U.S. v. Robinson

• Decision Date: 05 January 2007
• Docket Number: Docket No. 06-2014-cr.
• Citation: 473 F.3d 487
• Parties: UNITED STATES of America, Appellee, v. Ronald ROBINSON, Dennis Crosby, Victor Wright, Nicole Brown, Irving Lorenzo, Christopher Lorenzo, MI Records, IG Records, Cynthia Brent, Vash-Ti Paylor, and Emanuel Mosley, Defendants, Kenneth McGriff, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

473 F.3d 487

UNITED STATES of America, Appellee, v. Ronald ROBINSON, Dennis Crosby, Victor Wright, Nicole Brown, Irving Lorenzo, Christopher Lorenzo, MI Records, IG Records, Cynthia Brent, Vash-Ti Paylor, and Emanuel Mosley, Defendants, Kenneth McGriff, Defendant-Appellant.

Docket No. 06-2014-cr.

United States Court of Appeals, Second Circuit.

Argued: August 7, 2006.

Decided: January 5, 2007.

David A. Ruhnke (Jean D. Barrett, on the brief), Ruhnke & Barrett, Montclair, NJ, for Defendant-Appellant Kenneth McGriff.

Barbara D. Underwood, Counsel to the United States Attorney (Linda A. Lacewell Carolyn Pokorny, Assistant United States Attorneys, of counsel) for Roslynn R. Mauskopf, United Sates Attorney for the Eastern District of New York, for Appellee United States of America.

Before B.D. PARKER, WESLEY, and HALL, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

Appellant Kenneth McGriff, a defendant in a capital murder case pending in the United States District Court for the Eastern District of New York, challenges an April 13, 2006 order of the court (Block, J.) denying his motion to strike the government's death penalty notice. United States v. McGriff, 427 F.Supp.2d 253 (E.D.N.Y.2006) (amended memorandum and order). McGriff contends that the death notice was not provided a reasonable time before the trial as required by the Federal Death Penalty Act, 18 U.S.C. § 3593(a).¹ We dismiss for lack of appellate jurisdiction.

BACKGROUND

In January 2005, a grand jury indicted McGriff and several of his co-defendants for, inter alia, murder in aid of racketeering under 18 U.S.C. § 1959, making them eligible for the death penalty. Superseding indictments over the course of the next year added charges of murder-for-hire under 18 U.S.C. § 1958(a), which also authorizes the death penalty. The last superseding indictment, which set forth factors supporting the death penalty for each defendant, was handed down in March 2006. See McGriff, 427 F.Supp.2d at 259.

Department of Justice policy requires the United States Attorney prosecuting such a case to submit a recommendation on whether to pursue the death penalty to the Attorney General, who makes the final determination. See id. at 257. If the government ultimately decides it will seek the death penalty, it must comply with § 3593(a), which requires the government attorney to give notice to that effect to the defendant, and to file it with the court, "a reasonable time before the trial or before acceptance by the court of a plea of guilty." 18 U.S.C. § 3593(a). The notice must:

(1) stat[e] that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and

(2) set[ ] forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death. Id.

The district court first set a trial date of March 6, 2006 for McGriff and four co-defendants, but stated that the date was "contingent on the case proceeding as a non-capital case." 427 F.Supp.2d at 259 (internal quotation marks omitted). In January 2006, the government sought an adjournment because it had not yet submitted death penalty recommendations to the Attorney General. See id. at 260. The district court rescheduled the trial for April 3, 2006, on the assumption that the government would not seek death sentences. The U.S. Attorney's recommendations were not submitted to Washington until February 24, 2006. The Attorney General authorized the death penalty for all five defendants on March 21. See id. at 260-61. The government filed death notices the following day.

On March 23, all five defendants, including McGriff, jointly moved to strike the notices on the ground that they did not comply with § 3593(a)'s "reasonable time" requirement. See id. at 256. On April 4, after the district court had postponed the trial date to consider the motions, the government withdrew its death penalty notices against all defendants except McGriff, leaving for the court's consideration only McGriff's motion to strike. See id. After hearing oral argument, the district court denied McGriff's motion, and set forth its reasoning in a written opinion issued on April 13. Id. The court reasoned that even though the notice had not been given a reasonable time before trial, and thus violated § 3593(a), the appropriate remedy for the untimely notice in this case was not to strike the notice but to grant a continuance. Accordingly, the court severed McGriff's case from his co-defendants' and determined that a new trial date would be set.

In considering whether a violation of § 3593(a) had occurred, the district court partially endorsed the Fourth Circuit's reasoning in United States v. Ferebe, 332 F.3d 722 (4th Cir.2003). In Ferebe, the court concluded that the proper way to analyze challenges to the timeliness of a death penalty notice is through a pre-trial inquiry into the objective reasonableness of the timing. Id. at 724. This conclusion was dictated by the court's treatment of the right to be free from untimely notice under § 3593(a) as a right "not to be tried." See id. at 731. Since any post-trial remedy would, by definition, be inadequate to protect such a right, the Ferebe court reasoned that the only permissible remedy for untimeliness is to strike the notice prior to trial. See id. at 730.

The district court agreed with Ferebe's "objective reasonableness" formulation, and found that post-trial considerations of whether the defendant had suffered "actual prejudice" should not determine the issue of untimely notice. 427 F.Supp.2d at 267.² The court concluded, however, that once a violation of § 3593(a) has occurred, striking the notice is not the only viable remedy. Cf. Ferebe, 332 F.3d at 749 (Niemeyer, J. dissenting); United States v. Pepin, 367 F.Supp.2d 315, 318 (E.D.N.Y. 2005) ("Unpersuasive is Ferebe's suggestion that a court may not effectively address the concerns raised by a motion to strike a death notice as untimely by postponing the trial."). The court disagreed with the assertion in Ferebe that § 3593(a) created a right not to stand trial in a capital case except on reasonable notice, and for that reason rejected the notion that a court could not effectively address concerns about an untimely death notice by postponing the trial.

Rather than proceed along this path, the district court analogized the question of remedies under § 3593(a) to the Supreme Court's analysis in Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which addressed the remedies available for violations of the right to a speedy trial. See 427 F.Supp.2d at 268; but cf. Ferebe, 332 F.3d at 734 (rejecting an analogy between the § 3593(a) right and the speedy trial right). The district court's decision to grant a continuance rather than striking the notice was based in part on its finding that McGriff was "responsible for a good portion of the time it took the U.S. Attorney to make her recommendations, as his mitigation memorandum was not filed until December 9, 2005, almost 11 months after he was first indicted." 427 F.Supp.2d at 271. McGriff challenges this finding, arguing that the district court's remedy was inappropriate.

DISCUSSION

As a court of appeals, our jurisdiction is limited to reviewing "final decisions of the district courts of the United States." 28 U.S.C. § 1291. In criminal cases, this means we ordinarily lack jurisdiction to review decisions made before sentencing is complete and a judgment of conviction has been entered. See United States v. Olmeda, 461 F.3d 271, 278 (2d Cir.2006); United States v. Helmsley, 864 F.2d 266, 268 (2d Cir.1988). Recognizing this principle, McGriff maintains that he is entitled to appeal under the now familiar "collateral order" doctrine. This doctrine allows for interlocutory review of decisions that fall within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Pursuant to the collateral order doctrine, we may review "a preliminary or interim decision . . . when it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." Sell v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (internal quotation marks and alterations omitted); see also Olmeda, 461 F.3d at 278.

We have recognized that, "[i]n criminal cases, the final judgment rule is at its strongest." United States v. Wallach, 870 F.2d 902, 905 (2d Cir.1989) (internal quotation marks omitted). The rule reflects a "firm congressional policy against interlocutory or `piecemeal' appeals," and avoids delays which "are especially inimical to the effective and fair administration of the criminal law." Abney v. United States, 431 U.S. 651, 656-57, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (internal quotation marks omitted). Accordingly, the Supreme Court has interpreted the collateral order doctrine "`with the utmost strictness' in criminal cases," and has narrowly limited its application in such cases. Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (noting that the Court has "found denials of only three types of motions to be immediately appealable: motions to reduce bail, motions to dismiss on double jeopardy grounds, and motions to dismiss under the Speech or Debate Clause" (citations omitted)); see also United States v. Weiss, 7 F.3d 1088, 1089 (2d Cir.1993); Wall...