                              UNPUBLISHED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

                      Amended:    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Affirmed by unpublished opinion.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
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Unpublished opinions are not binding precedent in this circuit.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
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
      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     of   the    United      States.         Hoffman    entered     into   a

number     of   nondisclosure         agreements         with     the     United     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         with       Hoffman       while     assuming     the

identities      of   agents      of     a        foreign      intelligence         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
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     Hoffman      and   instructed      him    to       give

advance     notice      of    any   further     contacts    he     had   with       Russian

agents.      “Vladimir”       subsequently       contacted        Hoffman      by    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     instructed      him   to    make     a   concise    response        to   the

email.      Hoffman     responded      to     “Vladimir”     by     coded      email      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
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      the   defense.       Specifically,      counsel        sought

opinions    about       how   to    communicate       with    Hoffman        and    whether

Hoffman    intended      to   commit    espionage,       as    well     as    any    expert




                                             6
mitigation    evidence       for     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).



                                           7
Acknowledging that the pretrial motion deadline had passed, the

court stated that it would grant leave for these late filings.

The court      declined     to     grant    counsel’s        request       for     a    broader

mental    examination       but    stated       that    it   would    take        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   12.2      notice      and    a     motion       for     a    competency

examination     under     18      U.S.C.    §    4241, 4     which    the        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         examination         results       became

      4
       Section 4241 provides that a criminal defendant or                                  the
government “may file a motion for a hearing to determine                                   the
mental competency of the defendant.” 18 U.S.C. § 4241(a). If                               the
motion is granted, the court may order a psychiatric                                        or
psychological examination and report before the date of                                    the
hearing. Id. § 4241(b).
      5
       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).



                                            8
available that might support an insanity defense. The district

court reluctantly permitted withdrawal of the notice, expressing

its   concerns     about        delays     that     might      result        if    the   defense

decided to       reissue       the   notice        later.      Upon    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        top     secret     information          about        United       States

capabilities       to    track       foreign       warships.          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,       the     court     appointed       forensic          psychiatrist       Dr.

Gregory       Saathoff     to     conduct        the     competency          examination        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

                                               9
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   the    day     before    the       scheduled         hearing,       July     8,   2013,

defense      counsel       filed     a        motion          seeking     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    18,   2013,         in    which       it    noted      the    defense’s

“inexcusable”       failure     to       file       a    timely      Rule     12.2     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            one    week     later.    The    district



                                                   10
court    sentenced      Hoffman     to    thirty          years’    imprisonment.      This

timely appeal followed.

                                           II.

                                           A.

       Hoffman      challenges      as    unconstitutional             under    the     due

process      clause    the     district        court’s       refusal    to     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     trial    courts     to    provide,       the    assistance       of   a

psychiatrist        where     necessary    to       present    an    adequate    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. §

                                           11
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    event     has        not    demonstrated         the     existence   of

prejudice.   By     his    own    admission,        the     March    21,    2013    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

                                              12
explained    that        they      had    received         reports       from       Hoffman    about

events   during         his    career      that       turned       out    to    be    inaccurate,

suggesting        that        he     might      be        presently       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,          at     the       time    the        defense       in    Ake     requested

appointment        of     a    psychiatrist,              Ake   had      exhibited      “bizarre”

behavior     at     his       arraignment,           a     psychiatrist         had    found     the

defendant     to        be    incompetent            to    stand      trial     and     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

                                                 13
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       of    a    report    on    Walker’s     mental    condition               completed

during       an    earlier       hospital    commitment.       Id.       at    1193-95.        In

Taylor, the motion was “replete with factual allegations casting

serious       doubt       on    Taylor’s    responsibility         for    his           conduct,”

“recit[ing]         his      extensive     history    of    mental    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.

                                              14
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.




                                        15
                                                  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   competency            to    stand    trial    was    appropriate.             He    simply

argues      that      the        district        court    should        have        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

                                                  16
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     of     the     potential     mental        health     issue.

Therefore,        by    the     time     the     Rule     12.2    notice      issued,      the

government        was    already       on     actual     notice     that    Hoffman     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        or     otherwise,      on

Hoffman’s defense.

                                                17
                                          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

                                          18
time   of    the   offense.     In    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.



                                           19
     In     light    of       this    ruling,     Hoffman        was     precluded      from

asserting    an     insanity         defense    or    introducing         expert     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      also     seeks       review    of    an       order    issued    by   the

district    court    protecting         certain      classified         information     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.

                                           20
      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,      relevance,          or     admissibility      of     classified

information.       Id.    §   6(a).      In   these     and    other   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       issue    was     properly      classified       and     therefore

implicates      the       governmental             privilege;    that     it      is    not

exculpatory, impeaching, or material to the preparation of the

                                              21
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    obtained   from     Hoffman.    Fed.      R.   Crim.   P.

16(a)(1)(A),(E).      The   information    offers     no    support    for    an

entrapment   defense,       and     any    inferences       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.




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