U.S. v. Ferebe

Decision Date18 June 2003
Docket NumberNo. 01-22.,01-22.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald Lee FEREBE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Michael Schatzow, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Appellant. James G. Warwick, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Charles G. Bernstein, BERNSTEIN & SAKELLARIS, Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

Appellant Ferebe challenges the district court's denial of his motion to strike and to bar the United States' Notice of Intention to Seek the Death Penalty (the "Death Notice") in his trial for the murders of Yolanda Evans and Benjamin Harvey Page, on the grounds that notice was not provided to him a reasonable time before the trial as required by Title 18, section 3593(a) of the United States Code. Ferebe concedes that the district court's order denying his motion to strike the Death Notice is not a final judgment, and thus is susceptible to our review only if it is a collateral order, subject to review under the standards articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Under Seal v. Under Seal, 326 F.3d 479 (4th Cir.2003) (discussing the collateral order doctrine and its application in the Supreme Court and in the Fourth Circuit). The government contends that the district court's order was not a collateral order, but that if it was, the Death Notice was provided to Ferebe a reasonable time before trial, because he was not prejudiced by any tardiness in the filing of the Notice.

This case, having been fully briefed in December 2001, has now been presented to, and considered by, two separate panels of our court. Decision of the matter has been made difficult, both for the first panel that heard this case and for our panel, because the issues presented by the appeal — one jurisdictional, one relating to the governing analytical framework, and one involving application of that framework to the facts of the case — are tightly, if not inextricably, interwoven. This interweave, coupled with the diverging opinions of members of our court as to each issue, made attainment of dispositive agreement especially tricky. Today, however, we reach dispositive agreement on the required statutory analysis, and on its implications for the jurisdictional question.

We conclude that the proper analysis that is to be applied in deciding challenges to the timeliness of a filing under the Death Notice statute, 18 U.S.C. § 3593(a), is that of a pre-trial inquiry into the objective reasonableness of that timing. Because of the characteristics of orders decided under this analytical framework, we conclude that district court orders denying motions to strike Death Notices are collateral orders susceptible to our review. We are unable conclusively to determine the merits of this case, however, because the district court, operating under a different, and incorrect, analytical framework, did not make certain findings critical to the merits determination with sufficient clarity that we may rely on them in this case of life and death. Consequently, we vacate the appealed order and remand the case for further proceedings in the trial court.

I.

Ferebe was first indicted on federal drug, gun, and murder charges, along with a co-defendant, in September 1997.1 The murder charges stemmed from the shooting deaths of Yolanda Evans and Benjamin Harvey Page. Presumably because of the heinousness of the act, the prosecution sought authorization from the United States Attorney General to seek the death penalty for the charged murders. The Attorney General, in May 1998, authorized the death penalty for one of the two murders, and only against Ferebe. Because Ferebe alone was eligible for the death penalty, the district court severed Ferebe's trial from that of his co-defendant.

Ferebe's co-defendant proceeded to trial, was convicted in October 1998, and was sentenced to life imprisonment in 1999. Ferebe's trial, however, was continued because Ferebe, already serving a life sentence for a conviction in a related case, preferred to wait until his appeal in that case was final before proceeding in this case. In September 1999, this court affirmed Ferebe's conviction and sentence in that case, and certiorari was denied by the Supreme Court in early 2000. Around June 2000, the prosecution proposed that Ferebe plead guilty to the charges in this case and, in exchange, receive concurrent life sentences. Ferebe refused the offer in October 2000.

At a December 2000 hearing, the court scheduled Ferebe's case for trial in September 2001, and concurrently, the prosecution formally withdrew its outstanding and unaccepted plea offer. Upon the district court's scheduling of the trial at that December 15, 2000 hearing, nine months remained prior to the start of Ferebe's trial. At that point, the prosecution had not filed a Death Notice to inform Ferebe and the court formally that it intended to seek the death penalty at Ferebe's trial, as authorized by the Attorney General.2

Ferebe presents some evidence, and the prosecution does not challenge it, that, nation-wide, federal prosecutors file Death Notices, upon authorization by the Attorney General, with an average of 8.4 months remaining before trial. See J.A. at 82. Such filings are necessitated and governed by section 3593(a), which provides that:

If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under the chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice[.]

18 U.S.C. § 3593(a).

On May 28, 2001, with the trial set to begin in five months time, the prosecution asked the Attorney General to reconsider the decision not to authorize the death penalty on Ferebe's second murder charge. Before the Attorney General responded, Ferebe's attorney contacted the prosecution on or about June 15, 2001, and informed it that Ferebe wished to enter a guilty plea, in exchange for concurrent life sentences. The prosecution agreed to the terms and entered into an agreement with Ferebe on June 19. The plea agreement, however, was conditioned on approval by the Attorney General, as just a few weeks earlier (June 7) a new Department of Justice ("DOJ") policy took effect, requiring prosecutors to obtain the Attorney General's consent prior to consummating plea agreements with death-eligible defendants.

As a consequence of the parties' conditional plea agreement, the parties and the district court agreed to postpone several scheduled June and July hearings and conferences. These hearings and conferences had been calendared in order for the parties and the court jointly to prepare trial materials such as the jury questionnaires and to address various pre-trial issues that needed to be settled prior to the start of trial on September 10.

On July 6, 2001, two months before Ferebe's trial was set to begin, the Attorney General authorized the death penalty against Ferebe for the second murder, as well as the first (which of course had been authorized in 1998). Twenty days passed after authorization of the death penalty prosecution as to the second murder before the Attorney General responded to the request for approval of the conditional plea agreement. On July 26, now just a month and a half before Ferebe's capital trial was set to commence, the Assistant Attorney General in charge of DOJ's Criminal Division informed the prosecution that the plea agreement was unacceptable.

The district court, the prosecution, and the defense attorney met for a conference on July 31, 2001, just over a month before the scheduled start of Ferebe's trial, to discuss the case and the ramifications of DOJ's rejection of the conditional plea agreement. At that meeting, defense counsel responded to the plea agreement's recision by announcing that Ferebe would still plead guilty to the charges in the absence of a plea agreement (because no Death Notice had yet been filed, Ferebe faced a maximum life sentence).

The next day, August 1, 2001, the prosecution filed a Death Notice for both of the murders with which Ferebe was charged. In light of the government's filing, Ferebe did not, as he announced he would like to do on the prior day, plead guilty. Instead, Ferebe filed a motion to strike and bar the Death Notice as being untimely filed under section 3593(a)'s requirement that such notices be filed a reasonable time before trial. Pursuant to Ferebe's motion, the district court set a briefing schedule. The court, on September 7, 2001, held a hearing on the matter, and on September 12 issued an oral opinion denying the motion. It is that order to which this current appeal is directed.

II.

As to the threshold jurisdictional issue, we now hold that district court orders denying motions to strike Death Notices as untimely filed are immediately appealable under Cohen and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (Burger, C.J.), as they fully satisfy the three requirements for interlocutory appeal set forth by the Supreme Court. See Under Seal, 326 F.3d at 483. In Abney, the Supreme Court explained that a "final decision," as referenced in 28 U.S.C. § 1291, is distinct from a "final judgment," and "[is] to be given a practical rather than a technical construction," Abney, 431 U.S. at 658, 97 S.Ct. 2034...

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