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
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.

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