U.S. v. Rivera-Martinez

• Decision Date: 05 March 1991
• Docket Number: RIVERA-MARTINEZ,No. 90-1746,90-1746
• Citation: 931 F.2d 148
• Parties: UNITED STATES of America, Appellee, v. Hector, a/k/a El Men, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 148

931 F.2d 148

UNITED STATES of America, Appellee, v. Hector RIVERA-MARTINEZ, a/k/a El Men, Defendant, Appellant.

No. 90-1746.

United States Court of Appeals First Circuit.

Heard March 5, 1991.

Decided April 26, 1991.

Jose A. Fuentes Agostini, Hato Rey, P.R., for defendant, appellant.

R. Montague Wilkinson, Atty., Dept. of Justice, with whom Robert S. Mueller, III, Asst. Atty. Gen., Charles S. Saphos, Chief, Narcotic and Dangerous Drug Section, Margaret A. Grove, Atty., Dept. of Justice, and Daniel F. Lopez-Romo, U.S. Atty., were on brief, for appellee.

Before TORRUELLA and SELYA, Circuit Judges, and BOYLE, ^* District Judge.

SELYA, Circuit Judge.

We are called upon today to revisit the tribulations of defendant-appellant Hector Rivera-Martinez following his guilty plea to four counts of what we once described as "a multi-count indictment ... of a huge drug ring allegedly headed by Rivera-Martinez." United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir.1989). ¹ In our previous encounter with Rivera-Martinez's case, we affirmed the district court's refusal to allow him to withdraw his guilty plea, id. at 1542-43, but ruled that, as a prelude to sentencing, the court should have granted Rivera-Martinez's motion asking that, "at his own expense, [he] be allowed to have a qualified psychologist conduct a mental examination." Id. at 1545. Consequently, we vacated the defendant's sentence and remanded for further proceedings. Id. at 1546.

The defendant was subsequently examined by Dr. Cabrera, a psychiatrist, Dr. Garcia, a clinical psychologist, and Ms. Nieves, a psychologist. At a combined competency/sentencing hearing held in the district court on June 26, 1990, Drs. Cabrera and Garcia testified, as did Dr. Prieto, a physician under contract to the U.S. Marshal's Service, ² and Rivera-Martinez himself. After hearing these witnesses, and considering the arguments of counsel, the court reaffirmed its earlier refusal to permit Rivera-Martinez to withdraw his plea found him competent to be sentenced; and proceeded to impose the sentence described infra. This appeal followed.

Appellant assigns error in two respects: (1) that the court erred in refusing to allow him to retract his guilty plea, and (2) that the sentence imposed was impermissible under the Constitution. Although the first assigned error is not properly before us under the law of the case doctrine, we believe that the second assignment of error has partial merit. ³ Hence, we affirm the convictions and sentences on counts 1, 3 and 4, but vacate the conviction and sentence on count 2.

I. Law of the Case

In resolving Rivera-Martinez's prior appeal, we held unambiguously that the defendant had "advanced no fair and just reason for disclaiming his guilty plea...." United States v. Pellerito, 878 F.2d at 1543. We stated specifically that, notwithstanding the necessity for a remand on issues related to sentencing, "defendant cannot now revivify his plea-withdrawal motion." Id. at 1545. We pointed out that, since Rivera-Martinez had "opted to forgo [psychiatric] evidence as a basis for plea retraction, [he] is foreclosed from belatedly questioning [his] competency at the time of the plea." Id. at 1545-46. Thus, we remanded for the sole purpose of "litigating an issue anent [the defendant's] competency to be sentenced" and for resentencing "if the competency issue is resolved in the government's favor." Id. at 1546.

Notwithstanding this tightly circumscribed set of directions, the district court, at the appellant's urging and over the government's objection, threw the gates wide open, undertaking plenary reconsideration of the original plea-withdrawal motion. In the end, the court once again found, on the augmented record, that appellant had failed to establish a fair and just reason for retracting his plea. Rivera-Martinez seeks to challenge this finding. We have no occasion to reach the merits of the challenge, however, because the court below lacked authority to resurrect the issue. We explain briefly.

In terms of the dynamics between trial and appellate courts, the phrase "law of the case" signifies, in broad outline, that a decision of an appellate tribunal on a particular issue, unless vacated or set aside, governs the issue during all subsequent stages of the litigation in the nisi prius court, and thereafter on any further appeal. See Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). As one commentary puts it:

When a case is appealed and remanded, the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand. If there is an appeal from the judgment entered after remand, the decision of the first appeal establishes the law of the case to be followed on the second.

1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice p 0.404 (2d ed. 1991). It follows, then, that "when a case is decided by an appellate court and remanded ... any questions that were before the appellate court and disposed of by its decree become the law of the case and bind the district court on remand." United States v. Belculfine, 527 F.2d 941, 943 (1st Cir.1975). Accord Federal Deposit Ins. Co. v. Ramirez-Rivera, 869 F.2d 624, 627 (1st Cir.1989).

To be sure, the law of the case doctrine is neither an absolute bar to reconsideration nor a limitation on a federal court's power. See White v. Higgins, 116 F.2d 312, 317 (1st Cir.1940); see also Morgan v. Burke, 926 F.2d 86, 91 (1st Cir.1991) (warning against "transform[ing] 'law of the case' into a ... straitjacket for a court"). Nonetheless, this modicum of residual flexibility does not mean that the doctrine can--or should--be lightly shrugged aside. To the contrary, the doctrine is a salutary rule of policy and practice, grounded in important considerations related to stability in the decisionmaking process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy. The law of the case should be treated respectfully and, in the absence of exceptional circumstances, applied according to its tenor.

The litany of exceptional circumstances sufficient to sidetrack the law of the case is not only short, but narrowly cabined. We agree with the Fifth Circuit that issues, once decided, should not be reopened "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967). Accord Wheeler v. City of Pleasant Grove, 896 F.2d 1347, 1350 (11th Cir.1990); J.E.T.S., Inc. v. United States, 838 F.2d 1196, 1200 (Fed.Cir.), cert. denied, 486 U.S. 1057, 108 S.Ct. 2825, 100 L.Ed.2d 926 (1988); Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981); Melong v. Micronesian Claims Comm'n, 643 F.2d 10, 17 (D.C.Cir.1980); Chicago & N.W. Transp. Co. v. United States, 574 F.2d 926, 930 (7th Cir.1978); Petition of U.S. Steel Corp., 479 F.2d 489, 494 (6th Cir.), cert. denied 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973); see also United States v. Rosen, 929 F.2d 839, 842 n. 5 (1st Cir.1991) (embracing Murtha standard in applying previous ruling on same issue to codefendant's later appeal in criminal case); United States v. DeJesus, 752 F.2d 640, 642 (1st Cir.1985) (per curiam) (citing Murtha with approval in connection with related aspects of law of the case jurisprudence). The second and third furcula of the Murtha regimen are plainly inapposite here: appellant makes no assertion that any revolutionary new legal doctrine has emerged; and we specifically decided in Pellerito, 878 F.2d at 1543, that the district court's initial decision was "beyond reproof." Injustice, manifest or otherwise, is not in prospect.

Appellant stands or falls, then, on the proposition that the medical evidence accepted by the trial court on remand constituted substantially different evidence of a kind sufficient to trigger the first Murtha exception. We think he falls. The "different evidence" exception to the law of the case doctrine does not apply when a trial court gratuitously jettisons the rule in order to address an issue explicitly decided, and foreclosed, in an earlier appeal in the same case. Any other outcome would severely undermine the efficacy of the doctrine. If, by the simple expedient of flaunting the law of the case, a trial court which should have deferred to an appellate court's resolution of an issue could proceed to address the issue anew, then the doctrine would disappear into thin air. Federal jurisprudence wisely prohibits trial judges from orchestrating self-fulfilling prophecies of that sort. See, e.g., Lyons v. Fisher, 888 F.2d 1071, 1075 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2209, 109 L.Ed.2d 535 (1990); United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986); Goodpasture, Inc. v. M/V Pollux, 688 F.2d 1003, 1006 n. 5 (5th Cir.1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983).

We appreciate and respect the district judge's intentions, realizing full well his desire to be solicitous of the defendant's rights. But the road to bedlam--as well as to warmer places--is paved with good intentions. The appellant had already spent his day in court. Because the question of Rivera-Martinez's right to retract his guilty plea was decided once and for all in his first appeal, the trial judge was duty bound to adhere to that decision and stay within the scope of the remand. In the absence of exceptional circumstances, not present here, the law of the case doctrine applied. See, e.g., Rosen, 929 F.2d at 842 & n. 5; Lyons, 888 F.2d at 1075; Mazak, 789 F.2d at 581; DeJesus, 752 F.2d at 642. Hence, the judge should not have purposed to revisit the matter. ⁴

II. Double Jeopardy

On June 26, 1990, appellant was...