U.S. v. Gomez-Olmeda, CR. 03-073(JAF).

Decision Date12 November 2003
Docket NumberNo. CR. 03-073(JAF).,CR. 03-073(JAF).
Citation296 F.Supp.2d 71
PartiesUNITED STATES of America, Plaintiff, v. David GOMEZ-OLMEDA, Defendant.
CourtU.S. District Court — District of Puerto Rico

Hector A. Deliz, Deliz & Torres Gonzalez, Hato Rey, PR, Edward S. Staffman, Tallahassee, FL, for David Gomez-Olmeda aka Junito King Cabra, defendant.

Pretrial Services, U.S. Pretrial Services, U.S. Probation, U.S. Probation Office, U.S. Marshal, U.S. Marshal Service, Lynn M. Doble-Salicrup & Edwin Vázquez, Asst. U.S. Atty's, United States Attorney's Office, Torre Chardon, San Juan, PR, for U.S. Attorneys.


FUSTE, District Judge.

We are presented with novel issues which require that we determine when prosecutorial mismanagement not only implicates the rights of a defendant and transgresses the boundaries of fair play, but also jeopardizes the proper functioning of the judicial system. Here, Defendant was confronted repeatedly with a host of inequities which collectively compromised his ability to adequately defend himself — an unfairness all the more severe because the penalty Defendant faces is that of death.

Defendant was denied court-ordered discovery which Defendant, and this court, concluded was necessary to develop an adequate mitigation defense. Defendant engaged in death penalty plea negotiations premised on an indictment which lacked the basic requirements necessary to impose the death penalty. Defendant participated in these plea negotiations unaware that a sealed superseding indictment did not simply add a new co-defendant, as alleged, but also appended the aggravating factors which made it compliant with the death penalty requirements. Defendant's counsel was then misled about the nature of a meeting before the Department of Justice ("DOJ"), thinking its purpose was only to discuss a proposed plea agreement, whereas, in reality, it was also meant to discuss the possibility of defendant receiving the death penalty. Moreover, the prosecution submitted its plea bargain to the Attorney General premised not on the defective original indictment upon which it had been negotiated, but on the sealed superseding indictment.

Defendant was denied the opportunity to present an adequate mitigation defense: By the Assistant United States Attorney Lynn Doble-Salicrup's ("AUSA") continued denial of the ordered discovery which related to mitigation; by the sealing of a superseding indictment which purportedly merely added a defendant, but in fact corrected the prosecution's fatal omission of aggravating factors which would allow the government to seek the death penalty; by the AUSA's belated and misleading characterization of the DOJ meeting; by the AUSA's submission of her Memorandum to the Assistant Attorney General premised not on the faulty indictment which was the basis for the negotiated plea agreement, but on the superseding indictment, the contents of which the Defense had no knowledge. This wrongdoing toward Defendant is compounded by the government's attempt to ratify their errors by asking this court to dismiss the original indictment and accept the superseding indictment, without complying with the basic requirements and procedures for doing so. Through these measures, the AUSA evidenced an obvious level of inexperience and lack of competence in handling a death penalty case. A case of this severity should not become an opportunity for a novice attorney to practice her prosecutorial skills. We fail to comprehend how the AUSA's immediate supervisor, AUSA Edwin Vázquez, present at the initial proceedings before this court, condoned, tacitly or explicitly, the different decisions made in this case. The prosecution's behavior and ex-post-facto correction of mistakes, transgresses the prosecution's duty to the court, the public, and ultimately the profession itself.

Defendant, David Gómez-Olmeda ("Defendant"), has been charged with assaulting an individual and putting his life in jeopardy with intent to rob, steal, or purloin property of the United States in violation of 18 U.S.C. §§ 2114 and 2 (Count I); robbing from an individual United States property in violation of 18 U.S.C. §§ 2112 and 2 (Count II); assaulting an individual and robbing him and using a firearm in relation to a crime of violence, causing the individual's death in violation of 18 U.S.C. § 924(j) and 2 (Count III); attempting to destruct United States property by fire in violation of 18 U.S.C. §§ 844(f)(1) and 2 (Count IV); attempting to damage or depredate United States property in violation of 18 U.S.C. §§ 1361 and 2 (Count V); being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Count VI). Docket Document No. 7. Defendant moves to strike the death penalty certification in his case pursuant to Local Rule 428; 18 U.S.C. § 3593 (2000 & Supp.2003), the Fifth and Sixth Amendments, U.S. CONST., amends V & VI. Docket Document Nos. 118, 129-132. The prosecution moves to dismiss the Original Indictment ("the Original Indictment"), Docket Document No. 143, and to arraign Defendant on the First Superseding Indictment ("the Superseding Indictment"). Docket Document No. 142. Defendant opposes these motions. Docket Document No. 144.

I. Relevant Factual and Procedural History

On March 12, 2003, Defendant was indicted and arraigned. Docket Document No. 7. He pled not guilty to all counts of the Original Indictment. Docket Document Nos. 7, 12. On March 17, 2003, the case was identified as a death penalty case pursuant to Local Rule 428(2). Docket Document No. 17. On July 2, 2003, a sealed Superseding Indictment was issued as to Defendant on all counts. Docket Document No. 83. It remained sealed until September 24, 2003. Docket Document No. 137. Defendant has still not been arraigned on the Superseding Indictment, Docket Document No. 142, nor has the Original Indictment been dismissed. Docket Document No. 143.

On August 8, 2003, Defendant first moved to compel discovery of, inter alia, materials relating to the aggravating and mitigating factors necessary for Defendant's upcoming presentation before the Department of Justice regarding issues of mitigation. Docket Document No. 91. On August 19, 2003, Defendant filed his second motion to compel discovery. Docket Document No. 94. The court granted Defendant's first motion to compel discovery and the government was given until September 2, 2003, to comply. Docket Document No. 97. On August 19, 2003, in a status conference before the court, the parties announced a plea agreement subject to the Attorney General's approval. Docket Document Nos. 131, Exh. A, 120, Exh. B. It is obvious that the plea agreement had been premised on the Original Indictment, for the terms of the agreement were outlined in correspondence between defense counsel and the AUSA in a letter dated June 30, 2003, two days before the Superseding Indictment was obtained. Docket Document No. 128, Exh. A. A change-of-plea hearing was then set for September 23, 2003. Docket Document Nos. 96, 115.

In late August, with the change-of-plea hearing still set for September, Defense Counsel, Edward Stafman ("Mr. Stafman"), was advised that on September 8, 2003, a meeting would be held before the Capital Crimes Unit Committee of the Department of Justice in Washington, D.C. Docket Document No. 120. In a letter to the AUSA, dated August 26, 2003, Mr. Stafman made undeniably clear that due to the proposed plea agreement, he had ceased researching mitigation issues for his client. Id. at Exh. A. In a follow-up letter dated September 3, 2003, Mr. Stafman informed the AUSA that, in light of the plea agreement, he remained unclear about the meeting's purpose. That is, he was unsure if the meeting was to make a death penalty determination or to approve the pending plea agreement. He reiterated that he would be unprepared to discuss matters of aggravation and mitigation, particularly in light of the government's continued noncompliance with the court's discovery order. Id. at Exh. B. In response, on September 4, 2003, the AUSA informed Mr. Stafman that because the Washington, D.C. meeting had not yet transpired, the Department of Justice had not had the opportunity to consider the parties' proposed plea agreement offers. Id. at Exh. C. As to his concerns, she divulged nothing more.

In her Memorandum to the Assistant Attorney General dated September 3, 2003, the AUSA asserted that Defendant, as part of his proposed plea agreement, would plead guilty as to Count Three of the Superseding Indictment, although, at that time, Defendant had yet to see the sealed Superseding Indictment and Defendant and had yet to be arraigned. On September 17, 2003, the Attorney General—presumably with the misinformed understanding that the prosecution had, in fact, procured a timely Superseding Indictment which included the statutorily-required aggravating factors—rejected the plea agreement and authorized the government to seek the death penalty against Defendant on the Superseding Indictment. Docket Document No. 116. On September 22, 2003, the United States filed its Notice of Intent to Seek the Death Penalty if Defendant is convicted under Count Three of the Superseding Indictment. Id. Defense counsel, on his way to Puerto Rico for the next day's change-of-plea hearing, learned that his client was now potentially facing a sentence of death when he came across such information in a newspaper article during a layover at the Atlanta airport. Id. When the government filed its Notice of Intent to Seek the Death Penalty, the Superseding Indictment, on which the Attorney General's death penalty endorsement had been based, remained sealed. Docket Document No. 137. Defendant has still not been arraigned on the Superseding Indictment. Docket Document No. 142.

Defendant moves to strike the death penalty notification alleging that the government failed to file a timely motion as required by Local Rule 428 and 18 U.S.C. §...

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