In re U.S., 05-20001.

• Decision Date: 12 January 2005
• Docket Number: No. 05-20001.,05-20001.
• Citation: 397 F.3d 274
• Parties: In re: UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

397 F.3d 274

In re: UNITED STATES of America, Petitioner.

No. 05-20001.

United States Court of Appeals, Fifth Circuit.

January 12, 2005.

COPYRIGHT MATERIAL OMITTED

Paula Camille Offenhauser, James Lee Turner, Asst. U.S. Attys., Michael Taylor Shelby, Daniel Casanova Rodriguez, Tony Ray Roberts, Houston, TX, for Petitioner.

Craig A. Washington, Houston, TX, for Respondent.

Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:

In this case, the Government has requested a writ of mandamus to prevent the federal district court from enforcing discovery orders in a federal death penalty case not by dismissing the Government's Notice of Intent to seek the death penalty against this defendant, but by poisoning the jury's consideration of that option with an impermissible punishment phase instruction. The court also threatened to delay the scheduled start of the proceedings for a year. For the following reasons, we grant the writ, and expect proceedings to resume promptly.

Background

Defendant Tyrone Mapletoft Williams ("Williams") is awaiting trial for his alleged role in an illegal alien smuggling conspiracy that resulted in the deaths of nineteen undocumented aliens. According to the indictment, on or about May 13, 2003, after several co-conspirators loaded seventy-four illegal aliens into an enclosed trailer at or near Harlingen, Texas, Williams and co-defendant Fatima Holloway, the only two African-American participants, drove the tractor-trailer rig to a prearranged destination at or near Victoria, Texas. Williams was the driver and Holloway was sitting in the passenger seat.

As alleged, during the trip, several aliens began to bang on the locked trailer, begging to be released from the oppressive heat inside. As the aliens screamed for mercy, Holloway allegedly told Williams to turn on the refrigeration device in the trailer, or, alternatively, to let the aliens out. Williams allegedly rejected these requests and continued to drive. The Government alleges that as a direct result of this decision nineteen of the aliens died from heat exhaustion and/or suffocation.

On March 15, 2004, a grand jury in the Southern District of Texas returned a sixty-count superseding indictment charging all fourteen co-defendants with various alien smuggling offenses in violation of 8 U.S.C. § 1324. Because of the deaths of some of the illegal aliens, nearly all defendants involved in the transportation were death penalty-eligible. 8 U.S.C. § 1324(a)(1)(B)(iv). On the day the grand jury returned the superseding indictment, the United States filed a Notice of Intent to Seek the Death Penalty only against Williams.¹ Two days later, Judge Vanessa Gilmore severed Williams's case² and set his trial for January 5, 2005.

On October 22, 2004, Williams filed a Motion to Dismiss the Notice of Intent to Seek the Death Penalty, or alternatively, for Discovery of Information Relating to the Government's Capital-Charging Practices. Williams's motion substantively states:

The United States of America has determine [sic] to seek the death penalty against TYRONE MAPLETOFT WILLIAMS because of his race.

According to the original and superceding [sic] indictment returned in this case, TYRONE MAPLETOFT WILLIAMS is the only person of African-American descent, other than FATIMA HOLLOWAY, who was indicted for activity relating to the facts and circumstances charged in the indictment. Upon the original return of the indictment, the United States of America made many far-reaching and profound statements which had the pendency [sic] to demonize many of the alleged participants in the activity that resulted in the indictment. All of the other persons mentioned in the indictment are of Hispanic descent and none are African-American. Of the persons who are alleged to have concocted the conspiracy, profited greatly from the conspiracy and who undertook a leadership role in the conspiracy, none are African-American. Of all the persons named in the indictment, the Government is seeking the death penalty only as to TYRONE MAPLETOFT WILLIAM [sic].

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that the Notice of Intent to Seek the Death Penalty be dismissed, that the Notice of Special Findings be stricken, or, in the alternative, that the Court provide an evidentiary hearing at which time the Defendant will make a credible showing that all of the similarly situated individuals in this indictment are of a different race and not subjected to the death penalty, and the Defendant further prays that the Court grant this Motion for Discovery of Information Relating to the Government's Capital-Charging Practices, and for such other relief to which he may show himself entitled.

Williams also filed a Memorandum of Points and Authorities in Support of his motion, which states in its entirety:

In United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), the United States Supreme Court held that a defendant who seeks discovery on a claim of selective prosecution must show some evidence of discriminatory effect and discriminatory intent. United States v. Bass, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002). The Defendant in this case will not rely upon a statistical showing based upon nationwide information relating to the way the United States charges blacks with death-eligible offenses in comparison to the way that they charge whites. In this case, the discriminatory effect and discriminatory intent are clear to the naked eye. Similarly situated persons are treated differently and they are named in the same indictment with this Defendant. A prima facia [sic] case is made by the indictment itself.

Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based on an arbitrary classification, such as race or religion. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505-06, 7 L.Ed.2d 446 [(1962)]. In order to prove a selective-prosecution claim, this Defendant must demonstrate that the prosecutorial policy had a discriminatory effect and a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, this Defendant must show that similarly-situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U.S. 500, 25 S.Ct. 756, 49 L.Ed. 1142 [(1905)], Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 [, 90 L.Ed.2d 69 (1986)], Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 [(1985)], distinguished. The Court, in Armstrong, ruled that a defendant must produce credible evidence that similarly-situated defendants of other races could have been prosecuted, but were not. In the Armstrong case, the Court held that the required threshold was not met. In this case, that threshold is met on its face. It is abundantly clear that TYRONE MAPLETOFT WILLIAMS is black and is the only person for whom the death penalty is being sought. It is abundantly clear that all of the other Co-Defendants are not black, with the exception of FATIMA HOLLOWAY.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Court grant his Motion to Dismiss and Strike, or in the alternative, the Motion for Discovery, and grant him an evidentiary hearing in order that he may make a prima facia [sic] case on the allegations contained in his Motion, which is filed contemporaneously with this Memorandum of Points and Authorities in support of same.

After summarily declaring that Williams had made a prima facie case under Armstrong, Judge Gilmore granted Williams's vague "Motion for Discovery of Information Relating to the Government's Capital-Charging Practices." After a series of clarifications,³ Judge Gilmore declared that the Government was required to produce information that "relates generally to the capital charging practices of the Attorney General of the United States including but not limited to the charging practices that were employed in this specific case." Nov. 10, 2004, Order. Judge Gilmore noted that her order did "not, however, prohibit the Government from raising any legitimate objections based on privilege or work product." Id. (emphasis in original).

Attempting to comply with Judge Gilmore's order, the Government on November 24, 2004, filed a "Notice of Discovery in Response to Court Order," which discussed the United States Attorney's protocol for federal death penalty prosecutions, including how the determination to seek the death penalty is made. The filing included statistical information about the capital charging practices of the Attorney General. At a November 29, 2004, status hearing, Judge Gilmore rejected the Government's filing as non-responsive, and expressed anger at the Government's lack of compliance and refusal to assert privilege with specificity.⁴ The United States then filed an Addendum, in which it formally asserted privilege as to all other information rendered discoverable by Judge Gilmore. The Government specifically asserted privilege under the theories of deliberative process, work product, and attorney-client privilege.

On December 16, Williams responded by filing a Motion for Contempt, and moved in the alternative to dismiss the Death Notice. Williams attached a "report" of about sixty-eight other cases involving alien smuggling and asserted that the defendants in those cases were "similarly situated" with Williams. At a status hearing the next day, Judge Gilmore praised the information, commenting to the Government that "[t]he information that he got from this other guy is exactly the kind of stuff y'all should have been giving. That's better information than what y'all gave." Tr. at 14. When the Government attempted to refute the information contained in the exhibit, Judge Gilmore stopped the Government attorneys and instead asked why they had not...