USA. v. Fernandez
| Citation | 231 F.3d 1240 |
| Decision Date | 07 November 2000 |
| Docket Number | GONZALES-CONTRERAS,No. 99-50738,99-50738 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. FRANK FERNANDEZ, aka Seal A; aka Sapo; JUAN PEREZ GARCIA, aka Seal B; MARIANO D. MARTINEZ, aka Seal C; aka Chuy; JIMMY SANCHEZ; aka Seal D; aka Smokey; MARCEL AREVALO, aka Seal F; aka Psycho; DANIEL BRAVO, aka Seal G; aka Sporty; ROBERT CERVANTES, aka Seal H; aka Gypsy; ROY GAVALDON, aka Seal I; aka Spider; DAVID, aka Seal J; aka David Contreras-Gonzalez; ROBERT MERCADO, JR., aka Seal K; aka Gato; ERNESTO MURILLO, aka Seal L; aka Solo; ROLAND RAMIREZ, aka Seal N; aka Capone; aka Rolland Ramirez; JESUS ROCHIN, aka Seal O; aka Gizmo; FERNANDO ALVIDREZ; aka Cuate; JAVIER ALVIDREZ DUARTE; MARIO CASTILLO; DOMINICK SHEWMAKER GONZALES, aka Solo; aka Dominick Gonzales; GERARDO JACOBO, aka Blanco; ADRIAN NIETO; SALLY PETERS; SUZANNE SCHOENBERG, Defendants-Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ronald L. Cheng, (Argued and On the Briefs), AssistantUnited States Attorney, Los Angeles, California, for the plaintiff-appellant.
Dale Michael Rubin (Argued and On the Briefs), San Marino, California, for defendants-appellees Gerardo Jacobo, Marcel Arevalo, Javier Alvidrez Duarte, Daniel Bravo, Mario Cas-tillo, and Robert Mercado.
Larry M. Bakman, (On the Briefs), Los Angeles, California, for defendant-appellee Gerardo Jacobo.
Michael Belter, (On the Briefs), Riverside, California, for defendant-appellee Marcel Arevalo.
Morton Philip Borenstein, (On the Briefs), Encino, California, for defendant-appellee Javier Alvidrez Duarte.
John Cotsirilos, (On the Briefs), San Diego, California, for defendant-appellee Daniel Bravo.
Michael M. Crain, (On the Briefs), Santa Monica, California, for defendant-appellee Mario Castillo.
Jack M. Earley, (On the Briefs), Costa Mesa, California, for defendant-appellee Robert Mercado.
Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding. D.C. No.CR-99-00083-DT
Before: John T. Noonan, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.
The question before us is whether the district court properly sanctioned the United States for violating a discovery order by precluding the government from seeking the death penalty against Fernando Alvidrez, Marcel Arevalo, Daniel Bravo, Javier Alvidrez Duarte, Gerardo Jacobo, and Robert Mercado (collectively "Defendants"). The district court's decision to impose this sanction was based on the government's refusal to turn over its confidential predecisional death penalty evaluation form and prosecution memorandum, which contained information concerning the Attorney General's pending decision whether to seek the death penalty against Defendants. On appeal, the United States argues that the district court's discovery order is clearly erroneous because (1) Defendants have no right to discover these documents, and because (2) the documents are protected by the deliberative process and work product privileges. For the reasons discussed below, we agree with the government. We therefore reverse and remand to the district court.
Defendants, alleged members of the "Mexican Mafia," have been charged with various violations of federal law, including participation in the murders of Richard Serrano,Jose Martin Gutierrez, and Enrique Delgadillo. Because these murders allegedly were committed in furtherance of racketeering activity, see 18 U.S.C.A. S 1959(a)(1) (Supp. 2000),1 and involved the use of a firearm, see id.S 924(j) (2000),2 they are punishable by death. This means that the Federal Death Penalty Act (the "FDPA"), enacted by Congress in 1994, may apply. See id. S 3591 et seq. (Supp. 2000).
The FDPA, which authorizes the death penalty for more than forty federal crimes, sets forth the general procedures for imposing a death sentence in federal cases. First, if the government intends to seek the death penalty for a certain defendant, it must notify the defendant "a reasonable time before trial" of its intent to do so. Id. S 3593(a)(1) (Supp. 2000). Second, the government must notify the defendant of all aggravating factors that it "proposes to prove as justifying a sentence of death" if the defendant is convicted of the underlying offense. Id. S 3593(a)(2). Finally, the FDPA requires separate guilt and penalty phases for a death penalty prosecution. Id. S 3593(b).
However, these provisions of the FDPA are implicated only if the government has made an authoritative decision to seek the death penalty. In making this decision, the government is guided by specific provisions in the United States Attorneys' Manual ("USAM" or "Manual") that the Attorney General issued shortly after Congress enacted the FDPA. Generally, the USAM outlines the internal polices and procedures for the prosecution of all federal cases involving death-eligible offenses. See USAM S 9-10.000 et seq. (1997).
The Manual provides that, in all federal capital cases, the ultimate decision to seek the death penalty lies with the Attorney General. Id. SS 9-10.020, 9-10.080. Before the Attorney General renders her written decision, however, her assistants must comply with certain operating procedures. To begin, when a United States Attorney charges a defendant with an offense subject to the death penalty, the attorney must submit certain documents to designated persons in the Justice Department. Id. SS 9-10.040, 9-10.070. More specifically, the U.S. Attorney submits a death penalty evaluation form and a prosecution memorandum to the Attorney General's Death Penalty Committee (the "Committee"), which assists the Attorney General in deciding whether to seek the death penalty in a certain case. Id. SS 9-10.040, 9-10.050, 9-10.070. The guidelines require the U.S. Attorney to submit these documents no later than thirty days before the government must file its "Notice of Intention to Seek the Death Penalty." Id. S 9-10.040.
Once the U.S. Attorney provides the Committee with these documents, a meeting is held at which the defendant is given an opportunity to persuade the government not to seek the death penalty. Specifically, the guidelines provide that "[c]ounsel for the defendant shall be provided an opportunity to present to the Committee, orally or in writing, the reasons why the death penalty should not be sought." Id. S 9-10.050. After this meeting, the Committee then makes a recommendation to the Attorney General, who makes the final decision whether to seek the death penalty in a particular case. Id.
In the case at bar, defendant Gerardo Jacobo filed a motion on August 30, 1999, prior to scheduling of a meeting with the Committee, in which he sought "Discovery Relevant to Authorization to Seek the Death Penalty." In this motion, Jacobo sought "all information that may tend to mitigate the sentence in this case," so that he could make an "informed, accurate and meaningful presentation to the government." The government opposed the motion, arguing that Jacobo did not have any right to such discovery and, moreover, that the documents at issue were protected by the deliberative process and work product privileges.
On September 27, 1999, the district court held a hearing to consider the motion. During the hearing, the district court opined that the Attorney General's procedure for deciding whether to seek the death penalty was "illusory. " Specifically, the district court judge stated:
See, why create this illusion . . . if you're defense counsel . . . and you were defending somebody, how can you really defend somebody if you can't and you don't know what the other side is saying about them?
The government responded that, although defendants may have a right to discover certain information about the government's case and intentions before trial, such a right does not extend to the meeting before the Committee.
The district court ruled on Jacobo's motion on October 7, 1999, ordering the government to provide all capital-eligible defendants with its completed death penalty evaluation form and prosecution memorandum not later than ten days before each defendant's presentation to the Committee in Washington, D.C. In response, on October 19, 1999, the government filed a "Notice of Non-Compliance with Court's Order and Suggested Procedure," in which the government respectfully but firmly informed the district court that it would not comply with its order dated October 7, 1999.
The district court considered the matter again on October 21, 1999, and made the following ruling:
Basically [prosecutor] I'm going to put it this way to you. If you don't do what I previously ordered [then] I'm not going to allow the Government to seek the death penalty as against those individuals that have been defined by the Government as being eligible for the death penalty . . . . Now, if you feel I'm wrong you appeal me.
Nevertheless, the government maintained its position and refused to produce the death penalty evaluation form or the prosecution memorandum. As a result, on October 26, 1999, the district court issued a written order precluding the government from seeking the death penalty against Defendants unless it complied with the October 7, 1999 discovery order. The United States now appeals from that order.
As an initial matter, we must consider Defendants' argument that this court lacks jurisdiction over the United States' appeal because the district court "s decision was not a final, appealable order. Defendants' contention lacks merit.
In United States v. Wilson, 420 U.S. 332 (1975), the Supreme Court interpreted 18 U.S.C. S 3731 and held that government appeals in criminal cases are not restricted to the specific categories listed in section 3731.3 The Court explained that "Congress intended to remove all statutory barriers to...
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