U.S. v. Lopez-Matias

Citation522 F.3d 150
Decision Date10 April 2008
Docket NumberNo. 07-1662.,07-1662.
PartiesUNITED STATES of America, Appellant, v. Rodney LOPEZ-MATIAS, Eduardo Riera-Crespo, and Raymond Alers-Santiago, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John Alex Romano, Attorney, Criminal Division, United States Department of

Justice, with whom Rosa E. Rodriguez-Velez, United States Attorney, and Antonio R. Bazán, Assistant United States Attorney, were on brief, for appellant.

John R. Martin, with whom Martin Brothers, P.C. was on brief, for appellee Rodney Lopez-Matias.

David A. Ruhnke, with whom Ruhnke & Barrett was on brief, for appellee Eduardo Riera-Crespo.

Steven M. Potolsky for appellee Raymond Alers-Santiago.

Before LIPEZ and HOWARD, Circuit Judges, and SMITH,* District Judge.

HOWARD, Circuit Judge.

In this carjacking case, the district court ruled that the government could not seek the death penalty, citing the government's failure to abide by its own policies and by local court rules. The government appeals. Finding appellate jurisdiction over the matter, we hold that the district court abused its discretion when it failed to consider whether there was prejudice to the defendants. We can discern no prejudice on the record. Accordingly, we vacate the district court's order striking the Notice of Intent to Seek a Sentence of Death.

1. Facts

In November, 2006, a federal grand jury in Puerto Rico indicted Rodney Lopez-Matias, Eduardo Riera-Crespo, and Raymond Alers-Santiago for conspiracy to commit carjacking through deadly force and carjacking resulting in death.1 The indictment contained a "Notice of Special Findings" for each defendant, laying out findings that qualified the case for the death penalty as well as statutory aggravating factors. See 18 U.S.C §§ 3591 & 3592. The government never filed a Certificate of Death Penalty Case ("Certificate"), as required by District of Puerto Rico Local Criminal Rule 144.2(b) ("Local Rule").2

In December, the government provided four days' notice of a meeting of the Attorney General's Committee on Capital Cases ("Capital Review Committee") to be held December 22, 2006, at which defendants could present mitigating evidence. Riera-Crespo was still at large. The other two men had appointed counsel, but not the "learned counsel" required for capital cases.3 Lopez-Matias's counsel asked the government to delay the meeting until learned counsel had been appointed, but the request was denied. No one presented any mitigating evidence at the meeting.

Riera-Crespo was apprehended just before the end of 2006. On January 17, 2007, Assistant United States Attorney Bazán wrote to each defense attorney, directing that any "information or argument that counsel wishes to present as a basis for not seeking the death penalty ... should be submitted ... forthwith." Learned counsel had been appointed for Lopez-Matias and Alers-Santiago at that point, but only a few days previously. Riera-Crespo was not provided learned counsel until January 19, two days after AUSA Bazán's letter.

Two weeks later, on January 31, the Attorney General authorized the United States Attorney to seek the death penalty. Accordingly, the government filed a Notice of Intent to Seek a Sentence of Death ("Notice") on February 6, 2007. The defendants all moved to strike the Notice, on the ground that they had been denied a meaningful opportunity to present mitigating evidence.

The district court heard argument about the motion to strike on February 21, 2007. At the hearing, the government again offered the defendants a chance to present mitigating evidence and seek reconsideration, an offer the government repeated at oral argument before us. The district court struck the Notice, citing two grounds in its written Opinion and Order dated February 22, 2007: first, because the defendants had no meaningful chance to present mitigating evidence before the government made its decision; and second, because the government failed to follow the Local Rule and file the Certificate.4 The government appeals.

2. Jurisdiction

This court has appellate jurisdiction where a district court strikes a Notice.5 United States v. Acosta-Martinez, 252 F.3d 13, 16 (1st Cir.2001).6 In Acosta-Martinez we reasoned that in dismissing the Notice, "the district court effectively dismissed a significant portion of the counts against the defendant." Id. at 17. We acknowledge the imprecision of this analogy, but we deem it adequate for the purposes of jurisdiction and standard of review.

3. Standard of Review

When the district court dismisses an indictment or a portion thereof, we review conclusions of law de novo, factual findings for clear error, and the ultimate ruling for abuse of discretion. See United States v. Kelley, 402 F.3d 39, 41 (1st Cir. 2005) (review of dismissal based on violation of the Interstate Agreement on Detainers); United States v. Maxwell, 351 F.3d 35, 40 (1st Cir.2003) (review of denial of motion to dismiss for violation of Speedy Trial Act). We agree with the parties that the same standards apply here, where the district court has stricken the Notice.

4. Local Rule 144.2(b)

The district court struck the Notice primarily based on the violation of Local Rule 144.2(b), a matter it raised sua sponte. The Local Rule provides that "[u]pon the filing of a Criminal Complaint or Indictment in a case in which the maximum possible penalty is death, the United States Attorney shall file, with the Clerk of Court, a Certificate of Death Penalty Case...." District of Puerto Rico Local Rule 144.2(b). The language of the Local Rule is mandatory, but the government nonetheless failed to file the Certificate.7

Local court rules carry the force of law. See Air Line Pilots Ass'n v. Precision Valley Aviation, 26 F.3d 220, 224 (1st Cir.1994). But like other laws, they operate within the context of the law as a whole. So it is that 28 U.S.C. § 2071(a), which both grants and constrains the rulemaking power of the courts, directs that "rules shall be consistent with Acts of Congress and [federal rules of practice, procedure and evidence]."8 Id.; see also United States v. Panzardi Alvarez, 816 F.2d 813, 818 (1st Cir.1987) (District of Puerto Rico Local Rule invalid insofar as it prevents criminal defendant from having choice of attorney and thereby conflicts with Sixth Amendment).

In reviewing the dismissal of the Notice, we are mindful of Rule of Criminal Procedure 52(a): "Any error, defect, irregularity or variance that does not affect substantial rights must be disregarded." Id. The Supreme Court in Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), held that a district court could not dismiss an indictment for errors that involved no prejudice. Id. at 263, 108 S.Ct. 2369. So it must be as well with the striking of the Notice.9

"As a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Bank of Nova Scotia, 487 U.S. at 254, 108 S.Ct. 2369. Here, the district court did not make a finding of prejudice, and that legal error is a per se abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("A district court by definition abuses its discretion when it makes an error of law."); Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir.2003) ("An error of law is, of course, an abuse of discretion.").

In Bank of Nova Scotia, the Court indicated that its conclusion would not reach cases of prosecutorial misconduct, or other situations "in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair...." Id. at 257, 108 S.Ct. 2369. Here, the district court suggested no actual, let alone structural, prejudice caused by lack of the Certificate. But in its Opinion and Order the district court, as we have observed, did describe the government's behavior as a "decision" to "flout" the Local Rule, and pointed to previous cases in which similar behavior had taken place. Should a district court be faced with misconduct or with a structural flaw rendering the process fundamentally unfair, we acknowledge the possibility that striking the Notice might be an appropriate sanction. Such are not the facts here, however, as we have said.

5. United States Attorneys' Manual

The district court agreed with the defendants that they had not been provided a meaningful opportunity to present mitigating evidence before the government filed the Notice, as required by the United States Attorneys' Manual ("Manual"). The Manual contains guidelines for determining whether to seek the death penalty. United States Attorneys' Manual §§ 9-10.010-10.190. These are widely known as the "death penalty protocols." Under the death penalty protocols, defense counsel must be provided a "reasonable opportunity" to present mitigating evidence to the United States Attorney before he or she makes a recommendation whether to seek the death penalty. Id. at § 9-10.050. If the United States Attorney recommends seeking the death penalty, the Capital Review Committee also reviews the case and makes a recommendation. Id. at § 9-10-120. The Committee can also review, on its own initiative, any case in which the United States Attorney recommends against seeking the death penalty.10 Id. This procedure culminates in recommendations to the Attorney General, who decides whether to seek the death penalty. The Manual then in force provided that counsel "shall be provided an opportunity" to present mitigating evidence to the Capital Review Committee.11 And the section entitled "Review of Recommendations Not to Seek Death Penalty" warns that "[n]o decision to seek the death penalty shall be made without affording defense counsel an opportunity to present evidence and argument in mitigation...." Id. at § 9-10.055.

We need not consider...

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