United States v. Robert Hoffman, II , 612 F. App'x 162 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PATRICK HOFFMAN, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:12-cr-00184-RGD-LRL-1)
Argued: March 26, 2015 Decided: May 5, 2015
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished opinion. Senior Judge Davis wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Robert John Krask, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia; Heather M.
Schmidt, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Keith Loren Kimball, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, Alan M. Salsbury, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Senior Circuit Judge:
After a five-day jury trial in the Eastern District of
Virginia, Appellant Robert Patrick Hoffman, II was convicted of
attempted espionage and sentenced to thirty years’ imprisonment.
On appeal, Hoffman argues that his defense was prejudiced as a
result of the district court’s handling of his pretrial motions
for expert services under the Criminal Justice Act of 1964 (the
“CJA”). As relief, he apparently seeks a conditional remand to
the district court for the appointment of a psychiatrist and,
depending on the outcome of a thorough psychiatric examination,
a new trial affording him an opportunity to present a mental
status defense. Hoffman also asks that we review the district
court’s rulings on certain pretrial motions filed by the
government under the Classified Information Procedures Act (the
“CIPA”). Finding no reversible error, we affirm the judgment of
the district court. 1
I.
A.
The evidence adduced at trial permitted the jury to find
the following facts.
1
In light of our denial of Hoffman’s pro se request for
substitution of counsel, we grant his motion for leave to file a
supplemental brief pro se. In his pro se brief, Hoffman
separately raises a number of issues that we have reviewed and
do not find meritorious.
3
Prior to his retirement in the fall of 2011, Hoffman served
in the United States Navy for approximately twenty years,
working as a cryptologic technician aboard fast track or guided
missile submarines. Hoffman held a top secret/sensitive
compartmentalized information clearance and regularly received
classified information in his work, including information
relating to the capabilities, vulnerabilities, and missions of
United States submarines, and the methods of operation employed
by adversaries of the United States. Hoffman entered into a
number of nondisclosure agreements with the United States
government, and he received regular training on his obligations
not to divulge classified information to persons not authorized
to receive it and to report to authorities any attempt by an
unauthorized person to solicit classified information.
In the fall of 2012, the FBI commenced an investigation of
Hoffman to determine whether he was in contact with another
country’s intelligence service. Specifically, agents of the FBI
conducted a “false flag operation” in which they contacted and
maintained communications with Hoffman while assuming the
identities of agents of a foreign intelligence service.
Communicating by email, an undercover FBI agent posing as an
agent of the Russian secret service named “Vladimir” solicited
information from Hoffman and instructed him in how to make dead
drops of documents at a state park in Virginia Beach, Virginia.
4
Hoffman indicated his willingness to assist the Russian agency
and, over the course of several exchanges of correspondence and
visits to the dead drop site, he disclosed national defense
information and advice for the Russian navy, including certain
classified information.
According to the government, Hoffman came to suspect that
he might be under surveillance and, for this reason, decided to
report his activities to the FBI. On October 31, 2012, Hoffman
visited the FBI’s office in Norfolk, Virginia and reported that
he had been recruited by the Russian intelligence service to
provide certain information. Hoffman claimed that he maintained
communications with “Vladimir” in order to set up the Russian
agent for investigation and apprehension by the FBI and the CIA,
and that he did not intend to injure the United States.
The FBI interviewed Hoffman and instructed him to give
advance notice of any further contacts he had with Russian
agents. “Vladimir” subsequently contacted Hoffman by email
inquiring about Hoffman’s failure to make a planned visit to the
dead drop site. Hoffman reported this contact to the FBI, and an
FBI agent instructed him to make a concise response to the
email. Hoffman responded to “Vladimir” by coded email on
November 8, 2012 that he had encountered a problem and would not
be able to visit the dead drop site again until November 18. On
5
November 17 and 18, 2012, Hoffman returned to the dead drop site
without notifying the FBI.
B.
On December 5, 2012, a grand jury returned a single-count
indictment against Hoffman for attempted espionage, in violation
of 18 U.S.C. § 794(a). The indictment alleged that Hoffman
attempted to communicate to the Russian Federation information
relating to United States national defense, including
information classified as secret. The indictment alleged further
that Hoffman disclosed this information with intent and reason
to believe that it would be used to injure the United States and
to advantage the Russian Federation. The FBI arrested Hoffman
the following day. The district court appointed counsel and set
a pretrial motion deadline of February 28, 2013, with trial to
commence on June 17, 2013.
On March 21, 2013, defense counsel filed an ex parte motion
under the CJA requesting appointment of a mental health expert
to conduct an examination of Hoffman and to provide professional
opinions to assist the defense. Specifically, counsel sought
opinions about how to communicate with Hoffman and whether
Hoffman intended to commit espionage, as well as any expert
6
mitigation evidence for presentation at sentencing should
Hoffman be convicted. 2
On April 17, 2013, the district court conducted an ex parte
hearing on the CJA motion. In support of the motion, defense
counsel expressed concerns about Hoffman’s ability to convey
information about his background accurately and whether Hoffman
was suffering from delusional thinking. The district court
agreed that counsel’s account raised the question of Hoffman’s
mental competency and insisted that counsel was required to give
notice to the government. Defense counsel responded that they
intended to give notice once they determined that they would
present a mental status defense but that they had not yet made
any such decision. Notwithstanding counsels’ position, the
district court directed counsel to issue and file immediately a
notice under Rule 12.2 of the Federal Rules of Criminal
Procedure 3 and a motion for an examination to determine Hoffman’s
competency to assist his counsel and to stand trial.
2
We have redacted from the public version of this opinion
certain information that remains under seal. Counsel for the
parties, who have received an unredacted copy of this opinion,
are directed to advise us within thirty days whether the
redactions remain necessary and appropriate.
3
Rule 12.2 provides that a defendant who “intends” to
assert an insanity defense or to introduce expert evidence of a
mental condition bearing on the question of guilt must notify an
attorney for the government in writing and file a copy of the
notice with the court. Fed. R. Crim. P. 12.2(a),(b).
7
Acknowledging that the pretrial motion deadline had passed, the
court stated that it would grant leave for these late filings.
The court declined to grant counsel’s request for a broader
mental examination but stated that it would take the matter
under advisement and entertain the request if raised again upon
completion of the competency examination.
Following the district court’s directive, defense counsel
filed a Rule 12.2 notice and a motion for a competency
examination under 18 U.S.C. § 4241, 4 which the court later
granted. Thereafter, the government filed a motion for its own
examination of Hoffman to determine his mental status at the
time of the charged offense under 18 U.S.C. § 4242 5 and his
present competency to stand trial under 18 U.S.C. § 4241.
The district court held a pretrial conference on April 23,
2013, at which defense counsel moved to withdraw the Rule 12.2
notice filed less than a week before, arguing that the notice
was premature until any mental examination results became
4
Section 4241 provides that a criminal defendant or the
government “may file a motion for a hearing to determine the
mental competency of the defendant.” 18 U.S.C. § 4241(a). If the
motion is granted, the court may order a psychiatric or
psychological examination and report before the date of the
hearing. Id. § 4241(b).
5
Section 4242 provides that, upon a defendant’s filing of a
Rule 12.2(a) notice, the district court must grant any
government request for a psychiatric or psychological
examination of the defendant. 18 U.S.C. § 4242(a).
8
available that might support an insanity defense. The district
court reluctantly permitted withdrawal of the notice, expressing
its concerns about delays that might result if the defense
decided to reissue the notice later. Upon withdrawal of the
notice, the government withdrew its § 4242 motion.
The grand jury returned a superseding indictment on May 8,
2013, to include an additional allegation that Hoffman attempted
to communicate top secret information about United States
capabilities to track foreign warships. The district court
granted a continuance and set a revised pretrial motion deadline
of May 31, 2013, with trial to commence on August 12, 2013.
Meanwhile, the court appointed forensic psychiatrist Dr.
Gregory Saathoff to conduct the competency examination of
Hoffman. Dr. Saathoff submitted his report to the court on June
3, 2013, concluding that Hoffman understood the nature and
consequences of the proceedings against him and that he was able
to assist his counsel in his defense. In making his assessment,
Dr. Saathoff examined Hoffman’s jail records and military
personnel records, and conducted interviews of Hoffman over the
course of two days, as well as shorter interviews with one of
Hoffman’s defense lawyers and a correctional officer. Dr.
Saathoff ultimately found no history of mental illness and no
current mental disease or defect that would render Hoffman
incompetent to stand trial. During a sealed proceeding on June
9
24, 2013, the district court made a finding that Hoffman was
competent to stand trial without objection from the defense but
scheduled a further hearing for July 9, 2013.
On the day before the scheduled hearing, July 8, 2013,
defense counsel filed a motion seeking authorization for
additional services by Dr. Saathoff under the CJA. The defense
did not dispute Hoffman’s competency to stand trial but wished
to have Dr. Saathoff examine “certain audio recordings” in which
Hoffman participated to determine whether Hoffman “was insane or
suffering from a mental disease or defect at the time of the
charged offense.” Defense counsel explained in the motion that
they did not file a renewed Rule 12.2 notice because they did
not have “a medical opinion upon which to base [an insanity]
defense and/or filing.” At the hearing the next day, the
district court reiterated its finding that Hoffman was competent
to stand trial and denied the motion for additional services.
The district court set out its reasoning in a written opinion
issued on July 18, 2013, in which it noted the defense’s
“inexcusable” failure to file a timely Rule 12.2 notice and
concluding that the motion for additional services failed to
establish any necessity for the requested psychiatric services.
The case proceeded to trial on August 15, 2013, and the
jury returned a guilty verdict one week later. The district
10
court sentenced Hoffman to thirty years’ imprisonment. This
timely appeal followed.
II.
A.
Hoffman challenges as unconstitutional under the due
process clause the district court’s refusal to grant his
pretrial motions for the assistance of a mental health expert.
An indigent criminal defendant’s right to due process includes
the right to the appointment and assistance of a psychiatrist
upon “a preliminary showing” in the trial court “that [the
defendant’s] sanity at the time of the offense is likely to be a
significant factor at trial[.]” Ake v. Oklahoma, 470 U.S. 68, 74
(1985); see also Weeks v. Angelone, 176 F.3d 249, 264 (4th Cir.
1999), aff’d, 528 U.S. 225 (2000). Additionally, Sixth Amendment
guarantees to counsel and a fair trial require defense counsel
to seek, and trial courts to provide, the assistance of a
psychiatrist where necessary to present an adequate defense.
Proffitt v. United States, 582 F.2d 854, 857 (4th Cir. 1978);
see also United States v. Walker, 537 F.2d 1192, 1194 (4th Cir.
1976). Under the CJA, a district court must authorize funds for
an indigent defendant’s counsel to obtain expert services,
including psychiatric services, upon request and a finding that
such services are “necessary for adequate representation” “after
appropriate inquiry in an ex parte proceeding[.]” 18 U.S.C. §
11
3006A(e)(1); see also Proffitt, 582 F.2d at 857 (“The expert
services to which the Act refers include psychiatric
assistance.”) (citing United States v. Taylor, 437 F.2d 371, 377
(4th Cir. 1971)).
We review for abuse of discretion a district court’s
determination of whether expert services requested under the CJA
are necessary for adequate representation. United States v.
Hartsell, 127 F.3d 343, 349 (4th Cir. 1997). Any error in the
district court’s refusal to appoint an expert is reversible only
upon a showing by the defendant that “the court’s refusal was
prejudicial to his defense.” United States v. Perrera, 842 F.2d
73, 77 (4th Cir. 1988). To establish a constitutional violation
in the denial of a motion for expert assistance, the defendant
must adduce convincing evidence of actual prejudice. Hartsell,
127 F.3d at 349.
B.
Hoffman falls short of showing an abuse of discretion here,
and in any event has not demonstrated the existence of
prejudice. By his own admission, the March 21, 2013 motion
presented no facts tending to establish that the broad mental
health examination requested therein was necessary for adequate
representation under the CJA. To the contrary, when the district
court properly inquired about the necessity of the requested
services at the ex parte hearing on the motion, defense counsel
12
explained that they had received reports from Hoffman about
events during his career that turned out to be inaccurate,
suggesting that he might be presently suffering from a
delusional mind state. Counsel did not offer any specific facts
suggesting that Hoffman might have a history of mental illness
or that his mental status at the time of the offense might
contradict the government’s allegation that he intended to
commit espionage.
The facts of this case are materially unlike those relied
upon by Hoffman, in which a defendant’s right to psychiatric
assistance in the development of his defense had been infringed.
For example, at the time the defense in Ake requested
appointment of a psychiatrist, Ake had exhibited “bizarre”
behavior at his arraignment, a psychiatrist had found the
defendant to be incompetent to stand trial and suggested
commitment, a later finding of competency was conditioned upon
frequent psychotropic medication during trial, and psychiatrists
had reported that the defendant suffered from a mental illness
that might have started years prior to time of the offense. Ake,
470 U.S. at 86. In United States v. Reason, the defendant had,
the day prior to committing the charged bank robbery, escaped
from a state hospital where he had been confined for over two
years and suffered from paranoid schizophrenia. 549 F.2d 309,
310 (4th Cir. 1977). In Walker, the motion for a psychiatric
13
examination “alleged that prior to the [charged conduct,] Walker
received serious head injuries in an assault[,]” which resulted
in “headaches, . . . recurring periods during which he could not
‘think straight,’ and . . . permanent brain damage.” 537 F.2d at
1193 n.1. The district court granted the motion but later
refused additional funds for a further examination after the
appointed psychiatrist failed, as instructed, to address
Walker’s capacity to commit the offense and after the defense
learned of a report on Walker’s mental condition completed
during an earlier hospital commitment. Id. at 1193-95. In
Taylor, the motion was “replete with factual allegations casting
serious doubt on Taylor’s responsibility for his conduct,”
“recit[ing] his extensive history of mental disturbance, his
record of impulsive behavior, his own desire for treatment, and
previous medical opinion to the effect that he was ‘psychotic’
and lacked sufficient internal controls over his conduct.” 437
F.2d at 377.
Here, defense counsel presented no similar facts in support
of the ex parte motion. Defense counsel’s description of
unexplained inaccuracies in Hoffman’s statements to them about
his past experiences was certainly sufficient to call into
question Hoffman’s then-present mental competency to assist his
counsel and to stand trial. The district court properly
determined that inquiry into Hoffman’s competency was in order.
14
Although the district court might well have granted the motion
for a broader exploration of his mental health history in the
exercise of its discretion, the scant facts provided by counsel
were not sufficient to compel the district court to do so, such
that its denial amounted to a prejudicial abuse of discretion.
Moreover, the district court here did not simply deny the
defense’s request without leaving open the possibility of
reconsideration. Rather, the court invited defense counsel to
renew their motion for a mental examination once the competency
assessment was complete, at which point information suggesting a
need for further psychiatric investigation might be available.
Given the weak showing of necessity, we cannot say that the
district court abused its discretion in declining to grant the
defense’s request while inviting a renewal of the request upon
completion of a competency examination.
C.
Hoffman places significant focus on the district court’s
directives at the ex parte hearing that the defense immediately
file a motion for a competency determination and issue a notice
under Rule 12.2 to the government. The contention that the
district court’s imposition of these requirements amounted to a
prejudicial abuse of discretion is unpersuasive.
15
1.
Upon a finding of reasonable cause that a criminal
defendant “may presently be suffering from a mental disease or
defect rendering him mentally incompetent,” the district court
must either grant a motion by the defendant for a hearing to
determine the defendant’s mental competency or “order such a
hearing on its own motion[.]” 18 U.S.C. § 4241(a). Hoffman does
not challenge the district court’s decision that an assessment
of his competency to stand trial was appropriate. He simply
argues that the district court should have ordered this
assessment “on its own motion” rather than directing defense
counsel to file a motion. Hoffman cites no legal authority
forbidding the district court from directing counsel to file a §
4241(a) motion in this context. We find no merit in this
formalistic contention.
2.
Nor did the district court’s instruction that counsel file
a Rule 12.2 notice amount to a prejudicial abuse of discretion.
The question of a defendant’s competency to stand trial is of
course distinct from the question of his mental condition at the
time of the offense or his criminal responsibility for his acts.
See Walker, 537 F.2d at 1195. Rule 12.2 provides that a
defendant who “intends” (a) “to assert a defense of insanity at
the time of the alleged offense” or (b) “to introduce expert
16
evidence relating to a mental disease or defect or any other
mental condition of the defendant bearing on . . . the issue of
guilt” must provide written notice to the government by the
pretrial motion deadline “or at any later time the court sets,”
and file a copy with the district court. Fed. R. Crim. P.
12.2(a),(b). Upon issuance of the notice, the government may
seek its own examination of the defendant, which the district
court must order upon the government’s motion. See 18 U.S.C. §
4242(a); Fed. R. Crim. P. 12.2(c)(1)(B).
Regardless of whether the district court should have
demanded the issuance of a Rule 12.2 notice when it did, it is
clear from the record that Hoffman was not actually prejudiced
by this directive. First, it is undisputed that the government
was already aware of the potential mental health issue.
Therefore, by the time the Rule 12.2 notice issued, the
government was already on actual notice that Hoffman might
pursue a defense based on a mental condition. Second, Hoffman
withdrew the formal notice within days of filing it and before
the court ruled on the government’s motion for its own mental
examination of Hoffman. Indeed, the defense’s withdrawal of the
notice prompted the government to withdraw its motion.
Accordingly, the district court’s order that counsel file the
12.2 notice had no effect, substantial or otherwise, on
Hoffman’s defense.
17
D.
Hoffman also challenges the denial of his later motion for
additional services, which requested authorization to engage Dr.
Saathoff to provide an opinion about Hoffman’s mental condition
during the time he was in contact with “Vladimir” and the FBI by
his examination of certain audio recordings. As already
mentioned, the district court had invited the defense to renew
its original motion for expert services upon review of Dr.
Saathoff’s report on Hoffman’s competency to stand trial. But
the defense did not renew the motion until July 8, 2013,
approximately one month after Dr. Saathoff issued his report,
and it did not cite any findings or opinions made in the report
to show a need for further inquiry. Indeed, upon review of
twenty years’ worth of military personnel records and recent
detention center records in addition to data gathered during
several relevant interviews, Dr. Saathoff found no history of
mental illness and no current manifestation of delusions or any
other major mental illness. In the belatedly-filed motion for
additional services, the defense accepted Dr. Saathoff’s
findings and opinions but sought his review of “certain audio
recordings” of Hoffman “near the time of the alleged offense.”
However, the defense provided no explanation of why or how
review of the audio tapes might be necessary for Dr. Saathoff to
form a reliable opinion about Hoffman’s mental condition at the
18
time of the offense. In short, the renewed motion made no
greater showing of necessity for the requested services than had
the original motion.
In any event, for Hoffman to present an insanity defense or
to introduce expert evidence of a mental condition at trial, he
was required to issue a Rule 12.2 notice to the government and
file a copy with the district court by the extended pretrial
motion deadline of May 31, 2013. See Fed. R. Crim. P.
12.2(a),(b). After withdrawing the original Rule 12.2 notice,
the defense never timely reissued or refiled it, explaining in
the motion for additional services that they lacked an expert
opinion upon which to base an insanity defense. By the time the
defense renewed the motion for psychiatric services, it was too
late to issue a Rule 12.2 notice without leave of the court. As
to the timing of the motion itself, defense counsel explained
that they had recently learned that certain assertions by
Hoffman about his prior experiences, not specifically stated in
the motion, were untrue. As the district court noted in its
opinion, however, this was not a new concern for counsel and was
indeed part of the very reason that the court ordered the
assessment of Hoffman’s competency months prior. The district
court concluded that the defense lacked good cause to justify
late filing of the requisite Rule 12.2 notice. See id.
19
In light of this ruling, Hoffman was precluded from
asserting an insanity defense or introducing expert mental
status evidence at trial and thus had no use for a further
expert inquiry into his mental condition at the time of the
offense. See United States v. Fince, 670 F.2d 1356, 1357-58 (4th
Cir. 1982) (district court properly denied § 3006A(e)(1) request
for expert assistance of chemist to develop a defense deemed
meritless by the Fourth Circuit and therefore “appointment of
[the] expert would have served no useful purpose”). Without a
stronger showing of necessity for the services requested, and a
concomitant showing that the denial of the motion resulted in
actual prejudice to the defense, we cannot say it amounted to an
abuse of discretion for the district court to deny the defense’s
motion for additional psychiatric services.
III.
Hoffman also seeks review of an order issued by the
district court protecting certain classified information from
discovery and a second order restricting inquiry at trial into
matters related to the protected information. Specifically,
Hoffman requests review of the protected matters for information
relevant to his mental condition or a potential entrapment
defense and any other discoverable information. Upon our review
of the orders and relevant portions of the record, we find no
reversible error.
20
A district court may permit a party to make an ex parte
showing of good cause to restrict discovery and, upon such a
showing, enter an appropriate protective order. Fed. R. Crim. P.
16(d)(1). Section 4 of the CIPA provides that the district court
may, “upon a sufficient showing,” permit the government to omit
classified information from materials produced to the defendant
in discovery. 18 U.S.C. App. III § 4. Section 6 provides that,
upon the government’s motion, the court must determine prior to
trial the use, relevance, or admissibility of classified
information. Id. § 6(a). In these and other ways, the CIPA
“serves to protect” “the governmental privilege in classified
information” and “vests district courts with wide latitude to
deal with thorny problems of national security in the context of
criminal proceedings.” United States v. Abu Ali, 528 F.3d 210,
247 (4th Cir. 2008). We review a district court’s rulings under
the CIPA for abuse of discretion. Id. at 253.
Before trial, the government filed an ex parte motion in
the district court under § 4 seeking to protect certain
classified information from discovery and a motion in limine
under § 6 to prevent classified information of the same nature
from being used at trial. The district court determined that the
information at issue was properly classified and therefore
implicates the governmental privilege; that it is not
exculpatory, impeaching, or material to the preparation of the
21
defense; and that its disclosure could cause grave and serious
damage to the national security of the United States.
Upon our in camera review of the classified materials, we
conclude that the district court did not abuse its discretion.
The protected information does not include any statement made by
Hoffman “in response to interrogation by a person [he] knew was
a government agent,” or any information “material to preparing
the defense” or obtained from Hoffman. Fed. R. Crim. P.
16(a)(1)(A),(E). The information offers no support for an
entrapment defense, and any inferences bearing on a
determination of Hoffman’s mental condition are wholly absent.
Even if the information was discoverable under Rule 16(a), it
was classified information subject to the governmental
privilege. Although the governmental privilege is “a qualified
one,” it need not yield in this case because the information at
issue here is not “helpful to the defense” or “essential to a
fair determination of a cause.” United States v. Smith, 780 F.2d
1102, 1107 (4th Cir. 1985) (en banc).
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
22