United States Court of Appeals
For the First Circuit
No. 02-1907
IN RE QUESTER STERLING-SUÁREZ,
Petitioner,
ON MOTION TO ENFORCE MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, [U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, for petitioner.
March 4, 2003
BOUDIN, Chief Judge. In April 2002, Quester Sterling-
Suarez was indicted for federal crimes stemming from his alleged
involvement in an armed car robbery in which one of the guards was
killed. One of the charges permits the death penalty. See 18
U.S.C. § 924(j) (2000). He asked that "learned counsel" be
appointed pursuant to 18 U.S.C. § 3005 (2000); the statute
specifies that two counsel, one of whom "shall be learned in the
law applicable to capital cases," must at the defendant's request
be appointed "promptly." The district court declined the request,
ruling that appointment of learned counsel should await a
determination by the Attorney General as to whether to seek the
death penalty.
Sterling-Suarez sought mandamus from this court to compel
an immediate appointment of learned counsel. This panel determined
that the question of whether such appointments may be deferred
presented an issue of continuing importance justifying advisory
mandamus. On the merits, we concluded that statutory language
supported petitioner's reading, noting that learned counsel could
be useful in seeking to dissuade the Attorney General from seeking
the death penalty. Accordingly, we granted the writ, ordering that
"[l]earned counsel shall be appointed forthwith." In re Sterling-
Suarez, 306 F.3d 1170, 1175 (1st Cir. 2002).
Following the grant of the writ, the district court
appointed "as learned counsel" Joseph Laws, the Federal Public
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Defender for the District of Puerto Rico, as well as a second
lawyer as co-counsel. This followed a determination by the
district judge that Laws personally would qualify as learned
counsel because, other qualifications aside, he had recently served
as co-counsel in a death penalty case, albeit one that ended
without a trial. Throughout, Laws has maintained that no one in
his office had the necessary qualifications and, in addition, that
this appointment would unduly strain the limited resources of his
heavily-burdened office.1
Following his appointment, Laws filed a "motion to
enforce mandamus" which is now before us. In this document, Laws
argues that he does not qualify as "learned in the law applicable
to capital cases" under the statute and that his prior experience
as co-counsel in an untried capital case does not meet the
requirement of the "prior experience . . . as defense counsel in a
capital case" prescribed by a local rule of the district court.
P.R. Local R. 482(4). Laws urges that the district court's
designation of Laws as learned counsel is merely "ostensibl[e],"
and that a further order should be issued "to enforce" the earlier
writ.
1
Prior to the writ, Laws' office had been appointed as counsel
for petitioner without a judicial determination that anyone in the
office qualified as learned counsel; as the district court then
read the statute no such determination was required.
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What is perfectly clear is that the writ of mandamus
previously issued by this court was concerned, simply and solely,
with when learned counsel had to be appointed under the "promptly"
language of the statute. True, our order said that learned counsel
should be appointed forthwith, but an order is properly read in
relation to the decision that supports it; and "[t]he reach of the
mandate is generally limited to matters actually decided." 18B
Wright, Miller & Cooper, Federal Courts § 4478.3 (2002). Questions
as to who qualifies as learned counsel were not resolved in the
proceeding leading up to the writ, and their resolution by the
district court cannot violate our prior order.2
Whether Laws does qualify as learned counsel may well be
open to debate. But unlike the meaning of the "promptly"
requirement, the question as to the qualifications required of
learned counsel is less than clear-cut and the question whether an
individual lawyer qualifies as learned counsel may depend on
circumstances that vary markedly from case to case. The lack of
a clear answer, and the likelihood that no simple rule will dictate
answers in other cases, make this a less obvious case for mandamus.
In re Cargill, 66 F.3d 1256, 1259-60 (1st Cir. 1995); United States
v. Horn, 29 F.3d 754, 769-770 (1st Cir. 1994).
2
See, e.g., Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st
Cir.), cert. denied, 522 U.S. 952 (1997); Jones v. Lewis, 957 F.2d
260, 262-63 (6th Cir.), cert. denied, 506 U.S. 841 (1992); United
States v. Tenzer, 213 F.3d 34, 41-44 (2d Cir. 2000).
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Nothing in this decision prevents the filing of a new
mandamus petition to challenge Laws' designation as learned
counsel. But such a petition would have to begin with a showing
that this issue meets the ordinary qualifications for resolution by
mandamus. Certainly death penalty cases are different, but
Congress has not provided for automatic interlocutory appeals in
disputes as to the appointment of counsel.
Accordingly, the motion to enforce mandamus is dismissed
without prejudice to the filing, if petitioner is so inclined, of
a mandamus petition seeking to present the question of whether Laws
is qualified as learned counsel.
It is so ordered.
(Dissent follows.)
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TORRUELLA, Circuit Judge, dissenting. Today the panel
declines to enforce its mandamus ordering district court Judge
Pérez-Giménez to appoint "learned counsel" pursuant to 18 U.S.C.
§ 3005 in the capital case of Quester Sterling-Suárez. The
majority concludes that the district court did not violate our
mandate, and, that even if the court's appointment of Joseph Laws
was erroneous, this case is nevertheless inappropriate for
mandamus. I respectfully disagree. The district court is simply
not in compliance with our mandate of October 22, 2002. Therefore,
mandamus is the proper tool to ensure compliance with our mandate.
The majority explains its hesitation to enforce its
order in part by stating that the issue raised by the petition,
namely, whether Joseph Laws can qualify as "learned counsel," is
"less than clear-cut," and concludes that because the instant
petition (unlike our original mandamus) affords no obvious answer,
"this is a less obvious case for mandamus." Maj. Op. at 4. The
majority then cites two cases, In re Cargill, 66 F.3d 1256, 1259-60
(1st Cir. 1995), and United States v. Horn, 29 F.3d 754, 769-70
(1st Cir. 1994), which set a very high bar for issuance of the
writ. Id.
It is axiomatic that the remedy of mandamus is a drastic
one and should be invoked only under extraordinary circumstances.
Kerr v. United States District Court, 426 U.S. 394, 402 (1976).
That said, we issued our original mandate due the extraordinary
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circumstances of a district court's refusal to give timely effect
to a capital defendant's unambiguous statutory right to "learned
counsel." Although I respect the majority's desire to avoid
issuing the writ lightly, I disagree with the burden the majority
places on the instant petition.
The relevant question is not whether the petition
presents "a clear answer," or whether the issue raised in the
instant petition would be better raised in a new mandamus petition;
rather the sole question is whether the district court is in
compliance with our original mandate.
"One of the less controversial functions of mandamus is
to assure that a lower court complies with the spirit, as well as
the letter of the mandate issued to that court by a higher court."
In re Continental Securities Litigation, 985 F.2d 867, 869 (7th
Cir. 1992); see also 18B Wright, Miller & Cooper, Federal Practice
and Procedure § 4478.3 (2d ed. 2002) ("Enforcement [of a mandate]
also may be accomplished by mandamus, and indeed this is one of the
most nearly routine uses of this 'extraordinary writ.'"). Indeed,
where a district court fails to comply with an order of a federal
appellate court, the need for mandamus becomes more urgent and a
court's reluctance to issue the writ is proportionally diminished.
See Citibank, N.A. v. Fullam, 580 F.2d 82, 86-87 (1978) ("[Courts]
have uniformly granted such writs in one situation where the
district court has failed to adhere to an order of the court of
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appeals."). With respect, we need not consider whether the instant
petition satisfies the requirements for mandamus articulated in
cases such as Cargill and Horn, because those cases do not address
the issue of mandamus in the context of compelling a lower court to
comply with an appellate court's mandate. Because of the district
court's failure to adhere to our mandate, the standard for mandamus
here is far less onerous: if the district court has not heeded our
mandate, the writ should issue.
The question then is whether the appointment of Joseph
Laws -- an attorney who has never actually tried a capital case --
complies with our mandate that "learned counsel" be appointed
forthwith.
The first time this case came before us, we issued a writ
ordering Judge Pérez-Giménez to comply with the terms of 18 U.S.C.
§ 3005 because of a concern that the judge had adopted a policy of
delaying the appointment of "learned counsel" until the Department
of Justice notifies the court of its intent to seek the death
penalty. In re Sterling-Suárez, 306 F.3d 1170 (1st Cir. 2002); see
also United States v. Torres Gómez, 62 F.Supp.2d 402 (D.P.R. 1999)
(Pérez-Giménez, J.)(delaying appointment of "learned counsel" and
expressing frustration with expenses related to the appointment of
"learned counsel"). Our mandate was simple: "Learned counsel shall
be appointed forthwith." In re Sterling-Suárez, 306 F.3d at 1175.
Although the district court's actions compelled us to explicitly
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construe the term "promptly," our failure to precisely spell out
the meaning of each word of our six-word mandate does not mean that
those words did not constitute "matters actually decided." Maj. Op.
at 4. The term "learned" was not inserted idly, or for rhetorical
effect. When this court ordered the appointment of "learned"
counsel, I thought it meant what it said; that is, our mandate
meant that the defendant had an immediate right of access to second
counsel, and that at least one of his two attorneys should be
skilled in the law applicable to death penalty cases.
Even if our mandate simply ordered the immediate
appointment of "learned counsel" without pausing to define the term
"learned," by consulting our opinion it should have been evident to
the district court that we understood the term "learned" to mean
"skilled or practiced in the law applicable to capital cases." The
issue was undoubtedly before the Court: briefs by the petitioner
and amicus curiae stressed the level of expertise that "learned
counsel" could be expected to bring to Sterling-Suárez's defense,
and repeatedly emphasized that because there has never been a
capital case tried to completion in this district, "learned
counsel" with actual death penalty experience would need to be
imported.3 Far more important is the fact that the text of our
3
Moreover, this Court was aware that the District of Puerto
Rico has generated more than its fair share of 18 U.S.C. § 3005
litigation, see In re Sterling-Suárez 306 F.3d at 1172-73, and that
because of the district's inexperience trying capital cases,
appointing "learned counsel" can be a difficult and lengthy
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opinion clearly indicates that we considered the issue of what
qualifies as "learnedness" under section 3005. See United States
v. Cote, 51 F.3d 178, 182 (9th Cir. 1995) ("[T]he opinion delivered
by [the] court at the time of rendering its decree may be consulted
to ascertain what was intended by its mandate." (quoting In re
Salford Fork & Tool Co., 160 U.S. 247, 256 (1895)).
First, our opinion made several references to our high
expectations of "learned counsel." We noted that the purpose of
§ 3005 was that "learned counsel's" "special learning in the law
'applicable to capital cases' is likely to be especially useful in
making and supporting arguments about mitigating and aggravating
factors. . . made . . . when the jury is determining the sentence."
In re Sterling-Suárez, 306 F.3d at 1173 (emphasis added). We noted
that capital litigation was in many ways sui generis and listed by
name several federal death penalty statutes about which counsel
should be "learned." Specifically, we stated that "learned
counsel" should be familiar with the complex death penalty
procedure required by 18 U.S.C. § 3591 (2000). Additionally, we
twice noted that learned counsel would provide expertise regarding
issues involving mitigating and aggravating factors under 18 U.S.C.
§ 3592 (2000), issues which would likely be missed by otherwise
process. "Federal defendants in Puerto Rico facing a possible death
sentence must always look to the mainland for qualified legal
assistance." United States v. Colón-Miranda, 985 F.Supp. 36 (D.P.R.
1997) (Fusté, J.).
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competent attorneys who lacked experience in death penalty cases.
Id.
Second, a necessary implication of our opinion is that
"learned" signifies a substantial amount of experience in capital
litigation. We stated that the term "promptly" could not be
defined except as it refers to the event which was to promptly
occur, namely, appointment of an attorney with experience in
capital cases. As we stated: "the term 'promptly' is not self-
defining; if there were no purpose served by appointing learned
counsel . . . one could argue that the appointment should be made
promptly when it mattered and not before." Id. at 1173 (emphasis
added). That statement is an explicit finding that in order to
define the term "promptly" it was necessary to recognize the
statutory purpose for requiring the appointment of "learned
counsel." Since the purpose served by appointing "learned counsel"
is to provide capital defendants in federal court with an attorney
experienced in death penalty law, the statute's purpose was
undeniably a matter "actually decided" by this court. See Eichmann
v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir. 1989) (noting that
the mandate doctrine "encompasses a court's explicit decisions as
well as those issues decided by necessary implication").
Now, the petitioner challenges that the district court's
actions contradict the purpose of 18 U.S.C. § 3005. If the issues
of timing and purpose were so intertwined at the time of our
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opinion that neither in its own right was "self defining," I fail
to understand the majority's present contention that we never
considered this issue. In addition to our express acknowledgment
that the timing question in § 3005 was inseparably linked to the
statute's purpose, the quotations cited above provide ample
evidence that the purpose of appointing "learned counsel" was an
issue we "actually decided." Id.
Finally, to construe "learned in the law applicable to
capital cases" in a manner that does not entail actual experience
in a capital trial or appeal divests the terms "learned" and
"applicable to capital cases" of any tangible meaning. Such an
interpretation could not possibly have been our intent. Congress
plainly had more than this in mind when it amended § 3005 to
require counsel to be learned in the law "applicable to capital
cases."4 Its insertion of the phrase "applicable to capital cases"
(referenced in our opinion) was manifestly intended to require that
"learned counsel" have expertise relevant to capital litigation,
and not merely to the practice of criminal law generally. See
United States v. McCulluah, 76 F.3d 1087, 1098 (10th Cir. 1996)
(finding that the amendment to § 3005 "did not merely 'clarify' the
law but rather substantively changed it, creating a new requirement
4
In 1994, Congress amended 18 U.S.C. § 3005 by, inter alia,
substituting the phrase "learned in the law applicable to capital
cases," for the less stringent "learned in the law." 18 U.S.C.
§ 3005, amended by Pub. L. No. 103-322 § 60026 (1994).
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which previously had not existed"). At a minimum, "learned
counsel" should possess "distinguished prior experience in the
trial, appeal, or post-conviction review of federal death penalty
cases." United States v. Miranda, 148 F.Supp.2d 292, 294 (S.D.N.Y.
2001) (quotation omitted).5
In the instant petition, the appointed "learned counsel,"
Joseph Laws, argues that because he has no experience trying
capital cases, he cannot qualify as "learned counsel" under the
5
If, despite these passages from our opinion, I am wrong and
the issue of "learned counsel's" qualifications "was not resolved
in the proceeding leading up to the writ," Maj. Op. at 4, it does
not necessarily follow that this Court is powerless to address the
district court's failure to adhere to our mandate at this stage.
As several Circuits have found, courts of appeals have "the power
to issue a writ of mandamus that would resolve [controversy in the
lower court] by clarifying its previous mandate." American Trucking
Ass'ns v. ICC, 669 F.2d 957, 960 (5th Cir. 1982) (quoting City of
Cleveland v. FPC, 561 F.2d 344, 346-47 (D.C. Cir. 1977)). Such a
clarifying approach "may appropriately be utilized to correct a
misconception of the scope and effect of the appellate decision."
Id.
Indeed, clarifying our mandate so as to determine that Joseph
Laws does not qualify as "learned counsel" at this stage is
preferable to the possibility of reviewing this case on appeal
after a final decision has been rendered. The burden placed on the
defendant of showing post hoc that he was prejudiced by the
appointment of one attorney over another will, I fear, create
extraordinarily complicated legal problems for a reviewing court.
Such concerns have led the Fourth Circuit to adopt a rule that
failure to comply with § 3005 violation "gives rise to an
irrebutable presumption of prejudice." United States v. Williams,
544 F.2d 1215, 1218 (4th Cir. 1976) (quoting United States v.
Watson, 496 F.2d 1125, 1129-30 (4th Cir. 1973)); see also, United
States v. Boone, 245 F.3d 352, 360-61 n.8, 364 (4th Cir. 2001)
(vacating defendant's conviction despite potential harmlessness of
the § 3005 violation because, in the court's view, 18 U.S.C. § 3005
"would be eviscerated by application of the harmless error doctrine
[and the court] perceive[d] no alternative but to enforce it").
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statute. Further, Laws avers that by circumventing the purpose of
our mandamus, namely, the timely appointment of counsel with death
penalty experience, the district judge has not complied with our
order that "learned counsel shall be appointed forthwith." In re
Quester Sterling-Suárez, 306 F.3d at 1175.
I agree. Although the district court has purported to
comply with our order by indeed appointing counsel "forthwith,"
Joseph Laws is not "learned" under any sound interpretation of our
order, of section 3005, or of any other relevant "learned counsel"
provision. The unique skills identified in our opinion are not the
kind one might gain in the ordinary practice of federal criminal
defense. As an American Bar Association study explained, the
complex death penalty procedures articulated by § 3591, et seq.,
require that counsel "be knowledgeable about a complex body of
constitutional law and unusual procedures that do not apply in
other criminal cases." American Bar Association, Toward a More Just
and Effective System of Review in State Death Penalty Cases, 40 Am.
U. L. Rev. 1, 63 (1990). Such complexities are often missed by
lawyers lacking considerable experience litigating capital cases.
As a report from the Judicial Conference of the United States
noted, even "seasoned federal criminal lawyers who lacked death
penalty experience miss[] important issues." Subcommittee on
Federal Death Penalty Cases, Committee on Defender Services,
Judicial Conference of the United States, Federal Death Penalty
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Cases: Recommendations Concerning the Cost and Quality of Defense
Representation, at I.C.1.(May 1998) [hereinafter "Spencer Report"].
In sum, the multiple committees which have looked at this
issue have concluded that "learned counsel" "should have
distinguished prior experience in the trial, appeal, or post
conviction review of federal death penalty cases." Guide to
Judiciary Policies and Procedures, Vol. VII Ch. VI, § 6.01 B
(emphasis added); Spencer Report at II.1. Because neither Laws nor
anyone in his office has ever tried a death penalty case to
completion, there is no basis for deviating from these
recommendations in this case.
Laws' motion is not a new petition, and it does not raise
a new issue; we are asked only to enforce our own order regarding
actions by the judge to whom the order was directed. We are in a
position to decide this matter because we can accept the facts
stated in the district court's opinion as true, and all that
remains is an issue of law, namely, whether Joseph Laws can
qualify as "learned counsel." Although I believe that Laws is a
skilled and accomplished Federal Public Defender, his current
experience does not permit him to qualify as "learned counsel" in
this or any other capital case. Therefore, I conclude that despite
his appointment, the district court is not in compliance with our
mandate.
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It is both appropriate and routine for a court of appeals
to issue mandamus where a district court "fails to comply with the
spirit as well as the letter of the mandate issued . . . by a
higher court." Continental Illinois, 985 F.2 at 869. Where our
orders are issued to protect the rights of a defendant in a capital
trial, we should be especially vigilant in seeing that they are
followed. I respectfully dissent.
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