In a panel opinion by Judge Traxler, the Fourth Circuit affirms the Moussaoui conviction and sentence. The opinion is here:
Key aspects of the holding:
First, the court refuses to consider a host of allegedly incorrect pretrial procedure rulings, reasoning that the guilty plea wiped them away so long as they did not concern jurisdiction or the adequacy of the plea itself.
Second, the court rejects Moussaoui’s Brady-based challenge to the adequacy of the plea, concluding that Moussauoi’s waiver of such claims pre-plea was knowing.
Third, the court rejects Moussaoui’s ineffective assistance claim relating to his counsel’ inability to discuss certain classified information with him:
“First, the restrictions on counsel’s ability to communicate with Moussaoui regarding pretrial discovery matters were not so onerous as to render counsel effectively absent during the guilty plea proceeding. The right to communicate with counsel at any point in the proceedings is not absolute. “[I]n certain contexts there can be an important need to protect a countervailing interest, which may justify a restriction on defendant’s ability to consult with his attorney if the restriction is carefully tailored and limited.” In re Terrorist Bombings, 552 F.3d at 127 (internal quotation marks omitted); see United States v. Hung, 667 F.2d 1105, 1107-08 (4th Cir. 1981) (per curiam) (holding that protective order prohibiting defense counsel from disclosing contents of certain documents did not violate defendant’s Fifth or Sixth Amendment rights where trial court allowed defense counsel to review Jencks Act material to assist in determining whether material should be disclosed, but precluded counsel from consulting with defendant about the material); United States v. Bell, 464 F.2d 667, 671-72 (2d Cir. 1972) (counsel barred from disclosing sensitive airport hijacker profiling system); cf. Morgan v. Bennett, 204 F.3d 360, 368 (2d Cir. 2000) (barring counsel from disclosing identity of a cooperating witness to the defendant); United States v. Herrero, 893 F.2d 1512, 1526-27 (7th Cir. 1990) (barring counsel from revealing name of a confidential informant to the defendant).
That principle applies in this case. The Government’s interest in protecting the classified information during the discovery and appeal process justified the limited restrictions upon Moussaoui’s right to communicate with counsel pending completion of the CIPA process and preparation of unclassified substitutions. Cf. Abu Ali, 528 F.3d at 254 (“A defendant and his counsel, if lacking in the requisite security clearance, must be excluded from hearings that determine what classified information is material and whether substitutions crafted by the government suffice to provide the defendant adequate means of presenting a defense and obtaining a fair trial.”)”
Fourth, the court denies Moussaoui’s lack-of-competence challenge, citing ample evidence to support the district court’s competence determination (esp. in view of the abuse-of-discretion standard).
Fifth, the court finds no plain error in the district judge’s Rule 11 procedures.
Sixth, the court finds a sufficient factual foundation for the conspiracy conviction:
“There was no requirement that Moussaoui personally admit to participating in the 9/11 attacks, or that he was intended to be a part of those attacks. And, as noted above, the fact that he was kept separate from the other hijackers and did not know the specifics of the planes operation was, in the circumstances of this case, fully consistent with the operational trade craft of al Qaeda and Moussaoui’s training.”
There are also some additional holdings relating to sentencing and other matters.