United States v. Ayala-Lopez , 457 F.3d 107 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 06-1640
UNITED STATES,
Appellee,
v.
CARLOS AYALA-LOPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Rachel Brill, William Matthewman and Seiden, Adler &
Matthewman, P.A., and Juan A. Pedrosa-Trapaga on brief for
appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Jacqueline D.
Novas, Assistant, U.S. Attorney, and Rosa Emilia Rodriguez-Velez,
United States Attorney on brief for appellee.
July 27, 2006
Per Curiam. Defendant-appellant Carlos L. Ayala-Lopez is the
subject of three notices by plaintiff-appellee United States of
America under 18 U.S.C. § 3593(a), stating the bases of its intent
to seek the death penalty for the murder of a policeman employed by
the United States Department of Veterans Affairs. Ayala-Lopez
moved to strike the latest version of the notice submitted by the
appellee, but the U.S. District Court for the District of Puerto
Rico denied the motion. Ayala-Lopez seeks immediate review in this
court, arguing that the denial constitutes a 'collateral order'
relative to the final judgment rule. See 28 U.S.C. § 1291 ("The
courts of appeals ... shall have jurisdiction of appeals from all
final decisions of the district courts of the United States ....").
The government has moved to strike the appeal, but we ordered
merits briefing while that motion was held in abeyance. The
briefing is now complete.
We note that two other circuits have found this type of appeal
amenable to the collateral-order rule. See United States v.
Ferebe, 332 F.3d 722 (4th Cir. 2003)("[W]e conclude that district
court orders denying motions to strike Death Notices are collateral
orders susceptible to our review."); United States v. Wilk, 2006 WL
1685798, --- F.3d --- (11th Cir. 2006)("We agree with our sister
circuit..."). We shall assume in defendant-appellant's favor,
without deciding, that this is a correct interpretation of the
collateral-order rule. See generally Restoration Preservation
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Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59-60 (1st Cir.
2003)(inquiry into statutory jurisdiction is not mandatory
predicate to reaching merits). In any event, there is no need to
reach a more difficult non-Article III issue of appellate
jurisdiction if the case may be easily disposed of on the merits.
See Parella v. Ret. Bd. of R.I. Employees' Ret. Sys., 173 F.3d 46,
53-57 (1st Cir. 1999).
On the merits, Ayala-Lopez argues that the amended notice of
intent to seek the death penalty was not provided "a reasonable
time before trial" as per § 3593(a). Ayala-Lopez cites Ferebe,
supra, for the proposition that "a reasonable time" is to be
measured 'objectively.' Id. at 731. His primary argument is that
he need not show any prejudice for the time period to be
unreasonable. The Ferebe majority apparently concluded that
reasonableness was to be measured without reference to prejudice to
the defendant. But cf. Wilk, supra, (applicable test is objective
reasonableness, determined by consideration of the totality of
circumstances). His argument is no doubt motivated by the fact
that he has suffered no prejudice.
Ayala-Lopez's trial in the district court began on February
15, 2006 with voir dire, as per a scheduling order of December 8,
2005. The amended notice in question was served on December 19,
2005. The original notice of intent to seek the death penalty was
served in December 2003, and a prior amended notice was served in
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May 2005. The timing of this third notice does not fall short of
any test for objective reasonableness. It contained no substantive
changes from a prior amended notice, which was served in May 2005.
It only corrected cross-references to renumbered counts in the
latest version of the indictment, while leaving the allegations of
aggravating factors exactly the same as the May 2005 notice.
Contrary to appellant's alternate argument that he has
suffered prejudice, this purely technical, non-substantive change
created no uncertainty about the government's intent to continue
pursuing the death penalty, and it imposed no additional burden of
preparation on defense counsel. Since the December 2005 notice
contained no substantive changes from the notice served in May
2005, it raises no serious issue of reasonable timing in its own
right. Rather, again in defendant's favor, we will take the May
2005 notice, which added aggravating factors to those listed in the
original notice, as the proper reference point for determining
whether the defense was given sufficient advance warning of the
government's bases for seeking the death penalty. The December
2005 amendment has no practical impact on the determination.
Consequently, even assuming that an 'objective' standard of
reasonableness applies and, dubitante, that actual prejudice is not
required, service of the last amended notice nearly two months
before the trial proceedings of February 15 did provide a
reasonable interval of time in compliance with § 3593(a).
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Ayala-Lopez contends that § 3593(a) requires that service of
a notice of intent to seek the death penalty be made on him
personally, as opposed to his lawyer. This contention is
untenable. The Eleventh Circuit, confronted with an identical
argument, rejected it out of hand in a single footnote. Wilk,
supra, at n.32. The rules by which courts and counsel operate
presuppose that communications, oral or written, with represented
parties will be through their attorneys. See Fed.R.Crim.P. R.
49(b); Model Rules of Prof'l Conduct R. 4.2. The reference in §
3593(a) to notice being "serve[d] on defendant" must be taken to
have been drafted with awareness of this settled practice.
Ayala-Lopez also contends that it was improper to allow
amendment of the notice of intent to seek the death penalty absent
a "showing of good cause" in conformity with § 3593(a). Even
without express leave of the district court, the allowance of the
amendment indicates an implicit finding of good cause, which makes
sense given that the amendment followed soon after the issuance of
a superceding indictment, was wholly technical in nature, and did
not change the substantive notification about the aggravating
factors to be alleged by the government.
For the reasons stated above, we also reject Ayala-Lopez's
contention that the errors he alleges cumulate decisively in favor
of reversal.
The order denying the "Motion to Strike the Government's
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'Third Notice of Intent to Seek the Death Penalty Against Carlos
Ayala Lopez'" is affirmed. The "United States' Motion to Strike
Interlocutory Notice of Appeal for Lack of Jurisdiction" is denied
as moot.
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