UNITED STATES of America, Plaintiff-Appellee, v. Zacarias MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus Supporting, Appellant, 591 F.3d 263

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge GREGORY and Judge SHEDD joined. OPINION TRAXLER, Chief Judge: Zacarías Moussaoui pled guilty to six criminal conspiracy counts arising from the al Qaeda terrorist organization’s plot to use commercial aircraft to commit terrorist attacks in this country, including the attacks that occurred on September 11, 2001.

In a subsequent sentencing proceeding, the jury declined to impose the death penalty and the district court sentenced Moussaoui to life imprisonment without the possibility of release on all six counts, with the sentence on the first count to be served consecutively to the sentences on the other counts. In this appeal, Moussaoui challenges the validity of his guilty plea and his sentences. He has also filed a motion to remand, based upon the Government’s disclosure of classified information during the pendency of this appeal.

We affirm Moussaoui’s convictions and sentences in their entirety and deny his motion to remand. I. Facts On August 16, 2001, Moussaoui, a French citizen, was taken into custody for overstaying his visa after he raised the suspicions of his instructor at the Pan American International Flight Academy in Eagan, Minnesota, where he was receiving pilot training on a jet simulator. Less than a month later, September 11, 2001, nineteen members of al Qaeda hijacked three commercial airlines and crashed them into the World Trade Center towers in New York City and the Pentagon in Virginia.

A fourth airplane, apparently destined for the Capitol Building in Washington, D.C., crashed in a field in Pennsylvania after its passengers attempted to retake control of the airplane from the al Qaeda hijackers. Collectively, the 9/11 attacks resulted in the deaths of nearly 3,000 people. Moussaoui was still in custody, awaiting deportation, when the attacks occurred. A. Procedural History 1. The Indictment In December 2001, Moussaoui was indicted for his participation in the conspiracies that led to the 9/11 attacks.

The second superseding indictment (the “Indictment”), to which he would later plead guilty, charged him with (1) conspiracy to commit acts of terrorism transcending national boundaries, see 18 U.S.C.A. §§ 2332b(a)(2), (c) (West 2000); (2) conspiracy to commit aircraft piracy, see 49 U.S.C.A. § 46502(a)(1)(A), (a)(2)(B) (West 2007); (3) conspiracy to destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000 & Supp.2009); (4) conspiracy to use weapons of mass destruction, see 18 U.S.C.A. § 2332a(a) (West 2000); (5) conspiracy to murder United States employees, see 18 U.S.C.A. §§ 1114, 1117 (West 2000 & Supp.2009); and (6) conspiracy to destroy property of the United States, see 18 U.S.C.A. § 844(f), (i) (West 2000 & Supp. 2009).

The Indictment identified 110 overt acts committed by Moussaoui and his al Qaeda co-conspirators, both in the United States and abroad, including the 9/11 attacks. 2. Appointment of Counsel Upon his indictment, the district court appointed Frank Dunham and Gerald Zerkin, from the Federal Public Defender’s Office, and Edward MacMahon, a private practitioner, to represent Moussaoui. The court informed Moussaoui that, although counsel had been appointed for him, he had the right to retain private counsel if he was able to do so.

At the arraignment on January 2, 2002, Moussaoui entered “no plea,” which the district court interpreted to be a plea of not guilty. J.A. 55. On January 7, 2002, the Department of Justice imposed Special Administrative Measures (SAMs) on Moussaoui. “SAMs are restrictions placed on a prisoner in the interests of national security.” United States v.

Abu Ali, 528 F.3d 210, 243-44 (4th Cir.2008); 28 C.F.R. § 501.3(a) (2008) (providing for the imposition of SAMs where the Attorney General determines that “there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons”). The SAMs were imposed to prevent Moussaoui from passing coded messages to or otherwise communicating with other terrorists.

The SAMs permitted Moussaoui to have unmonitored attorney/client and consular communications and mail, monitored visits and telephone calls with immediate family, and monitored mail with all others. Approved mail would be forwarded to defense counsel for distribution to Moussaoui and Moussaoui would be notified of any seized mail. Because the case involved classified national security information, the Government also sought and received a protective order (the “Protective Order”) under the Classified Information Procedures Act (CIPA). See 18 U.S.C.A. app. 3, § 3 (West 2000).

Under the terms of the Protective Order, access to classified information produced by the Government in discovery was restricted to persons with the necessary security clearances, which included defense counsel. The Protective Order therefore allowed disclosure of classified information to defense counsel, but not to Moussaoui personally unless the Government consented or the district court determined that making it available was necessary.

The relationship between Moussaoui and his appointed attorneys was strained at best, and Moussaoui almost immediately began demanding to proceed pro se, but with the assistance of Muslim counsel. In April 2002, counsel for Moussaoui filed a motion requesting that the SAMs restrictions be lifted to permit Moussaoui to have an unrestricted visit with “[a]n Islamic scholar, referred to ... as John Doe.” J.A. 145.

Counsel explained that the scholar would consult with Moussaoui and the attorneys so as to improve the “communication and understanding between them,” but that the scholar was unwilling to undergo the vetting process required by the SAMs. J.A. 145. The Government opposed the motion, arguing that the preclearance requirement was “one of the cornerstone requirements of the SAM[s] as it [ ] prevents a miscreant sympathizer from meeting with Moussaoui and passing on or receiving deadly information (names of witnesses not yet publicly revealed, etc.), as called for in the al Qaeda terrorism manual.” J.A. 187.

The district court ultimately denied the motion, concluding that the Government’s allegations against Moussaoui were supported by probable cause and that it would be too dangerous to allow an unnamed “John Doe” unfettered access to Moussaoui. At the hearing held on the motion to lift the SAMs, however, Moussaoui stated that he in fact never had any intention of speaking with John Doe and that his request was simply an excuse to come to court so he could move to proceed pro se.

Moussaoui complained that his appointed attorneys had “no understanding of terrorism, [Islam, or] Mujahedin,” J.A. 282, and that the Government was “preventing any Muslim help” from reaching him, J.A. 223. Moussaoui told the court that he intended “to hire[ ][his] own chosen Muslim lawyer to assist [him] in matters of procedure and understanding of the ... law.” J.A. 220. Moussaoui explained, however, that he sought Muslim counsel only for assistance with witnesses and material necessary for his defense, and that no attorney — including any Muslim counsel chosen by Moussaoui — would ever represent him.

Moussaoui also demanded that the court “not ... engage in any communication or relation with [his] Muslim lawyer, concerning any aspect of [his] case.” J.A. 215. The district court advised Moussaoui that he had the right to proceed pro se and the right to hire an attorney at his own expense but that Moussaoui could not pick the attorney to be appointed for him.

The district court explained that because there was classified information protected by the Protective Order, Moussaoui would not have “totally unrestricted choice even if [he had] the money available to hire an attorney, because the attorneys ... have to be able to be cleared to receive some of the information in this case.” J.A. 246. After Moussaoui moved to proceed pro se, appointed counsel requested a competency evaluation.

They also filed a motion seeking to grant Moussaoui full access to the classified discovery information and seeking relief from the SAMs if the district court granted Moussaoui’s request to proceed pro se. In connection with these motions, defense counsel advised that the Government had added several Muslim attorneys to the list of counsel cleared to see Moussaoui at their request, but that “this process will not work if Mr. Moussaoui is granted pro se status such that current counsel no longer act for him.” J.A. 444 n.9.

After lengthy proceedings, the district court found that Moussaoui was competent and that Moussaoui had validly waived his right to counsel. However, given the complex nature of the case and the existence of classified discovery information, the district court determined that “standby” counsel would be required to assist Moussaoui. Moussaoui told the district court that he had been allowed to meet with a Muslim attorney who had agreed to represent him pro bono.

Moussaoui made it clear, however, that he still intended to represent himself, because “it [was] not possible for [Moussaoui] to entrust [his] life to somebody else.” J.A. 527. Moussaoui thus explained that this attorney would only work as his assistant outside the court, but not as counsel of record. Because Moussaoui’s pro bono counsel had not yet made an appearance, the court ordered existing attorneys to remain in the case as standby counsel until Moussaoui’s chosen attorney made an appearance.

The district court advised Moussaoui that any attorney assisting him would have “to comply with the rules of ethics and behavior,” J.A. 527, and associate local counsel under the district court’s local rules if the attorney was not licensed to practice law in Virginia. The attorney would also have to pass at least a preliminary FBI background check before the attorney would be permitted to help Moussaoui. The court also informed Moussaoui that Randall Ha-mud, a Muslim attorney hired by Moussaoui’s mother, was in the courtroom, but Moussaoui refused to meet with him.

Problems persisted between Moussaoui and his appointed attorneys, so the district court dismissed MacMahon and appointed Alan Yamamoto as additional standby counsel. The court ruled that if pro bono counsel had not entered an appearance by June 28, 2002, an additional standby attorney would be appointed to replace the federal public defenders. The district court advised Moussaoui that Yamamoto was available to help him “locate witnesses and evidence,” and that Yamamoto would “be invaluable to any pro bono counsel ... unfamiliar with the practices of this Court.” J.A.575.

Moussaoui immediately objected and identified Charles Freeman, a Muslim attorney from Texas, as his attorney of choice. However, in keeping with his prior statements, Moussaoui explained that “Bro[ther] Freeman [was] only a legal consultant” and that Moussaoui would “never, under any circumstance, use him [or] appoint him as a standby lawyer.” J.A. 628. Moussaoui requested that appointed counsel be dismissed and that Freeman be allowed to appear as his “legal consultant” or “advisor” at upcoming proceedings. J.A. 629.

Freeman, however, did not enter an appearance by June 28, as required by the district court, nor had he passed the FBI background check by that date. The district court therefore denied Moussaoui’s motion to remove appointed counsel and to allow Freeman to assist him. The court explained that Mr. Freeman is not licensed to practice law in the Commonwealth of Virginia, has not been admitted to practice before this court, has not been admitted to practice in this case pro hac vice as required by [the local rules], and has not entered an appearance in this case.

He may already have violated [the local rules] by submitting two pleadings, which have been filed for administrative purposes only, but will not be considered by the Court. Because Mr. Freeman has not been qualified to lawfully represent the defendant in this court, he may not sit inside the well of the court at the defendant’s June 25, 2002 re-arraignment. He may, however, attend court proceedings as a member of the public. J.A. 657.

The following day, Freeman advised the court in writing that: I never intended to assist Bro[ther] Moussaoui by appearing as any so-called standby counsel because I refuse to be a toothless paper tiger amounting to absolutely no counsel at all. Unless and until Bro[ther] Moussaoui asks me to represent him as his lawyer, if he ever asks, I will only provide out-of-court legal assistance to him solely on federal law. J.A. 659-60 (footnotes omitted).

Freeman made it clear that he was “not, by filing th[e] pleading, entering any appearance at all in the ... prosecution,” J.A. 659 n.l, and that the “request should not be construed by anyone as an appearance before this Honorable Court because it is not,” J.A. 663 n.8. At this point in the proceedings, then, Moussaoui had rejected the help of Yamamoto (in addition to the initial three appointed attorneys), and Moussaoui had rejected all attempts by the court, appointed counsel, the Government, and his mother to assist him in obtaining Muslim counsel.

In addition, Freeman, whose services Moussaoui had sought, had refused to enter an appearance and assume the role of standby counsel. Concluding that no appointed attorney would ever satisfy Moussaoui, the court ruled that the federal public defenders and Yamamoto would remain as standby counsel, and reappointed MacMahon. The court encouraged Moussaoui to “reconsider his refusal to communicate with these lawyers, who [were] poised to help him obtain experts, locate witnesses and even provide the paper supplies he needs to mount his defense.” J.A. 787.

The court warned Moussaoui that his “continued unreasonable refusal to interact with standby counsel [was] only hurting his defense.” J.A. 787-88. Throughout the remainder of the proceedings, Moussaoui periodically renewed his complaints concerning Freeman, asserting that the court’s refusal to allow the access he demanded left him with no “meaningful way to defend” himself. J.A. 695. The district court repeatedly advised Moussaoui that he was not entitled to advisory counsel of his choice, particularly where such counsel was unwilling to enter a formal appearance and be bound by the rules of the court.

See United States v. Singleton, 107 F.3d 1091, 1100-03 (4th Cir.1997) (finding that a pro se defendant does not have a right to an intermediate accommodation such as “advisory” counsel). 3. The July 2002 Guilty Plea Attempt On July 18, 2002, Moussaoui informed the court that he had knowledge of the 9/11 attacks, knew “exactly who d[id] it, ... which group, who participated, [and] when it was decided,” and wanted to plead guilty. J.A. 858-59. Moussaoui stated that he believed that the guilty plea would “save [his] life, because the jury [would] be ... able to evaluate how much responsibility [he] ha[d].” J.A. 858.

After warning Moussaoui that his words could be used against him and suggesting that the Government might enter into plea negotiations with him, the district court gave Moussaoui a week to consider his decision. Defense counsel again challenged Moussaoui’s competency and renewed their concerns regarding Moussaoui’s access to the classified discovery, asserting that “there is exculpatory evidence which has not been provided to him and that his plea of guilty may mean that he might never have the benefit of such information to use to contest his guilt.” J.A. 866.

At the scheduled Rule 11 hearing, see Fed.R.Crim.P. 11, Moussaoui again expressed his belief that the jury might find him more credible and decline to impose the death penalty if he pled guilty. However, Moussaoui was ultimately unwilling to admit to the facts necessary to support a guilty plea to the charged conspiracies and withdrew his request. B. The First Appeal Beginning in September 2002, Moussaoui sought access to several al Qaeda associates in the custody of the United States government (the “enemy combatant witnesses” or “ECWs”), who Moussaoui believed would be helpful to his defense.

The district court agreed, and ordered the Government to produce three of the ECWs for depositions under Rule 15, but denied access to the remainder because Moussaoui had failed to establish that they would provide material, admissible testimony. See United States v. Moussaoui, 382 F.3d 453, 458 n. 4 (4th Cir.2004) (“Moussaoui II”). As discussed in more detail below, we reversed the district court’s decision granting Moussaoui access to the ECWs and remanded the case for the preparation of substitutions that would provide Moussaoui with substantially the same ability to make his defense. See id. at 456-57.

On March 21, 2005, the Supreme Court denied review of our decision. During the pendency of the earlier appeal, the district court revoked Moussaoui’s right to proceed pro se. Since October 2003, the district court had received over twenty filings from Moussaoui, “most of which [were] not proper requests for appropriate judicial relief.” J.A. 1368. These filings “include[d] veiled, and in some cases overt, threats to public officials, attacks on foreign governments, attempts to communicate with persons overseas, and efforts to obtain materials unrelated to this case.” J.A. 1368.

After the district court specifically warned Moussaoui that he might lose his right to continue pro se if he continued this course, Moussaoui filed two additional improper pleadings, and the district court revoked Moussaoui’s pro se status. Moussaoui would later testify that his writings were intentionally designed to promote his agenda of disseminating propaganda about al Qaeda’s war against the United States. C.

The Guilty Plea On March 29, 2005, eight days after the United States Supreme Court denied certiorari review of our decision in Moussaoui II, Moussaoui informed the court that he wanted to enter an unconditional plea of guilty to all counts in the Indictment. 1. The Rule 11 Proceeding In light of the prior attempt to plead guilty and the publicity surrounding the case, the district court first held, with the consent of the Government, an ex parte hearing with Moussaoui and Yamamoto to discuss the guilty plea.

Yamamoto advised the court that Moussaoui was “now willing to accept responsibility for the events of 9/11.” 2 Supp. J.A. 55. Yamamoto represented that he had discussed with Moussaoui his appeal rights regarding the ECWs and advised Moussaoui that those issues would be waived, except with regard to the penalty phase. Moussaoui stated that he had received a letter from defense counsel and had “plenty of discussion[s] with Mr. Yamamoto.” 2 Supp. J.A. 45. According to Moussaoui, “they have pour[ed] on me all their so-called legal advice....

So I have heard them, I have read them, I understand what they say, but we do not agree. That’s all. But somehow they can’t take that I don’t ... agree with them.” 2 Supp. J.A. 44^45. Moussaoui stated that he was “voluntar[ily] choosing this course of action” and exercising his “privilege ... to plead guilty [and] testify on [his own] behalf.” 2 Supp. J.A. 44-45. With regard to the effect of a guilty plea on Moussaoui’s right to assert other claims, Moussaoui told the district court: We could stay all day here, and I would flood you with reasons, and you have no interest in it.

What is certain ... is I’ve listened to their advice, read ... the Blackledge v. Perry case [they sent] with the statement of the Supreme Court, who made absolutely clear that once you have pled guilty, you cannot raise any ... claim relating to deprivation of constitutional rights ... that occur[s] prior to the entry of the guilty plea. This is the word of the Supreme Court. 2 Supp. J.A. 59. The district court found no indication that Moussaoui had been coerced to plead guilty, noting that “[i]f anything, the coercion has been for him not to plead.” 2 Supp. J.A. 67.

The court further found that Moussaoui had received “full advice of counsel,” but observed that “[a] defendant in our system has an absolute right to reject that advice. It does not make him incompetent, and it does not make him unwise, and in some cases, who knows, it might have been the better decision.” 2 Supp. J.A. 67. Satisfied that Moussaoui was competent, the district court concluded that Moussaoui understood the ramifications of pleading guilty and that Moussaoui’s plea was knowing and voluntary.

On April 22, 2005, the district court conducted a public plea colloquy under Rule 11 of the Federal Rules of Criminal Procedure, reviewing each of the six counts charged and advising Moussaoui of the maximum penalties he faced. Moussaoui confirmed that he had received a copy of the Indictment long ago and “kn[ew] very much what it’s talking about.” J.A. 1419. The district court explained to Moussaoui that he would be waiving his right to subsequently challenge his guilt and his right to raise other issues that arose prior to the guilty plea, including the issues regarding access to the ECWs.

Yamamoto advised the court that he had also discussed the consequences of the guilty plea with Moussaoui and that Moussaoui “appeared] to understand it.” J.A. 1434. Yamamoto also advised that Moussaoui had “responded appropriately when [he had] spoken to him” and, while they had “disagreements ... with respect to certain items[,][t]hose disagreements were appropriate disagreements.” J.A. 1434. 2.

The Statement of Facts In connection with his guilty plea, a written statement of facts (the “Statement of Facts”) was prepared, detailing the facts pertaining to al Qaeda’s plans for terrorist attacks in the United States, Moussaoui’s association with al Qaeda, and the steps Moussaoui took to prepare for the operation and to protect it after he was detained. When he signed the document, Moussaoui added the designation “20th Hijacker” to his signature. J.A. 1413. A

summary of the Statement of Facts, as adopted and executed by Moussaoui, follows. Al Qaeda is “an international terrorist group” founded by Usama Bin Laden (hereinafter “Bin Laden”), that is “dedicated to opposing the United States with force and violence.” J.A. 1409. The head of its military committee was Mohammed Atef, a/k/a Abu Hafs al-Masri (hereinafter “al-Masri”). Al Qaeda members pledge “bayat” to Bin Laden and al Qaeda, J.A. 1409, meaning that they “give allegiance to Bin Laden and the group.” J.A. 1671.

Since 1996, al Qaeda has been headquartered in Afghanistan, but it associates with terrorists in other parts of the world to further its goals. In the mid-1990s, Bin Laden issued a fatwah (or religious ruling) declaring jihad (or war) against the United States and its allies, sanctioning the killing of United States military and civilians alike. In furtherance of these aims, “Bin Laden and al Qaeda provided and supported training camps and guest-houses in Afghanistan, including camps known as al Farooq and Khalden.” J.A. 1409.

The training “camps were used to instruct members and associates of al Qaeda and its affiliated groups in the use of firearms, explosives, chemical weapons, and other weapons of mass destruction.” J.A. 1409. In connection with al Qaeda’s declaration of war, “al Qaeda members conceived of an operation in which civilian commercial airliners would be hijacked and flown into prominent buildings, including government buildings, in the United States.” J.A. 1410.

In preparation for the attacks, “al Qaeda associates entered the United States, received funding from abroad, engaged in physical fitness training, and obtained knives and other weapons with which to take over airliners.” J.A. 1410. Some of these “associates obtained pilot training, including training on commercial jet simulators, so they would be able to fly hijacked aircraft into their targets.” J.A. 1410. “Bin Laden personally approved those selected to participate in the operation, who were willing to die in furtherance of their religious beliefs and al Qaeda’s agenda.” J.A. 1410.

Moussaoui was a member of al Qaeda and pledged bayat to Bin Laden. He trained at al Qaeda’s Khalden Camp and managed an al Qaeda guesthouse in Kandahar, “a position of high respect within al Qaeda.” J.A. 1410. Moussaoui communicated directly with Bin Laden and al Masri while in Afghanistan. He “knew of al Qaeda’s plan to fly airplanes into prominent buildings in the United States” and “agreed to travel to the United States to participate in the plan.” J.A. 1410.

As he did with the other hijackers, Bin Laden personally selected Moussaoui to participate in the planes operation and approved Moussaoui to attack the White House, which had been Moussaoui’s dream. In preparation for the operation, the al Qaeda leadership first sent Moussaoui to Malaysia to explore flight training. They also provided him with information about flight schools in the United States. In September 2000, Moussaoui contacted Airman Flight School in Norman, Oklahoma.

Moussaoui’s intent was to obtain pilot training to further “al Qaeda’s plan to use planes to kill Americans.” J.A. 1411. “On February 23, 2001, Moussaoui traveled from London to Chicago and then on to Norman, Oklahoma,” where he enrolled at Airman Flight School and began pilot training on small planes. J.A. 1411. Like his co-conspirators, he joined a gym and purchased knives, intentionally selecting knives with blades short enough to pass through airport security. In the summer of 2001, Moussaoui was instructed by an al Qaeda associate to train on larger jet planes.

Ramzi Bin alShibh, another al Qaeda operative, sent Moussaoui a wire transfer of money from Germany to the United States to pay for the flight training. Shortly thereafter Moussaoui enrolled at the Pan American International Flight Academy in Eagan, Minnesota, and began simulator training for a Boeing 747-400. Moussaoui told another al Qaeda associate that his simulator training would be completed before September 2001.

At the time of his arrest, Moussaoui was in possession of knives, flight manuals for the Boeing 747-400, a flight simulator computer program, fighting gloves and shin guards, a piece of paper referring to a handheld Global Positioning System (“GPS”), software that could be used to review pilot procedures for the Boeing 747-400, and a hand-held aviation radio. When questioned after his arrest, Moussaoui “lied to federal agents to allow his al Qaeda ‘brothers’ to go forward with the operation.” J.A. 1412.

He “falsely denied being a member of a terrorist organization and falsely denied that he was taking pilot training to kill Americans.” J.A. 1412. He told the “agents that he was training as a pilot purely for his personal enjoyment and that, after completion of his training, he intended to visit New York City and Washington, D.C., as a tourist.” J.A. 1412. The attacks of 9/11 happened less than a month after Moussaoui’s arrest. At the ex parte guilty plea proceeding, Moussaoui advised the court that he had read the Statement of Facts “more than probably ten time[s].” 2 Supp. J.A. 45.

Moussaoui made a single correction to the Statement of Facts, changing the date that he told his al Qaeda associate that he would finish jet simulator training from “by August 20, 2001” to “before September 2001.” 2 Supp. J.A. 45-46. At the public Rule 11 hearing, Moussaoui confirmed that he had received a revised copy of the Statement of Facts, which had been corrected in accordance with his request at the ex parte hearing. 3.

Acceptance of the Plea At the conclusion of the Rule 11 hearing, the district court made the following findings and conclusions: I have previously found based on a rather unusual hearing that was done on the record with Mr. Moussaoui and Mr. Yamamoto present that I am fully satisfied that Mr. Moussaoui is completely competent to enter his guilty pleas today. The defendant has acted against the advice of his counsel, but he has clearly exhibited both today and earlier this week a complete understanding of the ramifications of his guilty pleas. Mr. Moussaoui is an extremely intelligent man.

He has actually a better understanding of the legal system than some lawyers I’ve seen in court. I reread the transcript from the plea hearing of two-and-a-half years ago, and he ... understood then and I have no reason to believe he does not understand now the nature of conspiracy law. The full reasons for my finding the defendant competent, I think, are adequately expressed in the transcript of that hearing ... but I am satisfied, Mr. Moussaoui, that you have entered these guilty pleas in a knowing and voluntary fashion. You have intentionally disregarded the advice of counsel.

That is your right in our legal system. The Court is also satisfied that the written statement of facts which you have had several days to carefully go over and you have had the advice and consultation of Mr. Yamamoto is more than sufficient evidence to establish your guilt beyond a reasonable doubt as to all six counts. J.A. 1435-36. D. The Sentencing Proceeding Because the Government sought the death penalty under the Federal Death Penalty Act (“FDPA”), see 18 U.S.C.A. §§ 3591-3599 (West 2000 & Supp.2009), the district court conducted a bifurcated capital sentencing proceeding before a jury.

The first phase (“Phase I”) was to determine whether the Government had proven a statutory death-eligibility factor, and the second phase (“Phase II”) was to determine whether the death penalty would be imposed. During Phase I, the Government presented extensive evidence regarding the conspiracies alleged in the Indictment, including evidence of the activities of the 9/11 hijackers and Moussaoui in the months preceding the 9/11 attacks, the similarities between Moussaoui’s actions and those of the 9/11 hijackers, and the overlap between the al Qaeda leadership directing them all.

Moussaoui also testified, confirming his participation in the conspiracies. Moussaoui testified that al-Masri asked him to be a part of the planes operation in the winter of 1999. Moussaoui ultimately agreed and began training for his mission, which was to fly a fifth plane on 9/11 into the White House. Moussaoui specifically denied he was scheduled to be a fifth hijacker on the flight that crashed in Pennsylvania, testifying that he signed the Statement of Facts as the “20th hijacker” as “a bit of fun,” “[bjecause everybody used to refer to [him] as the 20th hijacker.” J.A. 3877.

When sent to Malaysia to obtain flight training, Moussaoui was hosted by members of Jemaah Islamiyah (hereinafter “JI”), an al Qaeda-affiliated terrorist group. Moussaoui testified that he had problems with JI when he was in Malaysia — he talked too much about his mission and was involved in an unnecessary purchase of explosives. Because of those problems, the al Qaeda leaders temporarily excluded Moussaoui from the planes operation. Although he was later re-included in the operation, his position remained under review.

According to Moussaoui, time was of the essence and al-Masri told him to “just go to America” and that he would “be informed of what [he] need[ed] to know in due time.” J.A. 3954. Moussaoui testified that al-Masri told him to communicate with Khalid Sheikh Mohammed (hereinafter “KSM”), the so-called “mastermind” of the planes operation. In February 2001, Moussaoui arrived in the United States with $35,000 in cash and a fake business letter given to him by a JI member to use as cover for his presence in this country. He immediately traveled to Airman Flight School to begin his pilot training.

Moussaoui contacted the Pan Am Flight Academy in May 2001 and was offered enrollment for $8,300, for classes beginning in mid-August 2001. Moussaoui sent the school a $1,500 deposit. Mustafa Ahmed al-Hawsawi, an al Qaeda operative, first transmitted money to Bin al-Shibh in Germany, who in turn transmitted money to Moussaoui. Moussaoui informed KSM that he would be out of jet simulator training before September 2001. Moussaoui’s roommate, Hussein al-Attas, accompanied him on the trip to Minnesota, where he began his training on August 13 at Pan Am.

Moussaoui told al-Attas that they would go to New York City when he completed his training “to see the sites.” J.A. 3226. Before he left for the United States, Moussaoui bought knives to use to take over the plane and, if necessary, kill passengers or flight attendants. He was in the process of obtaining a GPS device when he was arrested. Moussaoui testified that he did not know specifics of the planned operation, but knew there were other al Qaeda associates in the United States and that the hijacking plot was in the works when he was arrested.

Moussaoui knew that the White House was a target, as were the World Trade Center towers, and he knew that additional planes would fly as part of the mission. Because he had been told that there was time pressure for him to finish his training and because he had conveyed the message that he would be ready before September, Moussaoui expected the attacks to occur shortly after August 2001. Moussaoui testified that he lied to the agents when he was arrested “because I’m al Qaeda” and “at war with this country,” J.A. 3881, and because he “wanted [his] mission to go ahead,” J.A. 3882.

While he was in custody, the 9/11 hijackers finalized their plans, bought plane tickets and knives, and returned unused money to alHawsawi. The substituted statements of KSM and several other terrorists were also admitted as evidence during the sentencing proceedings. Although much of this evidence was inculpatory, portions contradicted Moussaoui’s testimony that he was supposed to participate in the 9/11 strikes, instead indicating that Moussaoui was to fly in a planned second wave of attacks.

Other portions of this evidence confirmed problems Moussaoui had in Malaysia and the United States while preparing for his mission, portraying Moussaoui as an unpredictable operative prone to violations of al Qaeda’s rules regarding operational security- According to KSM, Bin Laden first pursued the idea of the planes operation in 1998. KSM stated that the planes operation included plans for a first and second wave of attacks and that “the original plan called for Moussaoui to lead the [second] attack operation in the [United States].” J.A. 3998.

The first wave of attacks was to be carried out by Arab al Qaeda associates on the East Coast. The second wave of attacks was to be carried out by non-Arab associates (such as Moussaoui) on the West Coast because KSM believed the non-Arabs would still be able to operate in the heightened security expected after the first wave. For this reason, KSM stated that Moussaoui would not have been used in the first wave even if a hijacker pulled out.

KSM stated that Moussaoui’s preparations for the “second wave attack ... entailed the same steps as the September 11 hijackers: getting flight lessons, purchasing knives, etc.,” J.A. 3988, and that the efforts for the second wave began in parallel with the first wave. KSM confirmed that Moussaoui was sent to Malaysia to obtain flight training in late 1999, and that he caused problems with the JI group. KSM did not think Moussaoui was “a suitable operative” and asked Bin Laden and al-Masri to remove him from the operation. J.A. 4023.

However, “Moussaoui lobbied [al-Masri] and Bin Laden to use him in operations, and their pressure compelled [KSM] to include him in the second wave plan.” J.A. 4021. KSM also confirmed that Moussaoui was sent to the United States for flight training and that he was Moussaoui’s contact. After several security missteps by Moussaoui, however, KSM became exasperated and turned Moussaoui over to Bin alShibh. According to KSM, “Moussaoui did not have any particular personality flaws, but ... had a different state of mind from other operatives because he had been raised in the [W]est.” J.A. 4026.

In particular, he had a “high level of self-confidence” and “a hard time taking instructions.” J.A. 4026. Nonetheless, “[d]espite [this] admittedly problematic personality, [KSM] tasked Moussaoui to take flight lessons in preparation for the second wave attacks.” J.A. 4019. According to KSM, the “plan for a second wave attack ended with Moussaoui’s arrest.” J.A. 4022. At the conclusion of Phase I, the jury found the requisite death eligibility factor and moved on to Phase II, to determine whether to impose the death penalty.

During this phase, Moussaoui again exercised his right to testify and, among other things, elaborated upon his relationship with counsel.

Moussaoui told the jury that he wanted to advance two arguments in his defense: first, that “jail [was] a greater punishment than ... being sentenced to death, and [that] martyrdom, execution, [would] be a reward” and, second, that the jury “could save [an] American life by keeping [him] alive because they could use [him] as a bargaining chip, so if one day some American serviceman [is] taken hostage in Iraq or Afghanistan, they could ... exchange Moussaoui [for] the American soldier.” J.A. 4433.

Moussaoui testified that the “jury might spare the death penalty to their enemy, but ... not to a coward liar,” J.A. 4480, and that “by testifying truthfully, I will save my life,” J.A. 4482. Moussaoui criticized counsel’s plan to assert that he was mentally ill, which he believed would not “explain [his] training] on the 747-400, [the] large amount of cash [he was given], or his traveling to Malaysia.” J.A. 4435.

Moussaoui also addressed the passionate and offensive documents that he had filed during the course of his prosecution, including pleadings asserting that the district court judge was trying to kill him, referring to them as “psychological warfare pro[pa]ganda.” J.A. 4429. Moussaoui explained to the jury that “when I saw something that I believe[d] I could exploit or I could [use to] psychologically damage you, what ever, by propaganda, I will do it.” J.A. 4484.

Moussaoui also admitted that he told his psychologist that his pro se pleadings were being published and that “Muslim people around the world have ... been made happy or have been motivated by them.” J.A. 4484. Moussaoui’s sentencing strategy appears to have worked. The jury declined to impose the death penalty. In addition, not a single juror found that Moussaoui suffered from a psychotic disorder, or that his testimony about his plan to fly a plane into the White House was unreliable or contradicted by his other statements.

Moussaoui was sentenced by the district court to six terms of life imprisonment without the possibility of release, with the sentence on the first count to be served consecutively to the remaining five. At no point during the sentencing proceedings, nor prior to the actual sentencing, did Moussaoui seek to withdraw his guilty plea. On the contrary, Moussaoui twice took the stand and confirmed his guilt.

Four days after he avoided the death penalty and was sentenced to life imprisonment, however, Moussaoui filed a motion to withdraw his plea, claiming that his “understanding of the American legal system was completely flawed” and asking for a new trial “[bjecause I now see that it is possible that I can receive a fair trial ... even with Americans as jurors and that I can have the opportunity to prove that I did not have any knowledge of and was not a member of the plot to hijack planes and crash them into buildings on September 11, 2001.” 2 Supp. J.A. 435 (internal quotation marks omitted).

In other words, Moussaoui sought to withdraw his guilty plea (and contradict the sworn testimony he had just given) because he had been successful in the penalty phase proceedings. Moussaoui also claimed that he had proceeded pro se only because “the [SAMs] prevented me from seeking and obtaining a Muslim lawyer of my choice” and that “Brother Charles Freeman, a Muslim attorney, was not permitted to be my lawyer.” J.A. 5622. The district court denied the motion to withdraw the guilty plea. See Fed.

R.Crim.P. 11(e) (providing that “[a]fter the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack”). This appeal followed. II. Discussion “[A] guilty plea is a grave and solemn act to be accepted only with care and discernment.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). It “eomprehend[s] all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v.

Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). In order for a guilty plea to be valid, the Constitution imposes “the minimum requirement that [the] plea be the voluntary expression of [the defendant’s] own choice.” Brady, 397 U.S. at 748, 90 S.Ct. 1463. Because it operates as a waiver of important constitutional rights, the plea must also be entered “knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady, 397 U.S. at 748, 90 S.Ct. 1463).

It must reflect “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In evaluating the constitutional validity of a guilty plea, “courts look to the totality of the circumstances surrounding [it], granting the defendant’s solemn declaration of guilt a presumption of truthfulness.” Walton v. Angelone, 321 F.3d 442, 462 (4th Cir.2003) (internal citation omitted).

When Moussaoui executed the Statement of Facts at the Rule 11 hearing in April 2005, he clearly admitted “that he committed the acts charged in the [Indictment.” Brady, 397 U.S. at 748, 90 S.Ct. 1463. He confirmed that he had been advised of and understood that his guilty plea would bar any challenge to pre-plea constitutional violations. He also represented that he was entering the plea knowingly, voluntarily, and with (but against) the advice of his counsel.

During the sentencing proceeding, Moussaoui confirmed the admissions made in the Statement of Facts, adding that his specific mission was to fly a fifth plane into the White House on 9/11.

Nevertheless, Moussaoui now challenges his guilty plea, asserting (1) that various pre-plea rulings by the district court violated his constitutional rights, rendering his plea involuntary as a matter of law; (2) that his plea was not knowingly entered because he had not yet been made privy to certain classified, exculpatory evidence when he pled guilty; (3) that his plea was not properly counseled because counsel were prohibited from discussing the substance of this classified, exculpatory evidence with him at the time of the plea; (4) that his plea should not have been taken in the absence of further competency evaluations; and (5) that the plea colloquy otherwise failed to comply with Rule 11 of the Federal Rules of Criminal Procedure.

We address each claim seriatim. A. The “Voluntarily Entered” Challenge We begin with Moussaoui’s claim that his plea was involuntary as a matter of law because the district court issued several pre-plea rulings that violated his Fifth and Sixth Amendment rights to obtain counsel of his choice; to have personal, pretrial access to classified, exculpatory evidence; to communicate with his counsel about this evidence; to effectively proceed pro se; to be present during critical stages of the proceedings; and to have compulsory process to present the ECWs at trial.

These claims, all of which preceded his guilty plea, are not cognizable on appeal. ‘When a defendant pleads guilty, he waives all nonjurisdietional defects in the proceedings conducted prior to entry of the plea.” United States v. Bundy, 392 F.3d 641, 644 (4th Cir.2004). The “guilty plea represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

Thus, the defendant who has pled guilty “has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea,” Bundy, 392 F.3d at 644-45, or the government’s “power to bring any indictment at all,” Broce, 488 U.S. at 575, 109 S.Ct. 757; see United States v. Bluso, 519 F.2d 473, 474 (4th Cir.1975) (“A guilty plea is normally understood as a lid on the box, whatever is in it, not a platform from which to explore, further possibilities.”); see also Blackledge v.

Perry, 417 U.S. 21, 29-30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (“[WJhen a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Rather, a person complaining of such antecedent constitutional violations is limited ... to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases.” (internal quotation marks and citations omitted)).

Relying on United States v. Hernandez, 203 F.3d 614 (9th Cir.2000), Moussaoui maintains that his alleged constitutional violations rendered his guilty plea involuntary. In Hernandez, the Ninth Circuit held that a district court’s error in denying the defendant’s request to represent himself rendered the defendant’s subsequent guilty plea involuntary. See id. at 626-27. In so doing, the court noted that the error at issue was structural, meaning that it “undermine[d] the integrity of the trial mechanism itself’ Id. at 626.

Thus, the court reasoned that the refusal by the district court to allow the defendant to represent himself left the defendant only with a choice “between pleading guilty and submitting to a trial the very structure of which would be unconstitutional.” Id. at 626 (emphasis omitted). Moussaoui argues that his guilty plea is invalid for the same reason. With all due respect, we are not persuaded by the analysis in Hernandez.

As noted above, a guilty plea is constitutionally valid if it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Alford, 400 U.S. at 31, 91 S.Ct. 160. The Hernandez court’s conclusion that the defendant’s guilty plea was involuntary was based on a faulty premise, namely, that his only alternative was to submit to an unconstitutional trial. This premise fails to account for the fact that if the defendant proceeded to trial and was convicted, he could seek an appellate remedy for the constitutional violations he alleged.

See Bundy, 392 F.3d at 645 (“[A] defendant might rationally choose to proceed to trial for the sole purpose of preserving a pretrial issue for appellate review.”). Had Moussaoui been convicted after a trial, he, too, could have sought to vindicate his claims on appeal. Thus, the rulings Moussaoui now challenges, even if erroneous, did not render his guilty plea involuntary. In sum, Moussaoui, having pled guilty, has waived all nonjurisdictional errors leading up to his conviction except those affecting the adequacy of his plea. It is to those claims, affecting the adequacy of his plea, that we now turn. B.

The “Unknowing and Uncounselled” Challenge Moussaoui’s challenge to the adequacy of his plea arises out of the district court’s handling of the classified discovery and the effect this had upon his guilty plea. Specifically, Moussaoui asserts that the district court violated CIPA, and that these violations resulted in a guilty plea that was neither knowing nor properly counseled. The guilty plea was not knowingly entered, Moussaoui argues, because the district court and the Government denied him personal access to material and exculpatory evidence during the discovery process, in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The guilty plea was not properly counseled, he argues, because defense counsel, to whom the information had been provided, were not allowed to discuss the substance of it with him prior to his pleading guilty, in violation of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). 1. The CIPA Process a. Under Rule 16 of the Federal Rules of Criminal Procedure, the Government must produce, among other things, items “material to preparing the defense.” Fed. R.Crim.P. 16(a)(Z )(E)(i).

However, “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief,” and “may permit a party to show good cause by a written statement that the court will inspect ex parte.” Fed. R.Crim.P. 16(d). “ ‘[G]ood cause’ includes the protection of information vital to the national security.” United States v.

Aref, 533 F.3d 72, 78 (2d Cir.2008) (internal quotation marks omitted). “Originally enacted by Congress in an effort to combat the growing problem of graymail, a practice whereby a criminal defendant threatens to reveal classified information during the course of his trial in the hope of forcing the government to drop the charge against him,” United States v. Abu Ali, 528 F.3d 210, 245 (4th Cir.2008), CIPA provides procedures for protecting classified information without running afoul of a defendant’s right to a fair trial.

Section 4 of CIPA governs discovery of classified information by a defendant, and is the most pertinent provision in Moussaoui’s challenge. It provides that: [t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a

summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. 18 U.S.C.A. app. 3, § 4; see In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 121 (2d Cir.2008) (CIPA § 4’s “provisions on discovery ... complement those of Rule 16(d)” by “giv[ing] trial judges adequate guidance to protect against the unauthorized disclosure of classified information in the custody of the federal courts.” (internal quotation marks omitted)).

Section 4 “allows the district court to authorize the government to redact information from classified documents before providing such documents to the defendant during pre-trial discovery.” United States v. Moussaoui, 333 F.3d 509, 514 n. 6 (4th Cir.2003) (“Moussaoui I”) (emphasis added); see also Aref 533 F.3d at 78 (CIPA § 4 “clarifies [the] district courts’ power under [Rule] 16(d)(1) to issue protective orders denying or restricting discovery for good cause.”); United States v.

Smith, 780 F.2d 1102, 1105 n. 7 (4th Cir.1985) (en banc) (noting that CIPA § 4 “provides a procedure by which the court can delete portions of classified documents to be discovered by a defendant. Substitutions are also permitted under certain circumstances.”). Sections 5 and 6 of CIPA “establish[ ] a pretrial procedure for ruling upon the admissibility of classified information.” Smith, 780 F.2d at 1105.

The defendant must notify the government and the court of classified information he expects to use, and the defendant is prohibited from “diselos[ing] any information known or believed to be classified ... until the United States has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in

section 6 of [CIPA].” 18 U.S.C.A. app. 3, § 5. “Once the defendant gives notice of his intention to introduce classified information, the United States may request a [section 6] hearing at which the court shall determine the ‘use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.’ ” Smith, 780 F.2d at 1105 (quoting 18 U.S.C.A. app. 3, § 6(a)).

If the court authorizes “the disclosure of specific classified information under the procedures established by [section 6], the United States may move that, in lieu of the disclosure of such specific classified information,” the court approve the use of a substitution in the form of “a statement admitting relevant facts that the specific classified information would tend to prove,” or “a

summary of the specific classified information.” 18 U.S.C.A. app. 3, § 6(c)(1); see also Smith, 780 F.2d at 1105. “The court shall grant such a motion of the United States if it finds that the statement or

summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” 18 U.S.C.A. app. 3, § 6(c)(1) (emphasis added). b. The parties in this case were aware from the outset that voluminous classified information pertaining to al Qaeda and the 9/11 attacks would require special handling under CIPA. In January 2002, the district court issued the Protective Order, pursuant to Rule 16(d)(1) and CIPA § 3.

Under the Protective Order, classified information would be produced by the Government only to persons possessing the requisite security clearance, a category that included Moussaoui’s appointed counsel but excluded Moussaoui. All other “person[s] whose assistance the defense reasonably require[d] [could] only have access to classified information ... after obtaining from the Court — -with prior notice to the government — an approval for access to the appropriate level of classification on a need to know basis.” J.A. 97-98.

Defense counsel were also prohibited from “disclos[ing] such information or documents to [Moussaoui] without prior concurrence of counsel for the government, or, absent such concurrence, prior approval of the Court.” J.A. 104. The parties agree that the effect of the Protective Order was that Moussaoui’s defense counsel would have access to classified information produced under CIPA § 4, but could not show or discuss the contents of the material with Moussaoui who, as an admitted al Qaeda terrorist already detained on immigration violations, would not be granted the necessary clearance.

The Protective Order, however, did not preclude Moussaoui from ever having access to material or exculpatory evidence. On the contrary, Moussaoui would be given personal access to classified information “if such access should be determined by the Court to be necessary.” J.A. 101. The parties agreed upon a

schedule for handling the classified information issues, providing deadlines for the filing of

section 5 designations by the defense and

section 6 requests by the Government. The final

section 6 hearing to resolve all remaining classified issues was to be completed several weeks prior to trial. In June 2002, Moussaoui’s motion to proceed pro se was granted, complicating the manner in which the district court and counsel had intended to handle the classified information produced in discovery. Because of the complexity of the case, the district court opted to exercise its discretion to appoint standby counsel to assist the court and Moussaoui with these matters. See McKaskle v. Wiggins, 465 U.S. 168, 178-79, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); United States v.

Gallop, 838 F.2d 105, 110 (4th Cir.1988). In September 2002, the handling of classified information was further complicated when Moussaoui began seeking access to the ECWs. Faced with an issue of first impression, the court issued a new set of discovery orders protecting certain classified information pertaining to these witnesses pending decisions on the issue of whether Moussaoui would be granted access to the witnesses for Rule 15 depositions or whether suitable substitutions could be prepared under CIPA § 6(c).

After an interlocutory appeal from the district court’s order granting access to the ECWs, we initially remanded the matter to allow the Government to propose CIPA § 6(

c) substitutions for the ECWs testimony and directed the district court to determine whether the proposed substitutions “ Sv[ould] provide the defendant with substantially the same ability to make his defense as would’ the disclosure ordered by the district court.” United States v. Moussaoui, No. 03-4162, 2003 WL 1889018 (4th Cir. Apr. 14, 2003) (unpublished order) (quoting CIPA § 6(c)(1)). The Government’s proposed CIPA § 6(

c) substitutions for the testimony of the ECWs were thereafter taken from answers to questions recorded in “highly classified reports ... intended for use in the military and intelligence communities” and not “with this litigation in mind.” Moussaoui II, 382 F.3d at 458 n. 5. “Portions of the[se] reports concerning Moussaoui and the September 11 attacks [were] excerpted and set forth in documents prepared for purposes of this litigation.” Id. These documents were “deemed summaries by the parties and the district court.” Id. (internal quotation marks and alterations omitted).

The summaries were then “provided to defense counsel in conformance with the Government’s obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The proposed substitutions [were] based on the ... summaries.” Id. (internal quotation marks and alterations omitted). The Government presented these highly classified reports, along with the summaries for comparison, to the district court ex parte. The summaries themselves remained classified pending the appeal process but were produced to defense counsel.

Upon its ex parte review, the district court was impressed with the accuracy of the classified summaries, see id. at 478 n. 30, but felt that the classified reports that led to the proposed substitutions were unreliable and that the substitutions were also flawed, see id. at 459. Thus, the district court ordered the Government to produce the witnesses for Rule 15 depositions.

When the Government refused to produce the witnesses, the district court ruled that “Moussaoui had adequately demonstrated that the witnesses could provide testimony that, if believed, might preclude a jury from finding Moussaoui eligible for the death penalty” and dismissed the death notice.

Id. at 459. “[B]ecause proof of Moussaoui’s involvement in the September 11 attacks was not necessary to a conviction, and because the witnesses’ testimony, if believed, could exonerate Moussaoui of involvement in those attacks,” the district court also ruled the Government would be prohibited “from making any argument, or offering any evidence, suggesting that [Moussaoui] had any involvement in, or knowledge of, the September 11 attacks.” Id. at 459-60 (internal quotation marks omitted).

On September 13, 2004, we issued our decision affirming the district court’s conclusion “that the [ECWs] could provide material, favorable testimony on Moussaoui’s behalf.” Moussaoui II, 382 F.3d at 456. With regard to the substitutions, we agreed that they were inadequate but rejected the district court’s implicit conclusion that no adequate substitutions could be crafted because the classified summaries were inherently inadequate. See id. at 478.

In particular, we noted the Government’s “profound interest in obtaining accurate information from the witnesses and in reporting that information accurately to those who can use it to prevent acts of terrorism and to capture other al Qaeda operatives, ... considerations [that] provide[ed] sufficient indicia of reliability to alleviate the concerns of the district court.” Id.

We found that the classified summaries did “provide an adequate basis for the creation of’ substitutions, id. at 479, and “remand[ed] with instructions for the district court and the parties to craft substitutions under certain guidelines.” Id. at 457. Accordingly, when we remanded to the district court in the previous appeal, the CIPA process was well underway, but incomplete. The classified, exculpatory information had been produced by the Government to defense counsel pursuant to the terms of the Protective Order.

In accordance with our holding that Moussaoui was entitled to such evidence in a suitably unclassified form for use at trial, the district court was poised to finalize this process, with the input and assistance of counsel for both parties and Moussaoui, when Moussaoui notified the district court of his desire to enter an unconditional plea of guilty to all counts. 2. The Brady Claim Moussaoui first complains that the Protective Order issued under CIPA allowed the Government to deprive him of exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In particular, Moussaoui asserts that he was deprived of personal access to the statements of multiple individuals which could have demonstrated that he was not slated to participate in the 9/11 attacks and that he was slated to participate, if at all, in the second wave of attacks, which never occurred. Moussaoui contends that this evidence was exculpatory because it could have demonstrated that he was not involved in the 9/11 terrorist attacks at all.

In Brady, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. In order to prevail on a true Brady claim, however, it is not enough simply to say that favorable evidence was withheld.

The accused must prove (1) that the “evidence at issue [is] favorable to the accused, either because it is exculpatory, or because it is impeaching”; (2) that the “evidence [was] suppressed by the [government], either willfully or inadvertently”; and (3) that the evidence was material to the defense, i.e., “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (including impeachment evidence within the scope of materials that Brady requires prosecutors to disclose).

The Brady right, however, is a trial right. It requires a prosecutor to disclose evidence favorable to the defense if the evidence is material to either guilt or punishment, and exists to preserve the fairness of a trial verdict and to minimize the chance that an innocent person would be found guilty. See Brady, 373 U.S. at 87, 83 S.Ct. 1194; United States v.

Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (noting that Brady rights are provided as part of the Constitution’s “ ‘fair trial’ guarantee”); id. at 634, 122 S.Ct. 2450 (“The principle supporting Brady was ‘avoidance of an unfair trial to the accused.’ ”) (Thomas, J., concurring) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). When a defendant pleads guilty, those concerns are almost completely eliminated because his guilt is admitted. See Menna v.

New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) (explaining that a defendant’s admission of guilt in a guilty plea is “so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case”) (first emphasis added); Matthew v. Johnson, 201 F.3d 353, 361 (5th Cir.2000) (explaining that “[t]he Brady rule’s focus on protecting the integrity of trials suggests that where no trial is to occur, there may be no constitutional violation”); Orman v.

Cain, 228 F.3d 616, 617 (5th Cir.2000) (“Brady requires a prosecutor to disclose exculpatory evidence for purposes of ensuring a fair trial, a concern that is absent when a defendant waives trial and pleads guilty.”). In Ruiz, the Supreme Court considered whether a guilty plea is invalidated by a prosecutor’s failure to provide exculpatory impeachment information to a defendant prior to the plea. See 536 U.S. at 625, 122 S.Ct. 2450.

In holding that it is not, the Court recognized that due process considerations do not require prosecutors to disclose all information that might be of use to a defendant in deciding whether to plead guilty. See id. at 629-30, 122 S.Ct. 2450. The Court noted that it had permitted courts to accept guilty pleas where the defendant lacked knowledge of many different circumstances, including the strength of the government’s case. See id. at 630-31, 122 S.Ct. 2450.

The Court also reasoned that the value to the defendant of requiring disclosure of impeachment evidence was relatively low compared to the substantial interference that such a requirement could cause to ongoing criminal investigations and the protection of government witnesses. See id. at 631-32, 122 S.Ct. 2450. To date, the Supreme Court has not addressed the question of whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the guilty plea context. Compare United States v.

Conroy, 567 F.3d 174, 179 (5th Cir.2009) (per curiam) (rejecting claim that the Supreme Court’s rejection of a Brady challenge in Ruiz based upon “impeachment evidence implie[d] that exculpatory evidence is different and must be turned over before entry of a plea”), with McCann v.

Mangialardi, 337 F.3d 782, 787-88 (7th Cir.2003) (stating that “[t]he Supreme Court’s decision in Ruiz strongly suggests that a Brady-type disclosure might be required” in circumstances where the prosecution “ha[s] knowledge of a criminal defendant’s factual innocence but fail[s] to disclose such information to a defendant before he enters into a guilty plea.”); Matthew, 201 F.3d at 364 (considering question of whether a pre-plea nondisclosure of exculpatory evidence might render a plea invalid under the Due Process Clause irrespective of Brady). In Jones v.

Cooper, 311 F.3d 306, 315 n. 5 (4th Cir.2002), however, we held that Ruiz foreclosed any claim by the defendant that the prosecutor’s failure to disclose information potentially relevant as mitigation evidence in the death-penalty phase of defendant’s trial served to invalidate his guilty plea. Whether our decision in Jones is sufficient to dispose of the claim before us here is a close one.

We need not resolve it, however, because even if we were to assume that the prosecution’s failure to disclose material exculpatory evidence at the plea stage could result in an unknowing plea in certain narrow circumstances, Moussaoui cannot demonstrate that his guilty plea was entered unknowingly for this reason.

The inquiry in any challenge to a guilty plea is whether the plea was entered voluntarily, and whether the related “waiver of [the defendant’s] right to receive from prosecutors exculpatory ... material” was made “ ‘knowing[ly], intelligently], [and] with sufficient awareness of the relevant circumstances and likely consequences.’ ” Ruiz, 536 U.S. at 628-29, 122 S.Ct. 2450 (quoting Brady, 397 U.S. at 748, 90 S.Ct. 1463) (alterations in original).

In short, Moussaoui fails to demonstrate that his waiver of the purported right to exculpatory evidence prior to pleading guilty was not made knowingly and intelligently, with sufficient awareness of the relevant circumstances and likely consequences. First, with regard to the documentary classified information, Moussaoui when he first attempted to plead guilty in 2002 was advised that there was “exculpatory evidence which ha[d] not been provided to him and that his plea of guilty may mean that he might never have the benefit of such information to use to contest his guilt.” J.A. 866.

A month later, the district court denied Moussaoui’s pro se motion for access to classified evidence, advising him that the process of reviewing the classified discovery was ongoing, that the United States had declassified and was continuing to declassify documents, and that “[p]resumably, [he] has had or will have access to the declassified discovery so long as it is not subject to a separate protective order.” J.A. 1126. Second, with regard to the classified information pertaining to the ECWs, Moussaoui had personally sought access to the ECWs because he believed they might possess helpful information.

From then until remand from our decision in Moussaoui II, the district court and this court confirmed his belief, making it clear that the ECWs could indeed offer material, exculpatory evidence on his behalf, but ruling that Moussaoui’s constitutional right to this evidence could be met with appropriate substitutions under CIPA § 6(c). In doing so, we even went so far as to explain why the ECW statements were exculpatory and we remanded for the preparation of substitutions with Moussaoui’s assistance and input.

See Moussaoui II, 382 F.3d at 456 (affirming the district court’s conclusion “that the [ECWs] could provide material, favorable testimony on Moussaoui’s behalf’); id. at 473 (noting, among other things, that the witness statements “tend[ed] to exculpate Moussaoui [as they] undermine[d] the theory ... that Moussaoui was to pilot a fifth plane into the White House” and were “consistent with Moussaoui’s claim that he was to be part of a post-September 11 operation”); id. at 474 (noting that the statements indicated that “Moussaoui’s operational knowledge was limited, a fact that is clearly of exculpatory value as to both guilt and penalty” and “supported] Moussaoui’s contention that he was not involved in the September 11 attacks”).

Thus, unlike in the traditional Brady context, or even those cases relied upon by Moussaoui for a Brady-type pre-plea right to exculpatory evidence, the Government did not suppress favorable evidence from the defense, much less evidence of factual innocence. On the contrary, the Government produced the evidence, in accordance with the Protective Order, to defense counsel pending the final CIPA § 6(

a) and § 6(

c) determinations on remand and Moussaoui was aware that this evidence had been so produced. See Moussaoui II, 382 F.3d at 458 n. 5, 462 n. 14 (noting that the classified summaries had “been provided to defense counsel in conformance with the Government’s obligations under Brady ” and that there was “no evidence before us that the Government possessed] exculpatory material that ha[d] not been disclosed to the defense”).

When the Supreme Court denied review of our opinion and the case was returned to the district court, Moussaoui was well aware that there was classified, exculpatory evidence yet to be produced to him personally and he knew why the material was exculpatory. Rather than wait for the process to be completed, Moussaoui made the strategic decision to plead guilty immediately.

He even went so far as to confirm with the district court that, because the substitutions for the ECWs testimony had not yet been completed, he would retain the right to challenge the final substitutions on appeal if he received the death penalty. “[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances— even though the defendant may not know the specific detailed consequences of in-yoking it.” Ruiz, 536 U.S. at 629, 122 S.Ct. 2450.

Under the circumstances, we have no trouble concluding that Moussaoui entered his guilty plea knowingly, and with sufficient awareness of the relevant circumstances and likely consequences of his decision, and that the district court did not err in accepting his plea prior to completion of the CIPA process. Clearly, the plea “represent[ed] a voluntary and intelligent choice among the alternative courses of action open to [him].” Alford, 400 U.S. at 31, 91 S.Ct. 160. 3.

The “Advice of Counsel” Claim For similar reasons, we also reject Moussaoui’s claim that the district court constructively denied him his right to counsel by restricting defense counsel’s ability to discuss the classified exculpatory evidence with him prior to his acceptance of the guilty plea, rendering his plea invalid. “Since Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid.” Brady, 397 U.S. at 748 n. 6, 90 S.Ct. 1463; see Broce, 488 U.S. at 569, 109 S.Ct. 757 (“[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.”); see McMann v.

Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (“[A] defendant pleading guilty to a felony charge has a federal right to the assistance of counsel.”). The waiver of constitutional rights accompanying a guilty plea has to be a “knowing, intelligent act[ ] done with sufficient awareness of the relevant circumstances and likely consequences,” Brady, 397 U.S. at 748, 90 S.Ct. 1463, and “an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney,” id. at 748 n. 6, 90 S.Ct. 1463.

Where a defendant alleges ineffective assistance of counsel, he must ordinarily “demonstrate that counsel performed deficiently and that, but for counsel’s errors, the defendant would not have pled guilty and would instead have insisted on proceeding to trial.” United States v. Fans, 388 F.3d 452, 459 (4th Cir.2004). “This standard derives from the test for ineffective assistance of counsel set forth in Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which relied in turn on the standards announced in Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 459 n. 4. However, “[i]n unusual circumstances, a defendant may obtain reversal of his conviction based on the inadequacy of counsel even in the absence of a showing that would satisfy Hill or Strickland.” Id. (citing United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Such a constructive denial of counsel results from circumstances where “the performance of counsel [is] so inadequate that, in effect, no assistance of counsel is provided” at all.

Cronic, 466 U.S. at 654 n. 11, 104 S.Ct. 2039; see Lenz v. Washington, 444 F.3d 295, 303-04 (4th Cir.2006) (stating that a constructive denial of counsel “arises only when a lawyer entirely fails to subject the prosecution’s ease to meaningful adversarial testing, and thus might as well be absent from the proceedings”) (internal quotation marks and citations omitted); Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir.1997) (applying Cronic to the guilty plea context).

Moussaoui contends that the Protective Order constructively denied him counsel under Cronic because it prohibited counsel from discussing the substance of the exculpatory evidence with him prior to his guilty plea. See Geders, 425 U.S. at 91, 96 S.Ct. 1330 (holding that trial court’s order barring defendant from consulting with defense counsel during an overnight recess deprived defendant of his Sixth Amendment right to counsel).

To the extent we would adopt some Cromc-like standard for guilty pleas, however, Moussaoui falls well short of demonstrating that his guilty plea was entered under circumstances amounting to “no assistance of counsel” at all. Cronic, 466 U.S. at 654 n. 11, 104 S.Ct. 2039. In fact, Moussaoui cannot even demonstrate that his plea was uncounselled on the matter of exculpatory evidence. 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.”) (emphasis added). Second, Moussaoui has failed to demonstrate that he was completely denied counsel’s advice regarding the evidence at issue, or that counsel’s advice was so lacking that it amounted to none at all.

As discussed previously, Moussaoui knew that the exculpatory information existed and had been produced to his counsel, knew the substance of the information, and knew that the process for evaluating and declassifying that information was ongoing. He was also well aware that the process would be completed upon our remand to the district court from the previous appeal.

In any event, the Protective Order did not preclude defense counsel from advising Moussaoui that the evidence existed, as they did prior to the July 2002 guilty plea attempt, or from providing advice on how the classification review process would be completed. In fact, it appears from the record that Yamamoto and Moussaoui did discuss the issue, but Moussaoui disagreed with counsel about the effect of his plea upon the substitution process and Moussaoui made the informed and strategic decision to plead guilty before the process was completed.

For its part, the district court employed a cautious manner of dealing with Moussaoui’s guilty plea. At the ex parte plea proceeding, the court ensured that Moussaoui had received the advice of his counsel on these matters. Moussaoui made it clear at this hearing and the public Rule 11 hearing that he had met with his attorneys, who had advised that he not plead guilty, but that he was freely and voluntarily choosing to reject that advice.

While a guilty plea must be counseled in the sense that the defendant has a right to effective assistance of counsel in making the decision, in the end it is the “defendant [who] has The ultimate authority’ to determine ‘whether to plead guilty.’ ” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)); see also Miller v. Angliker, 848 F.2

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