407 F.3d 434 (1st Cir. 2005), 05-1014, United States v. Green

Docket Nº05-1014, 05-1151.
Citation407 F.3d 434
Party NameUNITED STATES of America, Appellant, v. Darryl GREEN et al., Defendants, Appellees. In re United States, Petitioner.
Case DateMay 12, 2005
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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407 F.3d 434 (1st Cir. 2005)

UNITED STATES of America, Appellant,


Darryl GREEN et al., Defendants, Appellees.

In re United States, Petitioner.

Nos. 05-1014, 05-1151.

United States Court of Appeals, First Circuit

May 12, 2005

Heard April 5, 2005.

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Steven L. Lane, Attorney, Appellate Section, Criminal Division, U.S. Dep't of Justice, with whom Michael J. Sullivan, United States Attorney, Theodore B. Heinrich and Lori J. Holik, Assistant United States Attorneys, were on brief, for appellant.

Max D. Stern, with whom Randolph Gioia, Elizabeth Billowitz, Sarah Jennings Hunt, William Brennan, and Brennan, Trainor, Billman & Bennett, LLP were on brief, for appellee Darryl Green.

Max D. Stern, with whom Patricia Garin, Kenneth M. Resnik, Jeffrey Wiesner, Stern, Shapiro, Weissberg & Garin, LLP, David P. Hoose, and Katz, Sasson, Hoose & Turnbill were on brief, for appellee Branden Morris.

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John H. Cunha, Jr., with whom George F. Gormley, Christie M. Charles and George F. Gormley, P.C. were on brief, for appellee Jonathan Hart.

John H. Cunha, Jr., with whom Stephen Super and Cunha & Holcomb, P.C. were on brief, for appellee Edward Washington.

Judith H. Mizner on brief for Federal Defender Office, amicus curiae.

Before SELYA, LYNCH and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

The district court, presiding over a complex multi-count, multi-defendant capital case, issued a pretrial order calling for the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty. Before us, the government asserts that the Federal Death Penalty Act (FDPA) forbids this binary course of action. We conclude that the district court's unprecedented order presents a basic, previously undecided question of substantial public importance and, accordingly, entertain the government's petition for advisory mandamus. Exercising that jurisdiction, we proceed to correct and countermand the district court's erroneous interpretation of the FDPA.


In 2003, a federal grand jury sitting in the District of Massachusetts charged five men in a seventeen-count superseding indictment. The golconda of charges included racketeering, 18 U.S.C. § 1962(c); racketeering conspiracy, id. § 1962(d); murder in aid of racketeering, id. § 1959(a)(1); and conspiracy to commit murder in aid of racketeering, id. § 1959(a)(5). Four of the five defendants--Darryl Green, Branden Morris, Jonathan Hart, and Edward Washington--are parties to this proceeding. We focus exclusively on them.

The indictment alleged that the foursome were all members of the Esmond Street Posse, variously described as a Boston street gang or criminal enterprise, which was engaged in peddling marijuana and crack cocaine. Count Sixteen of the indictment charged Green and Morris, but not Hart or Washington, with the murder of one Terrell Gethers in aid of racketeering. Under the controlling statute, 18 U.S.C. § 1959(a)(1), that was a capital charge, carrying a potential penalty of death for the two affected defendants.

In response to a flurry of severance motions, see Fed.R.Crim.P. 14, the district court ruled that the capital defendants should not be tried together. United States v. Green, 324 F.Supp.2d 311, 324-25 (D.Mass.2004) (Green I). Relatedly, the court decreed that Hart would be tried with Green and that Washington would be tried with Morris. Id. at 326-28. These rulings brought to the fore a concern previously voiced by the non-capital defendants, Hart and Washington, who had posited that it would be unfair to force them to trial before a death-qualified jury.

We pause to place this concern into proper perspective. The Supreme Court has held that, in a capital case, the government may exclude from jury service those individuals whose personal opposition to the death penalty is such that it would prevent or substantially interfere with their ability to apply the law. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The process of winnowing out such conscientious objectors in jury selection is known as death-qualification.

A capital case potentially involves two separate trial phases. In the first phase,

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the jury determines whether the capital defendant is guilty of the crime(s) charged. If the defendant is convicted of a capital offense, a second proceeding ensues to determine whether that offense, under the circumstances of the case, warrants the death sentence. As a single jury normally hears both the guilt and penalty phases, death-qualification occurs as part of the original jury empanelment.

The defendants in this case insist that the process of selecting a single death-qualified jury to consider both the guilt and penalty phases has the correlative effect of putting a jury in the box that will be more prone to convict. To support this notion, the defendants proffered below statistical evidence purporting to indicate that African-Americans were significantly underrepresented in the local jury venire and that death-qualification would further reduce the possibility that any African-Americans--a group more likely to oppose the death penalty than non-African-Americans--would be able to serve on the jury. The defendants also tendered statistical evidence indicating a similar, though less pronounced, effect as to potential female jurors. The defendants then submitted studies purporting to show that death-qualified jurors are significantly more likely to convict than non-death-qualified jurors. Hart and Washington argued that these perceived consequences of death-qualification were particularly unfair as applied to defendants who were not themselves facing the death penalty.

In responding to these plaints, the district court conceded that the defendants (including the non-capital defendants) had no constitutional entitlement to a non-death-qualified jury. See Green I, 324 F.Supp.2d at 330 (citing Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987)). The court, however, did not stop there; it viewed the defendants' importunings as raising a case management issue within the realm of trial court discretion. Id.

Noting the concerns enumerated by the non-capital defendants along with the potential strain on judicial resources that would accompany a further proliferation of the number of trials needed, the court devised two potential solutions and invited briefing on them. One entailed selecting a single jury (including the maximum number of alternates) for each trial, but deferring death-qualification until after the guilt phase had concluded. If a capital conviction ensued, the court would then attempt to death-qualify the jury before the penalty phase began and, if the number of remaining jurors and alternates fell below the requisite twelve, would discharge that jury and empanel a new, death-qualified jury exclusively for the penalty phase. Id. at 331. The second proposal contemplated selecting two distinct juries at the outset, one (non-death-qualified) to hear the guilt phase and the other (death-qualified) to hear the penalty phase. Id.

In the briefing that followed, the government denigrated both options and the defendants lobbied for the second. On November 3, 2004, the district court ordered two juries empaneled for each of the scheduled trials (one to adjudicate guilt and the second, if needed, to fix the nature of the penalty). United States v. Green, 343 F.Supp.2d 23, 25 (D.Mass.2004) (Green II). The court determined that the applicable provision of the Federal Death Penalty Act, 18 U.S.C. § 3593(b), did not require a unitary jury. Id. Even if it did, the court held, the defendants were entitled to waive the requirement. Id.

The government appealed this order and filed a protective petition for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a). We turn first to the

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jurisdictional question and then to the merits of the lower court's order.


The government's roadmap to review traces several possible avenues through which our jurisdiction may attach. We can entertain an interlocutory appeal, the government says, because the order appealed from is a collateral order, that is, an order that conclusively determines an important legal question, which is completely separate from the merits of the underlying action and is effectively unreviewable by means of a archetypical end-of-case appeal. See, e.g., Rhode Island v. U.S. EPA, 378 F.3d 19, 25 (1st Cir. 2004) (noting circumstances in which interlocutory orders are immediately appealable under the collateral order doctrine); In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 608-09 (1st Cir. 1992) (similar); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

We view the use of the collateral order doctrine as problematic in the circumstances of this case. This court has been wary of creating running room for back-door attempts to evade the longstanding rule that appeals by the government in criminal cases must be specifically authorized by statute. See United States v. Watson, 386 F.3d 304, 307-08 (1st Cir. 2004); United States v. Kane, 646 F.2d 4, 5-7 (1st Cir. 1981). This wariness arises, in part, because of a realization that criminal matters are different--and special concerns counsel against permitting government appeals in criminal cases under the collateral order doctrine. See United States v. Horn, 29 F.3d 754, 768-69 (1st Cir. 1994). Among them are "speedy trial and double jeopardy concerns." Id. at 768; see also United States v. McVeigh, 106 F.3d 325, 330-32 (10th Cir. 1997) (per curiam) (citing Horn and noting that the "principal prudential bases are the avoidance of undue delay, and the avoidance of harassment" (citations...

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