US v. Acosta-Martines, ACOSTA-MARTINE

• Decision Date: 07 May 2001
• Docket Number: A,ACOSTA-MARTINE,D,RIVERA-ALEJANDR,No. 00-2088,00-2088
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Plaintiff, Appellant, v. HECTOR OSCAR/K/A GORDO, AND JOELefendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 13

252 F.3d 13 (1st Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff, Appellant, v. HECTOR OSCAR ACOSTA-MARTINEZ, A/K/A GORDO, AND JOEL RIVERA-ALEJANDRO, Defendants, Appellees.

No. 00-2088

United States Court of Appeals For the First Circuit

Heard May 7, 2001

Decided June 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

[Copyrighted Material Omitted] Robert J. Erickson, Department of Justice, with whom Guillermo Gil, United States Attorney, was on brief, for appellant.

Steven M. Potolsky for appellee Joel Rivera-Alejandro.

William D. Matthewman for appellee Hector Oscar Acosta-Martinez.

Timothy R. Macdonald, with whom Tim Atkeson and Arnold & Porter were on brief, for Amici Curiae Comision De Derechos Civiles De Puerto Rico, Ciudadanos Contra La Pena De Muerte, and Colegio De Abogados De Puerto Rico.

Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Schwarzer,^* Senior District Judge.

LYNCH, Circuit Judge.

This case raises the question of the applicability of the death penalty to defendants charged with certain federal crimes in the United States Courts in Puerto Rico.

Hector Oscar Acosta Martinez and Joel Rivera Alejandro were indicted for several federal crimes. Count One charged conspiracy to interfere with interstate commerce by extortionate means, in violation of 18 U.S.C. § 1951(a). Count Two charged using or carrying a firearm in the commission of a crime of violence which results in death under circumstances constituting first degree murder, in violation of 18 U.S.C. § 924(j). Count Three charged killing a person to retaliate against his family for providing information to law enforcement officers about the commission of a federal offense, in violation of 18 U.S.C. § 1513(a)(1)(B).¹ Counts Two and Three allege offenses under statutes which authorize the imposition of the death penalty. The government gave notice of its intention to seek the death penalty pursuant to 18 U.S.C. § 3593(a), a provision of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591-3598.

On July 17, 2000, a judge of the U.S. District Court for Puerto Rico struck the death penalty notice and forbade the government from seeking that penalty. The court held the death penalty to be inapplicable in Puerto Rico because Congress had not explicitly extended to Puerto Rico the statute governing the procedures for reaching a death penalty verdict. Further, it held that even if Congress had intended to apply the death penalty to federal defendants who are charged with such crimes in Puerto Rico, it was beyond its power to do so because Congress was obliged to respect the prohibition against the death penalty contained in the Puerto Rico Constitution. The defendants and amici² defend the court's order and also argue that there is no jurisdiction in this court to hear the government's appeal. We hold that we have jurisdiction. We now reverse the district court order and reinstate the death penalty as a possible sentence should defendants be convicted on the pertinent charges.

I. Appellate Jurisdiction

Absent explicit statutory authority, the United States has no right of appeal in a criminal case. United States v. Scott, 437 U.S. 82, 84-85 (1978); United States v. Patterson, 882 F.2d 595, 597 (1st Cir. 1989). The United States argues that such authority is granted under the Criminal Appeals Act, 18 U.S.C. § 3731, or under the "collateral order" exception to the final judgment rule, 28 U.S.C. § 1291. The government also argues that this case is appropriate for review by way of mandamus. We agree there is appellate jurisdiction.

The Criminal Appeals Act expressly authorizes appeal by the government in certain circumstances, including from:

a decision, judgment, or order . . . dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except . . . where the double jeopardy clause . . . prohibits further prosecution.

18 U.S.C. § 3731. The Act's provisions "shall be liberally construed to effectuate its purposes." Id. This reflects congressional intent to "remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337 (1975).³

This court has broadly construed what constitutes a "count" within the meaning of § 3731. For example, we have entertained a government appeal from an order striking predicate acts from a RICO count of an indictment. United States v. Levasseur, 846 F.2d 786 (1st Cir. 1988). The rationale for Levasseur was that the dismissed portion of the count established a "discrete basis for the imposition of criminal liability." Id. at 788 (citations omitted). Similarly, the Ninth Circuit held there was appellate jurisdiction under § 3731 to review an order striking forfeiture allegations from a RICO indictment. United States v. Marubeni Am. Corp., 611 F.2d 763, 764-65 (9th Cir. 1980).

Two courts of appeals have interpreted § 3731 to permit a government appeal from a pretrial order, as here, striking the death penalty from an indictment. United States v. Woolard, 981 F.2d 756 (5th Cir. 1993), concluded that an order striking the death penalty "was in every practical way as much of an alteration from the grand jury's charge as the striking of predicate acts" and thus "removed a discrete basis of criminal liability." Id. at 757. In United States v. Cheely, 36 F.3d 1439 (9th Cir. 1994), the Ninth Circuit held there was appellate jurisdiction under § 3731 to review an order striking the death penalty. Id. at 1441.

Review of the district court's order here is authorized by § 3731. By striking a statutorily authorized penalty, the district court effectively dismissed a significant portion of the counts against the defendants -- the type of order appealable under Levasseur. The order appealed from has significant consequences for the trial of the case, consequences every bit as important as the consequences from striking a count in an indictment. The order affects not merely the sentence. By prohibiting a capital prosecution and thus rendering inapplicable the FDPA, the district court's order materially altered the conduct of trial. As Cheely noted, a defendant in a capital case is entitled to extra peremptory challenges, Fed. R. Crim. P. 24(b), and to have two attorneys represent him, 18 U.S.C. § 3005 (1988). See 36 F.3d at 1441. The government, in turn, may seek a "death qualified" jury. Id. Sentencing in a capital case is presumptively decided by the jury, 18 U.S.C. § 3593(b), in a bifurcated proceeding. The district court's order here upset those procedures. We think the effect of the order here is sufficiently like the effects from the categories of orders as to which § 3731 permits an appeal that this appeal falls well within the scope of Congress' intent in § 3731. Cf. United States v. Flemmi, 245 F.3d 24, 25 (1st Cir. 2001).

This case would also be within our mandamus jurisdiction, if there were no statutory jurisdiction. This is one of those "rare cases in which the issuance of an order presents a question about the limits of judicial power, poses a risk of irreparable harm to the appellant, . . . [and] the order poses an elemental question of judicial authority." Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99-100 (1st Cir. 2001). Mandamus jurisdiction is particularly appropriate where, as here, the issue presented is novel, of great public importance, and likely to recur. In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982). This court has exercised mandamus jurisdiction over government appeals from orders which preclude the government from pursuing the sentence it seeks, even orders as to sentences which do not hold the consequences for the conduct of trial that this order does. See Patterson, 882 F.2d at 600. Mandamus will not issue unless the order is palpably erroneous. United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994). We turn to the merits.

II. Congressional Intent to Apply the Death Penalty to Federal Criminal Prosecutions in Puerto Rico

The district court reasoned that a provision of the Puerto Rican Federal Relations Act, 48 U.S.C. §§ 731-916, adopted in 1950, required the conclusion that the death penalty did not apply to Puerto Rico for these federal criminal offenses. The pertinent language, at section 9 of the Act, provides:

The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States . . . .

48 U.S.C. § 734. The district court concluded that the death penalty was "locally inapplicable" to Puerto Rico because the Constitution of Puerto Rico provides at Article II, Section 7 that:

The right to life, liberty, and the enjoyment of property is recognized as a fundamental right of man. The death penalty shall not exist. . . .

P.R. Const. Art. II, § 7.⁴

The creation of the Commonwealth granted Puerto Rico authority over its own local affairs; however, "Congress maintains similar powers over Puerto Rico as it possesses over the federal states." United States v. Quinones, 758 F.2d 40, 43 (1st Cir. 1985). The questions of whether a statute applies to Puerto Rico and the meaning to be given to the phrase "locally inapplicable" are matters of congressional intent. Puerto Rico v. Shell Co., 302 U.S. 253, 258 (1937). When determining the applicability of a federal statute to Puerto Rico, courts must construe the language, if plausible, "to effectuate the intent of the lawmakers." Id. The parties agree on this proposition. The role of the federal court on this issue is restricted to determining that intent. If Congress has made clear its intent that a federal statute apply to Puerto Rico, then the issue of whether a law is otherwise "locally inapplicable"...