Morales v. U.S. Dist. Court for the S. Dist. of Fla.
| Decision Date | 15 October 2014 |
| Docket Number | No. 14-10391,14-10391 |
| Parties | NELSON MORALES, Plaintiff-Appellant, v. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF FLORIDA, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 1:13-cv-22343-DLG
Appeal from the United States District Court for the Southern District of FloridaBefore HULL, WILSON, and FAY, Circuit Judges.
Petitioner Nelson Morales appeals the dismissal of his petition for a writ of mandamus compelling the presentation of evidence to a special grand jury. The district court dismissed the petition for lack of subject matter jurisdiction and for failure to state a claim. Because we determine Morales lacks the standing necessary for us to adjudicate this claim, we affirm the district court's dismissal.
We review the prior prosecutions before turning to Morales's claim.
On February 24, 1996, the Cuban Air Force shot down two civilian planes in international airspace. Four men, all members of the Miami-based Cuban exile group Brothers to the Rescue ("BTTR"), were killed in the incident. The murders drew substantial media attention and widespread condemnation of the Cuban government. The shoot-down also resulted in civil litigation and criminal prosecutions.
In 1997, the estates of three of the victims, all United States citizens, prevailed in a civil suit against the Republic of Cuba and the Cuban Air Force. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997). The cause of action was based on provisions of the Foreign Operations, Export Financing, andRelated Programs Appropriations Act of 1996, Pub. L. No. 104-208, § 589, 110 Stat. 3009 (1996) (codified at 28 U.S.C. § 1605), which allows money damages against foreign states for the personal injury or death of American citizens, subject to additional restrictions. The estates were awarded a judgment of over $187 million dollars. Alejandre, 996 F. Supp. at 1253. The order accompanying the final judgment quoted at length from the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. Id. at 1247. That act of Congress, responding explicitly to the shoot-down, stated that "[t]he [actions] chosen by Fidel Castro . . . [were] a blatant and barbaric violation of international law and tantamount to cold-blooded murder." 22 U.S.C. § 6046. Moreover, it called on President Clinton "to seek, in the International Court of Justice, indictment for this act of terrorism by Fidel Castro." Id.
Criminal prosecutions followed, beginning in 1998. A federal grand jury indicted five Cuban agents for their involvement in the incident. United States v. Campa, 419 F.3d 1219, 1222-23 (11th Cir. 2005), rev'd en banc, 459 F.3d 1121 (11th Cir. 2006). One was charged with and convicted of conspiracy to murder the four BTTR members. Id. Other defendants were charged with and convicted of a range of offenses, including espionage. Id. This Court, sitting en banc, affirmed those convictions of the Cuban agents. United States v. Campa, 459 F.3d 1121, 1126 (11th Cir. 2006) (en banc) ( venue objections); see also United Statesv. Campa, 529 F.3d 980, 987 (11th Cir. 2008) ().
These were not the only criminal prosecutions. In 2003, a federal grand jury indicted three additional defendants-the head of the Cuban Air Force and the two fighter pilots who actually shot down the aircraft-with murder and conspiracy to commit murder. These defendants remain fugitives.
That factual background brings us to the substance of this appeal. Petitioner Nelson Morales, the brother of Pablo Morales, a victim of the 1996 BTTR incident, seeks to compel the United States Attorney for the Southern District of Florida (or, in the alternative, the United States District Court for the Southern District of Florida) to present evidence to a grand jury implicating Fidel Castro and Raul Castro in the murders of the BTTR men.
Specifically, Morales wants the grand jury to be made aware that Fidel and Raul Castro "claimed responsibility over 17 years ago for ordering the murders of the four BTTR men." The evidence Morales seeks to have presented includes: (1) a Time Magazine interview from March 11, 1996, in which Fidel Castro stated that he "take[s] responsibility for what took place"; (2) Fidel Castro's statement, in the same interview, that Raul Castro participated in the decision to attack the BTTRplanes; (3) Raul Castro's recollection, in an interview with Cuban journalists on June 21, 1996, of a military meeting prior to the incident in which he agreed that it may be necessary to "shoot [the BTTR men] down in the ocean when they appear"; and (4) a September 3, 1996 interview of Fidel Castro by Dan Rather in which Castro acknowledged that instructions were given to the Cuban pilots, who "had the authority" to shoot down the planes. In that interview, Fidel Castro repeated his earlier statement, saying: "I take responsibility for it."
Because Fidel and Raul Castro have never been indicted for the murders of the BTTR men, Morales seeks to compel the presentation of the above-described evidence as well as "any evidence in [the U.S. Attorney's] possession, or previously submitted to any grand jury, which implicate the Castro brothers in the deaths of the BTTR men."
Morales's mandamus action is based on 18 U.S.C. § 3332(a). Morales argues that § 3332(a) guarantees that any person, such as Morales, can require the U.S. Attorney to present evidence of a federal crime to a special grand jury.1 The § 3332(a) statute provides that "[i]t shall be the duty of each such grand jury impaneled within any judicial district to inquire into offenses against the criminallaws of the United States alleged to have been committed within that district." 18 U.S.C. § 3332(a). Next, the statute says that "[s]uch alleged offenses may be brought to the attention of the grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence." Id.
The next sentence in the § 3332(a) statute is the basis of Morales's claim. It says that "[a]ny such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney's action or recommendation." Id. (emphasis added). From this language, Morales asserts that § 3332(a) gives him a statutory right to require the U.S. Attorney to present information "concerning [] an alleged offense" received from any person.
On July 2, 2013, Morales filed a petition for a writ of mandamus in the District Court for the Southern District of Florida, naming both the U.S. Attorney and the district court as respondents. Morales's mandamus petition alleges attorney Kendall Coffey made a request on April 14, 2010, that the U.S. Attorney present the above evidence to a special grand jury. The petition itself nowhere alleges that Morales ever made a request personally.
On September 13, 2013, the U.S. Attorney filed a motion to dismiss. (Doc. 13) The U.S. Attorney argued that the petition should be dismissed for lack of subject matter jurisdiction because Morales did not have standing to request the relief sought and because his claim was constitutionally unripe. The U.S. Attorney also argued that, as a matter of law, Morales's mandamus petition failed to state a claim for relief.
On October 22, 2013, Morales responded to the motion to dismiss. The response argued principally that § 3332(a) confers a legal right that Morales merely seeks to enforce through this mandamus action. The response also attempted to introduce a new factual allegation. In a footnote, Morales stated that Coffey appeared at the 2010 meeting "for the Morales family (and others), including his mother."2 After establishing, in his view, Coffey's "representative status," Morales hedged, requesting leave to amend his petition if the petition as written was "deemed not to sufficiently identify Morales." He filed no separate motion for leave to amend in the district court.
The district court determined it was without subject matter jurisdiction to hear the claim and, on December 27, 2013, granted the motion to dismiss. The district court found: (1) that Morales lacked standing to invoke the power of thecourts; (2) that his claim was constitutionally unripe because of his failure to make a specific request of the U.S. Attorney; and (3) that his claim failed as a matter of law for several reasons.
Morales timely filed a notice of appeal.
We review de novo a district court's determination of whether it has subject matter jurisdiction. Gupta v. McGahey, 709 F.3d 1062, 1064-65 (11th Cir. 2013), cert. denied, 134 S. Ct. 2840 (2014). "[S]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims, and we review the district court's conclusion on this question de novo." Dillard v. Chilton Cnty. Comm'n, 495 F.3d 1324, 1330 (11th Cir. 2007) (quotation marks omitted).
We review for abuse of discretion a district court's denial of a petition for a writ of mandamus. Davis v. United States, 558 F. App'x 898, 900 (11th Cir. 2014) (per curiam) (unpublished) ().
Morales petitions for a writ of mandamus that would compel either the U.S. Attorney or the district court to perform a specific act. See 28 U.S.C. § 1361 (...
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