAMS wrote *4 concurring opinion. Judge GREGORY an opinion wrote concurring part and dissenting in part.
WILKINS, Judge. Chief appeals Government of rul- series Clement, ARGUED: Paul D. Deputy ings by the district court Appel- granting General, Solicitor United Depart- States lee Zacarías Moussaoui access to certain Justice, D.C., Washington, ment of Ap- for (“the enemy individuals1 wit- combatant pellant. Dunham, Jr., Frank Willard Fed- witnesses”) or nesses” “the for the purpose Defender, Alexandria, eral Public Virginia; of deposing pursuant them to Federal Rule MacMahon, Jr., Edward Brian Middle- 15; Criminal Procedure rejecting the burg, Virginia, Appellee. for BRIEF: ON proposed Government’s substitutions for Christopher Wray, A. Attorney Assistant the depositions; and imposing sanctions General, Philbin, Patrick F. Dep- Associate for the Government’s refusal to produce uty General, Attorney L. Jonathan Mar- the witnesses. presented We are with cus, Department Justice, United States questions grave significance questions — D.C.; Washington, McNulty, Paul J. Unit- that test the commitment of this nation to ed Attorney, States Robert Spencer, A. an independent judiciary, to the constitu- Assistant United Attorney, States Kenneth tional guarantee of a fair trial even to one Karas, M. Assistant United States Attor- crimes, accused of the most heinous of and ney, Novak, David J. Assistant United protection of our against citizens Alexandria, States Attorney, Virginia, for additional terrorist ques- attacks. These Appellant. Zerkin, Jr., Gerald T. Senior tions do easy not admit of answers. Defender, Assistant Federal Public Ken- Troceoli, neth P. Assistant Public Federal For below, the reasons set forth we Defender, Anne M. Chapman, reject Assistant the Government’s claim that the dis- Defender, Alexandria, Federal Public Vir- trict court authority exceeded its grant- ginia; Yamamoto, Alexandria, Alan H. Vir- ing Moussaoui access to the witnesses. ginia, for Appellee. Clark, Kathleen Jo- We affirm the conclusion of the district Onek, seph Center Security for National court enemy that the combatant witnesses Studies, D.C., Washington, for provide material, Amicus Cu- could favorable testimo- riae. ny behalf, on Moussaoui’s agree and we 1. The names of these greatest individuals classi- classified material to the possi- extent fied, as is much pertinent of the information ble. appeal. to this We have avoided reference to (c) (West 2332b(a)(2), § see 18 U.S.C.A. the Govern- court the district with pira- 2000); to commit aircraft conspiracy the wit- substitutions proposed ment’s 46502(a)(1)(A), § cy, see 49 U.S.C.A. inade- testimony are deposition nesses’ (West 1997); de- (a)(2)(B) conspiracy to However, the district we reverse quate. 32(a)(7), §§ aircraft, U.S.C.A. see 18 stroy possi- it is not as it held court insofar (West weapons 2000); to use conspiracy substitutions, adequate to craft ble destruction, see U.S.C.A. of mass the. district instructions remand 2332a(a) (West con- Supp.2003); &2000 § craft substitutions parties employ- United States to murder spiracy va- Finally, we guidelines. under certain (West ees, §§ see 18 U.S.C.A. sanctions imposing order cate the de- conspiracy to Supp.2003), & Government. 844(f), U.S.C.A. see 18 stroy property, (West (n) (i), Supp.2003). 2000 & I. penalty on the death seeks Background A. Information charges. of these the first four members of September On in- allegations According to the Qaeda2 hijacked al organization terrorist an al present dictment, was and crashed them aircraft passenger three *5 1998. The camp April in training Qaeda Trade and the World Pentagon the into that alleges Moussaoui further indictment A fourth in York. New Center towers Feb- in late States in the United arrived the United for destined apparently plane, began flight and ruary 2001 thereafter af- Pennsylvania crashed in Capitol, States al- Norman, Other Oklahoma. in lessons from the control wrested passengers ter simi- highlight in the indictment legations in the resulted The attacks hijackers. and conduct Moussaoui’s larities between women, chil- men, and of over deaths hijack- September the conduct dren. death-eligible four Each of the ers. immigra- alleges an indictment was arrested of the counts and, coconspira- and his mid-August of Moussaoui actions tion violation of thousands on deaths was indicted year, “resulted] tors December E.g., 2001.” September to conspiracy persons related charges of several (03-4162) July In 108.3 11 attacks. J.A. September indict- superceding filed the Government Appeal this Leading to B. Events of- with six charging Moussaoui ment prosecution its Simultaneously with ter- acts of to commit conspiracy fenses: been Branch has Moussaoui, boundaries, the Executive transcending national rorism example, a For Qaeda” appendix relates. from which transliterated “al 2. The name joint page the unclassified may acceptable to be spellings reference Several Arabic. terms; adopts be opinion appeal previous this appendix transliterated dis- employed 26”; spelling (03-4162) conventions to a reference "J.A. denoted parties. and the trict court appendix from page of the classified (03— “J.A.C. be denoted appeal would current include numerous before us 3. The materials ap- supplemental 4792) to References 300.” previ- this and appendices from both joint designation will include pendices as such materials appeal. We will cite ous (03— “Supp. J.A.C. example, “Supp.” J.A., —for cited either appendix be An will follows. ap- 4162) classified 23.” The Government’s J.A.C., appendix, or an unclassified to denote "J.A.C. cited rehearing will be pendix on designa- This appendix. a classified to denote page appropriate (03-4792/Reh’g),” by parenthetical refer- followed tion will be following parenthetical. appeal number docket number ence engaged in ongoing efforts to eradicate al should not receive the death penalty if Qaeda capture leader, its Usama convicted.
bin Laden. These efforts have resulted in The district court acknowledged that capture of numerous members of al Witness A ais national security asset and Qaeda, including the at witnesses issue denied standby therefore request counsel’s (“Witness A”), here: [Redact- for unmonitored pretrial access and de- (“Witness B”), ed] clined order production [Redact- his trial. (“Witness C”), determined, court also however, ed] the Government’s national security inter- A captured Witness was [Redacted]. est yield must Moussaoui’s to a (who Shortly thereafter, Moussaoui at that fair trial. Accordingly, the court ordered time was representing himself in the dis- that Witness A’s testimony preserved court) trict moved A, for access to Witness by means of a Rule 15 deposition. asserting the witness would be an 15(a)(1) Fed.R.Crim.P. (providing that important part of his defense. Mous- court order deposition of witness to motion was supported by saoufs then- preserve testimony for trial “because of standby counsel, who filed a motion seek- exceptional circumstances and in the inter- ing pretrial access to justice”). Witness est of A and a writ attempt an to minimize of habeas ad corpus effect of its order on security, ob- national testificandum the district tain Witness testimony. A’s trial ordered certain pre- The Gov- cautions be taken. Specifically, opposed ernment the court request.4 directed that the deposition would be tak- The district court conducted a hearing, video, en remote with Witness A in an after which it an issued oral ruling grant- undisclosed location Moussaoui, stand- *6 ing (“the to access A Witness January 30 by counsel, and counsel for the Govern- order”). The court subsequently issued a ment in presence the court, the district memorandum opinion its explaining ruling greater detail. The district court con- While the appeal Government’s of the cluded that A Witness could offer material January 30 order was pending before this testimony defense; Moussaoui’s in par- court, we for remanded the purpose of ticular, the court determined that Witness allowing the district court to determine A had knowledge extensive of the Septem- whether substitution existed that ber 11 plot and testimony that his would place would Moussaoui in substantially the support Moussaoui’s claim that he was not position same as would a deposition. On involved in the minimum, attacks. At a remand, the both Government standby and observed, the court Witness testimony A’s counsel offered proposed substitutions for could support an argument that Moussaoui Witness deposition A’s testimony.5 The 4. standby Moussaoui and sought counsel also reports. dacted] highly These classified re- Qaeda access to other al members accused of ports are intended use in military for the complicity in the attacks. The 9/11 district intelligence communities; they pre- were not court requests denied these on the basis that pared litigation with this in mind. Portions standby Moussaoui and counsel had failed to of the reports concerning Mous- demonstrate that these pro- could individuals September saoui and the have attacks been material, vide testimony. admissible Those excerpted and set pre- forth in documents rulings are not before us. pared purposes litigation. of this These documents, deemed [Redacted] summaries” 5. These substitutions were derived as follows. by the parties court, and the district responsible Those [Redacted] have recorded provided been to defense counsel in conform- witnesses’ questions answers in [Re- the Government’s rejected court district (a) substitutions, reasoning
proposed reports in the information (b) unreliable, the substitutions
was re- in numerous flawed were
themselves consider Believing itself bound spects. par- then directed the court The district substitu- proposed only Government’s concerning ap- briefs ties to submit not review did tions, court the district for the imposed to be sanction propriate standby counsel. offered substitutions comply refusal Government’s complete, remand proceedings Stand- August 29 orders. January 30 and on June argument oral we conducted alterna- but sought dismissal by counsel thereafter, dismissed we Shortly court to dismiss tively asked the district United interlocutory. appeal filed The Government the death notice. I), (Moussaoui States v. stating “[t]o responsive pleading Cir.2003). receiv- Upon 509, 517 efficiently to most the issue present court, the mandate ing Classi- [the and because Appeals, Court of the Gov- directing an order court entered pre- Act] Procedures fied Information it the court whether inform ernment ac- presumptive as the dismissal scribes January order. with the comply take these a district must tion filed a Government July On standby circumstances, oppose do not refuse it would indicating that pleading appropriate suggestion that counsel’s pur- A access Witness provide the indict- is to in this case dismiss action conducting deposition. pose of (assert- (03-4792) 487; id. ment.” J.A.C. court entered 29, the district August On ... indictment that “dismissal ing order”) (“the granting August order an ensuring that route for surest purposes B and C for Witnesses access to promptly can here issue questions at of those depositions conducting Rule 15 Circuit”). Fourth presented to the same imposed The order witnesses. to Witness invest- applicable unprecedented Noting those “[t]he conditions as re- material directed also human A. The court ment of both *7 for the careful substitutions any proposed mandates to file case this sources 5, and by September than testimony other witnesses’ of some sanction consideration any re- to file standby counsel (03-4792) the district it directed dismissal,” J.A. by September substitutions sponse claims that rejected parties’ court Rather, be dismissed. indictment should 12. notice, rea- the death the court dismissed court re- September On adequately had soning that substi- proposed jected Government’s could the witnesses demonstrated response any requiring without tutions believed, that, might testimony provide court stated defense. from the el- finding Moussaoui jury preclude substitutions proposed the Government’s Further, be- penalty. for the death igible testimony of Witnesses deposition involvement of Moussaoui’s proof cause as the reasons for the same B failed and C not neces- was 11 attacks September substitutions proposed Government’s [Redacted] on the based substitutions obligations under the Government’s anee with 83, 83 S.Ct. summaries. Maryland, 373 Brady v. (1963). proposed L.Ed.2d conviction, sary to a and because the In response wit- emphasized portion believed, testimony, if nesses’ could exon- quotation, the above the Government stat- erate Moussaoui of involvement in those ed that attacks, prohibited the district court team, members of prosecution in- making any argument, Government “from cluding Special FBI Agents assigned to evidence, any offering suggesting or September 11 and other related in- in, any the defendant had involvement or vestigations, provided [Redacted] of, knowledge September 11 attacks.” [Redacted] information con- [Redacted] conjunction Id. at 327. ruling, sistent with the desire to [Redacted] the district court denied the Government’s maximize their own efforts to obtain ac- motions to admit cockpit into evidence tionable information [Redacted] 11; voice recordings September made on Letter at 2.9 The Government went on to footage
video of the collapse of the World note, however, “[a]ny information or towards; Trade Center and photographs suggested inquiry areas of that have been of the victims of the attacks. used, shared [Redacted] have been like appealed, The Government attacking sources, information from numerous other multiple aspects of the rulings of the dis- at the sole discretion Id. at [Redacted]” 3. trict court.6 The Government asserted that [Redacted] Id. C. Events Leading to Issuance in part Based on the revelations in the this Amended Opinion May letter, we directed the Government We issued our April decision on a response file to the Petition. In par- Moussaoui, See United States v. 365 F.3d ticular, we directed the Government (4th Cir.2004). Moussaoui thereafter provide answers to following questions: timely petition filed a for rehearing and (1) Why was the information in the May (the suggestion for rehearing en banc Peti- provided Letter not to this court tion). May On the Government sub- or the prior district court May 12? mitted a letter to the purporting (2) [Redacted] “clarify certain factual matters.” Letter (3) Deputy Clerk from United Attorney States 2004) at 1 (May [hereinafter “Letter”]. provided inculpatory In particular, the Government referred to exculpatory information regarding pages 50-51 of the classified slip opinion, Moussaoui?
where the court stated: (5) In light of the information contained in the Letter and perti- other *8 Slip. op. at (emphasis added),7 50-51 see nent developments, would it now be id. at 55-56 [Redacted] appropriate to submit ques- written Shortly 6. argument before we heard oral "Slip op.” on 7. Citations to refer to the unredact- appeal, the district court vacated its order opinions ed of the April court as issued on 22. granting request represent Moussaoui’s appointed himself standby and counsel as 9. The Government also noted that it had been " ” counsel Accordingly, of record. for the re- 'privy process,’ to the [Redacted] Letter at opinion mainder of this we will follow our 51), (quoting slip op. [Redacted] practice usual and refer to Moussaoui and his "Moussaoui,” attorneys collectively as except necessary where clarity. for the sake of in the Facts Contained D. Additional enemy combatant
tions in Submissions Government’s witnesses? to the Petition Response apply (6) restrictions What it be how should such Zebley and the Agent 1. conducted? Team PENTTBOM ques- by written (7) granted If access is the terrorist investigating The FBI team Process tions, Compulsory is the 11, 2001 is known as September attacks of satisfied? Clause The Govern- team.” PENTTBOM “the ques- by written granted If access investigators to be these ment considers effect, any, would tions, what Letter team. See prosecution part of the — U.S. Washington, v. at 2. Crawford 1354, 158 L.Ed.2d -, team, the PENTTBOM One member process? (2004), on such have Zebley, responded to Agent Aaron Special such changed have (9) If circumstances September on Trade Center the World questions of written that submission investigation involved in and has been cir- did the when possible, now duty Zebley’s particular Agent ever since. nei- why change and was cumstances has been to for the PENTTBOM team nor the district this court ther Hamburg, Qaeda al cell investigate the time? so informed at Within Germany [Redacted]. Moussaoui, team, Zebley States is re- Agent United PENTTBOM Cir.2004) (order directing re- expertise having special garded sug- rehearing and for A. No- sponse petition Since knowledge regarding Witness banc). Underly- (one rehearing en prior to Mous- gestion month vember among the concerns indictment), Zebley this order were has been ing Agent saoui’s prose- that members prosecu- members panel for the Moussaoui agent a case rendered [Redacted] team cution tion. reliable. less statements witnesses’ appendix submitted joint The classified (the response filed its Government Response in- by the Government a classified supplemented
Response), cludes [Redacted] parte ex a classified joint appendix Communications 2. Oral filed May 19. Moussaoui on
appendix, alia, which, he inter May reply [Redacted]. concerns
raised Communications 3. Written argument oral a sealed conducted We rehearing on petition regarding [Re- a discussion During 2004. June Community Intelligence panel asked dacted] Use of Information [Redacted], On documentation
provide intelligence parte [Redacted]12 filed an ex 16, the Government June only obtaining interested community is request.10 to this responding document *9 extent he does this court. To 17, relief ob- filed letter On June Moussaoui 10. however, relief, request is denied. his seek this under which jecting to circumstances the court. Be- was submitted document filed, motion, news articles was Petition it styled as a After not this letter was cause Commission on that the National indicated Moussaoui seeks to us not clear is 462 that has foreign intelligence
information previous appeal, we concluded value; intelligence community is not jurisdiction that we (1) lacked because concerned with obtaining information to Classified Information Procedures Act aid in the prosecution of (CIPA), Moussaoui. [Re- (West 18 U.S.C.A.App. §§ 1-16 3 special dacted] not create 7(a) [Redacted] re- 2000 § & Supp.2003)— of which au- ports prosecution, rather, use thorizes an interlocutory appeal from cer- prosecution and the PESTTBOM team tain orders of the district court regarding receive reports the same that are distrib- disclosure classified information— uted intelligence to the community (2) at apply; did not the order of the district large. Information is included in these court was not a collateral appealable order reports only if [Redacted] the information under Cohen v. Industrial Loan Beneficial intelligence have foreign value.14 Corp., 541, 337 1221, 69 S.Ct. (1949);
L.Ed.
ju-
mandamus
II.
risdiction
not
was
appropriate.
In the
present appeal, the Government asserts
turning
merits,
Before
to the
that this
jurisdiction
court has
pursuant to
preliminary
consider the
question of our
CIPA, the collateral
doctrine,
order
and 18
jurisdiction.
parties
not dispute
do
(West
§
U.S.C.A.
Supp.2003). Be-
jurisdiction
that we have
present
over the
cause we
jurisdiction
conclude that
for this
appeal. Nevertheless, because this is an
appeal
3731,
lies under
we need not ad-
interlocutory appeal, and in view of our
dress the Government’s other proposed
prior dismissal for lack of an appealable
jurisdiction.
bases for
order, we will examine
question.
See
Checkpoint
Snowden v.
Cashing,
Check
Section 3731 allows the Government to
631,
290 F.3d
Cir.),
denied,
cert.
pursue an interlocutory appeal of certain
537 U.S.
154 L.Ed.2d
pretrial rulings of the district court in a
(2002).
criminal case. The first paragraph of
Upon
("the
Terrorist Attacks
the United States
J.A.C. (03-4792/Reh'g) 48-49.
Commission”) had
questions
9/11
submitted
Qaeda
to be asked of unidentified al
detain-
14. The Government's submissions indicate
Shenon,
ees.
Philip
"Accord Near for
responsible
those
wit-
Question Qaeda Leaders,”
Panel to
9/11
N.Y.
nesses
pass
only
record
information
Tintes,
12, 2004,
May
(reporting
A20
foreign
intelligence value.
statement
the 9/11 Commission that it was
Consequently, it
possible,
is at least
albeit
agreement
"close to an
with the Bush admin-
unlikely, that one of the
impart-
witnesses has
istration that would
panel
allow the
to submit
significant
ed
exculpatory information related
Qaeda
questions
captured
leaders who are
has not been included [Re-
believed to have been
planning
involved
so,
dacted] If
there
abe
due
attacks”);
Press,
see also Associated
"Vice
problem
Brady
under
Maryland,
Expects
Chairman
Questions
Responses to Written
(1963).
appeal
Constitution).
imposed
guaran
Amendment
The Sixth
prosecutions,
all criminal
tees that “[i]n
the Gov
court sanctioned
The district
...
right
enjoy
shall
accused
enemy
refusing
produce
ernment for
obtaining wit
process
compulsory
depositions
witnesses for
combatant
Const, amend.
nesses
his favor.” U.S.
excluding
notice and
dismissing the death
right is cir
compulsory process
VI.
aspects
Both
items of evidence.
specific
cumscribed, however,
ability of the
by the
under
appealable
are
sanction
of a
presence
court to obtain
the text of
§
latter under
3731—the
through
process.
service of
witness
itself,
by liberal
and the former
statute
Greco,
F.2d
v.
States
United
“dismissing.” See
term
Cir.1962) (“[T]he
(2d
construction
Amendment
Sixth
Quinones,
process
313 F.3d
compulsory
v.
give
United States
can
(2d Cir.2002)
power
it is within
(holding
only
dismissal
where
56-57
it.”). The
provide
government
3731),
federal
under
appealable
notice
death
—
that because
maintains
denied,
U.S.-,
cert.
foreign
are
enemy
witnesses
combatant
(2003);
v.
United States
Even if it were
and thus was
jurisdiction
prosecution
immediate
upon the witnesses’
be served
territorially
See
traditionally
limited.
custodian,
country, the
foreign
who is in a
while these
concluded that
id. The Court
power
have the
district court would
Congress
erased when
distinctions were
otherwise,
arguing
the writ.
serve
2241,
§
did not intend
Congress
enacted
language
points
Carbo,
1994)
2241(a) (West
them.
364 U.S.
abandon
See
U.S.C.A.
—which
The Court therefore
Supreme Court held
reasoning
(“the
its
ly
question open,
left the
subjiciendum
Great
corpus
ad
(6th
Lenz,
v.
616 F.2d
to the testimonial writ.
ed States
applies equally
Cir.1980).
Warden,
However,
through the Immuni
Muhammad
Act,
§§
Cir.1988).
ty of
18 U.S.C.A.
6001-
Witnesses
It is thus clear that a
(West
Supp.2003), Congress
2000 &
beyond
reach
the bound-
court can
Attorney
upon
conferred
General
has
in order to issue a
own district
aries of its
immunity
statutory authority
grant
use
testimonial writ.
*13
to witnesses
order to obtain their testi
mony
generally Kastigar
at trial.
v.
IV.
States,
446,
441,
406 U.S.
92 S.Ct.
United
argues
next
The Government
(1972)
1653,
(explaining
L.Ed.2d 212
32
court would otherwise
even if the district
immunity
a rational
statutes “seek
production
to order the
of
power
have the
imperatives
between the
of
accommodation
witnesses,
January
August
30 and
privilege
and the
[Fifth Amendment]
they in
because
improper
29 orders are
of
to com
legitimate
government
demands
warmaking
Executive’s
au
fringe on the
pel
testify”).
Immunity
to
citizens
separation
powers
of
thority, in violation
grants
Attorney
Act
General or his
principles.18
designes
authority and discretion
exclusive
immunity.
to confer
See 18 U.S.C.A.
Immunity
A.
Cases
6003(b);
Washington,
United States v.
examining the
begin by
Govern-
We
(8th
845,
Cir.),
318 F.3d
855
cert. de
concerning gov-
on cases
ment’s reliance
-
nied,
-,
-,
124
U.S.
immunity
grant
refusal
to
to
ernmental
(2003).
210,
“The Self-Incrimination Clause
e.g.,
Bowling,
United States v.
239 F.3d
guarantees
(8th
that no 973,
the Fifth Amendment
Cir.2001);
976
States v.
United
person
compelled
any
Abbas,
be
in
criminal
Cir.1996);
‘shall
511-12
F.3d
”
against
Lenz,
case to be a witness
himself.’
holdings
when the otherwise
actions
against
dangers
be served
of intru-
impair
one branch
the functions of anoth
authority and functions of
sion on the
id.;
Clinton,
er.
see
520
at 701-
U.S.
Branch.
the Executive
02,
tion of the combatant witnesses 1. The Burden on the Government questions prop- involved the resolution of exclusively charges Congress to the erly indeed, The Constitution —reserved — Therefore, making judiciary. separa- there is a and the Executive with the Count, I, all, art. powers problem only tion of at it arises conduct of war. See U.S. 8, (setting Congress’ cl. forth war from the burden the actions of the district 11-16 2, II, § 1 place perform- powers), (providing on the id. art. cl. Executive’s Clinton, 520 at President shall be Commander “[t]he ance its duties. See U.S. 470 Army Navy of the Chief could result the loss of in- States”), Hamdi v.
United
formation that might prevent future ter-
Rumsfeld
(Hamdi II),
296 F.3d
281
Cir.
rorist attacks.
2002).
exaggeration
It is not an
to state
The Government also asserts that pro-
performance
the effective
of these
duction of the witnesses would burden the
duties is
to our continued exis
essential
ability
foreign
Executive’s
to conduct
rela-
Indeed,
nation.
sovereign
tence as a
“no
tions. See United States v. Curtiss-
governmental interest
is more compelling
Wright
304, 319,
Export Corp., 299 U.S.
security
Haig
than the
of the Nation.”
(“In
S.Ct.
Id. at
Although
privilege
personal
than his
Smith,
rather
belief
780 witness’
v.
States
See United
way.
give
Bartholomew,
(en
Cir.1985)
v.
Wood
(4th
knowledge).
1102, 1107-10
F.2d
Cf.
1
L.Ed.2d
1, 6,
133
116 S.Ct.
standard,
U.S.
defendant
516
banc).
a
that
Under
curiam)
(holding
inadmis-
that
(per
classified
to disclosure
entitled
becomes
to lead to
likely
not
infor-
materials
are
showing that
sible
a
upon
information
“
ev-
exculpatory
discovery
to
of admissible
helpful
relevant
mation
‘is
under
subject
deter-
to disclosure
to a fair
are not
idence
is essential
... or
defense
”
83, 83 S.Ct.
(quot-
Maryland,
at 1107
373 U.S.
Brady
Id.
v.
cause.’
a
mination of
However,
(1963)).
60-61,
3.
cause,
give
must
privilege
tion of a
Roviaro,
60-61,
way.”
475
identity
persons
disclosure the
of
who fur-
Supreme
Court has also applied this
nish
information
violations of
law
rule —that a-governmental refusal
pro-
evidence,
charged
officers
with enforcement of that
duce
material
to the defense is
added));
(emphasis
law.”
id. at
77 S.Ct.
upon
made
pain of sanction—to
good
(stating
623
that when the identity of a
faith deportation
potential
defense wit-
confidential informant is necessary to the
nesses.
In Valenzuelar-Bemal, the' defen-
defense, “the trial court may require dis- dant claimed that the Government violated
and,
closure
the Government withholds
if
his compulsory process rights by deporting
information,
(em-
dismiss the action”
two illegal immigrants who were potential
added)).
phasis
defense witnesses.
In assessing this
claim, the Court
That it is
observed that
responsibility
the case
of the Gov-
a conflict
ernment
involved
to decide
it
between the “vitally
whether will
im-
comply
portant”
with a discovery
duty
order
Executive
is even more
of prosecuting
appar-
States,
ent from Jencks v.
criminal offenders and
congressional
United
(to
(1957),
L.Ed.2d
mandate
be
carried out
the Execu-
tive)
in which the Court
govern-
promptly
held
deporting illegal aliens.
privilege
ment’s
Valenzuelar-Bemal,
confidential reports
863-64,
at
generated by prosecution witnesses must
Id.
In addition area, in this we are suffer a sanction. Court Supreme Congress’ judgment, ex- also mindful *22 CIPA, in- that the Executive’s V. in
pressed
classified information
in protecting
terest
previously,
noted
the Govern
As
to
right
a defendant’s
does not overcome
produce
that it will not
ment has stated
CIPA, once the
case. Under
present his
deposi
for
enemy
combatant witnesses
an item of
that
district court determines
(or,
presume,
pur
other
tions
we
and ma-
is relevant
classified information
are
litigation).
to this
We
pose related
terial,
admitted unless
must be
that item
following
in the
situation:
thus left
adequate
an
provides
government
order
power
pro
has the
district court
U.S.C.A.App. 3
See 18
substitution.
enemy
witnesses
duction of the
combatant
Fernandez,
If
6(c)(1);
trial judge already had determined to be A. Standard defense”). essential to Thus, [the] a sub- stitution is an appropriate remedy when it provides CIPA that government the will not materially disadvantage the defen- may avoid the disclosure of in- classified Woods, dant. Ball v. 402 F.Supp. by formation proposing a substitute for Cf. (N.D.Ala.1975) (“Access pro- due information, the which the —or district court ultimately cess—is a matter of providing accept must it provide “will the defen- an opportunity to have one’s claim with re- substantially dant ability the same solved a meaningful manner, in and does make his defense as disclosure guarantee that such claim will pre- be specific the classified information.” Id. sented in manner.”). the most 6(c)(1), effective see United States v. Rezaq, 134 (D.C.Cir.1998) (concluding B. proposed Substitutions that proposed substitutions for classified by the Government documents were acceptable because “[n]o information was proposed omitted from the Government substi- substitutions tutions that might have for the helpful deposition testimony been witnesses’ defense, [the] and the the of a discoverable docu- form series of statements derived ments had no unclassified from that the [Redacted] features summaries.27 The have might been disclosed rejected defen- district court proposed [the all substi- dant]”). We that believe the standard set tutions inadequate.28 The ruling of the in CIPA adequately conveys forth the fun- district court was based on its conclusions A, In the proposed case of position Witness the testimony. rejection of the Gov- substitutions were submitted in narrative proposed ernment’s substitutions for the de- excerpts form rather than as from [Re- the position testimony of Witnesses B and C was dacted] summaries. The substitutions for accomplished finding order brief the ' Witnesses B and C closely more the tracked inadequate substitutions the for reasons stat- language of the summaries. ed concerning proposed in its order the sub- deposition for stitutions Witness A’s testimo- 28. The court filed opinion a memorandum ny. discussing in detail its rejecting reasons proposed the substitutions for Witness de- A’s profound interest witnesses inadequacy of inherent regarding from information accurate obtaining regarding findings its substitutions that informa- reporting witnesses pro- the Government’s failings specific use it to can those who below, accurately to tion set forth reasons For the posals. to capture acts of terrorism prevent court the district ruling of reject the These consid- Qaeda operatives. other al witnesses’ any substitution indicia relia- provide erations sufficient inadequate. We testimony would dis- the concerns bility alleviate assessment however, with agree, trict court. submitted proposals particular cur- in their inadequate are court noted Next, form. rent they do not indicate substitutions over made of statements summaries the sub- deemed First, court the district agree months. several We course of inadequate because inherently stitutions in order the district reports, which ader to fair derived, protect Moussaoui’s quately were ultimately substitutions were aware trial, made jury must be so, rea- the court This was unreliable.29 *24 concerning the substi information certain [Redacted] soned, the witnesses’ because in content particular The tutions. (03-4162) [Redacted] Supp. J.A.C. the regarding substi jury the to that it struction complained also district court The of the the discretion tutions lies within [Re- the whether be determined cannot Wills, United States court. See district the wit- accurately reflect reports dacted] (4th Cir.2003), de cert. court The [Redacted]30 statements nesses’ — — -, nied, quota- lack of the that commented further - However, (2004). the made L.Ed.2d reports [Redacted] marks in the tion that informed jury the should be very given a least whether determine impossible it reports are derived the or substitutions recording [Re- verbatim is a statement The instruc of the witnesses. [Redacted] at 273. Id. dacted] that mem the fact account for tions must that court district of the The conclusion provid team prosecution of the bers inherently are substitutions proposed the suggested [Redacted] ed information to a declaration is tantamount inadequate instructed that also be jury The should adequate substitu- no there could be that circum under obtained were statements testimo- deposition for the tion witnesses’ a conclusion that support stances The an- this conclusion. reject ny. We are reliable.31 statements court of the district swer to the concerns district reject suggestion We accuracy [Redacted] regarding the improp- acted the Government court that [Redacted] those who reports is that complain that did not district court 30. the substitutions also deemed 29.The court accurately do not summaries [Redacted] use of substitutions inadequate because reports. theAt the [Redacted] summarize ability to deprive Moussaoui pro- concerning hearing the Government’s regarding matters witnesses testimony, A's Witness posed substitutions reports. In [Redacted] appear in not do essence, "im- it had been commented that the court appears to have court the district accuracy” [Redacted] pressed with the are inade- substitutions concluded (03-4162) 175. Supp. J.A.C. summaries. thing as they are not the same quate because However, already de- we have deposition. submissions Nothing the Government's in need proposed substitution termined contradicts Petition with the in connection all the benefits provide Moussaoui not wit- [Redacted] those conclusion that our adequate. to be order deposition obtaining profound interest have a nesses erly in organize attempting the informa- members of the prosecution team, [Redact- tion presented in the substitutions. Coun- ed] have had input some [Redacted] the ever, rarely, sel present information enemy combatant witnesses. Our review jury in the order they received it dur- of the circumstances of this access indi- ing pretrial investigations. Indeed, orga- cates that input by the prosecution nizing and distilling voluminous informa- team into the has tion for comprehensible presentation ato worked no unfairness Moussaoui. Nev- jury is a hallmark of effective advocacy. ertheless, in order provide short, while there problems with the possible fullest range informa- with the manner which the Government tion from witnesses, we direct the dis- organized substitutions, the fact that trict court provide Moussaoui with an the Government has attempted such or- opportunity to ganization is anot mark against it. discretionary use [Redacted] of the wit- particular identified nesses.34 problems with the proposed substitutions
for Witness A’s testimony. For example, 2. Substitutions the court noted that the proposed substitu- tions failed include exculpatory informa- For the above, reasons set forth provided by tion A Witness and incorpo- conclude the district court erred in rated at least one incriminatory inference ruling that any substitution for the wit- supplied by Witness A’s state- nesses’ testimony inherently inadequate *25 Our ments.[Redacted] own review of the to the extent it is derived from the [Re- proposed substitutions for the of testimony reports. To contrary, dacted] the we hold B Witnesses and C reveals similar prob- that the (which, summaries [Redacted] problems, lems.[Redaeted] These howev- the determined, district court accurately er, may be remedied as described below. recapitulate the pro- [Redacted] reports) vide adequate an basis for the of creation Instructions the District Court
C. written may statements that be submitted to the in jury lieu of the deposi- witnesses’ Questions 1. Submission of testimony. tion by Moussaoui The Government’s submissions in re- The compiling of substitutions is task sponse to the Petition make clear that best suited to the court, district given its truthful contrary, information. To the we are [Redacted] whether would result the disclo persuaded even more that the pro- [Redacted] sure trial strategy to the Government. The carefully designed cess is to elicit truthful and Government, filing, in its June 16 informs us accurate information from the witnesses. that measures can be taken to avoid such emphasize held, We that we have never nor disclosures. We particulars leave the hold, do we new that the witnesses’ state- process such to the discretion of the district truthful, ments are in jury and the should fact Jones, court. See United States 136 F.3d Instead, not be so jury instructed. should 1998) (noting Cir. discovery that be informed that the circumstances were de- are matters left to discretion the district signed to elicit truthful statements from the court). minimum, however, At an absolute opinion witnesses. We offer no regarding process adopted whatever must ensure that whether this may instruction include informa- prosecution privy is not [Redact team regarding tion [Redacted] defense, propounded ed] by the just as the During Petition, hearing regarding was pro defense unaware or expressed defense counsel pounded concern over prosecution team. the sub- not to use may decide Moussaoui facts of the familiarity with the
greater defense), they may be manage pres- his authority to stitutions case and its Nevertheless, we Based on only by Moussaoui. admitted of evidence.35 entation some provide the Gov- submissions and appropriate it is think defense counsel’s parties. and the the court guidance objections, the district ernment’s appropriate an set of compile then could this case— First, circumstances discretion leave to the We substitutions.37 that the substitu- notably, the fact most of wheth- court the of the district support Moussaoui’s may very well tions particu- admissibility of to rule on the er of sub- compiling that the defense—dictate a substitu- (e.gwhether among lar substitution an interactive stitutions be relevant) during pre-trial at trial or court.36 Sec- and the district tion parties and fairness ond, accuracy that proceedings. we think substitu- by compiling are best achieved indicated, jury must previously As of the language that use the exact tions re- with certain information provided be ex- greatest to the summaries we leave While garding the substitutions. that the best believe possible. tent We of the instructions particulars objectives these achieving both of means of informed, court, jury must be district identify particular counsel is for defense minimum, that the at a substitutions summaries portions say called what the witnesses into evi- may to admit want are derived testify; that the substitutions then at dence trial. conditions obtained under from statements argue addi- any objections offer provide guarantees circumstantial included must be portions tional contain reliability; the substitutions discussed be- completeness, as interest of course of over the statements obtained are to be admitted If the low. substitutions months; that members (we weeks or possibility open all leave evidentiary rulings routine func- review of court will not 35. We note that —a *26 appellate an court. language submission to tion of drafting original for Instead, in the jury. as we discuss further sug- Judge Gregory’s disagree with We also text, portions designate will contravening gestion we are somehow submission; for summaries [Redacted] by mandating court be that the district CIPA objections cross- and will raise Government compiling CIPA au- involved in substitutions. it be- designate portions of the summaries for an order move thorizes Government by complete- required the rule of lieves are approving for classified informa- substitutions ness; rulings will malte the district court 6(c)(1), tion, but it U.S.C.A.App. 3 see 18 appropriate set necessary compile an of as draft does not Government mandate substitutions. Thus, although it is proposed substitutions. substitu- likely Government will draft Judge Gregory’s view that the disagree with 36. We cases, majority of noth- that, tions in the vast CIPA assigning court a role in by the district substitutions, implicitly precludes ing expréssly or in CIPA compiling or the position of defense counsel in the "place[d] district court involvement post, proceedings,” district court. being an advocate in the 485, setting out "we are ourselves at to deter- it to the district court 37.We leave of evidence super-arbiters of the admission as fact, security case,” mandates national what we mine whether at 485 n. in this id. designating changes, such little non-substantive asking to do is are the district court people places, in order or ordinary judicial alternate names quite task removed from security concerns admissibility to accommodate national of evidence. assessing the when the sub- And, by the by articulated any subsequent this court on review being compiled. nothing stitutions more than these will involve matters prosecution team have portions [Re- contributed vant writing [a or recorded witnesses; and, dacted] if applicable, which clarify statement] or explain the that Moussaoui has the wit- part already received.” United States v. nesses.38 Wilkerson, (4th 692, Cir.1996). F.3d “The rule protective, merely. goes It
a. Rule Completeness only so far as is necessary to a party shield Moussaoui asserts that allowing the inferences, adverse only allows argue Government to por- additional explanation an or rebuttal of the evidence tions of the summaries must be included in received.” United States v. Corrigan, 168 the substitutions will result (2d substitutions 641, Cir.1948) (alteration & “larded inculpatory information under quotation internal omitted); marks see ” guise of ‘completeness.’ Petition at Echo Acceptance Corp. v. Household Re- in violation of the Confrontation Servs., Inc., tail 267 F.3d — Clause, see v. Washington, Cir.2001) (“The rule of completeness Crawford ... U.S.-,-, 158 functions aas defensive against shield po- (2004). And, L.Ed.2d indeed, the Gov- tentially misleading proffered evidence by ernment has indicated its view that an opposing party.”).
rule completeness would it allow to des- We offer two examples of operation ignate an inculpatory portion a witness’ of these principles in the context of the statement to counter exculpatory an state- [Redacted] summaries. by ment the same designated witness (June 2004) Moussaoui.39 Hrg. Tr. (03-4162) J.A.C. 435. If Moussaoui desig- 59-60; (assert- see also Response at 35 nated the first sentence of excerpt ing that completeness rule of requires in- inclusion in substitutions, the rule of troduction of “witness statements in their completeness would not allow the Govern- context”). full ment to include the second sentence. The The common law “rule of com second sentence neither explains clari- nor pleteness” partially codified in Federal first; moreover, fies sen- second Rule of Evidence which provides, tence is inadmissible because it' is Witness a writing “When or recorded or statement speculation, A’s personal his knowl- part thereof is introduced a party, an edge. party may adverse require the introduc Our example second also relates Wit- tion at that time of other part or any ness A’s [Redacted] summaries: other writing or recorded statement which *27 [Redacted] ought in fairness to be considered contem poraneously with it.” purpose of Rule Id. at 429. Suppose Moussaoui offered the substitution, prevent 106 is “to a party from misleading following based on the lan- jury by allowing the into the rele- guage record of this paragraph: 38. We are discretion, mindful of fact the that no written exercise its adequately address will jury substitution enable the to consider problem. this the determining witnesses’ demeanor in their credibility. Cannon, See Fieldcrest Inc. v. that, acknowledges 39. The under NLRB, (4th Cir.1996) (noting here, the complete- circumstances the rule of that demeanor is a determining factor in ness not allow by would it to use a statement credibility). We that believe the instructions one to "complete” by witness a statement above, plus outlined any other instructions another. the district necessary court dean in the heard, the district to be an opportunity substitutions, using compile will court jury mislead the could substitution This may be nec- language as such additional posi- a higher A had that implying Witness understanding essary to aid the Ac- actually he did. Qaeda than in al tion complete, the process is jury. Once this Qaeda in al A’s status cordingly, Witness no are to be at an end—there matter is case, the in the an issue relevant to
were proceedings supplementary or additional allow the Gov- completeness rule of regarding the substitutions. under CIPA addition of ernment demand phrases [Redacted] substitution.
proposed VI. clear short, to make In we wish of the court summary, judgment is not to be completeness the rule of January August is as follows. as means by the Government used affirmed, rejection as is 29 orders inculpatory state seeking the admission proposed substitu- of the Government’s clarify nor explain that neither ments The order tions the district court. by Moussaoui. On designated statements Government is imposing sanctions ability to hand, the defense’s the other vacated, remanded and the case is lan on the based propose substitutions deposi- for the compiling of substitutions not summaries is guage enemy combatant testimony tion jury. mislead the a license to witnesses.
b. CIPA PART, IN AFFIRMED IN VACATED parties ac rehearing, both PART, AND REMANDED On does holding CIPA knowledged our their belief but indicated apply here WILLIAMS, Judge, concurring. Circuit approved has court that once the district outset, in Part I of Chief At I concur testimony, the witnesses’ substitutions for which includes Judge opinion, Wilkins’s play, with result CIPA comes into relevant background information disclo may object to the the Government II, Part which describes appeal, in the information of the classified sure jurisdiction. our request that the substitutions and of evi alternative form adopt an in this to the substantive issue Turning U.S.C.A.App. 3 6. We dence. See case, recently re- Supreme has Court disagree. the district solved the whether authority grant access court has the that the substi-
It must be remembered
Bush,
In Rasul
replace-
aliens detained abroad.
order is a
tution
we here
*
Supreme Court
enemy
held
ment for the
testimony of
Americans
no distinction between
Because the Gov- “draws
combatant witnesses.
custody” and
in federal
and aliens held
ernment will not allow Moussaoui
“there
little reason
witnesses,
pro-
therefore
we must
contact with the
*28
geo-
the
Congress intended
Mous-
think that
protect
to
remedy adequate
vide a
vary
to
Here,
coverage of the statute
graphical
that
rights.
saoui’s constitutional
citizenship.”
the detainees’s
depending on
remedy is
Once Moussaoui
substitutions.
— Bush,
-,
-,
124
Rasul v.
U.S.
of the
portions
[Redact-
has selected the
(June 28,
2686, 2696,
Additionally, as the U.S.C.A. 3591- majority recognizes, (West 2000 & “many Supp.2003), because the factfin- rulings on admissibility— required der is particularly relating those any consider whether relevance— can only be factors mitigating weigh against decided imposing context of a trial, most of a potential witnesses’ sentence death. One statements miti- cannot meaningfully gating be assessed for ad- factor specifically identified in the 472). missibility at this (Maj. op. time.” Act is the defendant’s role in the offense: Asking the district court to pick and (a) Mitigating factors.—In determining choose from among the summaries to com- whether sentence of death is to be pile substitutions for Moussaoui’s use be- imposed defendant, on a the finder of fore the Government’s evidence is forecast fact factor, shall consider mitigating risky is a proposition at best. The [Re- including the following: paint dacted] a complete, summaries if dis- jointed, picture of the statements made date;
the witnesses to if the summaries participation. Minor defen- —The are to be used aas substitution for the dant punishable as a principal expect I setting that we are out as ourselves function proper of the district court belies our super-arbiters of the admission of evidence in appellate role as an court. this case. If the district court an overruled objection by the Government to Moussaoui's majority 5. The open possibility leaves proffered materials for inclusion in the substi- if the compiled by substitutions the district tutions, for example, it is fair to assume inadequate, court are jury or if the is not might the Government appeal seek to properly instructed as to the circumstances of ruling. Conversely, court’s if Mous- reliability, substitutions their saoui seeks inclusion of material but the dis- trict court death objec- sustains Government's notice could be and other sanc- stricken evidence, tion to the may Moussaoui seek view, tions imposed. my could be howev- appeal. proposed by The construct ma- er, inability to question Moussaoui’s the wit- will, fear, jority I piece- lead to unnecessary critically impairs nesses ability prepare his meal review of rulings the district court's defense, particularly solely) (though not as regard to the substitutions it has been tasked potential Accordingly, death sentence. as Indeed, prepare. to concern, my as if to underscore below, explained fully more if opinion after we issued our first proceed must to trial on the of substitu- basis appeal, majority imple- decided to tions testimony, rather than the witnesses' evidentiary ment a remedy new for the denial must, agree we all penalty he death rights Moussaoui's Sixth Amendment be- range possible should be dry fore the ink removed from the even on the was court’s previous opinion. This intrusion into the sentences Moussaoui face. *31 486 pres- in the summaries the [Redacted] on by an- committed
offense,
was
which
present
record,
assume
we must
partic-
ent
other,
the defendant’s
but
minor,
testify.
regard-
relatively
they would so
that
purposes
ipation was
was
participation
the
of
less whether
admit
to
permitted
is
if Moussaoui
Even
to
a defense
to constitute
as
so minor
from the
derived
substitutions
charge.
the
cannot
summaries,
substitutions
those
words,
3592(a)(3). In other
18 U.S.C.A.
live
equivalent
a functional
considered
offense, but
of an
guilty
if
defendant
a
they
ad-
(or
testimony, nor
deposition)
(or, in a
it,
jury
in
the
part
a
played small
for testi-
to substitute
or sufficient
equate
he
that
could find
trial,
judge)
the
bench
States, 519
v. United
mony.
Old Chief
Cf.
warrant
culpable
sufficiently
to
not
was
644, 187-89, penalty.
of the death
imposition
the
stipu-
that
(recognizing
L.Ed.2d
witnesses
the
argues that
Moussaoui
the
match for
robust
“may be no
lation
he
show
testimony
would
that
offer
could
prove”
to
that
be used
would
evidence
directly
an act
in
that
participate
did
fact).
the summaries
Because
stipulated
testify, he
they would
in death:
resulted
that
questions
responses
are not
active
not have an
contends,
he did
that
given
opportu-
ask
attack,
would
Moussaoui
September
planned
in the
role
witnesses, and because
depose
fail to
plan
nity
and
to
of the
he know
did
nor
wit-
investigators,
to see the
to
be able
knowledge
jury will not
that
disclose
to use
credibility,
been able
might have
their
use
judge
who
nesses
attack, when he
prevent the
knowledge
se-
necessarily place
to
summaries
will
pri-
custody
questioned
taken into
was
can
Moussaoui
on
evidence
limits
vere
theory of
Moussaoui’s
to the attack.
or
during
defense, particularly
in his
present
it,
even
is that
case,
understand
as we
capital proceeding.
aof
phase
penalty
who
Qaeda
of al
he is member
though
re-
must be
ultimate
to Osama bin
allegiance
his
pledged
has
Moussaoui
whether
to determine
solved
willing
Laden,
he was
though
and even
Did
this:
penalty is
the death
eligible
acts,
indeed
and was
in terrorist
engage
attack,
September
in the
participate
he
acts, he
in terrorist
participate
training
If
in advance?
the attack
know of
or
acts
terrorist
not involved
was
question of
ask this
cannot
Moussaoui
11, 2001, nor did
September
occurred
he is
knowledge,
have direct
who
witnesses
the attack
before
plans
he know of
handicapped
irretrievably
undeniably
Instead,
was
participation
his
place.
took
from
ability to defend himself
his
attacks,
may
attacks
to involve later
may
The Government
of death.
sentence
occur
planned to
or
not have been
one,
Moussaoui
no
other than
argue that
country’s
or against
the United States
not involved.
himself,
he
has stated
was
any
know to
cannot
We
interests abroad.
those who
has
access
no
Moussaoui
the witnesses
certainty whether
degree
eligibility,
from
him
death
could exonerate
any
Moussaoui
absolve
at issue would
any evidence
not have
jury will
and the
Septem-
part
responsibility for
regard
in this
finding
to base a
which
upon
knowledge
or
operation,
ber
own testi-
for Moussaoui’s
except, possibly,
jury
attack,
if a
nor do
know
planned
provide.
obligated
he is not
mony, which
testimony.
any such
find credible
to offer
be able
will not
Moussaoui
has ex-
However,
the Government
because
which he
evidence
most
relevant
preclude
its
ercised
penalty.
the death
to avoid
able
witnesses,
might be
and based
examining
After
opinion,
we issued our
the Govern
court was correct in holding that the death
May
ment filed
letter dated
penalty should not be within
range
purporting
“clarify
certain factual mat
sentencing options
when,
here,
available
letter,
ters.”
the Government stat
ability to
Defendant’s
mount a defense
*32
ed that
this
opinion
court’s
erroneously
is severely impaired. As the Government
relied on a presumption that the Govern
clear,
has made
the summaries of witness
to,
ment’s
had
attorneys
not
privy
been
provided
statements
to the defense are not
any input into,
nor had
the [Redacted]
complete
account of the witnesses’ re-
at
witnesses
The
issue.
Government had sponses
the only
[Redacted]
re-
[Redacted]
argued, in both the district court and this
sponses passed to
prosecution,
court, that Moussaoui
could not
subsequently provided
defense,
to the
the witnesses
any
because
interference in
responses
those
deemed
[Redacted]
process
the [Redacted]
would be devastat
have actionable foreign intelligence value.
ing to
security.
national
[Redacted] Thus, as
majority
acknowledges, it is
(United
Moussaoui,
States v.
03-4162,
No.
certainly possible
witnesses,
that the
[Re-
8).
Supp.
Gov’t
Ex Parte Appx., at
The
dacted]
provided
have
information
Government now concedes in
May
12 that, although exculpatory
as Mous-
letter
that members
prosecution
saoui, was
passed
not
on
prosecu-
to the
team have in fact [Redacted] pertaining to tion, and in
team,
turn to the defense
prosecution
of Moussaoui.
[Redacted]
because [Redacted] the information had no
(Gov’t Ex
Appx.
Parte
on
at
Rehearing,
actionable foreign intelligence value.6 As
63).
May
While the
12 letter does not
majority
further recognizes, if [Redact-
necessarily contradict
the Government’s
have
ed]
exculpatory evidence
they
previous pleadings and
during
statements
have not passed on
prosecution,
to the
argument,
oral
easy
it is
why
to see
the Moussaoui’s
process
due
rights may be
concluded,
court
based on the Govern
implicated.
Perdomo,
See United States v.
prior
ment’s
representations,
[Redacted]
(3d
Cir.1991)
(stating
information with actionable foreign intelli
the prosecution is obligated under
value,
gence
[Redacted]
information is Brady to disclose all exculpatory evidence
passed
prosecutors,
who in turn will
“in
possession
of some arm of the
pass the information to Moussaoui’s de
state”);
Kyles
see
v. Whitley,
also
514 U.S.
fense team in accordance with their obli 419, 427-38,
115 131 L.Ed.2d
gation
Brady
under
Maryland,
(noting
prosecutor’s
duty to
(1963).
taining to the defendant’s role in of- UNITED America, STATES of See, Ohio, e.g., fense. Lockett v. 438 U.S. Plaintiff-Appellant- 586, 604, 608, 98 S.Ct. 57 L.Ed.2d Cross-Appellee, (1978). Skipper also v. South Carolina, 1, 5, 106 S.Ct. (1986); L.Ed.2d 1 United States v. Jack- Bobby PHILLIPS, Jr., Defendant-
son, (4th Cir.2003) 327 F.3d Appellee-Cross-Appellant. (“During case, in a sentencing capital precluded factfinder ‘not be con- No. 03-50520. sidering, mitigating factor, as a any aspect of a defendant’s character or record and United States Court Appeals, any of the circumstances offense Fifth Circuit. that the defendant proffers as a basis ”) sentence less than (quoting Aug. death.’ Lock- ett, 2954). 438 U.S. at A requires
sentence of death greater “a de-
gree reliability” than any lesser sen- Lockett,
tence. U.S. at 98 S.Ct.
2954 (citing Carolina, Woodson v. North 280, 304-05, (1976)).
L.Ed.2d 944
Here, reliability of a death sentence significantly
would be impaired by the lim-
itations on the evidence available for
Moussaoui’s use in proving mitigating fac- (if guilty).
tors he is found Although it repeated
has been enough often to have cliche, ring of death is different. It is out,
the ultimate penalty, once carried
it is irrevocable. A sentence of death can-
not be imposed unless the defendant has
been accorded the opportunity to defend fully;
himself it imposed cannot be without
the utmost certainty, the fundamental be-
lief the fairness of the result. Because
Moussaoui will not have access to the wit-
nesses who could answer the involvement,
his should he not face the penalty
ultimate of death. Accordingly, I uphold the district court’s sanction
to the extent that it struck the Govern- basis,
ment’s death notice. On this I must
dissent.