US v. Robert Patrick Hoffman, II

Filing

UNPUBLISHED AUTHORED OPINION (redacated) filed. Originating case number: 2:12-cr-00184-RGD-LRL-1. Copies to all parties and the district court/agency. [999577871].. [14-4136]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4136

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PATRICK HOFFMAN, II,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:12-cr-00184-RGD-LRL-1)

Argued:

March 26, 2015

Decided:

May 5, 2015

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Affirmed by unpublished opinion.
Senior Judge Davis wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Robert John Krask, OFFICE
OF THE UNITED STATES ATTORNEY, Norfolk, Virginia; Heather M.
Schmidt, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender,
Keith
Loren
Kimball,
Assistant
Federal
Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant.
Dana J. Boente, United States
Attorney, Alexandria, Virginia, Alan M. Salsbury, Assistant

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United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

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DAVIS, Senior Circuit Judge:
After

a

five-day

jury

trial

in

the

Eastern

District

of

Virginia, Appellant Robert Patrick Hoffman, II was convicted of
attempted espionage and sentenced to thirty years’ imprisonment.
On appeal, Hoffman argues that his defense was prejudiced as a
result of the district court’s handling of his pretrial motions
for expert services under the Criminal Justice Act of 1964 (the
“CJA”). As relief, he apparently seeks a conditional remand to
the district court for the appointment of a psychiatrist and,
depending on the outcome of a thorough psychiatric examination,
a new trial affording him an opportunity to present a mental
status defense. Hoffman also asks that we review the district
court’s

rulings

on

certain

pretrial

motions

filed

by

the

government under the Classified Information Procedures Act (the
“CIPA”). Finding no reversible error, we affirm the judgment of
the district court. 1
I.
A.
The evidence adduced at trial permitted the jury to find
the following facts.
1

In light of our denial of Hoffman’s pro se request for
substitution of counsel, we grant his motion for leave to file a
supplemental brief pro se. In his pro se brief, Hoffman
separately raises a number of issues that we have reviewed and
do not find meritorious.

3

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Prior to his retirement in the fall of 2011, Hoffman served
in

the

United

States

Navy

for

approximately

twenty

years,

working as a cryptologic technician aboard fast track or guided
missile

submarines.

Hoffman

held

a

top

secret/sensitive

compartmentalized information clearance and regularly received
classified

information

in

his

work,

including

information

relating to the capabilities, vulnerabilities, and missions of
United States submarines, and the methods of operation employed
by

adversaries

number

of

of

the

United

nondisclosure

States.

agreements

Hoffman
with

entered

the

United

into

a

States

government, and he received regular training on his obligations
not to divulge classified information to persons not authorized
to receive it and to report to authorities any attempt by an
unauthorized person to solicit classified information.
In the fall of 2012, the FBI commenced an investigation of
Hoffman

to

determine

whether

he

was

in

contact

with

another

country’s intelligence service. Specifically, agents of the FBI
conducted a “false flag operation” in which they contacted and
maintained

communications

identities

of

agents

of

with
a

Hoffman
foreign

while

assuming

intelligence

the

service.

Communicating by email, an undercover FBI agent posing as an
agent of the Russian secret service named “Vladimir” solicited
information from Hoffman and instructed him in how to make dead
drops of documents at a state park in Virginia Beach, Virginia.
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Hoffman indicated his willingness to assist the Russian agency
and, over the course of several exchanges of correspondence and
visits

to

the

dead

drop

site,

he

disclosed

national

defense

information and advice for the Russian navy, including certain
classified information.
According to the government, Hoffman came to suspect that
he might be under surveillance and, for this reason, decided to
report his activities to the FBI. On October 31, 2012, Hoffman
visited the FBI’s office in Norfolk, Virginia and reported that
he had been recruited by the Russian intelligence service to
provide certain information. Hoffman claimed that he maintained
communications with “Vladimir” in order to set up the Russian
agent for investigation and apprehension by the FBI and the CIA,
and that he did not intend to injure the United States.
The

FBI

interviewed

advance

notice

of

agents.

“Vladimir”

any

Hoffman

further

and

instructed

contacts

subsequently

he

contacted

had

him

to

with

Hoffman

by

give

Russian
email

inquiring about Hoffman’s failure to make a planned visit to the
dead drop site. Hoffman reported this contact to the FBI, and an
FBI

agent

email.

instructed

Hoffman

him

responded

to
to

make

a

concise

“Vladimir”

by

response
coded

to

email

the
on

November 8, 2012 that he had encountered a problem and would not
be able to visit the dead drop site again until November 18. On

5

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November 17 and 18, 2012, Hoffman returned to the dead drop site
without notifying the FBI.
B.
On December 5, 2012, a grand jury returned a single-count
indictment against Hoffman for attempted espionage, in violation
of

18

U.S.C.

§

794(a).

The

indictment

alleged

that

Hoffman

attempted to communicate to the Russian Federation information
relating

to

United

States

national

defense,

including

information classified as secret. The indictment alleged further
that Hoffman disclosed this information with intent and reason
to believe that it would be used to injure the United States and
to advantage the Russian Federation. The FBI arrested Hoffman
the following day. The district court appointed counsel and set
a pretrial motion deadline of February 28, 2013, with trial to
commence on June 17, 2013.
On March 21, 2013, defense counsel filed an ex parte motion
under the CJA requesting appointment of a mental health expert
to conduct an examination of Hoffman and to provide professional
opinions

to

assist

opinions

about

Hoffman

intended

how
to

the

defense.

to

communicate

commit

Specifically,
with

espionage,

6

as

counsel

Hoffman
well

as

and
any

sought
whether
expert

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mitigation

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evidence

for

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presentation

at

sentencing

should

Hoffman be convicted. 2
On April 17, 2013, the district court conducted an ex parte
hearing on the CJA motion. In support of the motion, defense
counsel

expressed

concerns

about

Hoffman’s

ability

to

convey

information about his background accurately and whether Hoffman
was

suffering

from

delusional

thinking.

The

district

court

agreed that counsel’s account raised the question of Hoffman’s
mental competency and insisted that counsel was required to give
notice to the government. Defense counsel responded that they
intended to give notice once they determined that they would
present a mental status defense but that they had not yet made
any

such

decision.

Notwithstanding

counsels’

position,

the

district court directed counsel to issue and file immediately a
notice

under

Rule

12.2

of

the

Federal

Rules

of

Criminal

Procedure 3 and a motion for an examination to determine Hoffman’s
competency

to

assist

his

counsel

and

to

stand

trial.

2

We have redacted from the public version of this opinion
certain information that remains under seal. Counsel for the
parties, who have received an unredacted copy of this opinion,
are directed to advise us within thirty days whether the
redactions remain necessary and appropriate.
3

Rule 12.2 provides that a defendant who “intends” to
assert an insanity defense or to introduce expert evidence of a
mental condition bearing on the question of guilt must notify an
attorney for the government in writing and file a copy of the
notice with the court. Fed. R. Crim. P. 12.2(a),(b).

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Acknowledging that the pretrial motion deadline had passed, the
court stated that it would grant leave for these late filings.
The court
mental

declined

to

examination

but

grant

counsel’s

stated

that

it

request
would

for

take

a

broader

the

matter

under advisement and entertain the request if raised again upon
completion of the competency examination.
Following the district court’s directive, defense counsel
filed

a

Rule

examination

12.2

under

18

notice

and

U.S.C.

§

a

motion

4241, 4

for

which

a

the

competency
court

later

granted. Thereafter, the government filed a motion for its own
examination of Hoffman to determine his mental status at the
time of the charged offense under 18 U.S.C. § 4242 5 and his
present competency to stand trial under 18 U.S.C. § 4241.
The district court held a pretrial conference on April 23,
2013, at which defense counsel moved to withdraw the Rule 12.2
notice filed less than a week before, arguing that the notice
was

premature

until

any

mental

4

examination

results

became

Section 4241 provides that a criminal defendant or
government “may file a motion for a hearing to determine
mental competency of the defendant.” 18 U.S.C. § 4241(a). If
motion is granted, the court may order a psychiatric
psychological examination and report before the date of
hearing. Id. § 4241(b).
5

the
the
the
or
the

Section 4242 provides that, upon a defendant’s filing of a
Rule 12.2(a) notice, the district court must grant any
government
request
for
a
psychiatric
or
psychological
examination of the defendant. 18 U.S.C. § 4242(a).

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available that might support an insanity defense. The district
court reluctantly permitted withdrawal of the notice, expressing
its

concerns

decided to

about

delays

reissue

the

that

notice

might
later.

result
Upon

if

the

defense

withdrawal

of

the

notice, the government withdrew its § 4242 motion.
The grand jury returned a superseding indictment on May 8,
2013, to include an additional allegation that Hoffman attempted
to

communicate

capabilities

top

to

secret

track

information

foreign

about

warships.

United

States

The

district

court

granted a continuance and set a revised pretrial motion deadline
of May 31, 2013, with trial to commence on August 12, 2013.
Meanwhile,
Gregory

the

Saathoff

court

to

appointed

conduct

the

forensic

psychiatrist

competency

examination

Dr.
of

Hoffman. Dr. Saathoff submitted his report to the court on June
3,

2013,

concluding

that

Hoffman

understood

the

nature

and

consequences of the proceedings against him and that he was able
to assist his counsel in his defense. In making his assessment,
Dr.

Saathoff

examined

Hoffman’s

jail

records

and

military

personnel records, and conducted interviews of Hoffman over the
course of two days, as well as shorter interviews with one of
Hoffman’s

defense

lawyers

and

a

correctional

officer.

Dr.

Saathoff ultimately found no history of mental illness and no
current

mental

disease

or

defect

that

would

render

Hoffman

incompetent to stand trial. During a sealed proceeding on June
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24, 2013, the district court made a finding that Hoffman was
competent to stand trial without objection from the defense but
scheduled a further hearing for July 9, 2013.
On
defense

the

day

before

counsel

filed

the
a

scheduled
motion

hearing,

seeking

July

8,

2013,

authorization

for

additional services by Dr. Saathoff under the CJA. The defense
did not dispute Hoffman’s competency to stand trial but wished
to have Dr. Saathoff examine “certain audio recordings” in which
Hoffman participated to determine whether Hoffman “was insane or
suffering from a mental disease or defect at the time of the
charged offense.” Defense counsel explained in the motion that
they did not file a renewed Rule 12.2 notice because they did
not have “a medical opinion upon which to base [an insanity]
defense

and/or

filing.”

At

the

hearing

the

next

day,

the

district court reiterated its finding that Hoffman was competent
to stand trial and denied the motion for additional services.
The district court set out its reasoning in a written opinion
issued

on

July

“inexcusable”

18,

failure

2013,
to

in

which

file

a

it

timely

noted
Rule

the

12.2

defense’s
notice

and

concluding that the motion for additional services failed to
establish any necessity for the requested psychiatric services.
The case proceeded to trial on August 15, 2013, and the
jury

returned

a

guilty

verdict

10

one

week

later.

The

district

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sentenced

Hoffman

to

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thirty

years’

imprisonment.

This

timely appeal followed.
II.
A.
Hoffman
process

challenges

clause

the

as

unconstitutional

district

court’s

under

refusal

to

the

due

grant

his

pretrial motions for the assistance of a mental health expert.
An indigent criminal defendant’s right to due process includes
the right to the appointment and assistance of a psychiatrist
upon

“a

preliminary

showing”

in

the

trial

court

“that

[the

defendant’s] sanity at the time of the offense is likely to be a
significant factor at trial[.]” Ake v. Oklahoma, 470 U.S. 68, 74
(1985); see also Weeks v. Angelone, 176 F.3d 249, 264 (4th Cir.
1999), aff’d, 528 U.S. 225 (2000). Additionally, Sixth Amendment
guarantees to counsel and a fair trial require defense counsel
to

seek,

and

psychiatrist

trial
where

courts
necessary

to

provide,

to

present

the
an

assistance
adequate

of

a

defense.

Proffitt v. United States, 582 F.2d 854, 857 (4th Cir. 1978);
see also United States v. Walker, 537 F.2d 1192, 1194 (4th Cir.
1976). Under the CJA, a district court must authorize funds for
an

indigent

defendant’s

counsel

to

obtain

expert

services,

including psychiatric services, upon request and a finding that
such services are “necessary for adequate representation” “after
appropriate inquiry in an ex parte proceeding[.]” 18 U.S.C. §
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3006A(e)(1); see also Proffitt, 582 F.2d at 857 (“The expert
services

to

which

the

Act

refers

include

psychiatric

assistance.”) (citing United States v. Taylor, 437 F.2d 371, 377
(4th Cir. 1971)).
We

review

for

abuse

of

discretion

a

district

court’s

determination of whether expert services requested under the CJA
are

necessary

for

adequate

representation.

United

States

v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997). Any error in the
district court’s refusal to appoint an expert is reversible only
upon a showing by the defendant that “the court’s refusal was
prejudicial to his defense.” United States v. Perrera, 842 F.2d
73, 77 (4th Cir. 1988). To establish a constitutional violation
in the denial of a motion for expert assistance, the defendant
must adduce convincing evidence of actual prejudice. Hartsell,
127 F.3d at 349.
B.
Hoffman falls short of showing an abuse of discretion here,
and

in

any

prejudice.

By

event
his

has
own

not

demonstrated

admission,

the

the

March

21,

existence
2013

of

motion

presented no facts tending to establish that the broad mental
health examination requested therein was necessary for adequate
representation under the CJA. To the contrary, when the district
court properly inquired about the necessity of the requested
services at the ex parte hearing on the motion, defense counsel
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explained
events

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that

during

suggesting

they
his

that

had

received

career
he

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that

might

reports

turned

be

out

presently

from
to

Hoffman
be

about

inaccurate,

suffering

from

a

delusional mind state. Counsel did not offer any specific facts
suggesting that Hoffman might have a history of mental illness
or that his mental status at the time of the offense might
contradict

the

government’s

allegation

that

he

intended

to

commit espionage.
The facts of this case are materially unlike those relied
upon by Hoffman, in which a defendant’s right to psychiatric
assistance in the development of his defense had been infringed.
For

example,

appointment
behavior
defendant

at

of

at
to

a

his
be

the

time

the

psychiatrist,
arraignment,

a

incompetent

to

defense
Ake

had

in

Ake

requested

exhibited

“bizarre”

psychiatrist
stand

trial

had
and

found

the

suggested

commitment, a later finding of competency was conditioned upon
frequent psychotropic medication during trial, and psychiatrists
had reported that the defendant suffered from a mental illness
that might have started years prior to time of the offense. Ake,
470 U.S. at 86. In United States v. Reason, the defendant had,
the day prior to committing the charged bank robbery, escaped
from a state hospital where he had been confined for over two
years and suffered from paranoid schizophrenia. 549 F.2d 309,
310 (4th Cir. 1977). In Walker, the motion for a psychiatric
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examination “alleged that prior to the [charged conduct,] Walker
received serious head injuries in an assault[,]” which resulted
in “headaches, . . . recurring periods during which he could not
‘think straight,’ and . . . permanent brain damage.” 537 F.2d at
1193

n.1.

The

district

court

granted

the

motion

but

later

refused additional funds for a further examination after the
appointed

psychiatrist

failed,

as

instructed,

to

address

Walker’s capacity to commit the offense and after the defense
learned
during

of
an

a

report

earlier

on

Walker’s

hospital

mental

commitment.

condition
Id.

at

completed

1193-95.

In

Taylor, the motion was “replete with factual allegations casting
serious

doubt

“recit[ing]

on

his

Taylor’s

extensive

responsibility
history

of

for

mental

his

conduct,”

disturbance,

his

record of impulsive behavior, his own desire for treatment, and
previous medical opinion to the effect that he was ‘psychotic’
and lacked sufficient internal controls over his conduct.” 437
F.2d at 377.
Here, defense counsel presented no similar facts in support
of

the

ex

parte

motion.

Defense

counsel’s

description

of

unexplained inaccuracies in Hoffman’s statements to them about
his

past

experiences

was

certainly

sufficient

to

call

into

question Hoffman’s then-present mental competency to assist his
counsel

and

to

stand

trial.

The

district

court

properly

determined that inquiry into Hoffman’s competency was in order.
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Although the district court might well have granted the motion
for a broader exploration of his mental health history in the
exercise of its discretion, the scant facts provided by counsel
were not sufficient to compel the district court to do so, such
that its denial amounted to a prejudicial abuse of discretion.
Moreover, the district court here did not simply deny the
defense’s

request

without

leaving

open

the

possibility

of

reconsideration. Rather, the court invited defense counsel to
renew their motion for a mental examination once the competency
assessment was complete, at which point information suggesting a
need for further psychiatric investigation might be available.
Given the weak showing of necessity, we cannot say that the
district court abused its discretion in declining to grant the
defense’s request while inviting a renewal of the request upon
completion of a competency examination.
C.
Hoffman places significant focus on the district court’s
directives at the ex parte hearing that the defense immediately
file a motion for a competency determination and issue a notice
under

Rule

12.2

to

the

government.

The

contention

that

the

district court’s imposition of these requirements amounted to a
prejudicial abuse of discretion is unpersuasive.

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1.
Upon

a

finding

of

reasonable

cause

that

a

criminal

defendant “may presently be suffering from a mental disease or
defect rendering him mentally incompetent,” the district court
must either grant a motion by the defendant for a hearing to
determine the defendant’s mental competency or “order such a
hearing on its own motion[.]” 18 U.S.C. § 4241(a). Hoffman does
not challenge the district court’s decision that an assessment
of

his

argues

competency

to

that

district

the

stand

trial

was

appropriate.

court

should

have

He

simply

ordered

this

assessment “on its own motion” rather than directing defense
counsel

to

file

a

motion.

Hoffman

cites

no

legal

authority

forbidding the district court from directing counsel to file a §
4241(a)

motion

in

this

context.

We

find

no

merit

in

this

formalistic contention.
2.
Nor did the district court’s instruction that counsel file
a Rule 12.2 notice amount to a prejudicial abuse of discretion.
The question of a defendant’s competency to stand trial is of
course distinct from the question of his mental condition at the
time of the offense or his criminal responsibility for his acts.
See

Walker,

537

F.2d

at

1195.

Rule

12.2

provides

that

a

defendant who “intends” (a) “to assert a defense of insanity at
the time of the alleged offense” or (b) “to introduce expert
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evidence relating to a mental disease or defect or any other
mental condition of the defendant bearing on . . . the issue of
guilt”

must

provide

written

notice

to

the

government

by

the

pretrial motion deadline “or at any later time the court sets,”
and

file

a

copy

with

the

district

court.

Fed.

R.

Crim.

P.

12.2(a),(b). Upon issuance of the notice, the government may
seek its own examination of the defendant, which the district
court must order upon the government’s motion. See 18 U.S.C. §
4242(a); Fed. R. Crim. P. 12.2(c)(1)(B).
Regardless

of

whether

the

district

court

should

have

demanded the issuance of a Rule 12.2 notice when it did, it is
clear from the record that Hoffman was not actually prejudiced
by this directive. First, it is undisputed that the government
was

already

aware

Therefore,

by

the

government

was

of

the

time

already

potential

the
on

Rule

actual

mental

12.2
notice

health

notice
that

issue.

issued,
Hoffman

the
might

pursue a defense based on a mental condition. Second, Hoffman
withdrew the formal notice within days of filing it and before
the court ruled on the government’s motion for its own mental
examination of Hoffman. Indeed, the defense’s withdrawal of the
notice

prompted

the

government

to

withdraw

its

motion.

Accordingly, the district court’s order that counsel file the
12.2

notice

had

no

effect,

substantial

Hoffman’s defense.
17

or

otherwise,

on

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D.
Hoffman also challenges the denial of his later motion for
additional services, which requested authorization to engage Dr.
Saathoff to provide an opinion about Hoffman’s mental condition
during the time he was in contact with “Vladimir” and the FBI by
his

examination

of

certain

audio

recordings.

As

already

mentioned, the district court had invited the defense to renew
its

original

motion

for

expert

services

upon

review

of

Dr.

Saathoff’s report on Hoffman’s competency to stand trial. But
the

defense

did

not

renew

the

motion

until

July

8,

2013,

approximately one month after Dr. Saathoff issued his report,
and it did not cite any findings or opinions made in the report
to

show

a

need

for

further

inquiry.

Indeed,

upon

review

of

twenty years’ worth of military personnel records and recent
detention center records in addition to data gathered during
several relevant interviews, Dr. Saathoff found no history of
mental illness and no current manifestation of delusions or any
other major mental illness. In the belatedly-filed motion for
additional

services,

the

defense

accepted

Dr.

Saathoff’s

findings and opinions but sought his review of “certain audio
recordings” of Hoffman “near the time of the alleged offense.”
However,

the

defense

provided

no

explanation

of

why

or

how

review of the audio tapes might be necessary for Dr. Saathoff to
form a reliable opinion about Hoffman’s mental condition at the
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time

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of

the

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offense.

In

Pg: 19 of 22

short,

the

renewed

motion

made

no

greater showing of necessity for the requested services than had
the original motion.
In any event, for Hoffman to present an insanity defense or
to introduce expert evidence of a mental condition at trial, he
was required to issue a Rule 12.2 notice to the government and
file a copy with the district court by the extended pretrial
motion

deadline

of

May

31,

2013.

See

Fed.

R.

Crim.

P.

12.2(a),(b). After withdrawing the original Rule 12.2 notice,
the defense never timely reissued or refiled it, explaining in
the motion for additional services that they lacked an expert
opinion upon which to base an insanity defense. By the time the
defense renewed the motion for psychiatric services, it was too
late to issue a Rule 12.2 notice without leave of the court. As
to the timing of the motion itself, defense counsel explained
that

they

had

recently

learned

that

certain

assertions

by

Hoffman about his prior experiences, not specifically stated in
the motion, were untrue. As the district court noted in its
opinion, however, this was not a new concern for counsel and was
indeed

part

of

the

very

reason

that

the

court

ordered

the

assessment of Hoffman’s competency months prior. The district
court concluded that the defense lacked good cause to justify
late filing of the requisite Rule 12.2 notice. See id.

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In

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asserting

light
an

of

this

Pg: 20 of 22

insanity

ruling,
defense

Hoffman
or

was

precluded

introducing

expert

from
mental

status evidence at trial and thus had no use for a further
expert inquiry into his mental condition at the time of the
offense. See United States v. Fince, 670 F.2d 1356, 1357-58 (4th
Cir. 1982) (district court properly denied § 3006A(e)(1) request
for expert assistance of chemist to develop a defense deemed
meritless by the Fourth Circuit and therefore “appointment of
[the] expert would have served no useful purpose”). Without a
stronger showing of necessity for the services requested, and a
concomitant showing that the denial of the motion resulted in
actual prejudice to the defense, we cannot say it amounted to an
abuse of discretion for the district court to deny the defense’s
motion for additional psychiatric services.
III.
Hoffman
district

also

court

seeks

protecting

review

of

certain

an

order

classified

issued

by

information

the
from

discovery and a second order restricting inquiry at trial into
matters

related

to

the

protected

information.

Specifically,

Hoffman requests review of the protected matters for information
relevant

to

his

mental

condition

or

a

potential

entrapment

defense and any other discoverable information. Upon our review
of the orders and relevant portions of the record, we find no
reversible error.
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A district court may permit a party to make an ex parte
showing of good cause to restrict discovery and, upon such a
showing, enter an appropriate protective order. Fed. R. Crim. P.
16(d)(1). Section 4 of the CIPA provides that the district court
may, “upon a sufficient showing,” permit the government to omit
classified information from materials produced to the defendant
in discovery. 18 U.S.C. App. III § 4. Section 6 provides that,
upon the government’s motion, the court must determine prior to
trial

the

use,

information.

Id.

relevance,

or

§

these

6(a).

In

admissibility
and

of

other

classified

ways,

the

CIPA

“serves to protect” “the governmental privilege in classified
information” and “vests district courts with wide latitude to
deal with thorny problems of national security in the context of
criminal proceedings.” United States v. Abu Ali, 528 F.3d 210,
247 (4th Cir. 2008). We review a district court’s rulings under
the CIPA for abuse of discretion. Id. at 253.
Before trial, the government filed an ex parte motion in
the

district

court

under

§

4

seeking

to

protect

certain

classified information from discovery and a motion in limine
under § 6 to prevent classified information of the same nature
from being used at trial. The district court determined that the
information

at

implicates

the

issue

was

properly

governmental

classified

privilege;

that

and
it

therefore
is

not

exculpatory, impeaching, or material to the preparation of the
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defense; and that its disclosure could cause grave and serious
damage to the national security of the United States.
Upon our in camera review of the classified materials, we
conclude that the district court did not abuse its discretion.
The protected information does not include any statement made by
Hoffman “in response to interrogation by a person [he] knew was
a government agent,” or any information “material to preparing
the

defense”

or

16(a)(1)(A),(E).
entrapment

obtained
The

defense,

from

information
and

any

Hoffman.
offers

Fed.
no

inferences

R.

Crim.

P.

support

for

an

bearing

on

a

determination of Hoffman’s mental condition are wholly absent.
Even if the information was discoverable under Rule 16(a), it
was

classified

information

subject

to

the

governmental

privilege. Although the governmental privilege is “a qualified
one,” it need not yield in this case because the information at
issue here is not “helpful to the defense” or “essential to a
fair determination of a cause.” United States v. Smith, 780 F.2d
1102, 1107 (4th Cir. 1985) (en banc).
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

22