US v. Robert Patrick Hoffman, II
Filing
AMENDED OPINION filed amending and superseding opinion dated May 5, 2015. Originating case number: 2:12-cr-00184-RGD-LRL-1. Copies to all parties.. [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UNPUBLISHED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
Amended:
Decided:
May 5, 2015
June 2, 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Affirmed by unpublished opinion.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
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Attorney, Alexandria, Virginia, Alan M. Salsbury, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
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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.
4
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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
Doc: 105
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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asserting
light
an
Pg: 20 of 22
this
Hoffman
of
insanity
ruling,
defense
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
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