United States Court of Appeals
For the First Circuit
No. 07-1662
UNITED STATES OF AMERICA,
Appellant,
v.
RODNEY LOPEZ-MATIAS, EDUARDO RIERA-CRESPO,
and RAYMOND ALERS-SANTIAGO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Smith,* District Judge.
John Alex Romano, Attorney, Criminal Division, United States
Department of Justice, with whom Rosa E. Rodriguez-Velez, United
States Attorney, and Antonio R. Bazán, Assistant United States
Attorney, were on brief, for appellant.
John R. Martin, with whom Martin Brothers, P.C. was on brief,
for appellee Rodney Lopez-Matias.
David A. Ruhnke, with whom Ruhnke & Barrett was on brief, for
appellee Eduardo Riera-Crespo.
Steven M. Potolsky for appellee Raymond Alers-Santiago.
April 10, 2008
*
Of the District of Rhode Island, sitting by designation.
HOWARD, Circuit Judge. In this carjacking case, the
district court ruled that the government could not seek the death
penalty, citing the government's failure to abide by its own
policies and by local court rules. The government appeals.
Finding appellate jurisdiction over the matter, we hold that the
district court abused its discretion when it failed to consider
whether there was prejudice to the defendants. We can discern no
prejudice on the record. Accordingly, we vacate the district
court's order striking the Notice of Intent to Seek a Sentence of
Death.
1. Facts
In November, 2006, a federal grand jury in Puerto Rico
indicted Rodney Lopez-Matias, Eduardo Riera-Crespo, and Raymond
Alers-Santiago for conspiracy to commit carjacking through deadly
force and carjacking resulting in death.1 The indictment contained
a "Notice of Special Findings" for each defendant, laying out
findings that qualified the case for the death penalty as well as
statutory aggravating factors. See 18 U.S.C §§ 3591 & 3592. The
government never filed a Certificate of Death Penalty Case
1
18 U.S.C. § 371 concerns conspiracy, 18 U.S.C. § 2119 concerns
carjacking, and 18 U.S.C. § 2119(3) concerns carjacking resulting
in death.
-2-
("Certificate"), as required by District of Puerto Rico Local
Criminal Rule 144.2(b) ("Local Rule").2
In December, the government provided four days' notice of
a meeting of the Attorney General's Committee on Capital Cases
("Capital Review Committee") to be held December 22, 2006, at which
defendants could present mitigating evidence. Riera-Crespo was
still at large. The other two men had appointed counsel, but not
the "learned counsel" required for capital cases.3 Lopez-Matias's
counsel asked the government to delay the meeting until learned
counsel had been appointed, but the request was denied. No one
presented any mitigating evidence at the meeting.
Riera-Crespo was apprehended just before the end of 2006.
On January 17, 2007, Assistant United States Attorney Bazán wrote
to each defense attorney, directing that any "information or
argument that counsel wishes to present as a basis for not seeking
the death penalty . . . should be submitted . . . forthwith."
Learned counsel had been appointed for Lopez-Matias and Alers-
2
"Upon the filing of a Criminal Complaint or Indictment in a
case in which the maximum possible penalty is death, the United
States Attorney shall file with the Clerk of Court, a Certificate
of Death Penalty Case, thereby identifying the criminal matter as
a capital case for purposes of this Rule." Local Rule 144.2(b).
The rest of Local Rule 144.2 similarly concerns appointment of
counsel and case management in capital cases.
3
"Learned counsel" is shorthand for the "counsel learned in the
law applicable to capital cases" required by statute. See 18
U.S.C. § 3005; see also District of Puerto Rico Local Rule
144.2(d).
-3-
Santiago at that point, but only a few days previously. Riera-
Crespo was not provided learned counsel until January 19, two days
after AUSA Bazán's letter.
Two weeks later, on January 31, the Attorney General
authorized the United States Attorney to seek the death penalty.
Accordingly, the government filed a Notice of Intent to Seek a
Sentence of Death ("Notice") on February 6, 2007. The defendants
all moved to strike the Notice, on the ground that they had been
denied a meaningful opportunity to present mitigating evidence.
The district court heard argument about the motion to
strike on February 21, 2007. At the hearing, the government again
offered the defendants a chance to present mitigating evidence and
seek reconsideration, an offer the government repeated at oral
argument before us. The district court struck the Notice, citing
two grounds in its written Opinion and Order dated February 22,
2007: first, because the defendants had no meaningful chance to
present mitigating evidence before the government made its
decision; and second, because the government failed to follow the
Local Rule and file the Certificate.4 The government appeals.
4
Although the district court referred to the importance of
representation of learned counsel "at such a critical stage in the
proceedings" as the Capital Review Committee meeting, we do not
read the Opinion and Order as finding that the Capital Review
Committee meeting is a "critical stage" in the proceedings as that
term is used in Sixth Amendment right-to-counsel analysis. See,
e.g., Maine v. Moulton, 474 U.S. 159 (1985). The defendants have
not briefed the issue and declined an invitation to raise it at
oral argument. We explicitly declined to address this question in
-4-
2. Jurisdiction
This court has appellate jurisdiction where a district
court strikes a Notice.5 United States v. Acosta-Martinez, 252
F.3d 13, 16 (1st Cir. 2001).6 In Acosta-Martinez we reasoned that
in dismissing the Notice, "the district court effectively dismissed
a significant portion of the counts against the defendant." Id. at
17. We acknowledge the imprecision of this analogy, but we deem it
adequate for the purposes of jurisdiction and standard of review.
3. Standard of Review
When the district court dismisses an indictment or a
portion thereof, we review conclusions of law de novo, factual
findings for clear error, and the ultimate ruling for abuse of
discretion. See United States v. Kelley, 402 F.3d 39, 41 (1st Cir.
2005) (review of dismissal based on violation of the Interstate
Agreement on Detainers); United States v. Maxwell, 351 F.3d 35, 40
(1st Cir. 2003) (review of denial of motion to dismiss for
violation of Speedy Trial Act). We agree with the parties that the
In re Sterling-Suárez, 306 F.3d 1170, 1173 (1st Cir. 2002). We
will not address it here.
5
We have appellate jurisdiction, so we do not accept the
parties' invitation to consider mandamus.
6
The four other circuits to have considered the matter have
come to the same conclusion. See United States v. Frye, 372 F.3d
729, 734 (5th Cir. 2004); United States v. Quinones, 313 F.3d 49,
57 (2d Cir. 2002); United States v. Bass, 266 F.3d 532, 535-36 (6th
Cir. 2001), rev'd on other grounds, 536 U.S. 862; United States v.
Cheely, 36 F.3d 1439, 1441 (9th Cir. 1994).
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same standards apply here, where the district court has stricken
the Notice.
4. Local Rule 144.2(b)
The district court struck the Notice primarily based on
the violation of Local Rule 144.2(b), a matter it raised sua
sponte. The Local Rule provides that "[u]pon the filing of a
Criminal Complaint or Indictment in a case in which the maximum
possible penalty is death, the United States Attorney shall file,
with the Clerk of Court, a Certificate of Death Penalty Case . . .
." District of Puerto Rico Local Rule 144.2(b). The language of
the Local Rule is mandatory, but the government nonetheless failed
to file the Certificate.7
Local court rules carry the force of law. See Air Line
Pilots Ass'n v. Precision Valley Aviation, 26 F.3d 220, 224 (1st
Cir. 1994). But like other laws, they operate within the context
of the law as a whole. So it is that 28 U.S.C. § 2071(a), which
both grants and constrains the rule-making power of the courts,
directs that "rules shall be consistent with Acts of Congress and
7
In its Opinion and Order, the district court wrote that the
government had made a "decision to flout" the Local Rule. Other
than the bare fact that the Certificate was never filed, the record
contains no suggestion of intentional noncompliance. The district
court did cite two other cases in the last ten years where it
struck a Notice. See United States v. Gómez-Olmeda, 296 F. Supp.
2d 71, 90 (D.P.R. 2003); United States v. Rosado-Rosario, 1998 U.S.
Dist. LEXIS 673, at *6 (D.P.R. January 15, 1998). While the facts
of these two cases remain troubling, they do not cast the current
facts as a "decision to flout" the Local Rule.
-6-
[federal rules of practice, procedure and evidence]."8 Id.; see
also United States v. Panzardi Alvarez, 816 F.2d 813, 818 (1st Cir.
1987) (District of Puerto Rico Local Rule invalid insofar as it
prevents criminal defendant from having choice of attorney and
thereby conflicts with Sixth Amendment).
In reviewing the dismissal of the Notice, we are mindful
of Rule of Criminal Procedure 52(a): "Any error, defect,
irregularity or variance that does not affect substantial rights
must be disregarded." Id. The Supreme Court in Bank of Nova
8
There is, of course, another source of rulemaking power: the
"inherent power" of the courts. See Stern v. United States Dist.
Court, 214 F.3d 4, 13 (1st Cir. 2000) (citing Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991)). That power enables the courts "to
impose silence, respect, and decorum, in their presence, and
submission to their lawful mandates." Anderson v. Dunn, 19 U.S.
204, 227 (1821) (pointing out that statutory provisions for
contempt sanctions must be duplicative of or refinements to this
inherent power). But the inherent power, too, must be exercised in
the larger context of law as a whole. "[W]hen courts exercise the
supervisory power, they must respect the balance of interests
struck by conventional application of the legal doctrines governing
the particular problem in the particular case." United States v.
Santana, 6 F.3d 1, 11 (1st Cir. 1993). And the inherent power of
the courts must be exercised sparingly. Chambers, 501 U.S. at 44;
United States v. Ohio Power Co., 353 U.S. 98, 105 (1955) (Harlan,
J., dissenting) ("The past practice of the Court shows that its
inherent powers have always been exercised most sparingly.");
Mullane v. Chambers, 333 F.3d 322 (1st Cir. 2003) ("Nevertheless,
because of their very potency, inherent powers must be exercised
with restraint and discretion, and thus should be used sparingly
and reserved for egregious circumstances." (internal quotation
marks and citations omitted)). To tap this deeper source of power
requires a deeper well, and the district court did not conclude
that without this sanction its authority would be usurped. We
therefore analyze the dismissal of the Notice under the statutory
rule-making power, a power bounded according to its own terms by
the rules of criminal procedure and the Constitution.
-7-
Scotia v. United States, 487 U.S. 250 (1988), held that a district
court could not dismiss an indictment for errors that involved no
prejudice. Id. at 263. So it must be as well with the striking of
the Notice.9
"As a general matter, a district court may not dismiss an
indictment for errors in grand jury proceedings unless such errors
prejudiced the defendants." Bank of Nova Scotia, 487 U.S. at 254.
Here, the district court did not make a finding of prejudice, and
that legal error is a per se abuse of discretion. Koon v. United
States, 518 U.S. 81, 100 (1996) ("A district court by definition
abuses its discretion when it makes an error of law."); Rosario-
Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003) ("An
error of law is, of course, an abuse of discretion.").
In Bank of Nova Scotia, the Court indicated that its
conclusion would not reach cases of prosecutorial misconduct, or
9
Dismissal of the Notice is not as extreme as dismissal of an
indictment. The government may still seek a conviction and the
serious penalty of life imprisonment. However, our appellate
jurisdiction, as noted above and as we held in Acosta-Martinez, 252
F.3d at 16, is based on the language in the Federal Appeals Act
giving us power to hear appeals from orders "dismissing an
indictment or information," 18 U.S.C. § 3731. We evaluate the
district court's action in striking the Notice the same way the
Supreme Court has directed us to evaluate a district court's
dismissal of an indictment. But we acknowledge that here the
remedy is not so "drastic," United States v. Soto-Beníquez, 356
F.3d 1, 30 (1st Cir. 2004), "extraordinary," United States v.
Hemmer, 729 F.2d 10, 13 (1st Cir. 1984), "draconian," United States
v. Joselyn, 99 F.3d 1182, 1196 (1st Cir. 1996), or "extreme,"
United States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994), as the
outright dismissal of serious criminal charges.
-8-
other situations "in which the structural protections of the grand
jury have been so compromised as to render the proceedings
fundamentally unfair . . . ." Id. at 257. Here, the district
court suggested no actual, let alone structural, prejudice caused
by lack of the Certificate. But in its Opinion and Order the
district court, as we have observed, did describe the government's
behavior as a "decision" to "flout" the Local Rule, and pointed to
previous cases in which similar behavior had taken place. Should
a district court be faced with misconduct or with a structural flaw
rendering the process fundamentally unfair, we acknowledge the
possibility that striking the Notice might be an appropriate
sanction. Such are not the facts here, however, as we have said.
5. United States Attorneys' Manual
The district court agreed with the defendants that they
had not been provided a meaningful opportunity to present
mitigating evidence before the government filed the Notice, as
required by the United States Attorneys' Manual ("Manual"). The
Manual contains guidelines for determining whether to seek the
death penalty. United States Attorneys' Manual §§ 9-10.010 -
10.190. These are widely known as the "death penalty protocols."
Under the death penalty protocols, defense counsel must be provided
a "reasonable opportunity" to present mitigating evidence to the
United States Attorney before he or she makes a recommendation
whether to seek the death penalty. Id. at § 9-10.050. If the
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United States Attorney recommends seeking the death penalty, the
Capital Review Committee also reviews the case and makes a
recommendation. Id. at § 9-10-120. The Committee can also review,
on its own initiative, any case in which the United States Attorney
recommends against seeking the death penalty.10 Id. This procedure
culminates in recommendations to the Attorney General, who decides
whether to seek the death penalty. The Manual then in force
provided that counsel "shall be provided an opportunity" to present
mitigating evidence to the Capital Review Committee.11 And the
section entitled "Review of Recommendations Not to Seek Death
Penalty" warns that "[n]o decision to seek the death penalty shall
be made without affording defense counsel an opportunity to present
evidence and argument in mitigation . . . ." Id. at § 9-10.055.
We need not consider whether counsel had such an
opportunity here. The Manual by its terms makes those procedures
mandatory. But the first page of that manual warns that the
guidelines do not create any rights.
10
Therefore the filing of the Notice might be against the
recommendation of the United states Attorney responsible for the
case.
11
The current Manual replaces this language with an admonition
that "[n]o final decision to seek the death penalty shall be made
if defense counsel has not been afforded an opportunity to present
evidence and argument in mitigation." Id. at § 9-10.120. While we
note that this seems to be a stronger statement, the change makes
no difference to our analysis. Concluding as we do that the Manual
confers no substantive rights on criminal defendants, it does not
matter how strong the statement in the Manual might be.
-10-
The Manual provides only internal Department
of Justice guidance. It is not intended to,
does not, and may not be relied upon to create
any rights, substantive or procedural,
enforceable at law by any party in any matter
civil or criminal. Nor are any limitations
hereby placed on otherwise lawful litigative
prerogatives of the Department of Justice.
United States Attorneys' Manual, § 1.100. As the district court
acknowledged, we have held that similar Department of Justice
guidelines, "not mandated by statute or the constitution, do not
confer substantive rights on any party." United States v.
Craveiro, 907 F.2d 260, 264 (1st Cir. 1990). Other Circuits have
held the same to be true of the Manual. See United States v. Lee,
274 F.3d 485, 493 (8th Cir. 2001) (United States Attorneys' Manual
not enforceable by individuals); Nichols v. Reno, 124 F.3d 1376,
1376 (10th Cir. 1997) (defendant has no "protectable interest" in
enforcement of death penalty protocols); United States v. Myers,
123 F.3d 350, 355-56 (6th Cir. 1997) ("[A] violation by the
government of its internal operating procedures, on its own, does
not create a basis for suppressing . . . grand jury testimony.");
United States v. Gillespie, 974 F.2d 796, 800-02 (7th Cir. 1992);
United States v. Busher, 817 F.2d 1409, 1411-12 (9th Cir. 1987).
While some administrative regulations do create rights in third
parties, see United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260, 267 (1954), those governing prosecutors enjoy greater
flexibility because the exercise of prosecutorial discretion is a
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"core executive constitutional function," United States v.
Armstrong, 517 U.S. 456, 465 (1996).
We conclude that a violation of the Manual, by itself,
would not give rise to the sanction imposed here. We are reluctant
to interfere with internal prosecutorial measures by elevating
internal guidelines to the level of a guarantee to defendants. Our
reluctance stems from a respect for the separation of powers, and
also from practical concerns. If the government were to be
punished for violations of its own internal guidelines, it would be
more likely to write less exacting guidelines, or none at all.
Because we determine that a simple violation of the
Manual does not create a basis for dismissing the Notice, we
decline to reach the issue of whether these facts constitute a
breach of the death penalty protocols. We therefore express no
opinion about whether four days' notice of a meeting held before
the appointment of learned counsel would constitute a "reasonable
opportunity," nor do we consider whether AUSA Bazán's invitation to
submit mitigating information and argument after the meeting would
have cured such a defect, if one existed.
This is not to say that a finding of systemic violation
of the Manual or of prosecutorial misconduct in failure to abide by
the Manual could never give rise to any sanction. It is only to
say that, standing alone, the government's failure to follow the
procedures set forth in the Manual cannot serve as the basis for
-12-
the sanction imposed here. We have, when confronted with "the
violation of a policy which does not justify a case-related
judicial sanction and yet which appears immune to expressions of
judicial dissatisfaction," indicated that we will refer such
violations to the Department of Justice's Office of Professional
Responsibility, and require of that Office "a report concerning the
steps the Department proposes to take to police its internal policy
guidelines and to discipline those of its employees who choose not
to follow them." United States v. Pacheco-Ortiz, 889 F.2d 301,
310-11 (1st Cir. 1989) (per curiam).
6. Prejudice
The district court went beyond its allowable discretion
in striking the Notice without making a finding that prejudice was
caused by the government's breach of the Local Rule. Further, a
prejudice finding would confront three interrelated obstacles.
First, it appears as though the purpose of the Local Rule was met
in this case. Second, any prejudice to the defendants caused by
the inability to present mitigating evidence at the Meeting would
have to be traceable to some other violation of a rule or statute,
as the Manual that mandates the Meeting is not a source of rights.
Finally, the government has repeated its offer to allow the
defendants another chance to present mitigating evidence. In order
for there to be prejudice to the defendants, this second chance
-13-
must be somehow defective in this particular case, a matter
difficult to judge in the abstract.
Prejudice to the defendants, in the context of grand jury
irregularities, exists when "it is established that the violation
substantially influenced the grand jury's decision to indict, or if
there is grave doubt that the decision to indict was free from the
substantial influence of such violations." Bank of Nova Scotia,
487 U.S. at 256 (internal quotation marks omitted). By analogy,
the defendants must show that the violation complained of, here the
government's failure to file the Certificate, substantially
influenced the Attorney General's decision to authorize the death
penalty, or that there is grave doubt that the decision was free of
such influence.12
We can discern no prejudice because the only identified
purpose of the Local Rule was met by other means. The district
court mentioned only one purpose of the Local Rule but implied that
there were others: "One of the purposes of this rule is to provide
clear notice to defendants and the court that the defendants have
been charged with death-eligible crimes and, therefore, may be
entitled to certain rights, such as the right to learned counsel."
The Certificate may indeed have other purposes but none are
12
Should constitutional rights be implicated the standard might
well be different. See Chapman v. California, 386 U.S. 18, 24
(1967). But the defendants do not complain of constitutional
violations.
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identified in the Opinion and Order nor in the text of the Local
Rule itself. "Clear notice" itself may provide defendants with
benefits other than timely appointment of learned counsel, but
again none are identified.
Learned counsel was appointed even without the
Certificate. And timely filing of the Certificate would not on
these facts have enabled learned counsel to prepare for the
mitigation meeting on December 22, nor for later submission of
mitigating evidence in January as outlined in AUSA Bazán's letter.
Below, the defendants argued for a 270-day continuance to conduct
a mitigation investigation. If the Certificate had been filed and
learned counsel somehow appointed the day the defendants were
arrested, there would have been less than two months to prepare for
the meeting. Assuming the 270-day request was a good-faith
estimate of the required time, two months would have been
inadequate from the defendants' perspective.13 And for Riera-
Crespo, who was not even in custody when the December 22 meeting
took place, failure to file the Certificate could have made no
practical difference. Even if learned counsel could be appointed
for a defendant who has not yet been arrested, a mitigation
investigation -- a highly personalized, fact-specific inquiry about
13
At oral argument, learned counsel attested that six months to
one year is required to assemble and present mitigation evidence.
-15-
the defendant's past and present circumstances -- likely could not
be meaningfully conducted without the defendant's input.
There might indeed be prejudice in the defendants'
inability to present mitigating evidence at the Meeting or to
obtain a postponement of the Meeting. But there is nothing at this
stage in the proceedings to indicate that compliance with the Local
Rule would have changed this circumstance. Nor is there any way to
determine whether the mitigating evidence, had any been presented,
would have changed the government's decision.
If there were any prejudice, and that prejudice stemmed
from the violation of the Local Rule or another valid source of
rights, it might still be cured by the government's later
reconsideration. The government offered, in the letter and at the
hearing, to allow the defendants more time to submit mitigating
evidence.14 If that opportunity constitutes a real second chance --
as good as the first -- to influence the government's decision, it
is hard to imagine how the defendants could have been prejudiced by
missing the initial meeting. See Frye, 372 F.3d at 741 (noting
that later submission of mitigating evidence might obviate any
prejudice stemming from the inability to present evidence before
the filing of the Notice). The district court made the pragmatic
assessment that getting the government to change a decision already
14
The government reiterated at oral argument that it is still
willing to entertain mitigating evidence.
-16-
made is necessarily harder than getting it to decide in one's favor
in the first place. True as this observation may be, it is
nevertheless an insufficient basis, on the current record, to
support a finding of prejudice. That is because, in order to show
prejudice, the defendants would have to identify some substantive
mitigating evidence that might have altered the government's
decision to seek the death penalty. The defendants have identified
no such evidence in this case.
It is possible that the chance for reconsideration is no
substitute for the ability to present mitigating evidence at the
original Meeting. The United States Attorneys' Manual instructs
reviewers to "limit the evaluation to determining if the changed
facts and circumstances, had they been known at the time of the
initial determination, would have resulted in a decision not to
seek the death penalty." Id. at § 9-10.150. Thus, according to
the Manual, there is no precedential weight to the earlier decision
in a reconsideration, and the defendant is not required to carry a
heavier burden than at the original determination. But the
government cannot rely on this provision of the Manual as a
guarantee of no prejudice. The Manual, as the government argues
elsewhere, confers no substantive rights on defendants. Should the
defendants put forward new substantive mitigating evidence at a
reconsideration, then perhaps the efficacy of the reconsideration
process can be meaningfully questioned. We note that, even should
-17-
the reconsideration prove prejudicial, the defendants would still
have to prove that the prejudice was caused by the violation of the
Local Rule. We are at a loss to imagine how this might be the
case, but we leave open the possibility.
The district court is clearly aware of the solemnity of
proceedings that might result in an execution. We do believe that
when the stakes are so high, a smaller quantum of prejudice may
justify a sanction. And, as discussed above, striking the Notice
is not quite as serious as dismissing the indictment altogether,
and so perhaps still less prejudice is required. We are also
mindful that the mere possibility of a death sentence has serious
effects. It changes the bargaining calculus in plea negotiations,
see In re Sterling-Suárez, 306 F.3d at 1172,15 alters the structure
and procedure of the trial itself, see Acosta-Martinez, 252 F.3d at
16, and may represent a shift in the course of events that is
impossible to undo. But there must be some prejudice: the threat
of an execution does not transform criminal procedure into a
tightrope, on which any misstep forfeits the government's right to
seek the statutorily authorized punishment of its choosing.
15
The Manual does state, "The death penalty may not be sought,
and no attorney for the Government may threaten to seek it, solely
for the purpose of obtaining a more desirable negotiating
position." Id. at § 1-10.110. This statement is, of course, an
implicit recognition of the power of a possible death sentence to
induce a guilty plea. It should also function as a safeguard
against misuse of the death penalty authorization in this way. But
it would be fantasy to think the admonition dilutes the negotiating
leverage created by the threat of capital punishment.
-18-
7. Conclusion
Because the United States Attorneys' Manual cannot create
substantive rights for defendants, and because the district court
did not allude to any prejudice caused by the government's failure
to abide by District of Puerto Rico Local Rule 144.2(b), the Order
striking the Notice of Intent to Seek a Sentence of Death is
vacated. The Notice is reinstated, subject to further proceedings
consistent with this opinion.
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