United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 18, 2005
February 14, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-20080
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TYRONE MAPLETOFT WILLIAMS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:
This federal death penalty case returns to this court for
the second time in less than a month. We have jurisdiction under
either the collateral order doctrine or, alternatively, in
mandamus. We have expedited the consideration of this case to
enforce our previous mandamus order that this case should proceed
expeditiously to trial. Because the district court has improvised
a procedure at odds with the Federal Death Penalty Act, we VACATE
the order of the district court that the case proceed to trial with
a non-death-penalty-qualified jury, and re-order that the case
proceed promptly to trial.
BACKGROUND
A detailed explanation of the background of this case is
available in our earlier mandamus opinion, In re United States, __
F.3d __, 2005 WL 57696 (5th Cir., Jan. 12, 2005).
Pertinent to the matter now before us, this court granted
the government’s petition for mandamus only a month ago to prevent
the district court from giving an unauthorized jury instruction,
harmful to the government, as a sanction for its refusal to comply
with the court’s also-unauthorized discovery orders. This court
vacated the discovery orders and ordered the district court to
proceed immediately to trial. Moreover, our order indicated that
it should be read to
include[] using the current [death penalty qualified]
jury pool, each member of which has obeyed his civic duty
and gone through the laborious process of completing the
questionnaires submitted by counsel. If trial is not
commenced within thirty days, the Government may seek
further mandamus relief to that end.
Id., 2005 WL 57969 * 5 n.8. On January 21, 2005, Williams’s
petition for panel rehearing and petition for rehearing en banc
were denied and the mandate issued.
Back in the district court, however, the case did not
proceed to trial. The district court agreed to stay the trial
while Williams sought certiorari review in the Supreme Court of the
United States. When informed of the delay this would cause, the
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judge stated that if the government took longer than a week to
respond to Williams’s certiorari petition, she was “letting the
jury go.” Hr’g Tr., Jan. 24, 2005, at 49. The judge told the
parties that she was presiding over another criminal trial
scheduled to begin April 1, 2005, and which was expected to last
over four months, and that if that case began first, the parties
would need to “get in line.” Id. at 52. Concerned about the
possibility that the district court would release the 250-person
venire pool, and thus violate the explicit order of this court, the
government moved to commence jury selection and requested a status
conference.
Williams filed a response opposing the government’s
motion to commence jury selection, in which he reasserted a motion,
previously denied, that requested the court to empanel a non-death
penalty-qualified jury to hear the guilt/innocence phase of trial.
At the status conference on Friday, February 4, 2005, the district
court revisited this motion and granted it. In so doing, the
district court asserted that “good cause” existed under 18 U.S.C.
§ 3593(b)(2)(C) (discussed infra) to proceed to trial the following
Monday with a non-death penalty-qualified jury. The district court
ruled that the “good cause” consisted of “[t]he case management
problems that have arisen in this case because of the government’s
interlocutory appeal of this court’s discovery rulings.” Status
Conf. Tr. at 19.
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The United States objected to this ruling as inconsistent
with the Federal Death Penalty Act. The district court rejected
this objection and declined to enter a stay. The United States
filed a timely notice of appeal and requested a stay from this
court February 4, 2005. We granted that stay on February 5 to
review the instant appeal.
JURISDICTION
This court has appellate jurisdiction pursuant to the
collateral order exception to the final judgment rule or, alterna-
tively, as a matter of mandamus.1
“An appealable collateral order is an order that
conclusively resolves an issue separate from the merits of the
controversy, is effectively unreviewable on appeal from final
judgment, and is too important to be denied review.” Arnold v.
State Farm Fire and Cas. Co., 277 F.3d 772, 776-77 (5th Cir. 2001)
(citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.
Ct. 1712, 1718, 135 L.Ed.2d 1 (1996)). Although use of the
collateral order doctrine is ordinarily very limited in criminal
cases, interlocutory review may be heard to address “an asserted
right the legal and practical value of which would be destroyed if
it were not vindicated before trial.” United States v. Bird, 709
1
It is arguable that the court’s order is appealable
pursuant to 18 U.S.C. § 3731 as, in effect, a “dismissal” of the
death eligible portion of the indictment. See U.S. v. Frye, 372
F.3d 729, 733-34 (5th Cir. 2004). We need not reach this
possibility, however.
4
F.2d 388, 391 (5th Cir. 1983) (internal citations omitted).
Finality of a district court’s collateral order exists when it is
“made with the expectation that [it] will be the final word on the
subject addressed.” Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271, 277 (1988).
The district court’s decision to order immediate trial
before a non-death penalty-qualified jury satisfies all three
requirements of the collateral order doctrine. First, the district
court’s order conclusively resolved that Williams’s guilt would be
tried before a non-death penalty-qualified jury. Second, the
decision involved a key determination made by the district judge
concerning the procedure imposed by the Federal Death Penalty Act.
That issue, whether a unitary jury is required unless one of four
statutorily described circumstances is present, is unrelated to the
merits of the case and is likely to recur. Third, the order is
effectively unreviewable at the government’s instance on appeal if
the defendant is not convicted of capital murder, or, if having
been convicted of capital murder, he is not sentenced to death.
In the alternative, mandamus is appropriate. Cf. United
States v. Whittaker, 268 F.3d 185, 193 (3d Cir. 2001) (“[W]e point
out that if we found that we did not have appellate jurisdiction,
we could and would exercise mandamus jurisdiction.”). Under the
All Writs Act, 28 U.S.C. § 1651, three requirements must exist
before a writ of mandamus will issue: “(1) the party seeking
issuance of the writ must have no other adequate means to attain
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the relief he desires; (2) the petitioner must satisfy the burden
of showing that his right to issuance of the writ is clear and
indisputable; and (3) even if the first two prerequisites have been
met, the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.”
In re United States, 2005 WL 57969, at *5 (quoting Cheney v. United
States District Court for the District of Columbia, __ U.S. __, 124
S. Ct. 2576, 2587 (2004) (additional citations and quotations
omitted)).
Hence, if jurisdiction does not lie under the collateral
order doctrine, mandamus jurisdiction would exist. The district
court’s bifurcated jury order is essentially unreviewable, and
based on our analysis of the Federal Death Penalty Act, the
Government has a clear and indisputable right to relief. A writ of
mandamus is also appropriate given the seriousness of the issue,
the trial court’s plainly erroneous interpretation of the statute,
and the fact that this court specifically invited the Government to
seek further mandamus relief in the event the district court failed
to comply with our previous order.
DISCUSSION
A. Federal Death Penalty Act
The Federal Death Penalty Act, 18 U.S.C. § 3593,
establishes explicit procedures for juries in federal capital
cases. A bifurcated procedure is used under which the
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guilt/innocence phase of trial is separated from the sentencing
phase. If a jury trial is conducted during the first phase, the
sentencing hearing “shall be conducted — before the jury that
determined the defendant’s guilt.” Id. at § 3593(b)(1) (emphasis
added). Only in four limited circumstances may a different or new
jury be empaneled solely for sentencing: (A) where the defendant
pleads guilty; (B) where “the defendant was convicted after a trial
before the court sitting without a jury”; (C) where “the jury that
determined the defendant’s guilt was discharged for good cause”; or
(D) where, after initial imposition of the sentence,
reconsideration is necessary. Id. at § 3593(b)(2)(A)-(D).
Last October, the district court denied Williams’s motion
to empanel a non-death-qualified jury for the guilt/innocence
phase. Reversing herself on February 4, she invoked subsection
(b)(2)(C) and granted that request to balance the government’s
desire for a speedy trial with Williams’s plea to await the outcome
of his certiorari petition. The judge invoked “case management
problems” as sufficient “good cause” under this provision. In two
ways, this determination violated the plain language of the Federal
Death Penalty Act.2 As noted, the law provides in mandatory terms
2
When interpreting statutes, we begin with the plain
language used by the drafters. See Crandon v. United States, 494
U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990).
Furthermore, each part or section of a statute should be
construed in connection with every other part or section to
produce a harmonious whole. See Administaff Companies, Inc. v.
New York Joint Bd., Shirt, & Leisurewear Div., 337 F.3d 454, 456
(5th Cir. 2003).
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that the same jury shall be empaneled for both phases of the trial.
This language aligns practice under the federal death penalty law
with the general practice in capital cases, which are ordinarily
tried before a unitary jury. As Williams concedes, constitutional
challenges by defendants to unitary capital jury procedures have
failed.3 The procedure prescribed by the statute is both
compelling and compelled.
Second, the court’s ruling misinterprets the narrow
exception to a unitary jury requirement adopted in § 3593(b)(2)(C).
The provision states:
The hearing shall be conducted . . . before a jury
empaneled for the purpose of the [sentencing] hearing if
. . . the jury that determined the defendant’s guilt was
discharged for good cause.
The “good cause” language pertains to discharging a jury that has
already decided the defendant’s guilt. To reach this language, or
the scenario contemplated by the statute, a motion would need to be
3
See Gregg v. Georgia, 428 U.S. 153, 158, 160, 96 S. Ct.
2909, 2918-20, 49 L.Ed.2d 859 (1976); see also Spaziano v.
Florida, 468 U.S. 447, 464, 104 S. Ct. 3154, 3165, 82 L.Ed.2d 340
(1984) (the Supreme Court is “unwilling to say that there is any
one right way for a State to set up its capital sentencing
scheme”). Further, using two juries would result in duplicative
presentation of evidence, impose burdens on witnesses, and create
the potential for inconsistent decisions between the two jury
panels. See, e.g., Lockhart v. McCree, 476 U.S. 162, 181, 106 S.
Ct. 1758, 1769, 90 L.Ed.2d 137 (1986) (“[I]t seems obvious to us
that in most, if not all, capital cases much of the evidence
adduced at the guilt phase of the trial will also have a bearing
on the penalty phase; if two different juries were to be
required, such testimony would have to be presented twice, once
to each jury. . . . repetitive trials could not be consistently
fair to the [sovereign] and perhaps not even the accused.”).
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made following a determination of guilt by the jury after trial.
For example, if the jury found the defendant guilty, and then,
before the sentencing phase, certain members were disqualified
because of their exposure to outside influences, a district court
could entertain a motion to discharge the jury and could find “good
cause” to grant such a motion. The provision does not allow a
pretrial option for a bifurcated jury.
We reject Williams’s associated argument that he can or
did “waive” the provision for a unitary jury. Williams frames the
procedural question as one of “discretion, not an issue of rights
. . . .” Where there is no statutory right, however, there can be
no waiver. The plain language of the statute confers no right on
a defendant to choose a unitary or bifurcated jury, although it
does allow him to forgo a jury altogether in the guilt/innocence
phase (pursuant to consent by the government and approval of the
court under FED. R. CRIM. P. 23), or with the government’s agreement
in the penalty phase. Id. at § 3593(b)(3). The very existence of
such explicit alternatives, together with the narrow circumstances
specified for a bifurcated jury, demonstrate that Congress intended
to give no option, only commands, with regard to a unitary jury.
Finally, Williams argues that choosing a death penalty-
qualified jury would be prejudicial to him were his pending
petition for certiorari granted.4 Williams contends that
4
Williams’s pleadings in the trial court also purported to
rely on a recent federal district court decision, now on appeal,
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proceeding in compliance with our mandamus order may result in
wasted time and resources if that process is later halted by the
Supreme Court. This argument is unavailing. The mandate of the
previous order has issued and controls unless the Supreme Court
says otherwise. If Williams wished to prevent voir dire from going
forward, he could have petitioned the Supreme Court for a stay of
trial pending resolution of his certiorari petition. He has not
done so.
Alternatively, as the government urged to the district
court, the court could have undertaken the selection of a death-
qualified jury but delayed swearing in the jury, and triggering
jeopardy, until the Supreme Court disposes of the certiorari
petition. A grant of certiorari would afford a valid ground for a
stay and for the court to decline to swear in the jury. A denial
of certiorari, of course, would not affect the continuation of
proceedings. Williams’s request that the district court judicially
amend the Federal Death Penalty Act to resolve this procedural non-
problem is unfounded.
that authorized a bifurcated jury in a death penalty case.
United States v. Green, 343 F. Supp. 2d 23 (D. Mass. 2004),
appeal filed, No. 05-1014 (1st Cir., Jan. 27, 2005). The Green
court justified its ruling in part on a statistical proffer
concerning the probability of exclusion of black jurors in
Massachusetts from a death-qualified jury. Williams suggested
that, given a chance for discovery, he would make a similar
proffer in this case. It is too late. He made his initial
motion for a bifurcated jury last October. He has forfeited this
claim of error by failing to pursue it further in the district
court or in this court.
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B. Request to Reassign
In one paragraph of its appellate brief, the government
has requested this court to exercise supervisory power to order
reassignment of this case. The government cites this court’s
caselaw concerning the extraordinary remedy of reassignment, but it
does not argue explicitly how the standards set forth in the
caselaw apply here. For that reason alone, we must deny the
government’s request at this time. See, e.g., See Fed. R. App. P.
28(a)(9)(A) & (B); Foster v. Townsley, 243 F.3d 210, 212 n.1 (5th
Cir. 2001) (issues inadequately briefed are deemed waived); U.S. v.
Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000) (same).
It is imperative to note, however, that the district
court’s actions in response to the prior mandamus petition could
arguably be construed as having thwarted this court’s order that
the case proceed to trial “within thirty days” of January 12, 2005.
Our order was entered in light of two facts. First, 250 citizens
have had to fill out onerous death-penalty-jury questionnaires and
have been kept at bay, unable to conduct their lives on a normal
schedule, pending their being called for this case. Second, the
government indicated that many witnesses who are aliens are being
detained in this country until the trial occurs. See, e.g., In re
United States, 2005 WL 57969, at *10 n.18. Because of these facts,
time is more than usually of the essence in completing the trial.
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We decline to draw the conclusion that the court acted
other than in good faith with respect to our order. Nor are we
persuaded that the court is unable to exercise impartial judgment
as this prosecution continues. Cf. United States v. Andrews, 390
F.3d 840, 851 (5th Cir. 2004) (removing and reassigning to a
different judge where the trial judge exhibited “brazen antagonism”
to both the controlling law and the defendant himself during
sentencing). But these considerations do not change the facts.
Consequently, we again insist that the case proceed to jury
selection and trial as soon as possible, unless stayed by the
United States Supreme Court, with the jury pool prepared for a
death penalty case. If the court finds itself unable to comply
with this order consistent with the court’s docket management
plans, we are confident that the court will entertain a motion to
reassign the cases in order to move this one expeditiously to
trial. The district’s court order is VACATED, the stay is LIFTED,
and the case is REMANDED for further proceedings not inconsistent
with this opinion.
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