U.S. v. Pena-Gonzalez, Crim. 97-284(JAF).

• Decision Date: 07 July 1999
• Docket Number: No. Crim. 97-284(JAF).,Crim. 97-284(JAF).
• Citation: 62 F.Supp.2d 358
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas PEÑA-GONZALEZ (03); Defendant.
• Court: U.S. District Court — District of Puerto Rico

Page 358

62 F.Supp.2d 358

UNITED STATES of America, Plaintiff, v. Nicholas PEÑA-GONZALEZ (03); Defendant.

No. Crim. 97-284(JAF).

United States District Court, D. Puerto Rico.

July 7, 1999.

Asst. U.S. Attorney Stephen Muldrow Guillermo Gil, U.S. Attorney San Juan, PR, for plaintiff.

Rafael Anglada-Lopez, San Juan, PR, William D. Matthewman, Miami, FL, for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Defendant, Nicholas Peña-González, has been charged with a drug trafficking conspiracy in violation of 21 U.S.C. § 846 (Count I), conspiracy to commit firearms murder in relation to the drug trafficking conspiracy in violation of 18 U.S.C. § 924(o) (Count II), and firearms murder in relation to a drug trafficking offense in violation of 18 U.S.C. §§ 924(j) (Count III) Defendant moves to strike the death penalty certification in his case pursuant to 18 U.S.C. § 3005; Local Rule 428; Fed. R.Crim.P. 12; and the Fourteenth Amendment, U.S. CONST., amend. XIV.

I. Relevant Factual Background

On July 28, 1998, Defendant initially appeared. On July 30, 1998, we appointed attorney Thomas R. Lincoln to represent him. Docket Document No. 130. At his arraignment on that same day, Defendant pled not guilty to Counts I, II, and III of the indictment. The following day, Defendant moved for appointment of counsel in a capital case. Docket Document No. 131.

On August 28, 1998, we ordered the Assistant United States Attorney to inform us which of the Defendants charged in the conspiracy were going to be recommended for death penalty certification. Docket Document No. 131. After receiving the Prosecution's response that it was not recommending capital certification for Defendant Peña-González, we denied Defendant's motion on September 1, 1998. Docket Document No. 131.

On November 3, 1998, Defendant filed a motion for his appointed counsel, Mr. Lincoln, to withdraw because of a difference of opinion. Docket Document No. 170. As a result, on December 9, 1998, we ordered Mr. Lincoln to respond to us regarding Defendant's motion for his withdrawal before December 20, 1998. Docket Document No. 170. During this period, the Department of Justice ("DOJ") filed an Informative Motion requesting that all death penalty eligible Defendants, including Defendant Peña-González, provide a mitigation submission in preparation for the certification hearing. Docket Document No. 175.¹ As a result of the differences in opinion between Defendant and his appointed counsel and the complete lack of a working attorney-client relationship, Mr. Lincoln never filed a mitigation submission and did not attend the certification hearing. On December 17, 1998, the Attorney General certified that she would seek the death penalty against four Defendants, including Peña-González. Docket Document No. 183. On December 18, 1998, Defendant filed another motion for the withdrawal of Mr. Lincoln. Docket Document No. 185. We granted the motions for Mr. Lincoln's withdrawal on December 21, 1998. Docket Document No. 185. On December 23, 1998, we appointed Rafael Anglada-López as local counsel and William Matthewman as learned counsel for Defendant. Docket Document No. 190.

Defendant alleges that (1) he was denied learned death penalty counsel, and effectively any counsel, prior to and at the meeting in which the DOJ certified his case for capital punishment in violation of 18 U.S.C. § 3005 and Local Rule 428, and (2) the failure to have learned counsel before the DOJ committee violated his due process rights and caused him irreparable harm.

The Prosecution responds that: (1) even assuming a violation of 18 U.S.C. § 3005 and Local Rule 428, striking the death penalty is not an appropriate remedy; (2) the Attorney General's decision to authorize death penalty certification is an exercise of prosecutorial discretion under an internal DOJ policy guideline which does not confer any rights upon potential capital defendants; and (3) even assuming Defendant suffered some harm in not having learned counsel during the DOJ committee process, the harm is not irreparable since Defendant's learned counsel can, at any time prior to trial, request reconsideration of the DOJ decision.

II. Capital Cases Generally

The consideration of whether to permit the government to go forward with its proceedings for certification entails the unique gravity appropriate for capital cases. Capital punishment is qualitatively different from any other form of criminal penalty we may impose. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). With it, we deny the convict any possibility of rehabilitation and order instead his execution, the most irrevocable of sanctions. Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Its severity demands a heightened need for reliability in the determination that death is the appropriate punishment in a specific case. Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (citing Woodson, 428 U.S. at 305, 96 S.Ct. 2978). We must be, therefore, particularly sensitive to insure that unique safeguards are in place that comport with the constitutional requirements of the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment. Gregg, 428 U.S. at 187, 96 S.Ct. 2909.

III. Certification of Capital Cases

Under the Local Rules, capital cases have specific standards regarding the appointment of defense counsel, and precise requirements as to what learned counsel must accomplish to dissuade the Attorney General from seeking the death penalty. These rules are found in 18 U.S.C. § 3005 and 21 U.S.C. § 848(q)(4). Section 3005 of 18 U.S.C., as amended by § 60026 of the 1994 Act, provides:

[w]hoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign two such counsel, of whom at least one shall be learned in the law applicable to capital cases....

18 U.S.C. § 3005 (1994). Section 848(q)(4) of 21 U.S.C. states:

Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys.

21 U.S.C. § 848(q)(4).

Moreover, all capital cases in the District of Puerto Rico must abide by the provisions of Local Rule 428. As the DOJ requires certain administrative protocol to be followed in capital cases, Local Rule 428 necessitates that prosecutors file a Certificate of Death Penalty Case in any case in which the maximum possible penalty is death. Local Rule 428(2)(A). A prosecutor's notice of his intent to seek the death penalty will trigger certain rights under the Local Rules regarding the appointment of defense counsel and case management.

Indeed, the appointment of specially-qualified counsel constitutes the greatest block to a fast switch to a death penalty case. Specifically, a second attorney must be appointed to a capital defendant to join local counsel in preparing to make the submission to the DOJ. At least one attorney must be learned in the law applicable to capital cases and, when applicable, qualified according to 21 U.S.C. § 848(q)(5) or 848(q)(6). See Local Rule 428(3)-(5). To be eligible for appointment as learned lead counsel, an attorney must:

(A) be a member of this court, or be admitted to practice pro hac vice on the basis of his or her qualifications;

(B) have at least five years experience in the field of federal criminal practice;

(C) have prior experience, within the last three years, as defense counsel in the trial of no fewer than three serious and complex felony cases that were tried to completion in federal court, and have prior experience, within the last three years, as defense counsel in a capital case; and

(D) have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to the defense of capital cases.

IV. Attorney General's Hearing

The Attorney General's hearing requires many elements of preparation, each of which is time-consuming. Once the defendant is charged with an offense subject to the death penalty, or before the prosecution decides to request approval to seek the death penalty, the DOJ must give defense counsel a "reasonable opportunity to present any facts, including mitigating factors, to the United States Attorney for consideration." January 27, 1995, Memorandum from Janet Reno, ¶ B, Federal Prosecutions in Which the Death Penalty May Be Sought. In presenting the case that a sentence of death is not justified, defense counsel must carefully investigate and argue the mitigating factors listed in 18 U.S.C. § 3592 and 21 U.S.C. § 848(m). These factors include, but are not limited to: impaired capacity; duress; minor participation; equally culpable defendants; prior criminal record; mental or emotional disturbance; victim's consent; grave risk of death to additional persons; heinous, cruel or depraved manner of committing offense; procurement of offense by payment; pecuniary gain; substantial planning and premeditation; vulnerability of the victim; and use of a firearm. 18 U.S.C. § 3592(a)-(d); 21 U.S.C. § 848(m).

V. Defendant Peña-González' Motion

Defendant Peña-González' motion essentially entails a three-step inquiry: (1) whether the Sixth Amendment right to counsel extends to death penalty certification hearings;² (2) whether Defendant's constitutional rights were violated; and (3) if so, what is the appropriate remedy.

A. Right to Counsel

The Sixth Amendment guarantees to all criminal defendants the right "to assistance of counsel for [their] defense." U.S. CONST. amend. VI; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Powell...