United States Court of Appeals
For the First Circuit
No. 05-1014
UNITED STATES OF AMERICA,
Appellant,
v.
DARRYL GREEN ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
___________________
No. 05-1151
IN RE UNITED STATES,
Petitioner.
____________________
PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
____________________
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Steven L. Lane, Attorney, Appellate Section, Criminal
Division, U.S. Dep't of Justice, with whom Michael J. Sullivan,
United States Attorney, Theodore B. Heinrich and Lori J. Holik,
Assistant United States Attorneys, were on brief, for appellant.
Max D. Stern, with whom Randolph Gioia, Elizabeth Billowitz,
Sarah Jennings Hunt, William Brennan, and Brennan, Trainor, Billman
& Bennett, LLP were on brief, for appellee Darryl Green.
Max D. Stern, with whom Patricia Garin, Kenneth M. Resnik,
Jeffrey Wiesner, Stern, Shapiro, Weissberg & Garin, LLP, David P.
Hoose, and Katz, Sasson, Hoose & Turnbill were on brief, for
appellee Branden Morris.
John H. Cunha, Jr., with whom George F. Gormley, Christie M.
Charles and George F. Gormley, P.C. were on brief, for appellee
Jonathan Hart.
John H. Cunha, Jr., with whom Stephen Super and Cunha &
Holcomb, P.C. were on brief, for appellee Edward Washington.
Judith H. Mizner on brief for Federal Defender Office, amicus
curiae.
May 12, 2005
SELYA, Circuit Judge. The district court, presiding over
a complex multi-count, multi-defendant capital case, issued a
pretrial order calling for the empanelment of two separate juries:
one to determine guilt and the other, totally different in
composition, to determine whether to impose the death penalty.
Before us, the government asserts that the Federal Death Penalty
Act (FDPA) forbids this binary course of action. We conclude that
the district court's unprecedented order presents a basic,
previously undecided question of substantial public importance and,
accordingly, entertain the government's petition for advisory
mandamus. Exercising that jurisdiction, we proceed to correct and
countermand the district court's erroneous interpretation of the
FDPA.
I. BACKGROUND
In 2003, a federal grand jury sitting in the District of
Massachusetts charged five men in a seventeen-count superseding
indictment. The golconda of charges included racketeering, 18
U.S.C. § 1962(c); racketeering conspiracy, id. § 1962(d); murder in
aid of racketeering, id. § 1959(a)(1); and conspiracy to commit
murder in aid of racketeering, id. § 1959(a)(5). Four of the five
defendants — Darryl Green, Branden Morris, Jonathan Hart, and
Edward Washington — are parties to this proceeding. We focus
exclusively on them.
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The indictment alleged that the foursome were all members
of the Esmond Street Posse, variously described as a Boston street
gang or criminal enterprise, which was engaged in peddling
marijuana and crack cocaine. Count Sixteen of the indictment
charged Green and Morris, but not Hart or Washington, with the
murder of one Terrell Gethers in aid of racketeering. Under the
controlling statute, 18 U.S.C. § 1959(a)(1), that was a capital
charge, carrying a potential penalty of death for the two affected
defendants.
In response to a flurry of severance motions, see Fed. R.
Crim. P. 14, the district court ruled that the capital defendants
should not be tried together. United States v. Green, 324 F. Supp.
2d 311, 324-25 (D. Mass. 2004) (Green I). Relatedly, the court
decreed that Hart would be tried with Green and that Washington
would be tried with Morris. Id. at 326-28. These rulings brought
to the fore a concern previously voiced by the non-capital
defendants, Hart and Washington, who had posited that it would be
unfair to force them to trial before a death-qualified jury.
We pause to place this concern into proper perspective.
The Supreme Court has held that, in a capital case, the government
may exclude from jury service those individuals whose personal
opposition to the death penalty is such that it would prevent or
substantially interfere with their ability to apply the law.
Wainwright v. Witt, 469 U.S. 412, 424 (1985). The process of
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winnowing out such conscientious objectors in jury selection is
known as death-qualification.
A capital case potentially involves two separate trial
phases. In the first phase, the jury determines whether the
capital defendant is guilty of the crime(s) charged. If the
defendant is convicted of a capital offense, a second proceeding
ensues to determine whether that offense, under the circumstances
of the case, warrants the death sentence. As a single jury
normally hears both the guilt and penalty phases, death-
qualification occurs as part of the original jury empanelment.
The defendants in this case insist that the process of
selecting a single death-qualified jury to consider both the guilt
and penalty phases has the correlative effect of putting a jury in
the box that will be more prone to convict. To support this
notion, the defendants proffered below statistical evidence
purporting to indicate that African-Americans were significantly
underrepresented in the local jury venire and that death-
qualification would further reduce the possibility that any
African-Americans — a group more likely to oppose the death penalty
than non-African-Americans — would be able to serve on the jury.
The defendants also tendered statistical evidence indicating a
similar, though less pronounced, effect as to potential female
jurors. The defendants then submitted studies purporting to show
that death-qualified jurors are significantly more likely to
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convict than non-death-qualified jurors. Hart and Washington
argued that these perceived consequences of death-qualification
were particularly unfair as applied to defendants who were not
themselves facing the death penalty.
In responding to these plaints, the district court
conceded that the defendants (including the non-capital defendants)
had no constitutional entitlement to a non-death-qualified jury.
See Green I, 324 F. Supp. 2d at 330 (citing Buchanan v. Kentucky,
483 U.S. 402 (1987)). The court, however, did not stop there; it
viewed the defendants' importunings as raising a case management
issue within the realm of trial court discretion. Id.
Noting the concerns enumerated by the non-capital
defendants along with the potential strain on judicial resources
that would accompany a further proliferation of the number of
trials needed, the court devised two potential solutions and
invited briefing on them. One entailed selecting a single jury
(including the maximum number of alternates) for each trial, but
deferring death-qualification until after the guilt phase had
concluded. If a capital conviction ensued, the court would then
attempt to death-qualify the jury before the penalty phase began
and, if the number of remaining jurors and alternates fell below
the requisite twelve, would discharge that jury and empanel a new,
death-qualified jury exclusively for the penalty phase. Id. at
331. The second proposal contemplated selecting two distinct
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juries at the outset, one (non-death-qualified) to hear the guilt
phase and the other (death-qualified) to hear the penalty phase.
Id.
In the briefing that followed, the government denigrated
both options and the defendants lobbied for the second. On
November 3, 2004, the district court ordered two juries empaneled
for each of the scheduled trials (one to adjudicate guilt and the
second, if needed, to fix the nature of the penalty). United
States v. Green, 343 F. Supp. 2d 23, 25 (D. Mass. 2004) (Green II).
The court determined that the applicable provision of the Federal
Death Penalty Act, 18 U.S.C. § 3593(b), did not require a unitary
jury. Id. Even if it did, the court held, the defendants were
entitled to waive the requirement. Id.
The government appealed this order and filed a protective
petition for a writ of mandamus under the All Writs Act, 28 U.S.C.
§ 1651(a). We turn first to the jurisdictional question and then
to the merits of the lower court's order.
II. APPELLATE JURISDICTION
The government's roadmap to review traces several
possible avenues through which our jurisdiction may attach. We can
entertain an interlocutory appeal, the government says, because the
order appealed from is a collateral order, that is, an order that
conclusively determines an important legal question, which is
completely separate from the merits of the underlying action and is
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effectively unreviewable by means of a archetypical end-of-case
appeal. See, e.g., Rhode Island v. U.S. EPA, 378 F.3d 19, 25 (1st
Cir. 2004) (noting circumstances in which interlocutory orders are
immediately appealable under the collateral order doctrine); In re
Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire
Litig., 982 F.2d 603, 608-09 (1st Cir. 1992) (similar); see also
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
We view the use of the collateral order doctrine as
problematic in the circumstances of this case. This court has been
wary of creating running room for back-door attempts to evade the
longstanding rule that appeals by the government in criminal cases
must be specifically authorized by statute. See United States v.
Watson, 386 F.3d 304, 307-08 (1st Cir. 2004); United States v.
Kane, 646 F.2d 4, 5-7 (1st Cir. 1981). This wariness arises, in
part, because of a realization that criminal matters are different
— and special concerns counsel against permitting government
appeals in criminal cases under the collateral order doctrine. See
United States v. Horn, 29 F.3d 754, 768-69 (1st Cir. 1994). Among
them are "speedy trial and double jeopardy concerns." Id. at 768;
see also United States v. McVeigh, 106 F.3d 325, 330-32 (10th Cir.
1997) (per curiam) (citing Horn and noting that the "principal
prudential bases are the avoidance of undue delay, and the
avoidance of harassment" (citations omitted)).
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At a bare minimum, then, allowing a government appeal to
go forward by way of the collateral order doctrine in a criminal
case requires both that "the conditions of the collateral order
doctrine are satisfied, and [that] the prudential concerns that
traditionally militate against allowing the government to appeal in
a criminal case favor, or are at least neutral in respect to, the
availability of a government appeal." Horn, 29 F.3d at 769. This
court has found such concerns overcome only on rare occasions, such
as where, prior to the entry of the order appealed from, guilt has
been determined, sentence imposed, "and no prospect of piecemeal
litigation endures." Id. at 768-69. Because it is arguable how
these prudential concerns cut in this case, we question whether an
appeal from a dual jury order in a criminal case comes within the
narrow purview of the collateral order doctrine. This doubt is all
the more profound because of our uncertainty about whether an order
affecting sentencing procedure can be considered "completely
separate" from the merits of the underlying action. See Sell v.
United States, 539 U.S. 166, 176 (2003) (permitting collateral
appeal in criminal case when issue was wholly distinct from
"questions concerning trial procedures"); McVeigh, 106 F.3d at 328,
332 (holding order barring victim-impact witnesses from observing
guilt phase of capital trial not sufficiently separate from merits
of case); United States v. Patterson, 882 F.2d 595, 599 (1st Cir.
1989) (holding that the "sentencing process . . . is an integral
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aspect" of a criminal case and "is not in any sense independent of
the main course of the prosecution" (citations and internal
quotation marks omitted)).
In the final analysis, we need not definitively resolve
the appealability question. Review is available, in our
discretion, by way of mandamus. We explain briefly.
Broadly stated, there are two types of mandamus. The
more common is supervisory mandamus. See, e.g., In re Atlantic
Pipe Corp., 304 F.3d 135, 139-40 (1st Cir. 2002); Horn, 29 F.3d at
769 & n.19. That strain of mandamus generally is limited to
situations in which the party seeking the writ has a clear
entitlement to relief, yet is threatened with irreparable harm
should that relief be delayed or deferred. See, e.g., In re
Sterling-Suárez, 306 F.3d 1170, 1172 (1st Cir. 2002); In re
Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995). The defendants
argue that neither requirement is met here — and they are probably
correct with respect to the second requirement.
The government suggests that it shares an interest with
the public at large in seeing that the courts properly apply the
FDPA — an interest that would be irreparably harmed if the district
court proceeded with dual juries despite a contrary statutory
command. This suggestion lacks force. If a blow to the public
interest caused by a court's erroneous interpretation of a
statutory provision were to constitute irreparable injury, the bar
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would be set so low as to render the requirement superfluous. As
Justice Rehnquist wrote, "to issue a writ of mandamus under such
circumstances would undermine the settled limitations upon the
power of an appellate court to review interlocutory orders." Will
v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978) (plurality op.)
(citation and internal quotation marks omitted).
The second type of mandamus — known as advisory mandamus
— is more apt in the circumstances at hand. Mandamus, in any form,
is an extraordinary remedy, but advisory mandamus is available only
in a tiny subset of cases. Such cases are those that present novel
questions of great significance which, if not immediately
addressed, are likely to recur and to evade effective review.
Horn, 29 F.3d at 769. The aim of advisory mandamus, then, is to
settle substantial questions of law in circumstances that "would
assist other jurists, parties, [and] lawyers." Id. at 770. To
obtain relief under this species of mandamus, the petitioner does
not need to show irreparable harm. See Atlantic Pipe, 304 F.3d at
140.
This case lends itself to an application of the advisory
mandamus doctrine. The district court's interpretation of section
3593(b) is unprecedented, and it hardly needs explaining why proper
death penalty procedure is of great importance to the
administration of justice. If the propriety of the district
court's interpretation is not evaluated here and now, it would very
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likely evade review. On the one hand, if successive juries convict
and then impose the death penalty, the government will not be able
to appeal this favorable verdict, see United States v. Moran, 393
F.3d 1, 12 (1st Cir. 2004), and the defendants, having urged the
district court to abandon a unitary jury in favor of dual juries,
could not be heard to complain about this procedural innovation,
see United States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990)
(holding that a criminal defendant cannot complain of invited
error). On the other hand, if the first jury acquits or the second
jury declines to impose capital punishment, the defendants will
have no incentive to appeal and double jeopardy principles will
prevent the government from doing so. See Watson, 386 F.3d at 308;
see also Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003)
(noting that "the Double Jeopardy Clause [applies] to capital-
sentencing proceedings where . . . the prosecution [must] prove
certain statutorily defined facts beyond a reasonable doubt to
support a sentence of death").1
To cinch matters, the question will almost certainly
recur. There is a longstanding belief in certain quarters, shared
by the defendants in this case, that an accused's guilt or
innocence is likely to be judged less harshly by a non-death-
qualified jury. Indeed, a federal district court in Texas already
1
To be sure, a defendant might be able to test, by an end-of-
case appeal, an order refusing to constitute dual juries. However,
that is not the type of order with which we are confronted.
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has relied on the procedural innovation implemented in this case as
precedent for issuing a similar order in a different capital case.
See United States v. Williams, 400 F.3d 277, 282 & n.4 (5th Cir.
2005) (per curiam) (vacating district court's order).
Consequently, we deem this case an appropriate candidate for the
exercise of our advisory mandamus authority.
III. ANALYSIS
The district court's primary justification for its dual
jury order rests with its interpretation of the relevant section of
the FDPA. The court concluded that 18 U.S.C. § 3593(b) permits a
court to decide, before trial commences, that good cause exists to
discharge the original jury once it has adjudicated the defendant's
guilt and then empanel a new jury for the penalty phase. Green II,
343 F. Supp. 2d at 30; Green I, 324 F. Supp. 2d at 331. As a
secondary ground, the court held that if the statute does require
a unitary jury to be empaneled at the outset of the trial, the
defendant may unilaterally waive that requirement. See Green II,
343 F. Supp. 2d at 30-31; Green I, 324 F. Supp. 2d at 331-32.
18 U.S.C. § 3593(b) provides that if a defendant is found
guilty or pleads guilty to a capital offense, there "shall" be a
separate sentencing hearing. Id. The statute further provides
that "[t]he hearing shall be conducted before the jury that
determined the defendant's guilt." Id. § 3593(b)(1). The statute
proceeds to carve out a series of exceptions. These contemplate
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that the penalty phase may be conducted before a jury empaneled for
that purpose alone if — and only if — one of four circumstances
obtains:
(A) the defendant was convicted upon a plea of
guilty;
(B) the defendant was convicted after a trial
before the court sitting without a jury;
(C) the jury that determined the defendant's
guilt was discharged for good cause; or
(D) after initial imposition of a sentence
under this section, reconsideration of the
sentence under this section is
necessary . . . .
Id. § 3593(b)(2). Finally, the statute provides that the penalty
phase may be tried "before the court alone, upon the motion of the
defendant and with the approval of the attorney for the
government." Id. § 3593(b)(3).
The question before us concerns the proper interpretation
of section 3593(b)(2)(C). The government argues that this is a
narrow jury-discharge provision that only comes into play if, after
a finding of guilt, good cause to discharge the original jury
arises. The defendants argue that this is a broader, more
malleable provision, one that should be construed against the
backdrop of a trial court's extensive case management powers. On
this basis, the defendants exhort us to hold that section
3593(b)(2)(C) requires only that the discharge of the guilt phase
jury must occur before a new penalty phase jury is empaneled. As
a necessary corollary of this interpretation, the defendants reason
that the district court may decide at any time — even in advance of
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trial — that it will discharge the guilt phase jury for what it
deems to be good cause and empanel a new jury for the penalty
phase.
In mulling the validity of these competing claims, we
start with the text of the statute. See Sepulveda v. United
States, 330 F.3d 55, 64 (1st Cir. 2003). Section 3593(b)(2)(C)
says that a new penalty phase jury will hear the case if "the jury
that determined the defendant's guilt was discharged for good
cause." That phrasing tells us a great deal about Congress's
intent. The use of the word "determined," in the past tense, makes
clear that the phrase "discharged for good cause" refers to
discharge for events arising after the guilt phase has been
concluded. See Jones v. United States, 527 U.S. 373, 418 (1999)
(Ginsburg, J., dissenting) (opining that "[d]ischarge for 'good
cause' under § 3593(b)(2)(C) . . . is most reasonably read to cover
guilt-phase . . . juror disqualification due to, e.g., exposure to
prejudicial extrinsic information or illness"); see also id. at 381
(majority op.) (expressing agreement with dissent's interpretation
of the phrase "good cause"); Williams, 400 F.3d at 282. This makes
perfect sense: jurors who originally were qualified to sit may, by
some untoward exposure or affliction, become incapacitated after
the guilt phase ends but before the penalty phase ends so that a
properly empaneled jury that has determined guilt will not be able
to continue to serve.
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The structure of a statute often informs its text. See
Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir. 2002);
United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99
(1st Cir. 1994). Here, the structure of section 3593(b) reinforces
the reading suggested by its plain language. The default rule,
expressed in subsection (b)(1), is that the jury that determines
the guilt phase of a federal capital case shall also serve as the
jury that determines the penalty phase. That provision is set
forth first, in mandatory language and without condition.
Subsection (b)(2) spells out four exceptions to the default rule of
subsection (b)(1). That subsection is conditional; it directs that
a new jury shall be empaneled for the penalty phase "if" one of
four situations arises.
The common denominator among these four exceptions is
that they all appear to represent situations in which it is either
impossible or impracticable to apply the default rule of a unitary
jury. This is unarguably true of subparagraphs (A) and (B); each
of those subparagraphs deals with a situation in which guilt is not
determined by a jury at all. That is also readily apparent with
respect to subparagraph (D). The vast majority — if not all — of
situations requiring the reconsideration of an imposed sentence
will be those that occur when direct or collateral review has
identified, months or years later, some defect in the original
sentencing proceeding. Assuming that a jury participated in the
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original proceeding, it would have been long since discharged and
recalling it would, for a variety of reasons, be infeasible.
Structurally, this leads to the conclusion that
subparagraph (C) should be read as referring to those situations in
which empaneling a fresh penalty phase jury is unavoidable because
of some exigency associated with, or arising after, the
determination of the defendant's guilt. This is the most natural
(and, therefore, the favored) reading of the statute. So
construed, subsection (b) presents a coherent, unified theme: a
single, properly constituted jury will hear both phases of a
federal capital trial unless circumstances definitively rule out
that option.
The defendants read the statute differently. They invite
us to find that the function of subsection (b)(2)(C) is to vest in
the district court wide discretion as to whether one or two juries
is appropriate in a particular capital case. In their view,
Congress's choice of language was intended only to prevent two such
juries from being sworn simultaneously. This is resupinate
reasoning.
First and foremost, the defendants' reading contradicts
the structure of the statute by turning the "good cause" language,
clearly written in the form of an exception, into a threshold
question to be posed at the time of the original jury empanelment
in every capital case. Moreover, even if we were disposed to
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ignore the structure of the statute — which we are not — construing
the language of subparagraph (C) as providing wide trial court
discretion over the deployment of dual juries would require a
linguistic contortion to reach a result that Congress could have
accomplished much more simply and straightforwardly. Courts ought
to construe statutes, whenever possible, "in a commonsense manner,
honoring plain meaning, and avoiding absurd or counter-intuitive
results." United States v. Carroll, 105 F.3d 740, 744 (1st Cir.
1997) (internal citations omitted). The defendants' interpretation
of the FDPA violates all three of these tenets.
Of course, there are circumstances, albeit few and far
between, in which the apparent meaning of a statute must yield to
other considerations. See Greebel v. FTP Software, Inc., 194 F.3d
185, 192 (1st Cir. 1999) ("Even seemingly straightforward text
should be informed by the purpose and context of the statute.");
see also N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 6 (1st
Cir. 2000) (suggesting that there sometimes may be "sound reason
for departure" from the apparent meaning of statutory language).
The defendants strive to persuade us that this is such an instance
— that the substantial discretion enjoyed by district courts in
managing cases must inform our reading of the statute. To this
end, they cite our decision in Atlantic Pipe for the proposition
that Congress must speak in "clear and unmistakable" terms in order
to "cabin the district courts' inherent powers." 304 F.3d at 142.
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The defendants misread Atlantic Pipe, which squarely
holds that a court's "inherent powers cannot be exercised in a
manner that contradicts an applicable statute or rule." Id. at
143. This is just such a case: section 3593 limns a set of
procedural rules applicable to federal capital cases. A brief
glance at the other subsections, apart from subsection (b), makes
this transparently clear. Subsection (a) mandates that the
government "shall" provide pretrial notice of its intent to seek
the death penalty and specify the aggravating factors that it
intends to prove in support of that penalty. 18 U.S.C. § 3593(a).
Subsection (c) delineates the procedures for how the parties must
go about proving aggravating or mitigating factors. Id. § 3593(c).
Subsection (d) sets forth a requirement for "special findings"
identifying which aggravating and mitigating factors were proven.
Id. § 3593(d). Subsection (e) memorializes the requirement that
the factfinder "shall consider" whether the aggravating factors
outweigh the mitigating factors in the case, and then (if a jury,
by unanimous vote) "shall recommend" the penalty. Id. § 3593(e).
Subsection (f) directs that the court "shall instruct the jury"
that it cannot consider the race, color, religious belief, national
origin, or gender of the defendant or the victim in deciding
whether to apply the death penalty. Id. § 3593(f).
These provisions are of a piece with subsection (b)
which, as previously described, specifies that the jury that
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determined guilt "shall" hear the penalty phase unless one of four
narrow exceptions applies. All of these provisions employ
mandatory language directing that particular rules of procedure
"shall" be followed. This refutes any notion that Congress
intended the district courts to retain discretion to disregard any
or all of the prescribed rules. See Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (explaining that
statutory procedural rules couched "in terms of the mandatory
'shall' . . . normally create[] an obligation impervious to
judicial discretion").
The bottom line is this: where Congress has provided a
specific panoply of rules that must be followed, the district
court's discretionary powers simply do not come into play. Because
this is such an instance, there is no reason to distort the plain
meaning of the statutory text in an effort to preserve those
powers. We hold, therefore, that the language of the exception in
section 3593(b)(2)(C), ("the jury that determined the defendant's
guilt was discharged for good cause . . . ") refers exclusively to
a jury that has returned a guilty verdict in a federal capital
case. Accord Williams, 400 F.3d at 282 (holding that the "'good
cause' language pertains to discharging a jury that has already
decided the defendant's guilt" and that "[t]he provision does not
allow a pretrial option for a bifurcated jury").
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In a further effort to justify its order, the court below
made an alternate holding: that "to the extent that § 3593 can be
read to require a unitary jury, defendants [may] waive that
requirement." Green II, 343 F. Supp. 2d at 25. We reject that
holding as well.
Section 3593 sets forth a set of general rules that
govern all parties and the court itself. In those instances in
which the statute does create rights that accrue to only one side
or the other, the statute is explicit. For example, section
3593(c) specifies that the government "shall open the argument" and
the defendant "shall [then] be permitted to reply." So too section
3593(b)(3), which makes specific reference to the ability of the
parties jointly to waive certain of the rules (e.g., the right to
a sentencing jury). The statute does not offer any such option
with respect to the unitary jury rule of subsection (b)(1). The
intentional inclusion of a waiver mechanism in one part of the
statute persuasively indicates that the exclusion of such a waiver
provision in another part of the same statute was intentional. See
Duncan v. Walker, 533 U.S. 167, 173 (2001) (describing as "well-
settled" the proposition that "where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion" (citation and internal quotation marks omitted));
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Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir. 2002)
(explaining that "in harmony with the maxim inclusio unius est
exclusio alterius, the explicit provision of remedies within a
statute cuts sharply against the implication of [others]"). A
federal capital defendant can no more waive the default rule of a
unitary jury than the government can waive the rule that requires
the court to instruct the jury to disregard the defendant's race.
If more were needed — and we doubt that it is — we would
find it surpassingly difficult to believe that a statute that
requires government approval of the defendant's motion to dispense
with a sentencing jury would sub silentio permit a defendant to
obtain two juries as of right. With respect to the deployment of
a unitary jury in a federal capital case, "Congress intended to
give no options, only commands." Williams, 400 F.3d at 282. As
such, the district court's order cannot be sustained on the basis
of its alternate holding.
Our odyssey is not yet completed. The government invites
us to pass upon the validity of the district court's suggestion
that it might defer death-qualification altogether until after it
takes a verdict on the issue of guilt or innocence. See Green I,
324 F. Supp. 2d at 331. We decline the invitation. Despite the
nomenclature, advisory mandamus does not permit federal courts to
issue advisory opinions. See Rhode Island v. Narragansett Indian
Tribe, 19 F.3d 685, 705 (1st Cir. 1994) ("Article III of the
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Constitution forbids courts from issuing advisory opinions or
answering hypothetical questions."). The suggestion against which
the government seeks protection is not embodied in an order and the
defendants have thus far decried the concept. See Green II, 343 F.
Supp. 2d at 25. Consequently, there is no live controversy as to
that suggestion.
III. CONCLUSION
Section 3593(b)(2) requires that, in a federal capital
case, the jury that determines guilt also must determine the
penalty unless one of four exceptions pertains. The exception
relied upon by the lower court — "discharge[] for good cause," 18
U.S.C. § 3593(b)(2)(C) — requires that there be a dismissal of the
jury for good cause after it has returned a verdict in the guilt
phase of the trial. The district court's order is incompatible
with our reading of this statute.
We are not unmindful that the FDPA, as written, may
complicate the trial of mixed capital and non-capital charges. But
our task is to attempt, as best we can, to follow Congress's
prescription, not to endeavor to improve upon it. The Supreme
Court has made it pellucid that a death-qualified jury
constitutionally may hear and determine non-capital charges, at
least where there are "significant interests" in trying a non-
capital defendant jointly with a defendant who is facing a capital
charge. See Buchanan, 483 U.S. at 420. At the same time, this
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language cannot be read to provide the government with an absolute
entitlement to joint capital/non-capital trials whenever it
pleases. Thus, we are confident that the district court, armed
with the discretion to sever charges and defendants, will be able
to ensure fundamental fairness in the trial of such mixed cases.
We need go no further. Inasmuch as the central issue
presented in this case is novel, of great importance, likely to
recur, and otherwise apt to evade review, we grant the government's
petition for a writ of mandamus, vacate the dual jury order, and
remand the case for further proceedings consistent with this
opinion.
So Ordered.
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United States v. Green
Court: Court of Appeals for the First Circuit
Date filed: 2005-05-12
Citations: 407 F.3d 434
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