United States v. Moussaoui

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

ZACARIAS MOUSSAOUI,

Defendant-Appellee,

ABC, INCORPORATED; ASSOCIATED

PRESS; CABLE NEWS NETWORK, LP,



LLLP; CBS BROADCASTING,

INCORPORATED; THE HEARST No. 03-4162

CORPORATION; NATIONAL

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Intervenors.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-01-455)

2 UNITED STATES v. MOUSSAOUI

In Re: UNITED STATES OF AMERICA, 

Petitioner.

v.

ABC, INCORPORATED; ASSOCIATED

PRESS; CABLE NEWS NETWORK, LP,

LLLP; CBS BROADCASTING,

INCORPORATED; THE HEARST

CORPORATION; NATIONAL  No. 03-4261

BROADCASTING COMPANY,

INCORPORATED; THE NEW YORK TIMES

COMPANY; THE REPORTERS

COMMITTEE FOR FREEDOM OF THE

PRESS; THE STAR TRIBUNE COMPANY;

TRIBUNE COMPANY; THE WASHINGTON

POST,

Intervenors.



On Petition for Writ of Mandamus.

(CR-01-455)

Argued: June 3, 2003

Decided: June 26, 2003

Before WILKINS, Chief Judge, and WILLIAMS and

GREGORY, Circuit Judges.

Dismissed by published opinion. Chief Judge Wilkins wrote the opin-

ion, in which Judge Williams and Judge Gregory joined.

COUNSEL

ARGUED: Michael Chertoff, Assistant Attorney General, Criminal

Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

UNITED STATES v. MOUSSAOUI 3

ington, D.C., for Appellant. Frank Willard Dunham, Jr., Federal Pub-

lic Defender, Alexandria, Virginia; Edward B. MacMahon, Jr.,

Middleburg, Virginia, for Appellee. ON BRIEF: Paul J. McNulty,

United States Attorney, Robert A. Spencer, Assistant United States

Attorney, Kenneth M. Karas, Assistant United States Attorney, David

J. Novak, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant.

Gerald T. Zerkin, Senior Assistant Federal Public Defender, Kenneth

P. Troccoli, Assistant Federal Public Defender, Anne M. Chapman,

Assistant Federal Public Defender, Alexandria, Virginia; Alan Yama-

moto, Alexandria, Virginia, for Appellee.

OPINION

WILKINS, Chief Judge:

This appeal is one of extraordinary importance, presenting a direct

conflict between a criminal defendant’s right "to have compulsory

process for obtaining witnesses in his favor," U.S. Const. amend VI,

and the Government’s essential duty to preserve the security of this

nation and its citizens. The Government appeals an order of the dis-

trict court directing it to produce an individual ("the enemy combatant

witness")1 for a deposition pursuant to Federal Rule of Criminal Pro-

cedure 15,2 arguing that access to the enemy combatant witness will

have devastating consequences for national security and foreign rela-

tions. Counsel for Appellee Zacarias Moussaoui,3 on the other hand,

1

The name of this individual is classified, as is much of the informa-

tion involved in this appeal. Throughout this opinion we have avoided all

references to classified material.

2

Rule 15(a)(1) provides that the district court may order the deposition

of a witness for the purpose of preserving the witness’ testimony for trial

"because of exceptional circumstances and in the interest of justice."

3

As explained in more detail below, Moussaoui is representing himself

in the district court. Because the right of self-representation does not

extend to appeals, see Martinez v. Ct. of Appeal of Cal., 528 U.S. 152,

163 (2000), standby counsel in the district court were appointed as coun-

sel for this appeal.

4 UNITED STATES v. MOUSSAOUI

maintain that it is fundamentally unfair for the Government to insti-

tute a criminal prosecution in the federal district court and then deny

the defendant access to a potentially favorable witness.

We have accepted briefing on the issues and conducted argument,

and we are prepared at this time to rule on the substantive questions

before us. However, we are compelled to conclude that we are with-

out authority to do so because the order of the district court is not yet

an appealable one. We are therefore constrained to dismiss. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998).

I.

On September 11, 2001, members of al Qaeda4 hijacked three pas-

senger aircraft and flew them into the World Trade Center towers in

New York City and the Pentagon in Virginia. A fourth plane, appar-

ently headed for the Capitol Building in Washington, D.C., crashed

in Pennsylvania after an heroic effort by passengers resisting the

hijacking.

Moussaoui, an admitted al Qaeda member, was arrested approxi-

mately one month prior to September 11. He has been in pre-trial con-

finement since his arrest. A subsequently issued indictment alleges

that until the time of his arrest, Moussaoui was a part of the planned

attacks. He is charged with conspiracy to commit acts of terrorism

transcending national boundaries, see 18 U.S.C.A. § 2332b(a)(2), (c)

(West 2000) (Count One); conspiracy to commit aircraft piracy, see

49 U.S.C.A. § 46502(a)(1)(A), (a)(2)(B) (West 1997) (Count Two);

conspiracy to destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West

2000) (Count Three); conspiracy to use weapons of mass destruction,

see 18 U.S.C.A. § 2332a (West 2000) (Count Four); conspiracy to

murder United States employees, see 18 U.S.C.A. §§ 1114, 1117

(West 2000) (Count Five); and conspiracy to destroy property, see 18

U.S.C.A. § 844(f), (i) (West 2000) (Count Six). The Government is

seeking the death penalty on Counts One through Four.

4

"Al Qaeda" is transliterated from Arabic text. Several spellings may

be acceptable for a single transliterated word; this opinion follows the

spelling conventions used in the indictment.

UNITED STATES v. MOUSSAOUI 5

In April 2002, Moussaoui moved to dismiss court-appointed coun-

sel and proceed pro se. After lengthy proceedings in the district court

concerning Moussaoui’s competency to represent himself, the district

court granted the motion. The court directed Moussaoui’s former

attorneys to remain involved as standby counsel.

In September 2002, Moussaoui moved for access to the enemy

combatant witness, asserting that this individual would be an impor-

tant part of his defense. Moussaoui’s motion was supported by

standby counsel, who filed a motion seeking pretrial access to the

enemy combatant witness and a writ of habeas corpus ad testifi-

candum ("testimonial writ") for this witness’ trial testimony.5 The

Government opposed this request.

5

Moussaoui also sought access to two other al Qaeda members accused

of complicity in the September 11 attacks. Standby counsel supported

these requests as well. In its order granting access to the enemy comba-

tant witness, the district court denied access to these two individuals,

concluding that Moussaoui and standby counsel had failed to establish

that the individuals would provide material, admissible testimony.

During the course of the proceedings in the district court, Moussaoui

moved for the production of a third individual. Noting that the request

for production of this third individual involved the same legal questions

as the request for production of the enemy combatant witness, the district

court declined to rule on this motion.

In connection with the Government’s appeal, Moussaoui has filed pro

se supplemental briefs in which he asserts that the district court erred in

refusing to rule on his motion for access to the third individual and

asserting that access must be granted. Because the district court has not

yet ruled on Moussaoui’s request, however, it is not before us in this pro-

ceeding.

Even if we construed Moussaoui’s pleadings as petitions for writs of

mandamus, he would not be entitled to relief. Mandamus is an appropri-

ate remedy when a district court arbitrarily refuses to rule on a motion.

See Pfizer, Inc. v. Kelly (In re Sch. Asbestos Litig.), 977 F.2d 764, 792-

93 (3d Cir. 1992). The refusal to rule by the district court is not arbitrary,

but rather is based on a reasonable judgment that this appeal may resolve

a number of issues relevant to Moussaoui’s request for access to the third

individual.

6 UNITED STATES v. MOUSSAOUI

Following a hearing, the district court granted the motion in part.

Applying the procedures set forth in the Classified Information Proce-

dures Act (CIPA), 18 U.S.C.A. App. 3 §§ 1-16 (West 2000 & Supp.

2003), as a useful framework for decision, the court determined that

testimony from the enemy combatant witness would be relevant and

material to Moussaoui’s planned defense to the charges. The court

also concluded that Moussaoui and the public’s interest in a fair trial

outweighed the Government’s national security interest in precluding

access to the enemy combatant witness. However, the court ruled that

the Government’s national security concerns counseled against grant-

ing unfettered pretrial access to the enemy combatant witness and

against requiring that the enemy combatant witness be produced for

testimony at trial. The district court therefore issued a testimonial writ

directing that the Government produce the witness for a Rule 15

deposition and setting conditions for the deposition.

The Government appealed the order of the district court. We heard

argument on June 3, 2003.

II.

Appellate jurisdiction is generally governed by 28 U.S.C.A. § 1291

(West 1993), which provides that the courts of appeals "shall have

jurisdiction of appeals from all final decisions of the district courts of

the United States." A "final" judgment is one "that ends the litigation

on the merits and leaves nothing for the court to do but execute the

judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)

(internal quotation marks omitted). "In the criminal context, finality

comes with the conviction and imposition of sentence." United States

v. Bertoli, 994 F.2d 1002, 1010 (3d Cir. 1993).

Judged by this standard, the order of the district court clearly is not

a "final" one. Nevertheless, the Government maintains that we have

jurisdiction, offering three grounds for such a conclusion: CIPA, the

collateral order doctrine, and mandamus. None of these provides a

basis for review of the district court order.

UNITED STATES v. MOUSSAOUI 7

A. CIPA

CIPA was enacted in 1980 to combat the problem of "graymail,"

an attempt by a defendant to derail a criminal trial by threatening to

disclose classified information. See S. Rep. No. 96-823, at 2 (1980),

reprinted in 1980 U.S.C.C.A.N. 4294, 4295; see also id. at 3 (noting

that problem of graymail is not "limited to instances of unscrupulous

or questionable conduct by defendants since wholly proper defense

attempts to obtain or disclose classified information may present the

government with the same ‘disclose or dismiss’ problem"), reprinted

in 1980 U.S.C.C.A.N. at 4296-97. CIPA requires that a criminal

defendant who plans to disclose classified information at his trial so

notify the district court prior to trial. See 18 U.S.C.A. App. 3 § 5(a).

The government may then request a hearing, at which the district

court must determine whether the classified information in question

is relevant and admissible. See id. § 6(a). Once the district court has

made such a ruling, CIPA entitles the government to take an interloc-

utory appeal.6 See id. § 7(a).

Here, the Government contends that the order of the district court

directing the deposition of the enemy combatant witness is "a deci-

sion or order . . . authorizing the disclosure of classified information,"

id., from which it may take an immediate appeal. We disagree. CIPA

§ 6, to which the Government points, is concerned with the disclosure

of classified information by the defendant to the public at a trial or

pretrial proceeding, not the pretrial disclosure of classified informa-

tion to the defendant or his attorneys. Cf. United States v. Smith, 780

F.2d 1102, 1106 (4th Cir. 1985) (en banc); id. at 1108-09 (noting that

the government’s interest in maintaining confidentiality of classified

information "is still protectable although [the defendant] may have

had access to the information"). It is true, of course, that the district

6

Another provision of CIPA, § 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.

Even if CIPA authorizes an interlocutory appeal by the government from

an order under § 4, that section does not apply here because the testi-

mony of the enemy combatant witness is not a document from which the

Government can redact information. In any event, the Government does

not rely on § 4 as a basis for jurisdiction.

8 UNITED STATES v. MOUSSAOUI

court issued the testimonial writ based in part on its assessment that

the enemy combatant witness’ testimony would likely be helpful to

Moussaoui’s defense. But, neither this conclusion, nor the fact that

the purpose of the deposition is to preserve the enemy combatant wit-

ness’ testimony for potential use at trial, is sufficient to establish the

applicability of CIPA. At its core, the order of the district court con-

cerned only the question of whether Moussaoui and standby counsel

would be granted access to the enemy combatant witness (and if so,

what form of access), not whether any particular statement of this wit-

ness would be admitted at trial. The district court was thus correct to

conclude that CIPA applies here only by analogy. Because CIPA is

not directly applicable, § 7 does not authorize an interlocutory appeal.

See Arizona v. Manypenny, 451 U.S. 232, 246 (1981) (noting pre-

sumption against governmental appeals in criminal cases absent

express statutory authorization).

B. Collateral Order Doctrine

The Supreme Court has long given the finality requirement of

§ 1291 a practical construction rather than a technical one. See Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To this

end, the Court has identified "a narrow class" of collateral orders "that

do not terminate the litigation, but must, in the interest of achieving

a healthy legal system, nonetheless be treated as final." Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal quo-

tation marks & citation omitted); see id. at 867-68 ("Immediate

appeals from such orders . . . do not go against the grain of § 1291,

with its object of efficient administration of justice in the federal

courts."). Such decisions are immediately appealable.

The collateral order doctrine provides that to be subject to immedi-

ate appeal, a ruling of the district court "must conclusively determine

the disputed question, resolve an important issue completely separate

from the merits of the action, and be effectively unreviewable on

appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468.

The Court has emphasized that the collateral order doctrine is to be

applied strictly, lest it swallow the general requirement of finality. See

Digital Equip., 511 U.S. at 868. And, "[b]ecause of the compelling

interest in prompt trials, the Court has interpreted the requirements of

the collateral-order exception to the final judgment rule with the

UNITED STATES v. MOUSSAOUI 9

utmost strictness in criminal cases." Flanagan v. United States, 465

U.S. 259, 265 (1984); see Cobbledick v. United States, 309 U.S. 323,

325 (1940) ("[E]ncouragement of delay is fatal to the vindication of

the criminal law.").

The order of the district court fails to satisfy the first prong of the

Cohen analysis. An order that is "tentative, informal or incomplete"

is not final for purposes of the collateral order doctrine. Cohen, 337

U.S. at 546; see Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271, 277 (1988) (explaining that an order is "final" for pur-

poses of the collateral order doctrine when it is "made with the expec-

tation that [it] will be the final word on the subject addressed"

(internal quotation marks omitted)). Here, the ruling of the district

court is a non-final discovery order. See United States v. Nixon, 418

U.S. 683, 690-91 (1974); Fed. Ins. Co. v. Me. Yankee Atomic Power

Co., 311 F.3d 79, 81 (1st Cir. 2002).

The order of the district court will not become final unless and until

the Government refuses to comply and the district court imposes a sanc-

tion.7 See Nixon, 418 U.S. at 691. It is not enough that the Govern-

ment’s noncompliance with the order is anticipated or even certain,

especially when it is unknown what sanction, if any, may be imposed

by the district court. Cf. United States v. Kane, 646 F.2d 4, 8 (1st Cir.

1981) (concluding that discovery order was not appealable under 18

U.S.C.A. § 3731 (West Supp. 2003) [providing for appeal of district

court order excluding evidence] when the government had not yet

indicated whether it would disobey the order and, even if disobedi-

ence was certain, it was not clear that exclusion of evidence would be

the sanction imposed by the district court). If the Government elects

not to comply with the district court order, the resulting sanction may

be one that the Government is willing to bear and not challenge on

appeal. On the other hand, the Government may not be willing to bear

the sanction and may appeal to this court seeking relief. In either

7

The absence of a sanction for defiance of a discovery order may also

be treated as a failure to satisfy the third prong of the Cohen analysis,

which requires that the challenged order be effectively unreviewable

after final judgment. See MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d

116, 121-22 (4th Cir. 1994).

10 UNITED STATES v. MOUSSAOUI

event, the order of the district court is not final until a sanction for

noncompliance is imposed.

Here, despite indications that it will refuse to produce the enemy

combatant witness under any circumstances, and despite ample

opportunity to make its position known, the Government has not noti-

fied the district court of its refusal to comply with the testimonial

writ. And, we cannot acquire jurisdiction through speculation about

what action the Government may or may not take and what sanction

the district court may or may not impose.

In reaching this conclusion, we are cognizant that this case

involves substantial national security concerns. However, we cannot

consider these legitimate concerns in our jurisdictional analysis

because application of the collateral order doctrine "is to be deter-

mined for the entire category to which a claim belongs, without

regard to the chance that the litigation at hand might be speeded, or

a ‘particular injustic[e]’ averted, Van Cauwenberghe v. Biard, 486

U.S. 517, 529 (1988), by a prompt appellate court decision." Digital

Equip., 511 U.S. at 868 (alteration in original). Ultimately, the order

of the district court is a discovery order like any other, and must be

treated the same for jurisdictional purposes.8

C. Mandamus

The Government filed a petition for a writ of mandamus as an

alternate basis for jurisdiction. Mandamus is a "drastic" remedy, "to

be invoked only in extraordinary situations." Allied Chem. Corp. v.

8

The defiance-and-sanction requirement is not without exception. In

Nixon, for example, the Supreme Court determined that it would be "in-

appropriate" and "unseemly" "[t]o require a President of the United

States to place himself in the posture of disobeying an order of a court

merely to trigger the procedural mechanism for review of the ruling."

Nixon, 418 U.S. at 691-92. However, this exception has been limited to

its unique facts by numerous courts. See, e.g., Bennett v. City of Boston,

54 F.3d 18, 20-21 (1st Cir. 1995) (per curiam) (rejecting claim that

elected district attorney should be exempt from requirement; citing

cases). And, we can discern no basis on which to forgo the requirement

in this case.

UNITED STATES v. MOUSSAOUI 11

Daiflon, Inc., 449 U.S. 33, 34 (1980) (per curiam). Mandamus "has

traditionally been used in the federal courts only to confine an inferior

court to a lawful exercise of its prescribed jurisdiction or to compel

it to exercise its authority when it is its duty to do so." Will v. United

States, 389 U.S. 90, 95 (1967) (internal quotation marks omitted). In

short, "only exceptional circumstances amounting to a judicial usur-

pation of power will justify the invocation of this extraordinary rem-

edy." Id. (internal quotation marks omitted).

In order to preserve the extraordinary nature of the mandamus rem-

edy, the Supreme Court has set forth two conditions that must be sat-

isfied as a predicate to mandamus jurisdiction. First, "the party

seeking issuance of the writ [must] have no other adequate means to

attain the relief he desires." Kerr v. United States Dist. Ct., 426 U.S.

394, 403 (1976); see Will, 389 U.S. at 97 (noting that "[m]andamus

. . . may never be employed as a substitute for appeal in derogation

of . . . clear policies" favoring delay of review until final judgment).

Second, the petitioner bears "the burden of showing that [his] right to

issuance of the writ is clear and indisputable." Bankers Life & Cas.

Co. v. Holland, 346 U.S. 379, 384 (1953) (internal quotation marks

omitted).

The Government has not established that it has a clear and indispu-

table right to reversal of the order of the district court. The substantive

issues involved here are complex and difficult, and the answer is not

easily discerned. We therefore deny mandamus relief.

III.

For the reasons set forth above, we dismiss the appeal and the peti-

tion for a writ of mandamus. To avoid any unnecessary delay of this

pending trial, we intend to expedite any subsequent appeal that may

be taken. Because we are presently without jurisdiction, we lack

authority to direct the district court to proceed expeditiously. How-

ever, we note that the parties and the district court have thus far pur-

sued these matters with diligence, and we urge them to continue to do

so.

THE MANDATE SHALL ISSUE FORTHWITH.

DISMISSED