United States v. Pedro-Vidal ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1441
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN R. PEDRÓ-VIDAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Casper,* District Judge.
Steven Potolsky, Lead Counsel, with whom Eric Alexander Vos,
Federal Public Defender, Vivianne M. Marrero-Torres, Supervisor,
Assistant Federal Public Defender, and Liza L. Rosado-Rodríguez,
Research and Writing Specialist, were on brief, for appellant.
José R. Olmo-Rodríguez on brief for Sociedad Para La
Asistencia Legal, amicus curiae.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Gregory B. Conner, Assistant United States Attorney,
were on brief, for appellee.
March 10, 2021
* Of the District of Massachusetts, sitting by designation.
HOWARD, Chief Judge. The Local Rules for the United
States District Court for the District of Puerto Rico require the
federal government to file a notice of intent to seek the death
penalty ("Death Notice") within 180 days of an indictment
containing a death-eligible offense if the government seeks that
penalty. A federal grand jury in Puerto Rico returned an
indictment against Juan R. Pedró-Vidal containing death-eligible
offenses, but the government did not file a Death Notice until
after the 180-day period had expired. Pedró-Vidal moved to strike
the Death Notice, arguing that the government violated the Local
Rules and, separately, that the Federal Death Penalty Act ("FDPA")
should not apply to residents of Puerto Rico. The district court
denied the motion and he appealed. Finding no error in the
district court's decision, we affirm.1
I. Background
On December 14, 2016, a federal grand jury in Puerto
Rico returned a five-count indictment charging Pedró-Vidal with
three offenses punishable by death. A few days later, on December
19, the district court identified this matter as a potential
capital case and ordered Pedró-Vidal to select learned counsel
qualified to handle "the complex, demanding, and protracted nature
1 We acknowledge and thank amicus curiae, Sociedad Para La
Asistencia Legal, Inc., for its helpful submission in this matter.
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of death penalty proceedings." See D.P.R. Crim. R. 144A(c). He
complied, and the district court approved and appointed his
selection on December 27. In the following months, the government
filed a superseding indictment adding co-defendants but not
altering the death-eligible offenses, followed by a second
superseding indictment alleging special findings under 18 U.S.C.
§§ 3591–92 as to Pedró-Vidal and one of his co-defendants.
The district court held a series of status conferences
during which the parties discussed the progression of the
Department of Justice's death penalty protocol, including whether,
and when, the Attorney General would certify the death penalty in
this case. During that time, Pedró-Vidal made several pre-
authorization discovery requests related to his upcoming meeting
with the Attorney General's Capital Review Committee (the
"committee"). During a July 11, 2017 status conference, the
government informed the district court that the parties were
scheduled to appear before the committee on September 21, 2017.
Pedró-Vidal expressed concerns about the timing of the committee
hearing, noting that he wanted more time to prepare.
The parties conferred and eventually made their
presentations before the Attorney General's committee on October
23, 2017 -- more than 180 days after the indictment. On June 28,
2018, the Attorney General certified the death penalty as to Pedró-
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Vidal, and the government filed its notice of intent to seek the
death penalty that same day.
On October 9, 2018, Pedró-Vidal filed a motion to strike
the death penalty, asserting that the government violated District
of Puerto Rico Local Criminal Rule 144A by, among other things,
not filing the Death Notice within 180 days of the indictment, and
that the application of the FDPA to Puerto Rican residents violated
substantive due process and the democratic principle of "consent
of the governed."
The district court denied the motion in two separate
orders. Addressing Pedró-Vidal's Local Criminal Rule 144A
argument, it found that while the government admitted its failure
to comply with the Local Criminal Rule, the district court had
identified the matter as a death penalty case and appointed learned
counsel soon after the grand jury returned the original indictment,
thereby satisfying the purpose of the Local Criminal Rule.
Consequently, the untimely filed Death Notice did not prejudice
Pedró-Vidal because he had the benefit of "counsel, as well as a
defense team of experts and mitigation specialists with more than
adequate time to prepare for a hearing before the [committee]."
The district court heard oral argument on the
applicability of the federal death penalty to residents of Puerto
Rico, and then issued a separate order denying Pedró-Vidal's motion
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to strike on this point. The district court found that the
"political disenfranchisement of United States citizens in Puerto
Rico in no way precludes the Unite[d] States from enacting and
executing criminal laws that apply to all citizens of this Nation
alike." United States v. Pedró-Vidal, 371 F. Supp.3d 57, 59-60
(D.P.R. 2019).
Pedró-Vidal now appeals, and requests that we vacate the
district court's orders denying his motion to strike the Death
Notice and remand for an evidentiary hearing. For the following
reasons, we reject his request and affirm the district court's
orders.
II. Appellate Jurisdiction
Generally, federal courts of appeals may only review
final decisions of the district courts. 28 U.S.C. § 1291. The
collateral order doctrine provides a limited exception to that
rule. See Sell v. United States, 539 U.S. 166, 176 (2003). Under
the collateral order doctrine, this Court may entertain an appeal
from non-final decisions when the order "(1) 'conclusively
determines the disputed question,' (2) 'resolves an important
issue completely separate from the merits of the action,' and (3)
is 'effectively unreviewable on appeal from a final judgment.'"
Id. (alterations omitted) (quoting Coopers & Lybrand v. Livesay,
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437 U.S. 463, 468 (1978)). The parties contest whether the
district court's orders fall within this exception.
Three other circuit courts have examined whether a
denial of a motion to strike an untimely Death Notice is appealable
under the collateral order doctrine.2 The Fourth and Eleventh
Circuits concluded that such orders satisfy the collateral order
doctrine because a defendant can only vindicate their purported
right to not face a capital trial absent adequate notice through
interlocutory appeal. United States v. Ferebe, 332 F.3d 722, 729-
30 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208, 1220
(11th Cir. 2006). The Second Circuit disagreed, explaining that
§ 3593(a) did not create a right not to be tried absent adequate
notice, and that the Death Notice procedure more closely resembles
other pre-trial rights which are not subject to interlocutory
review under the collateral order doctrine. United States v.
Robinson, 473 F.3d 487, 491-92 (2d Cir. 2007).
We have not previously addressed this issue, and we need
not do so here. The long-standing rule in this circuit is that
2 These decisions considered the timeliness of a Death Notice
under 18 U.S.C. § 3593(a), which outlines the general notice
requirements in federal capital cases. Pursuant to section
3593(a), if "the government believes that the circumstances of the
offense are such that a sentence of death is justified" the
government shall file a Death Notice within "a reasonable time
before the trial." 18 U.S.C. § 3593(a).
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"bypassing jurisdictional questions to consider the merits is
appropriate where, as here, the jurisdictional question is
statutory" and does not arise under Article III of the federal
constitution. Sinapi v. R.I. Bd. of Bar Exam'rs, 910 F.3d 544,
550 (1st Cir. 2018); see Restoration Pres. Masonry, Inc. v. Grove
Eur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003) (collecting cases).
Applying that rule here, we bypass the statutory jurisdiction
question and review the appeal on the merits. See United States
v. Ayala-López, 457 F.3d 107, 108 (1st Cir. 2006).3
III. Analysis
When a party challenges a district court's decision on
a motion to strike a Death Notice, we "review conclusions of law
de novo, factual findings for clear error, and the ultimate ruling
for abuse of discretion." United States v. López-Matías, 522 F.3d
150, 153 (1st Cir. 2008).
A. Violation of Local Criminal Rule 144A
The Local Rules for the United States District Court for
the District of Puerto Rico require the government, in capital
3 Pedró-Vidal also argues that we should invoke mandamus
jurisdiction. Because he made this argument for the first time in
his reply brief, it is waived. United States v. Rivera-
Carrasquillo, 933 F.3d 33, 40 n.7 (1st Cir. 2019) ("[A]n appellant
waives any argument not made in his 'opening brief but raised only
in [his] reply brief.'" (second alteration in original) (quoting
Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 25 (1st Cir.
2018))).
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cases, to file a Death Notice within 180 days of the indictment.
D.P.R. Crim. R. 144A(k). During the first ninety days, defense
counsel may make a presentation before the Attorney General's
committee as to whether the death penalty is appropriate in a given
case. Id. at (k)(2)(i). If the Attorney General certifies the
death penalty, the government must file a Death Notice. Id. at
(k)(2)(iii). Although the Local Criminal Rules note that these
procedures are to "be strictly enforced," id. at (k)(2), the rules
in force at the time also explicitly provided the district court
with considerable discretion, allowing it to extend the 180-day
period and permitting it to convert a potential capital case into
an ordinary felony case upon an untimely filed Death Notice. Id.at (k)(3). These Local Rules carry the force of law. See
Schiffmann v. United States, 811 F.3d 519, 525 (1st Cir. 2016).
Local Criminal Rule 144A did not come without guidance.
The United States District Court for the District of Puerto Rico
has explained that Local Criminal Rule 428 (now Local Criminal
Rule 144A) was "borne of due process considerations" and serves
two purposes: "(1) to afford an indigent death eligible defendant
the right to counsel whose qualifications parallel the gravity of
a death penalty case, and (2) to avoid prejudice upon a death
eligible defendant because of the government's delay in announcing
its intention to seek the death penalty." United States v. Acosta-
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Martínez, 89 F. Supp. 2d 173, 178 (D.P.R. 2000). In crafting the
rule, the district court sought "to prevent a death eligible
defendant from being put 'against the wall, in an uncomfortable,
rushed procedural scenario that offends traditional notions of
fair play,' impeded from preparing an effective and adequate
defense, due to the prosecution's untimeliness or vacillation in
notifying its intent to seek the death penalty." Id. (quoting
United States v. Colon-Miranda, 985 F. Supp. 31, 35 (D.P.R. 1997)).
A violation of this Local Criminal Rule, without more,
does not compel the striking of a Death Notice. We have, on
several occasions, explained that the striking of a Death Notice
is akin to dismissing significant portions of an indictment. See
United States v. Acosta-Martínez, 252 F.3d 13, 16-17 (1st Cir.
2001); López-Matías, 522 F.3d at 154 n.9. While acknowledging the
imprecision of the analogy, we explained that just as "a district
court [cannot] dismiss an indictment for errors that involved no
prejudice[,] [s]o it must be as well with the striking of the
[Death] Notice." López-Matías, 522 F.3d at 154 (citing Bank of
Nova Scotia v. United States, 487 U.S. 250, 263 (1988)).
Here, the district court did not abuse its discretion by
denying Pedró-Vidal's motion to strike the Death Notice or doing
so without an evidentiary hearing. Appellant could not make a
showing of prejudice, as required by López-Matías, and an
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evidentiary hearing was unnecessary. Id. At the outset, the
record established that a large portion of the delay in the
certification process stemmed from defense counsel's preparation
for the Attorney General's committee hearing. Indeed, not only
did Pedró-Vidal make, as was his right, several pre-authorization
discovery requests in May and July 2017, but he also sought more
time to prepare his presentation before the Attorney General's
committee, ultimately delaying the committee hearing beyond the
180-day period, to October 23, 2017. Cf. United States v.
Apicelli, 839 F.3d 75, 85-86 (1st Cir. 2016) (finding no prejudice,
in the speedy trial context, where much of the delay was due to
defense counsel's motion practice).
Further, the district court took steps that
simultaneously guarded against any potential prejudice and
fulfilled the stated purposes of the Local Criminal Rule. See
López-Matías, 522 F.3d at 157 (finding no prejudice where district
court achieved the purpose of Local Criminal Rule 144A's
Certificate requirement through the early appointment of learned
counsel). The district court informed Pedró-Vidal at his initial
appearance that the charged offenses were eligible for the death
penalty and then promptly appointed learned counsel. Pedró-
Vidal's learned counsel was provided adequate notice of the meeting
before the Attorney General's committee, where counsel represented
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him. Learned counsel continued representing Pedró-Vidal and had
the entirety of the period between the committee hearing and the
filing of the Death Notice to prepare Pedró-Vidal's case. Pedró-
Vidal can hardly argue that the delayed Death Notice offended
traditional notions of fair play or that the delay put him "against
the wall." Acosta-Martínez, 89 F. Supp. 2d at 178.4 Accordingly,
the district court properly denied Pedró-Vidal's motion to strike
without an evidentiary hearing.
B. Applicability of the FDPA to Residents of Puerto Rico
Pedró-Vidal also asserts that the application of the
FDPA to residents of Puerto Rico violates substantive due process
and the principle of "consent of the governed." His claim fails
because we previously addressed and rejected these same arguments
in our decision in Acosta-Martínez, 252 F.3d at 21. Subject to
narrow exceptions not present here, "newly constituted panels in
a multi-panel circuit court are bound by prior panel decisions
that are closely on point." United States v. Wurie, 867 F.3d 28,
Pedró-Vidal's related argument, that the anxiety he suffered
4
as a result of the delay is an alternative ground for striking the
Death Notice, also fails. He relies on the balancing test from
Barker v. Wingo, 407 U.S. 514, 532 (1972), which is most relevant
to the speedy trial context and is incongruous with the stated
purposes of Local Criminal Rule 144A. Further, assuming that he
suffered the requisite anxiety and concern, the other Barker
factors -- preventing oppressive pretrial incarceration and
limiting the possibility of his defense being impaired -- do not
favor him. Id.-11-
34 (1st Cir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,
612 F.3d 25, 33 (1st Cir. 2010)). Since Pedró-Vidal merely
reiterates the same arguments we rejected in Acosta-Martínez, we
are bound to conclude that the district court correctly found that
the FDPA is applicable to defendants residing in Puerto Rico.5
Conclusion
For the foregoing reasons, we affirm the district
court's orders denying Pedró-Vidal's motions to strike the Death
Notice.
5 Pedró-Vidal argues that the FDPA violates the Equal
Protection Clause but only referenced the argument in one of the
brief's headings. This argument is therefore waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."). He also argues
that the imposition of the death penalty in Puerto Rico violates
the International Covenant on Civil and Political Rights
("ICCPR"). This argument necessarily fails, however, because the
Supreme Court has explained that the ICCPR "does not of its own
force impose obligations as a matter of international law . . .
[that are] enforceable in the federal courts." Sosa v. Álvarez-
Machain, 542 U.S. 692, 734-35 (2004).
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