United States v. Moussaoui, 050404 FED4, 03-4792

Docket Nº:03-4792
Party Name:United States v. Moussaoui
Case Date:May 04, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellant,


ZACARIAS MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant-Appellee.


No. 03-4792

United States Court of Appeals, Fourth Circuit

May 4, 2004

Argued: December 3, 2003

Decided: April 22, 2004

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. CR-01-455.



Paul N. Clement, Deputy Solicitor General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.

Frank Willard Dunham, Jr., Federal Public Defender, Alexandria, Virginia; Edward Brian MacMahon, Jr., Middleburg, Virginia, for Appellee.


Christopher A. Wray, Assistant Attorney General, Patrick F. Philbin, Associate Deputy Attorney General, Jonathan L. Marcus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; 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, Alexandria, Virginia, for Appellant.

Gerald T. Zerkin, Jr., Senior Assistant Federal Public Defender, Kenneth P. Troccoli, Assistant Federal Public Defender, Anne M. Chapman, Assistant Federal Public Defender, Alexandria, Virginia, Alan H. Yamamoto, Alexandria, Virginia, for Appellee.

Kathleen Clark, Joseph Onek, CENTER FOR NATIONAL SECURITY STUDIES, Washington, D.C., for Amicus Curiae.

Before WILKINS, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.

Chief Judge Wilkins announced the judgment of the court and wrote an opinion, in which Judge Williams concurs as to Parts I, II, IV.C.2.a. through IV.C.2.C, and V.A. through V.C., and in which Judge Gregory concurs except as to Part V.C. Judge Williams wrote an opinion concurring in part and dissenting in part, Judge Gregory wrote an opinion concurring in part and dissenting in part.


The court amends its opinion filed April 22, 2004, as follows:

On page 6, footnote 5, line 6 -- a quotation mark is added before the asterisks.

On page 18, second full paragraph, line 4, the word "exclusively" replaces "excusively."


WILKINS, Chief Judge:

The Government appeals a series of rulings by the district court granting Appellee Zacarias Moussaoui access to certain individuals1 ("the enemy combatant witnesses" or "the witnesses") for the purpose of deposing them pursuant to Federal Rule of Criminal Procedure 15; rejecting the Government's proposed substitutions for the depositions; and imposing sanctions for the Government's refusal to produce the witnesses. We are presented with questions of grave significance—questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantee of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks. These questions do not admit of easy answers.

For the reasons set forth below, we reject the Government's claim that the district court exceeded its authority in granting Moussaoui access to the witnesses. We affirm the conclusion of the district court that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf, and we agree with the district court that the Government's proposed substitutions for the witnesses' deposition testimony are inadequate. However, we reverse the district court insofar as it held that it is not possible to craft adequate substitutions, and we remand with instructions for the district court and the parties to craft substitutions under certain guidelines. Finally, we vacate the order imposing sanctions on the Government.


A. Background Information

On September 11, 2001, members of the terrorist organization ,al Oaeda2 hijacked three passenger aircraft and crashed them into the Pentagon and the World Trade Center towers in New York. A fourth plane, apparently destined for the United States Capitol, crashed in Pennsylvania after passengers wrested control from the hijackers. The attacks resulted in the deaths of over 3000 men, women, and children.

Moussaoui was arrested for an immigration violation in mid-August 2001 and, in December of that year, was indicted on several charges of conspiracy related to the September 11 attacks. In July 2002, the Government filed a superseding indictment charging Moussaoui with six offenses: conspiracy to commit acts of terrorism transcending national boundaries, see 18 U.S.C.A. § 2332b(a)(2), (c) (West 2000); conspiracy to commit aircraft piracy, see 49 U.S.C.A. § 46502(a)(1)(A), (a)(2)(B) (West 1997); conspiracy to destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000); conspiracy to use weapons of mass destruction, see 18 U.S.C.A. § 2332a(a) (West 2000 & Supp. 2003); conspiracy to murder United States employees, see 18 U.S.C.A. §§ 1114, 1117 (West 2000 & Supp. 2003), and conspiracy to destroy property, see 18 U.S.C.A. § 844(f), (i), (n) (West 2000 & Supp. 2003). The Government seeks the death penalty on the first four of these charges.

According to the allegations of the indictment, Moussaoui was present at an al Qaeda training camp in April 1998. The indictment further alleges that Moussaoui arrived in the United States in late February 2001 and thereafter began flight lessons in Norman, Oklahoma. Other allegations in the indictment highlight similarities between Moussaoui's conduct and the conduct of the September 11 hijackers. Each of the four death-eligible counts of the indictment alleges that the actions of Moussaoui and his coconspirators "resulted] in the deaths of thousands of persons on September 11, 2001." E.g., J.A. (03-4162) 108.3

B. Events Leading to this Appeal

Simultaneously with its prosecution of Moussaoui, the Executive Branch has been engaged in ongoing efforts to eradicate al Qaeda and to capture its leader, Usama bin Laden. These efforts have resulted in the capture of numerous members of al Qaeda, including the witnesses at issue here: * * * *.

Witness * * * * was captured * * * *.* * * *; Moussaoui (who at that time was representing himself in the district court) moved for access to Witness * * * *, asserting that the witness would be an important part of his defense. * * * * The Government opposed this request.4

The district court conducted a hearing, after which it issued an oral ruling granting access to Witness * * * * ("the January 30 order"). The court subsequently issued a memorandum opinion explaining its ruling in greater detail. The district court concluded that Witness * * * * could offer material testimony in Moussaoui's defense; in particular, the court determined that Witness * * * * had * * * * knowledge of the September 11 plot and that his testimony would support Moussaoui's claim that he was not involved in the attacks. At a minimum, the court observed, Witness * * * * testimony could support an argument that Moussaoui should not receive the death penalty if convicted.

The district court acknowledged that Witness * * * * is a national security asset and therefore denied standby counsel's request for unmonitored pretrial access and declined to order his production at trial. The court also determined, however, that the Government's national security interest must yield to Moussaoui's right to a fair trial. Accordingly, the court ordered that Witness * * * * testimony be preserved by means of a Rule 15 deposition. See Fed. R. Crim. P. 15(a)(1) (providing that court may order deposition of witness to preserve testimony for trial "because of exceptional circumstances and in the interest of justice"). In an attempt to minimize the effect of its order on national security, the district court ordered that certain precautions be taken. Specifically, the court directed that the deposition would be taken by remote video, with Witness * * * * in an undisclosed location and Moussaoui, standby counsel, and counsel for the Government in the presence of the district court. * * * *.

While the Government's appeal of the January 30 order was pending before this court, we remanded for the purpose of allowing the district court to determine whether any substitution existed that would place Moussaoui in substantially the same position as would a deposition. On remand, both the Government and standby counsel offered proposed substitutions for Witness * * * * deposition testimony.5 district court rejected the Government's proposed substitutions, reasoning that (a) the information in the * * * * reports was unreliable, and (b) the substitutions themselves were flawed in numerous respects. Believing itself bound to consider only the Government's proposed substitutions, the district court did not review the substitutions offered by standby counsel.

The proceedings on remand complete, we conducted oral argument on June 3, 2003. Shortly thereafter, we dismissed the appeal as interlocutory. See United States v. Moussaoui (Moussaoui I), 333 F.3d 509, 517 (4th Cir. 2003). Upon receiving the mandate of this court, the district court entered an order directing the Government to inform the court whether it would comply with the January 30 order. On July 14, 2003, the Government filed a pleading indicating that it would refuse to provide access to Witness * * * * for the purpose of conducting a deposition.

On August 29, the district court entered an order ("the August 29 order") granting access to Witnesses * * * * for purposes of conducting Rule 15 depositions of those witnesses. The order imposed the same conditions as those applicable to Witness * * * *. The court also...

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