United States v. Young

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0403p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

-

-

-

No. 05-5846

v.

,

>

DONNELL YOUNG, -

Defendant-Appellee. -

N

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 98-00038—John T. Nixon, District Judge.

Argued: September 15, 2005

Decided and Filed: September 29, 2005

Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Joseph F. Palmer, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellant. Richard Kammen, GILROY, KAMMEN & HILL, Indianapolis, Indiana, for

Appellee. ON BRIEF: Joseph F. Palmer, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., Sunny A.M. Koshy, Philip H. Wehby, ASSISTANT UNITED STATES

ATTORNEYS, Nashville, Tennessee, for Appellant. Richard Kammen, GILROY, KAMMEN &

HILL, Indianapolis, Indiana, Thomas F. Bloom, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. The government appeals from the order granting

defendant Donnell Young’s motion to empanel separate juries to hear the guilt and penalty phases

of his trial on capital and noncapital offenses. The district court found it had authority under 18

U.S.C. § 3593(b)(2)(C), on a showing of “good cause,” to decide to empanel a non-death-qualified

jury to determine the question of guilt and then, if convicted of a capital offense, to empanel a

second death-qualified jury to decide whether to impose the death penalty.

The government maintains that this dual-jury procedure violates the Federal Death Penalty

Act, specifically, 18 U.S.C. § 3593(b), and that this court has jurisdiction to review the district

court’s pretrial order either under the collateral order doctrine, or by treating the appeal as a writ of

mandamus. After review of the law and the arguments presented on appeal, we VACATE the

district court’s order and REMAND for further proceedings consistent with this opinion.

1

No. 05-5846 United States v. Young Page 2

I.

This case began with a single-count, one-defendant indictment filed in March 1998. A

Second Superceding Indictment, filed in November 1998, expanded the drug charges in the original

indictment to include defendant Donnell Young and nineteen other defendants (many of whom

would ultimately enter guilty pleas). Shortly after being charged in this case, Young was transferred

from a jail in Oklahoma City, Oklahoma, where he had been held for 18 months in connection with

the murder of Woody Pilcher. Pilcher, an alleged coconspirator, was killed in Oklahoma City on

August 2, 1997. Capital murder charges were added against Young in a Fourth Superceding

Indictment filed in September 1999, and repeated in a Fifth Superceding Indictment filed in

September 2002.

The Fifth Superceding Indictment charged 45 counts against five defendants: Jamal Shakir,

Pacia Shakir, Donnell Young, Derrick Eatmon, and Eben Payne. Jamal Shakir was charged with

engaging in a continuing criminal enterprise, referred to as the “Shakir Enterprise,” which the

district court described as “a faction of the Los Angeles-based street gang, the ‘Rollin’ 90s Crips,’

[that] allegedly transported and distributed controlled substances; used and possessed firearms;

laundered money; and engaged in violent acts including assault, abduction, robbery, and murder.

The charges span a seven-year period from 1993 to September 1999 and allege wrongdoing in

various communities, including Los Angeles, California, Oklahoma City, Oklahoma, Memphis,

Tennessee, and Nashville, Tennessee.” United States v. Young, 376 F. Supp.2d 787, 789 (M.D.

Tenn. 2005). Young, who is from Los Angeles, claims not to have set foot in Tennessee before

being taken into federal custody.

Young awaits trial on several drug and weapons offenses and three death-eligible counts

related to the murder of Pilcher: specifically, (1) killing Pilcher in furtherance of a continuing

criminal enterprise and drug conspiracy; (2) killing Pilcher to obstruct justice; and (3) causing the

death of Pilcher by the use and carrying of a firearm during and in relation to a crime of violence

or a drug trafficking crime (counts 37-39). In October 2002, the government gave notice of its

intention to seek the death penalty against Young. Severance was granted such that Young, Eatmon,

and Payne would be tried jointly with each other, but separately from Jamal and Pacia Shakir.

Because Payne was later found mentally incompetent to stand trial, Young (charged with capital and

noncapital offenses) currently awaits trial with Eatmon (charged with only noncapital crimes).

In a “Motion for Bifurcated Juries,” Young requested that the district court empanel two

juries — the first selected for the guilt phase without the process of “death qualification” and a

second death-qualified jury selected for the sentencing phase in the event he is convicted of a capital

offense. A hearing was held January 18, 2005, and the motion was granted in an opinion and order

entered on April 22, 2005. Without articulating the rationale underlying its interpretation of the

statute, the district court concluded that it had discretion under 18 U.S.C. § 3593(b)(2)(C) to decide

before trial that “good cause” existed to empanel separate juries to decide the questions of guilt and

punishment. In the alternative, the district court also found that the unitary jury requirement could

be “waived” by the defendant’s motion to empanel separate juries.

Although both of these conclusions had already been rejected by the Fifth Circuit in United

States v. Williams, 400 F.3d 277, 281-83 (5th Cir.), cert. denied, 125 S. Ct. 1611 (2005), the district

court relied instead on the decision to the contrary in United States v. Green (Green I), 343 F.

Supp.2d 23, 30-32 (D. Mass. 2004), a decision that was subsequently reversed by the First Circuit

in United States v. Green (Green II), 407 F.3d 434 (1st Cir. 2005). The district court went on to

explain at length its reasons for finding that “good cause” existed in this case; including “case

management” issues, concerns about the impact of death qualification on the racial composition of

the jury, and social science evidence suggesting death-qualified jurors may be more prone to convict

and may decide sentencing issues before the penalty phase. Young, 376 F. Supp.2d at 791-800.

No. 05-5846 United States v. Young Page 3

Specifically, the district court found “case management” concerns established “good cause”

to adopt a dual-jury procedure. First, judicial time and resources would be saved in this and related

cases (which include two other capital defendants) by proceeding without a death-qualified jury

because the court could avoid both extensive voir dire (or at least most of it) and the need to resolve

the pending disputes concerning the aggravating factors asserted by the government before trial.

Time was found to be especially important in this case because charges had already been pending

for more than seven years, and a number of codefendants who entered guilty pleas remain in custody

but will not be sentenced until after they have testified. Besides, a sentencing hearing will be

unnecessary if Young is acquitted on the capital offenses. Finally, the court found there was a

substantial difference in the evidence that would likely be presented in each phase; that the burden

on the cooperating witnesses was lessened because multiple trials were already contemplated; and

that steps,1 such as stipulations or summaries of evidence, may be used to reduce duplication of

evidence.

In addition, the district court found it highly likely that prospective black jurors would be

disproportionately excluded for cause due to the higher rate of opposition to the death penalty among

blacks. Coupling this with the small percentage of blacks in the local jury pool, the district court

found further good cause to empanel a guilt-phase jury without death qualification. The court felt

this was especially significant here because Young is an African-American being prosecuted far

away from his home in Los Angeles.

As for the propensities of death-qualified jurors, the district court was troubled by research

showing that 49.2% of capital-qualified jurors make the sentencing decision before the penalty

phase. The district court relied on other social science evidence indicating that death-qualified

jurors may be less likely to believe in the presumption of innocence or may otherwise be more prone

to convict in the guilt phase of the trial. Finally, the district court rejected the government’s

contention that a defendant might lose the benefit of any “residual doubt” that a unitary jury might

carry over from the guilt phase. In the absence of research concerning the “residual doubt” effect,

the district court concluded that the government’s interest in a unitary jury procedure was

outweighed by other facts that create good cause to “bifurcate the jury.”

The government appealed, and hearing on the matter was expedited at the defendant’s

request.

II.

A. Jurisdiction

Defendant concurs in the government’s assertion of appellate jurisdiction and, although

jurisdiction may not be conferred by the consent of the parties, we agree that we may review the

government’s challenge to this pretrial order. First, under the collateral order doctrine, an

interlocutory order may be immediately reviewable as a “final decision” under 28 U.S.C. § 1291

when the order (1) conclusively determines (2) an important legal issue completely separate from

the merits of the action, which is (3) effectively unreviewable on appeal from a final judgment.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also United States v.

Caggiano, 660 F.2d 184-90 (6th Cir. 1981) (allowing government appeal from order disqualifying

United States Attorney’s office from participating in criminal case). This exception to the final

judgment rule must be strictly construed in criminal cases. Midland Asphalt Corp. v. United States,

1

The government responds that much of the guilt-phase evidence would have to be repeated to a separate

penalty-phase jury and objects to the suggestion that it may be forced to accept the admission of summaries or

stipulations during the penalty phase. See Old Chief v. United States, 519 U.S. 172, 187-89 (1997) (holding government

may not be forced to accept the defendant’s offers to stipulate to evidence).

No. 05-5846 United States v. Young Page 4

489 U.S. 794, 799 (1989); see also United States v. Yeager, 303 F.3d 661, 666 (6th Cir. 2002) (no

jurisdiction over defendant’s appeal from dismissal of charges without prejudice).

In this case, the district court conclusively determined that a non-death-qualified jury will

decide the question of guilt and that a second death-qualified jury will only be empaneled in the

event Young is convicted of a capital offense. The decision resolves the important legal issue of

whether the Federal Death Penalty Act gives the district court discretion to adopt a dual-jury

procedure on a pretrial finding of good cause; an issue that is completely separate from the merits

of the underlying action. The issue is likely to recur as capital defendants, including others with

charges pending before this district judge, are likely to argue for a dual jury process with a non-

death-qualified jury to hear the guilt phase of the trial. Finally, the government’s challenge is

effectively unreviewable after final judgment. The government will be unable to appeal whether the

defendant is found not guilty, is convicted but not sentenced to death, or is found guilty and

sentenced to death by separate juries. See Sanabria v. United States, 437 U.S. 54, 69 (1978); Fong

Foo v. United States, 369 U.S. 141, 143 (1962). Construing the collateral order exception narrowly,

we find the requirements are met in this case. Accord Williams, 400 F.3d at 280; but see Green II,

407 F.3d at 438 (declining to rely on collateral order exception, but granting mandamus relief).

Alternatively, there is also jurisdiction to review the appeal as a petition for writ of

mandamus. Mandamus is a drastic remedy that should be invoked only in extraordinary cases where

there is a clear and indisputable right to the relief sought. In re Parker, 49 F.3d 204, 206 (6th Cir.

1995). This court has adopted a five-factor test for determining whether extraordinary

circumstances warrant mandamus relief. Id. at 207. These factors are cumulative and must be

balanced, and the absence of any factor is not controlling. Id. The five factors are:

1) whether the party seeking the writ has no other adequate means, such as direct

appeal, to attain the relief needed; 2) whether the petitioner will be damaged or

prejudiced in a way not correctable on appeal; 3) whether the district court’s order

is clearly erroneous as a matter of law; 4) whether the district court’s order is an oft-

repeated error, or manifests a persistent disregard of the federal rules; [and]

5) whether the district court’s order raises new and important problems, or issues of

law of first impression.

49 F.3d at 207.

Here, the government will be unable to appeal from this order after judgment is entered, and

prejudice from having to present the case to separate juries in the guilt and penalty phases would not

be correctable on appeal. There is also every reason to expect that this issue will recur in other

capital cases, particularly given that this is the third case to present the issue in the courts of appeals.

The district court’s interpretation of the “good cause” exception in § 3593(b)(2)(C) involves an

important question of law and is a matter of first impression in this circuit. Lastly, for the reasons

set forth below, we find the district court’s interpretation of § 3593(b) is erroneous as a matter of

law.

Accordingly, appellate jurisdiction exists over this matter whether under the collateral order

exception or as a request for mandamus relief. Accord Williams, 400 F.3d at 280-81; Green II, 407

F.3d at 439-40.

B. “Good Cause” under § 3593(b)(2)(C)

The Federal Death Penalty Act requires a separate sentencing hearing when the government

seeks to impose the death penalty and specifies before whom the bifurcated penalty phase may be

conducted. The question before us is the proper interpretation of § 3593(b), which states as follows:

No. 05-5846 United States v. Young Page 5

(b) Hearing before a court or jury. — If the attorney for the government

has filed a notice as required under subsection (a) and the defendant is found guilty

of or pleads guilty to an offense described in section 3591, the judge who presided

at the trial or before whom the guilty plea was entered, or another judge if that judge

is unavailable, shall conduct a separate sentencing hearing to determine the

punishment to be imposed. The hearing shall be conducted—

(1) before the jury that determined the defendant’s guilt;

(2) before a jury impaneled for the purpose of the hearing if—

(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; or

(3) before the court alone, upon the motion of the defendant and with the

approval of the attorney for the government.

A jury impaneled pursuant to paragraph (2) shall consist of 12 members, unless, at

any time before the conclusion of the hearing, the parties stipulate, with the approval

of the court, that it shall consist of a lesser number.

This section codifies the constitutional requirement that the guilt and penalty phases of a capital

offense be bifurcated, and adopts, as a default rule, a requirement that a unitary jury must decide

both guilt and punishment. This much is without dispute. We are called upon to interpret the

exception in § 3593(b)(2)(C).

The exception contains two prerequisites to the consideration of penalty-phase jury

composition required by § 3593(b)(1) - (3). First, the government attorney must have filed the

notice described in subsection (a). Second, the defendant must have either pleaded guilty or been

found guilty. If the prerequisites are satisfied, § 3593(b) requires “the judge who presided at the trial

or before whom the guilty plea was entered, or another judge if that judge is unavailable,” to conduct

a separate sentencing hearing before a penalty-phase jury described in § 3593(b)(1) - (3). The guilt

prerequisite has not been satisfied in this case. The plain language clearly demands conclusion of

the guilt phase prior to application of § 3593(b)(1) - (3). The court therefore should not have

reached the composition of the penalty-phase jury under § 3593(b)(1) - (3).

Additionally, we find that use of the past-tense word “determined” in § 3593(b)(2)(C)

“makes clear that the phrase ‘discharged for good cause’ refers to discharge for events arising after

the guilt phase has been concluded.” Green II, 407 F.3d at 441 (emphasis in original); see generally

Jones v. United States, 527 U.S. 373, 418 (1999) (“Discharge for ‘good cause’ under

§ 3593(b)(2)(C) . . . is most reasonably read to cover guilt-phase (and, by extension, penalty-phase)

juror disqualification due to, e.g., exposure to prejudicial extrinsic information or illness.”)

(Ginsburg, J., dissenting); id. at 381 (agreeing with dissent’s interpretation of the statute) (majority

opinion). The court in Williams similarly reasoned that:

No. 05-5846 United States v. Young Page 6

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 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.

400 F.3d at 282; see also United States v. O’Driscoll, 250 F. Supp.2d 429, 430-31 (M.D. Pa. 2001)

(“Section 3593(b)(2)(C) does not permit us at the beginning of the case to make a decision to

empanel two juries. Instead some event must occur subsequent to a guilty verdict which would

justify the discharge of the jury and the empaneling of a second jury to decide the penalty to be

imposed.”).

This interpretation is reinforced by the structure of § 3593(b) as a whole and by reading the

exceptions in § 3593(b)(2) together. This section provides first and in expressly mandatory

language that the sentencing hearing shall be conducted “before the jury that determined the

defendant’s guilt.” This unitary jury rule is followed by four conditional exceptions that allow for

a new jury to be empaneled for the sentencing hearing “if” one of four situations arises, including

when “the jury that determined the defendant’s guilt was discharged for cause.” § 3593(b)(2)(C).

It also provides, as a third option found in § 3593(b)(3), that the defendant may essentially “waive”

a jury in the penalty phase by moving, with the approval of the attorney for the government, for the

penalty to be determined by the judge.

The four exceptions enumerate the circumstances in which a district court is authorized to

empanel a jury to hear the sentencing issue; each plainly involves a situation where there is no jury

that can hear the penalty phase. The “common denominator” 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.”

Green II, 407 F.3d at 441. That is, subpart (A) and (B) pertain to situations where there was no

guilt-phase jury at all because there was either a guilty plea or a bench trial. Likewise, subpart (D)

applies when reconsideration of an imposed sentence is necessary, which arises almost certainly

following direct or collateral review well after the jury’s discharge. Id. As the First Circuit so

succinctly held in Green II, 407 F.3d at 441-42:

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.

We find that the plain meaning of § 3593(b)(2)(C) does not permit a pretrial determination that

“good cause” exists to adopt a dual-jury procedure in federal capital cases.

Without offering an alternative statutory interpretation, defendant argues that the “good

cause” exception must be viewed in the context of the district court’s broad discretion to control the

proceedings and tempered by the heightened need for reliability in capital cases. Defendant argues

that by allowing for a separate penalty-phase jury under § 3593(b)(2)(C), Congress recognized that

there may be circumstances when the guilt-phase jury should be discharged in furtherance of “higher

interests.” While this much is apparent from the inclusion of the “good cause” exception, the

question here is whether Congress left room for a district court to decide before trial that “good

No. 05-5846 United States v. Young Page 7

cause” exists to empanel separate juries to decide guilt and punishment. In other words, the issue

is whether the district court may make a pretrial determination that the case should not be tried

before a unitary jury.

The heart of defendant’s argument is that, in the absence of clear and unmistakable

congressional intent to restrict the district court’s powers, the court should construe § 3593(b) in a

way that preserves the district court’s inherent authority to manage trials and select juries as it sees

fit. Defendant analogizes this case to the inherent power of the federal courts to sanction a party for

bad-faith conduct, which the Supreme Court held was not displaced by provisions authorizing the

imposition of sanctions under 28 U.S.C. § 1927 and Fed. R. Civ. P. 11. Chambers v. Nasco, Inc.,

501 U.S. 32 (1991) (inherent power to control conduct may be invoked even though a procedural

rule covers the same conduct).

Tellingly, the Court in Chambers concluded that the mechanisms for imposing sanctions

under § 1927 and Rule 11 were not substitutes for the inherent power of the court because “that

power is both broader and narrower than other means of imposing sanctions.” Id. at 46. That is,

Congress did not manifest an intention to supplant the district court’s power to impose sanctions to

control the conduct of litigants. See also Link v. Wabash R.R., 370 U.S. 626, 630 (1962) (inherent

power to dismiss sua sponte for failure to prosecute not clearly abrogated by language in Rule 41(b)

that appeared to require a motion from a party).

It is also clear that the district court’s inherent powers may not be exercised in a way that

conflicts with federal statutes or rules. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988) (holding supervisory power may not circumvent mandatory language of harmless-error

inquiry required by Fed. R. Crim. P. 52(a)). The Supreme Court has rejected reliance on the district

court’s “inherent authority” as a basis for granting a motion for judgment of acquittal filed only one

day after the time limit imposed by Fed. R. Crim. P. 29(c), explaining that the case law did “not

establish any ‘inherent power’ to act in contravention of applicable Rules” and that the Court was

“not at liberty to ignore the mandate of Rule 29 in order to obtain ‘optimal’ policy results.” Carlisle

v. United States, 517 U.S. 416, 428 & 430 (1996). A statutory procedural rule framed “in terms of

the mandatory ‘shall’ . . . normally create[] an obligation impervious to judicial discretion.” Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).

Even Fed. R. Crim. P. 57(b), which defendant points to as a codification of the trial court’s

discretion, expressly provides that “[a] judge may regulate practice in any manner consistent with

federal law, these rules, and the local rules of the district.” As the court in Green II explained: “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.” 407 F.3d at 443.2

In response to the government’s argument that, under the district court’s reasoning, the

exception threatens to swallow the rule, defendant contends that the district court’s findings rest on

extraordinary case-specific circumstances that would recur in only the rarest of cases. In particular,

defendant emphasizes that the case management concerns included the outstanding disputes over

the aggravating factors alleged by the government, the fact that charges had been pending for more

than seven years, and the impact on cooperating codefendants who are still waiting to be sentenced.

Despite the reliance on these case-specific facts, the district court also relied on findings that a dual

2

The advisory committee’s notes to Rule 57(b) explain that the federal rules do not try to prescribe uniform

practice as to matters of detail such as “the mode of impaneling a jury, the manner and order of interposing challenges

to jurors, [or] the manner of selecting a foreman of a trial jury.” This case does not involve a detail that was left to the

individual courts to regulate.

No. 05-5846 United States v. Young Page 8

jury procedure could avoid much of the voir dire that would be necessary to death qualification and

that no sentencing hearing would be required unless the defendant were convicted on one or more

capital offenses. Both are true in all capital cases being tried to a unitary jury. Moreover, the district

court’s further concerns that a death-qualified guilt phase jury might be less diverse, more prone to

convict, and more likely to prematurely decide punishment, are widely applicable in other federal

death penalty cases. Defendant’s effort to limit the implications of the district court’s pretrial

finding of “good cause” under § 3593(b)(2)(C) is unavailing.

C. Waiver

Finally, the government challenges the district court’s alternative finding that the defendant

could “waive” the unitary jury requirement. Defendant has abandoned the waiver argument on

appeal, accepting that the district court’s authority to empanel separate juries under § 3593(b) would

not be dependent on the positions of the parties. We find the district court’s decision may not be

sustained on the basis of waiver. As the First Circuit in Green II persuasively reasoned:

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. . . . 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.

Green II, 407 F.3d at 443-44.

Because we find the that § 3593(b)(2)(C) may not be invoked pretrial on a finding of “good

cause” and that the defendant may not “waive” the unitary jury requirement, the district court’s order

is VACATED and the case is REMANDED for further proceedings consistent with this opinion.