United States v. Acosta-Martinez

United States Court of Appeals
For the First Circuit

No. 00-2088

UNITED STATES OF AMERICA,

Plaintiff, Appellant,

v.

HECTOR OSCAR ACOSTA-MARTINEZ, A/K/A GORDO, AND
JOEL RIVERA-ALEJANDRO,

Defendants, Appellees.

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

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

Before

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

Robert J. Erickson, Department of Justice, with whom
Guillermo Gil, United States Attorney, was on brief, for

* Of the District of Northern California, sitting by
designation.
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 Comisión De Derechos
Civiles De Puerto Rico, Ciudadanos Contra La Pena De Muerte, and
Colegio De Abogados De Puerto Rico.

June 5, 2001

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 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.

1 In addition Rivera was charged with two more counts of
threatening witnesses. The indictment alleges that defendants
kidnapped Jorge Hernández Díaz, a grocer, demanded a ransom from
his son of $1 million and warned the family not to go to the
police. When the family contacted the police, the defendants,
it is alleged, shot Hernández Díaz to death, then dismembered
him with an ax, and disposed of his remains in bags dumped
alongside the road.

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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

2 The court acknowledges the assistance provided in the
amici curiae brief filed by the Comisión De Derechos Civiles De
Puerto Rico, Ciudadanos Contra La Pena De Muerte, and Colegio De
Abogados De Puerto Rico.

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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.

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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

3 The predecessor to § 3731 permitted a government appeal
from a decision sustaining a special plea in bar (when the
defendant had not been put in jeopardy) and from a decision
dismissing an indictment or arresting judgment, where the
decision was based on the invalidity or construction of the
statute on which the indictment was founded. Wilson, 420 U.S.
at 336. That language -- "based on the invalidity or
construction of the statute" -- would seem to encompass this
appeal. The present statute, § 3731, despite the vagaries of
its language, "was intended to broaden the government's appeal
rights." Id.

The parties disagree as to whether there is any double
jeopardy risk should the government be required to wait until
after a conviction to appeal from the district court's order.
We do not reach the question.

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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

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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

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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

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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

4 It is unclear whether it was dispositive for the
district court that this provision of the Puerto Rico
Constitution existed at the time of the enactment of the Puerto
Rican Federal Relations Act, or whether, in its opinion, a later
amendment to the Puerto Rico Constitution would also render the
death penalty inapplicable to federal prosecutions. The
defendants argue for the broader proposition. Under our
analysis the result is the same even if this provision of the
Constitution were enacted later.

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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" does not, by

definition, arise.

The defendants argue that Congress has not made its

intent to apply the federal death penalty to crimes committed in

Puerto Rico clear because the FDPA does not explicitly apply to

Puerto Rico. They emphasize that the proposed Constitution of

Puerto Rico provided a ban on the death penalty in 1952, at the

time Congress approved that Constitution. See 48 U.S.C. § 731.

That Constitution governs the Commonwealth's own courts, as

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state constitutions govern state courts. The approval by

Congress of the Puerto Rico Constitution did not express any

intent that federal penalties for federal crimes would apply

everywhere except Puerto Rico. "The Congressional intent behind

the approval of the Puerto Rico Constitution was that the

Constitution would operate to organize a local government and

its adoption would in no way alter the applicability of United

States laws and federal jurisdiction in Puerto Rico." Quinones,

758 F.2d at 43.

The defendants argue that Congress has been silent on

the matter and consequently, out of that silence and the

strength of Puerto Rico's concerns, we should draw the inference

that Congress viewed this as a provision that is "locally

inapplicable" to Puerto Rico under § 734. Defendants and amici

acknowledge that the default rule for questions under the Puerto

Rican Federal Relations Act is that, as a general matter, a

federal statute does apply to Puerto Rico pursuant to 48 U.S.C.

§ 734. See, e.g., Jusino Mercado v. Puerto Rico, 214 F.3d. 34,

41 (1st Cir. 2000) (extending to Puerto Rico the same immunity

enjoyed by the states under the Fair Labor Standards Act).

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Congress has instructed5 the courts to "refrain from inferring

that statutes which have limited effect upon the fifty states

silently apply with greater force to Puerto Rico." Id. at 44.

Defendants say that this default rule is overcome here because

of the strength of the interest expressed by Puerto Rico and the

embodiment of anti-death penalty sentiment in the culture of

Puerto Rico. But there is no claim, nor could there be, that

this is purely a local Puerto Rican matter in which the United

States government has no interest. The federal interest in

punishing violations of federal law is manifest. We fully

accept the strength of Puerto Rico's interest and its moral and

cultural sentiment against the death penalty; the legal issue

for the court is still one of what Congress intended.

5 "The purpose of Congress in [the Puerto Rican Federal
Relations Act and the acts of Congress authorizing and approving
the Puerto Rico Constitution] was to accord to Puerto Rico the
degree of autonomy and independence normally associated with
States of the Union." Examining Bd. of Engineers, Architects &
Surveyors v. Flores de Otero, 426 US. 572, 594 (1976), cited in
Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank,
649 F.2d 36, 40 (1st Cir. 1981) (Puerto Rico is to be treated as
a state rather than a territory for purposes of the Sherman
Antitrust Act). As said in Camacho v. Autoridad de Telefonos de
Puerto Rico, 868 F.2d 482 (1st Cir. 1989), "Congress, with . .
. exceptions not material here . . . retained full authority to
treat Puerto Rico like a state subsequent to the advent of
Commonwealth status." Id. at 487.

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 The district court focused on the language of the FDPA

which concerns the procedures to be followed before a sentence

of death may be imposed. Those procedures apply only once a

defendant has been found guilty of an offense for which a

sentence of death is provided. See id. § 3593(a). The death

sentence is not mandated; the determination once the prosecutor

opts to seek capital punishment is left to the jury. See id. §

3593(b). The FDPA does not of itself provide for the death

penalty, but merely provides for the procedures to be followed

before such a sentence is reached.

Instead, the source of the penalty, here the death

penalty, is in the substantive statutes which define the crimes

and their punishments. Those statutes (and the statutory

structure) are very clear that Puerto Rico is not exempt from

these death penalty provisions. The district court was in error

in its focus and so in error in its conclusion. Indeed, the

procedural statute does not specify any of the localities to

which it applies because it would make no sense for it to do so;

that is not the purpose of the statute. The absence of a

locational provision in the FDPA does not support the district

court's analysis, but refutes it.

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 These defendants are charged in Count Two, under 18

U.S.C. § 924(j), with intentional crimes of violence resulting

in death by firearm and in Count Three, under 18 U.S.C. §

1513(a)(1)(B), with killing in retaliation for cooperation with

the government. Both of these sections punish those crimes with

penalties which include the death penalty and both of those

crimes and the consequent penalties are explicitly made

applicable to Puerto Rico. Count Two, the firearms murder

offense, expressly applies to "the Commonwealth of Puerto Rico."

See 18 U.S.C. § 921 (governing § 924). The retaliatory killing

offense in Count Three applies not only within the United

States, but also explicitly has "extraterritorial" reach. See

18 U.S.C. § 1513(d). In addition, the federal criminal code

itself applies to the "United States", and the definition of the

"United States" for purposes of the crimes in the code includes

Puerto Rico. See 18 U.S.C. § 5. Further, both section 924 and

1513 refer to the general federal murder statute, 18 U.S.C. §

1111, which itself applies to Puerto Rico. Id. § 1111(b).

These substantive sections of the criminal statutes

express congressional intent that the death penalty apply to

federal criminal defendants so charged in Puerto Rico. But

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there are, as well, other indicia of congressional intent to

apply the death penalty to Puerto Rico. When Congress chose to

create new crimes, enacted at the same time as the FDPA (and to

which the procedural provisions of § 3591 also apply), Congress

was explicit that those new crimes, which also provided for the

death penalty, applied to Puerto Rico. See 18 U.S.C. §§

2280(e), 2281(d) (violence against maritime navigation and

violence against maritime fixed platforms). This again

illustrates that Congress expresses its intent to apply the

death penalty in the statutes which define the crime and penalty

and not in a procedural statute. The district court's reliance

on the procedural statute, § 3591, was error.

We thus conclude that Congress intended the death

penalty to apply to these federal criminal prosecutions in

Puerto Rico. The death penalty is intended to apply to Puerto

Rico federal criminal defendants just as it applies to such

defendants in the various states. This choice by Congress does

not contravene Puerto Rico's decision to bar the death penalty

in prosecutions for violations of crimes under the Puerto Rican

criminal laws in the Commonwealth courts. The choice simply

retains federal power over federal crimes. Congress has said

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that one purpose of the death penalty is to deter the commission

of heinous crimes by prospective offenders. Gregg v. Georgia,

428 U.S. 153, 183 (1976); H.R. Rep. No. 103-466, at 35 (1994),

1994 WL 107577. There is no reason to think that Congress did

not intend the death penalty to serve this purpose in Puerto

Rico as well.

This court has once before held that a provision of the

Constitution of Puerto Rico does not trump a federal criminal

statute, where Congress intends to apply the statute to Puerto

Rico. In Quinones, 758 F.2d at 41-43, this court held that the

federal wiretapping statute, which authorizes and controls the

use of wiretaps, applies to Puerto Rico despite an express

provision in the Constitution of Puerto Rico prohibiting

wiretaps, P.R. Const. Art. II, § 10. There, as here, the

Constitution of Puerto Rico governs proceedings in the

Commonwealth courts; this is true of state constitutions and

proceedings in state courts. Accord Camacho, 868 F.2d at 487.

Those constitutions do not govern the definitions or the

penalties Congress intends for federal crimes. Indeed, Puerto

Rico is not alone in its abhorrence of the death penalty. Some

twelve states join it in its views. But those state

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constitutions also do not trump federal criminal law when

Congress intends otherwise.

Because Congress was clear about its intent to apply

the death penalty to these crimes in Puerto Rico, there is no

need to resort to default rules of interpretation. Even if the

congressional intent were less clear and we applied those

default rules, the outcome would be the same, since the default

rule presumes the applicability of federal laws to Puerto Rico.

There is little reason to think that the federal interest in

defining the punishment for federal crimes would have been

considered by Congress to be a matter for local veto power.6

Constitutional Analysis

6 This court has consistently applied statutes advancing
federal interests to Puerto Rico even when Congress has been
silent on the matter. See, e.g., Examining Bd., 426 U.S. at
590; TAG/ICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172,
178 (1st Cir. 2000) (Interstate Commerce Commission Termination
Act applies to Puerto Rico); United States v. Lopez Andino, 831
F.2d 1164, 1167 (1st Cir. 1987) (statutory prohibition on
conspiracies to deprive citizens of civil rights applies to
Puerto Rico); United States v. Tursi, 655 F.2d 26, 27 (1st Cir.
1981) (assuming that Youth Corrections Act applies to Puerto
Rico); NLRB v. Sec. Nat'l Life Ins. Co., 494 F.2d 336, 337-338
(1st Cir. 1974) (National Labor Relations Act applies to Puerto
Rico).

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 We turn to the defendants' contention that Congress

lacks the power under the Due Process Clause to impose a

particular penalty for federal crimes committed in Puerto Rico.

The district court adopted this view. Its reasoning, stripped

to its essentials, is that, because the residents of Puerto Rico

may not vote for President, see Iguartua De La Rosa v. United

States, 229 F.3d 80 (1st Cir. 2000), and may not elect

representatives to the Congress, they were not represented in

the congressional decision to enact statutes which impose the

death penalty for federal crimes in Puerto Rico. The imposition

of the death penalty on federal defendants in Puerto Rico is

thus said to violate the substantive due process rights of the

United States citizens who reside in Puerto Rico.

When testing executive action, the Supreme Court has

used the "shocking to the conscience" test. See County of

Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Even assuming

such a test can be applied to congressional action otherwise

authorized by the Constitution, the test is not met here. This

court has consistently enforced a variety of federal statutes

which Congress intended to apply to Puerto Rico. See, e.g.,

Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 & n.4

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(1st Cir. 2000) (Defense Base Act applies to Puerto Rico);

United States v. Rivera Torres, 826 F.2d 151, 155 (1st Cir.

1987) (Clean Water Act applies to Puerto Rico); Caribtow Corp.

v. Occupational Safety & Health Review Comm., 493 F.2d 1064,

1065-66 & 1067-68 (1st Cir. 1974) (Occupational Safety and

Health Act applies to Puerto Rico); Moreno Rios v. United

States, 256 F.2d 68, 71-72 (1st Cir. 1958) (Narcotic Drugs

Import and Export Act applies to Puerto Rico). It cannot shock

the conscience of the court to apply to Puerto Rico, as intended

by Congress, a federal penalty for a federal crime which

Congress has applied to the fifty states.

There is no such legal constraint on Congress' ability

to impose penalties for federal crimes. There is no

disagreement that Congress has the power to apply the federal

criminal laws to Puerto Rico. With that power, of necessity,

comes the power to set the penalties for violations of those

laws. Indeed, it would be anomalous for Congress to grant the

people of Puerto Rico American citizenship and then not afford

them the protection of the federal criminal laws. The argument

made by defendants and amici is a political one, not a legal

one.

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 The order of the district court is reversed; the death

penalty notice is reinstated, and the case is remanded to the

district court for further proceedings in accordance with this

opinion.

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