Opposition Brief — United States v. Bass

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No. 01-1471 . JUN 8 ; : . 4,

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| Supreme Court of the Anite Sr

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| UNITED STATES,

Petitioner,

Vv.

JOHN BASS,

Respondent.

SJ

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals ‘

For The Sixth Circuit %

; :

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

>

ANDREA D. LYon*

DEPAUL COLLEGE OF LAW ‘

25 E. Jackson Blvd.

Chicago, IL 60604-2219 .

(312) 362-8402 t-

WILLIAM B. DANIEL

577 E. Larned, Suite 240

Detroit, MI 48226

(313) 963-1455

| SAMUEL R. Gross

* los + . :

——

UNIVERSITY OF MICHIGAN LAW SCHOOL

625 South Main Street

Ann Arbor, MI 48104

| (734) 764-1519

| Attorneys for Respondent @

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QUESTIONS PRESENTED

1. Did the court of appeals exceed its jurisdiction by

entertaining a Government appeal in a criminal case from

a pre-trial order dismissing the prosecution’s notice of

intent to seek the death penalty, in the absence of any

statutory authority for an appeal from such an order?

2. Did the court of appeals properly affirm the district

court’s finding that the defendant was entitled to discovery

in support of his claim of discriminatory prosecution

because he had presented “some evidence” of the existence

of the elements of that claim?

’

TABLE OF CONTENTS

Page

Pepe NING nccnccsisssiitiisiaaiiaibinainaliiatinti dani 1

Reasons Why the Petition Should Not Be Granted... 4

I. The Court Lacks Jurisdiction to Review This

Case on Certiorari Because, Contrary to The

Decision of The Court of Appeals, The Gov-

ernment Lacked Statutory Authority to Ap-

peal The District Court’s Order ...../.........0..... 4

Il. This Case Is Not Ripe For Review on Certio-

i eieeiitintniniindanciiemateieninianinin ll

III. The Decision Below Affirming The Discovery

Order Is Consistent With Controlling Prece-

a i ictectnninicesenicncicsemnindsandtumns 19

IV. This Is Not an Appropriate Case For Review

by this Court on Certiorari .......................0000 26

eet cisenesiesinciaecipeinaiptiipartcihalatitaaainiaipa sini sininta lindane 29

TABLE OF AUTHORITIES

Page

CASES:

Ah Sin v. Wittman, 198 U.S. 500 (1905)..................ccccceeeee 23

Branch Ministries, Inc. v. Charles Rossotti, 970

Ee 17

EPA v. Mink, 410 U.S. 73 (1973)...........ccccccccccecccesseeeees 12, 14

Estate of Cowart v. Nicklos Drilling Co., 505 U.S

ESE es a 8

Hickman v. Taylor, 329 U.S. 495 (1947).................ccceeceeeee 12

McCleskey v. Kemp, 481 U.S. 279 (1987)......... 19, 20, 21, 24

Nixon v. Fitzgerald, 457 U.S. 731 (1981)................ccccceeeeees 5

Sutherland v. International Insurance Co., 43 F. 2d

EET EEE AO CE 21

United States v. Acosta-Martinez, 252 F.3d 13 (1st

Cir. 2001)......... SE Le Se ee ST i)

United States v. Andolschek, 142 F.2d 503 (2nd Cir.

BOGE) ........rerscrerecerecscerenenecsncererecsnecsnseecsneessescsssesnenesenececees 12

United States v. Armstrong, 517 U.S. 456 (1996)......passim

United States v. Berrios, 501 F.2d 1207 (2nd Cir.

ac en 14, 22, 23

United States v. Bradley, 880 F. Supp. 271 (M.D.

I h aeaitiatinteccahaatiecinreaiiaiinn ih ttantaiaaainriarnatienanintti 15, 16, 17

United States v. Candia-Veleta, 104 F.3d 243 (9th

EES Ec Oe a RR 14

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Correa-Gomez, 160 F. Supp. 2d 748

GRD, Bin BIG ED cccnceesnssnsscrnssmesstesemenmenatinnesnnnssisnes 17

United States v. Daniels, 141 F. Supp. 2d 140 (D.

ee 17

United States v. Fernandez, 231 F.3d 1240 (9th Cir.

I cecceccncnncnienesnanniciantatiatianiinaiasiitiainntaliintaliaataitieaita 4

United States v. Glover, 43 F. Supp. 2d 1217 (D

ee He eT ee 15

United States v. Green, 108 F. Supp. 2d 1169 (D

Rte censerisismenieanintailattttieeieaitealeama tial ail 14

United States v. Hastings, 126 F.3d 310 (4th Cir.

Ee ee NS 16

United States v. Jones, 159 F.3d 969 (6th Cir. 1998)......... 20

United States v. Jones, 2002 WL 464678 (5th Cir.

ITT cciiecincinstinarnstanmnienitiapinateihiidanitasetasaeniitiaalin ia taiantteeiainstitiainie 27

United States v. Levasseur, 846 F.2d 786 (ist Cir.

Serr haciicessntesiansrestnneenestatenapaeetianitiadtticinaintaa nailer tiaattaateattnnina 8

United States v. Llera-Plaza, 181 F. Supp. 2d 414

Se Gee ccnnannreisnettinntiemansisisinarentes 16, 17, 22, 27, 29

United States v. Margiotta, 646 F.2d 729 (2nd Cir.

EupaIecccestrenpiemmocnnsnpansinitebensniiiineieiiientinmepiaeiamnisennien i)

United States v. Margiotta, 662 F.2d 131 (2d Cir.

ee 8

United States v. Martin Linen Supply Co., 430 U.S.

Se ae ye iroreiecnssnichiscuteniiaiiiemensinieniiamentenemen 8

United States v. Martin, 733 F.2d 1309 (8th Cir.

1984) (en banc), cert. denied, 471 U.S. 1003, 105

S. Ct. 1864, 85 L. Ed. 2d 158 (1985) ...........c.cc-esceeeeeesees 8

v

TABLE OF AUTHORITIES — Continued

Page

United States v. Minred, 182 F. Supp. 2d 459 (W.D.

RESIS SNR a Oe ae EEN 27, 29

United States v. Olvis, 97 F.3d 739 (4th Cir. 1996) ........... 16

United States v. Presser, 844 F.2d 1275 (6th Cir.

AGS. Ee a ER 10

United States v. Sanges, 144 U.S. 310 (1892)..................... 4

United States v. Sells Engineering, 463 U.S. 418

| Sl SRS SRE On Sea 21

United States v. Sisson, 399 U.S. 267 (1970) .................0++ 7

United States v. Tom, 787 F.2d 65 (2nd Cir. 1986)............. 8

United States v. Tuitt, 68 F. Supp. 2d 4 (D. Mass.

ES CS Sone ee ee ee Oe 17

United States v. Turner, 104 F.3d 1180 (9th Cir.

En ae Mane ea ene 16

United States v. Whren, 517 U.S. 806 (1996) .................... 22

United States v. Wilson, 420 U.S. 332 (1974).............. 4,6,7

United States v. Woolard, 981 F.2d 756 (5th Cir.

EE Le ees ae a “4

Wayte v. United States, 470 U.S. 598 (1985) .................00 14

STATUTES AND CONSTITUTIONAL PROVISIONS:

CE passim

I EE 1

CC ee 1

CN eT 1

BD TEA. BG ccccnccsesnsccststsseensccnssepensscssccssesesevasssnescesossenste 21

vi

TABLE OF AUTHORITIES — Continued

Page

nent 21

OB U.S.C. § 1254..-.-c-0-cecsesseserersrsesssesenssnssessnsenerensnsssessosenenss 5

y= tf Se 20

FEDERAL RULES:

PRA.P. BG(0)......0.0-c-cecesevensorerecevseensesesosssnssssoessosesecssssesesenees 4

PR. Crim. P. Glf).......0.-:c-cscecesserereneseseseresersossenosssssoncsseeseosens 8

FR. Crim. P. 28(j)....---:-c-csccsseeserenrersssensssnesessosssssossserscsesenses 3

PR. Corian. P. 2016) ...0.0-0cecececscacoseserernsecsescsnesvenensensosscsscossocess 8

MISCELLANEOUS:

http/www.capdefnet.org/fdpre/contents/shared_files/

SS Toe 15, 28

National Institute of Justice, Solicitation, Research

Into the Investigation and Prosecution of Homi-

cide: Examining the Federal Death Penalty Sys-

tem (July 20, 2001)..........cccceseereneeesseeseeserssersensssnsensnenees 26

Dennis O’Brien and David Nitkin, Glendening

Halts Executions; Md. Governor Is Second to

Impose Moratorium; Racial, Geographic Inequal-

ity Seen; UM Study to Be Reviewed by next Gen-

eral Assembly, The Baltimore Sun, May 10, 2002,

1

PROCEDURAL HISTORY

On August 19, 1997, Respondent John Bass was

arrested pursuant to a federal indictment charging him

with conspiracy to distribute crack cocaine in the Northern

District of Ohio, in violation of 21 U.S.C. § 846 and

§ 841(b)1XA). On October 29, 1998, Mr. Bass was ar-

raigned for conspiracy to distribute crack cocaine, in

violation of 21 U.S.C. § 846, in the Eastern District of

Michigan; one week later the Ohio charges were adjourned

without date and later dismissed. On December 9, 1998, a

second superceding indictment was filed in the Eastern

District of Michigan, charging Mr. Bass and thirteen co-

defendants, in addition to various drug charges, with

multiple counts of intentional killing and firearms murder

in the course of drug trafficking, in violation of 21 U.S.C.

§ 921(j). On August 13, 1999, Attorney General Janet Reno

authorized the United States Attorney for the Eastern

District of Michigan to seek the death penalty against Mr.

Bass only.

In the three-and-a-half years since December, 1998,

the Government has dismissed the charges against or

entered into plea agreements with all thirteen of the other

defendants named in the second superceding indictment,

leaving only Respondent John Bass. On May 7, 2000,

Respondent was in the midst of entering a guilty plea

pursuant to Rule 11 of the Federal Rules of Criminal

Procedure when a misunderstanding surfaced regarding

the terms of his plea agreement with the Government. The

district court adjourned the plea until May 10, 2000, to

give Mr. Bass time to confer with counsel. Instead, on May

10, the district court was informed that an extraordinary

breach of security had put Mr. Bass’s safety at risk:

Information that he had given to the Government in

C$ LA

confidence in the course of his plea negotiations had been

provided, in writing, to another prisoner in the same

detention facility who had been arrested on the basis of

information provided by ——— As a result, the plea

was aborted.’ ,

On September 8, 2000, Respondent filed a motion to

dismiss the notice of intent to seek the death penalty in

his case because of racial discrimination, and for discovery

of information relevant to that issue. On October 16, 2000,

he filed a supplemental memorandum in support of those

motions, providing the district court with copies of a study

of the federal death penalty that was released by the

Department of Justice on September 12 of that year (the

“DOJ Study”), and of a transcript of a press conference by

then Attorney General Janet Reno and Deputy Attorney

Genera! Eric Holder on the release of the DOJ Study. 4 fter

argument on October 24, 2000, the district court granted

' Specifically, on May 10, 2000, Mr. William Daniel, one of Mr.

Bass’s appointed attorneys, informed the court that when he went to

st tan dale adler ilies aman ee

just seen another prisoner who had told him that he knew that

pesos wile Mr Baa dened tun care In rrp

April 23, 2001, and is pending. See Appendix A to Respondent's Memo-

randum in Opposition to Petition for Rehearing En Banc.

eee

3

Respondent's discovery motion; at that hearing, the

Government indicated that it would not comply with the

discovery order. The Government's motion for reconsidera-

tion was denied on December 20. On January 10, 2001 —

after the Govermment again informed the court that it

would provide mo information in response to the discovery

order, in any frm — the district court entered an order

dismissing the notice of intent to seek the death penalty

for Mr. Bass. The Government filed a notice of appeal on

February 26, 200}.

After oral argument on June 14, 2001, the Sixth

Circuit affirmed the district court's discovery order on

September 25, 2001.’ The circuit cowrt remanded the case

to the district court for further proceedings om issues of

privilege, relevance, and undue burden thet «ould not be

addressed either by the district court or om appeal because

the Government had refused to produce any documents for

the trial judge’s consideration, in camero or otherwise. On

October 9, 2001, the Government filed a petition for

* On June 8, 2001 — six days before oral argument — the Govern-

ment submitted to the Sixth Circuit a new report on the federal death

penalty that had been released by the Department of Justice two days

earlier, on June 6 (the “Ashcroft Report”), together with testimony by

Attorney General John Ashcroft before the House Judiciary Committee,

also on June 6. These documents were purportedly submitted under

F.R. Crim. P. 28(j) which permits a party to submit citations to legal

authorities that have come to the party's attention after »riefing.

Respondent filed a letter in response pointing out that F.R. Crim. P.

28(j) contemplated the submission of citations, not documents, to legal

authorities, not evidence, and requesting permission tc file a supple-

mental] memorandum in response. On June 13, at the request of the

Sixth Circuit, Respondent filed a supplemental memorandum ad-

dressed to the Government's submission.

4

rehearing en banc,’ which was denied on December 7‘ In

late February, 2002, the Government requested ond

received an extension of the period to file its petition for

certiorari until April 6, 2002.

+

REASONS WHY THE PETITION

SHOULD NOT BE GRANTED

I. THE COURT LACKS JURISDICTION To

REVIEW THIS CASE ON CERTIORARI BR.

CAUSE, CONTRARY TO THE DECISION or

THE COURT OF APPEALS, THE GOVERN.

MENT LACKED STATUTORY AUTHORITY To

APPEAL THE DISTRICT COURT’S ORDER

The law is clear that “the Government [may] not take

an appeal in a criminal case without express statutory

authority.” United States v. Wilson, 420 U.S. 332, 336

(1974), citing United States v. Sanges, 144 U.S. 310 (1892),

* At oral argument on June 14, 2001, the Government had stated

that Respondent voluntarily rejected a plea bargain because it required

him to testify against his brothers, and the Chief Judge criticized the

Government for referring to matters outside the record. Following the

argument, the Government lodged with the court a copy of the aborted

plea agreement between Mr. Bass and the Department of Justice, but

provided no record of the district court proceedings surrounding that

plea bargain, on May 7 and May 10, 2000. See supra, note 1. The

Government also attached a copy of the plea agreement to its Petition

for Rehearing En Banc, but again provided no information on the Rule

11 hearings at which the plea bargain fell apart. ©

* On November 5, 2001, pursuant to F.R.A.P. 35(e), the circuit court

requested a Memorandum in Opposition to the Petition for Rehearing

En Banc, which was filed by Respondent on November 13, 2001 (and

which did provide the court with a transcript of the Rule 11 hearings on

May 7 and 10, 2000).

5

In this case the Government purported to rely on 18

U.S.C. § 3731. But § 3731 nowhere authorizes the Gov-

ernment to appeal the sort of district court order at issue

here, which was an order dismissing the Government's

notice of intent to seek the death penalty, and not — as

specified by the explicit text of the statute defining what

orders are appealable — an order “dismissing an indict-

ment or information ... as to any one or more counts.” In

the absence of authority to appeal, this Court has no

jurisdiction to consider the case on certiorari because this

is not a case “in the court[] of appeals” as required by 28

U.S.C. § 1254 (emphasis added).°

The text of the relevant portion of 18 U.S.C. § 3731 is

unambiguous:

In a criminal case an appeal by the United States

shall lie to a court of appeals from a decision,

- judgment, or order of a district court dismissing

an indictment or information or granting a new

trial after verdict or judgment, as to any one or

more counts, except that no appeal shall lie

where the double jeopardy clause of the United

States Constitution prohibits further prosecu-

tion.

The provisions of this section shall be liberally

construed to effectuate its purposes.

* See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 734 (1981): “[Wle

conclude that petitioner did present [an] ... appealable question to the

Court of Appeals. It follows that the case was ‘in’ the Court of Appeals

under § 1254 and properly within our certiorari jurisdiction.”

6

Id. (Emphasis added.) To state the obvious: 18 UsS.c.

§ 3731 does not provide express authority for an appeal in

this case because the district court’s order did not dismiss

the indictment against Mr. Bass, or any count of the

indictment, or any portion of any count. It did not alter the

indictment by a single word. The statute could only possi-

bly provide such authority if the notice of intent to seek

the death venalty were a part of the indictment. But that

is plainly false. The notice of intent was not included in

the indictment, and it was not issued by the grand jury,

the judicial body that returned the indictment. It was

instead a notice of a decision by the executive branch,

made by the Attorney General more than eight months

after the second superceding indictment against Mr. Bass

was filed.

In United States v. Wilson, 420 U.S. at 338, this Court

stated:

While the language of the new Act [18 U.S.C.

§ 3731] is not dispositive, the legislative history

makes it clear that Congress intended to remove

all statutory barriers to Government appeals and

to allow appeals whenever the Constitution

would permit. |

This statement in Wilson, however, speaks to an aspect of

the statute’s reach that has no bearing on the issue pre-

sented by the Government’s attempted appeal in the

present case. The district court order at issue in Wilson

was a dismissal of an indictment, a type of order which

§ 3731 does expressly permit the Government to appeal.

The pertinent issue in Wilson was whether the current

version of § 3731 imposed any non-constitutional restric-

tions on Government appeals from dismissals based on

the grounds on which the district court dismissed the

7

indictment; the Court held that it does not.° The Court had

no occasion in Wilson to consider whether this statute

authorizes an appeal when there has been no dismissal of

an indictment at all. Nor have there have been any deci-

sions from this Court since Wilson that apply § 3731 in the

present context.

On the question of statutory interpretation at issue

here, there should be no occasion to resort to legislative

history (or any other secondary sources of authority) since

the meaning of the statute is plain: it permits an appeal

from a dismissal of a grand jury indictment, or a portion of

* In Wilson the Court reviewed a Third Circuit opinion, 492 F.2d

1345 (1973), that disallowed a Government appeal on the authority of

United States v. Sisson, 399 U.S. 267 (1970). Sisson itself was the last of

a long line of cases dating back to Sanges, supra, construing and often

criticizing the predecessor to the current statute, which made the

Government’s right to appeal turn on elaborate and murky distinctions

between the grounds for the district court’s action. Thus, for example,

in Sisson, Justice Harlan commented for the Court:

Clarity is to be desired in any statute, but in matters of juris-

diction it is especially important. Otherwise the courts and the

parties must expend great energy, not on the merits of dispute

settlement, but on simply deciding whether a court has the

power to hear a case. When judged in these terms, the Crimi-

nal Appeals Act is a failure. Born of compromise, and reflecting

no coherent allocation of appellate responsibility, the Criminal

Appeals Act proved a most unruly child that has not improved

with age.

399 U.S. at 307. The present statute was passed by Congress in 1970,

the same year as Sisson, and eliminated the complex structure that had

evolved under the prior Act. Instead, § 3731 provides that certain

categories of orders may be appealed — including dismissals of indict-

ments — unless the double jeopardy clause prohibits further prosecu-

tion.

8

an indictment, and not otherwise.’ As this Court has

emphasized:

In a statutory construction case, the beginning

point must be the language of the statute, and

when a statute speaks with clarity to an issue

judicial inquiry into the statute’s meaning, in all

but the most extraordinary circumstance, is fin-

ished.

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475

(1992).

For the most part, circuit court cases applying § 3731

are consistent with the plain meaning of the statute.

There are several cases, for example, that hold that

dismissal of a portion of a count is appealable as an order

dismissing a “count,” because, among other reasons, the

division of charges into separate counts is often arbitrary.’

In other cases, courts of appeals have » ddressed the range

" The Court has had occasion to interpret the term “dismissal” in

this context. In United States v. Martin Linen Supply Co., 430 U.S. 564,

567 n.4 (1977), the Court held that a judgment of acquittal under F.R.

Crim. P. 2%c) - an order that terminates a prosecution under an

indictment - should be considered a “dismissal” for the purposes of

§ 3731. But there has been no uncertainty as to the meaning of

“indictment” — it is the charging instrument issued by the grand jury.

See, e.g., F.R. Crim. P. 6(f): “A grand jury may indict only upon the

concurrence of 12 or more jurors. The indictment shall be returned by

the grand jury ....”

* See, e.g., United States v. Martin, 733 F.2d 1309, 1310 (8th Cir.

1984) (en banc), cert. denied, 471 U.S. 1003, 105 S.Ct. 1864, 85

L. Ed. 2d 158 (1985); United States v. Margiotta, 662 F.2d 131, 139-41

(2d Cir. 1981) (Margiotta II); United States v. Levasseur, 846 F.2d 786,

788 (1st Cir. 1988). On the other hand, circuit courts have held that

orders are not appealable where the dismissed portion of a count did

not provide a “discrete basis for the imposition of criminal liability.” See,

e.g., United States v. Tom, 787 F.2d 65, 68-71 (2nd Cir. 1986).

9

of types of orders that may constitute “dismissal” of the

indictment, or of part of it.’ When courts must decide

whether, for the purposes of this statute, an order

amounts to a “dismissal,” or whether a portion of an

indictment constitutes a “count,” it is appropriate to give

effect to the statutory provision that “this section shall be

liberally construed to effectuate its purposes.” But that

language does not create “explicit statutory authority” to

appeal when a basic statutory requirement for appellate

jurisdiction is entirely absent.”

The Sixth Circuit opinion in the present case, like a

few similar decisions in other circuits,” is flatly inconsis-

tent with the plain meaning of § 3731. In United States v.

Woolard, 981 F.2d 756, 757 (5th Cir. 1993), for example,

the Fifth Circuit held that a district court’s dismissal of

the Justice Department’s notice of intent to seek the death

penalty “was in every practical way as much of an altera-

tion of the grand jury’s charge as the striking of predicate

acts of forfeiture....” Apparently the court of appeals

overlooked the fact that a notice of intent to seek the death

penalty is not a part of the grand jury’s charge at all.

* See, e.g, United States v. Margiotta, 646 F.2d 729, 732 (2nd Cir.

1981) (Margiotta I) (order requiring an election between allegation

amounted to a dismissal of the allegations not elected).

* This does not deprive the government of any pre-trial remedy. In

United States v. Armstrong, 517 U.S. 456, 461 n.2 (1966), for example,

“the government itself . . . suggested dismissal of the indictments to the -

district court so that an appeal might lie.” When the government

chooses that procedure, it may later re-indict the defendant if the

original order is upheld, since jeopardy will not have attached.

“ United States v. Woolard, 981 F.2d 756, 757 (5th Cir. 1993),

United States v. Cheely, 36 F. 3d 1439 (9th Cir. 1994); United States v.

Fernandez, 231 F.3d 1240 (9th Cir. 2000), United States v. Acosta-

Martinez, 252 F.3d 13, 16 (1st Cir. 2001).

10

Similarly, the Sixth Circuit in this case relied on its earlier

opinion in United States v. Presser, 844 F.2d 1275, 1280

(6th Cir. 1988):

In Presser, we exercised jurisdiction over the

United States’s appeal from an order granting a

defendant’s discovery request because the district

court indicated that if the United States failed to

comply, it would suppress the relevant evidence,

which would likely result in dismissal of the in-

dictment. Here, the United States’s failure to

comply with the district court’s discovery order

resulted in dismissal of the death penalty notice

— in effect, a partial dismissal of the charge.

266 F.3d at 535-36.” In fact, the notice of intent to seek the

death penalty is not a part of the grand jury’s indictment,

and the district court’s order dismissing that notice did not

dismiss any portion of the grand jury’s charge. As a result,

the circuit court erred in holding that 18 U.S.C. § 3731

provided a jurisdictional basis for the Government's

appeal.”

“ The circuit court’s description of Presser is puzzling. The Bass

opinion treats Presser as a decision based on the first paragraph of

§ 3731, the one at issue here, which provides for appeals from dismiss-

als of indictments or counts. But Presser itself is explicitly based on the

second paragraph of § 3731, which permits the Government to appeal a

suppression order without regard to the possibility that it may result in

a dismissal. Presser, 844 F.2d at 1279, n.5.

* In light of the jurisdictional question in this case - which the

Government does not address — the Solicitor General's suggestion of

summary reversal (Government's Petition for Writ of Certiorari (“Pet.”)

p. 24) is peculiarly inappropriate, given that such a disposition (even if

it were tenable on the merits) would create a binding precedent on a

jurisdictional issue of first impression by construing a statute inconsis-

tently with its explicit language without the benefit of briefing and

argument.

11

ll. THIS CASE IS NOT RIPE FOR REVIEW ON

CERTIORARI BY THIS COURT

Throughout the litigation below, the Government

refused to address critical factual issues in the district

court. As a result, there is no record to support the Gov-

ernment’s essential claims in its petition for review by this

Court.

The starting point is the circuit court’s order on

remand. On appeal, tiie Government argued at length that

the discovery order required production of documents that

are exempt from disclosure by the work product and

deliberative process pr: ileges — or irrelevant or non-

existent — and that it was excessively burdensome. Brief

for the United States (“Br.”) pp. 3, 17, 19, 26, Reply Brief

for the United States, p. 14. (The Government later raised

these same claims again, in its Petition for Rehearing En

Banc, p. 8). The Sixth Circuit addressed these issues as

best it could, given the state of the record:

[T]he United States argues that the requested

items are either not relevant, non-existent, or

already in Bass’s possession. The district court

indicated that it would hear from the United

States as to the unavailability or irrelevancy of

particular documents, but the United States

chose instead to refuse to comply with the entire

order. That refusal also prohibited the district

court from reviewing the requested documents to

determine whether the United States’ claimed

privileges applied to any of them. Therefore, we

find the record insufficiently developed to allow

us to assess the merits of the United States’s

arguments relating to the content of the

requested documents. Because of this, and

because we think the district court should have

the opportunity to review each requested item’s

12

relevancy and privileged status in the first

instance, we remand to the district court with

instructions to allow the United States to

produce the documents for an in camera review.

If the United States again fails to comply, the

district court remains free to impose whatever

sanction it deems appropriate under the

circumstances.

266 F.3d 532, 540." Rather than availing itself of this

opportunity to remedy the defects in the record — and by

doing so, enable the lower courts to address the central

issues in the case —- the Government on remand again

refused to produce any documents whatever, on discovery

or for review by the district court in camera. Instead it

filed its petition in this Court.

In its Petition for Certiorari the Government no

longer argues the issues of privilege or undue burden by

name. Given the remand from the circuit court, and its

refusal to address these issues in the district court, how

* Earlier in its opinion, the Sixth Circui it explained:

The district court, noting that the United States did not offer

any of the allegedly privileged materials for in camera re-

view, further found that any privileges that may have at-

tached to the materials were outweighed by the

constitutional interests implicated by Bass's allegations . .

266 F.3d at 535 (emphasis added).

In other words, given the circumstances created by the Government,

the district court held that the conditional privileges cited by the

Government do not categorically trump the defendant’s constitutional

claims. See, Hickman, v. Taylor, 329 U.S. 495, 511 (1947); EPA v. Mink,

410 U.S. 73, 86-87 (1973); United States v. Andolschek, 142 F.2d 503,

506 (2nd Cir. 1944) (L. Hand, J.). Needless to say, the district court

could not decide on the actual status of particular documents except by

anny Gam, co & was Gisasted to do on comand, the Goverment

13

could it? Instead, the Government makes the same argu-

ments by other names - or, to be precise, in general terms

with no names at all. For example, the petition repeatedly

asserts that the Government will be required to produce

“thousands” of documents (Pet., pp. 12, 20), a “vast array”

of documents (Pet., p. 20), and “voluminous” documents

(Pet., p. 21), and that assembling them would be “time

consuming and highly burdensome.” Pet., p. 20. Similarly,

the petition argues that the discovery order requires the

disclosure of “highly sensitive internal documents” (Pet..,

pp. 12, 20), will expose and interfere with internal prose-

cutorial deliberations (Pet., pp. 12, 20), and will “stifle” or

“disrupt” frank and orderly prosecutorial decision making.

Pet., pp. 12, 21. These doomsday predictions are the very

claims of “undue burden” and “privilege” that the Gov-

ernment argued on appeal but has steadily refused to

address concretely in the district court, now stated in

vaguer terms.

Normally, the sort of factual claims that are alleged in

the Government’s petition are resolved in the first in-

stance by trial courts, with the assistance of the Govern-

ment. United States v. Armstrong, 517 U.S. 456 (1996), the

leading case relied on by the Government, is a good exam-

ple:

The Government moved for reconsideration of

the District Court’s discovery order, With this

motion it submitted affidavits and other evidence

to explain why it had chosen to prosecute re-

spondents and why respondents’ study did not

support the inference that the Government was

singling out blacks for cocaine prosecution.

14

517 US. at 460." No similar evidence was presented here.

The specific claims of privilege that the Government

converts here into less specific claims of prejudice are

generally resolved by submission of documents to the trial

court in camera — as the Sixth Circuit explicitly suggested

in its remand. See, EPA v. Mink, 410 U.S. 73, 88 (1973);

Wayte v. United States, 470 U.S. 598, 616-18 (1985) (Mar-

shall, J., dissenting); United States v. Berrios, 501 F.2d

1207, 1212 (2nd Cir. 1974). By refusing to submit any

documents to the district court the Government has made

that impossible. Without ever seeing any of them, the

“ Specifically, in Armstrong:

The federal and local agents participating in the case al-

leged in affidavits that race played no role in their investi-

gation. An Assistant United States Attorney explained in an

affidavit that the decision to prosecute met the general cri-

teria for prosecution, because “there was over 100 grams of

cocaine base involved, over twice the threshold necessary for

a ten year mandatory minimum sentence; there were multi-

ple sales involving multiple defendants, thereby indicating a

federal firearms violations intertwined with the narcotics

trafficking; the overall evidence in the case was extremely

strong, including audio and videotapes of defendants; .. .

and several of the defendants had criminal histories includ-

also submitted sections of a published 1989 Drug Enforce-

ment Administration report which concluded that “large-

scale, interstate trafficking networks controlled by Jamai-

cans, Haitians and Black street gangs dominate the manu-

facture and distribution of crack.”

517 U.S. 456, 460 (citations omitted).

Similar submissions by the Government are common in less

celebrated cases. See, e.g., United States v. Green, 108 F. Supp. 2d 1169,

1171 (D. Kan. 2000) (government presented testimony from several

people); United States v. Candia-Veleta, 104 F.3d 243, 245 (9th Cir.

1996) (government presented evidence on charging practices).

15

district court could not possibly determine whether an

entire class of documents is covered by the work product or

deliberative process privileges; nor (as the issues are

restated here) could it decide whether the documents

requested are “highly sensitive,” or whether producing

them would be “highly burdensome.”

This same sensible practice has been followed in two

other cases in which district courts have initially granted

motions for discovery on the issue at stake here: the

possibility of racial discrimination in federal capital

charging.” In United States v. Bradley, 880 F. Supp. 271,

281 (M.D. Pa. 1994), the court issued a discovery order,

admonished the parties to cooperate in expediting and

simplifying the process, and stated that it would consider

the Government’s privilege claims in camera." In response

the Government provided some limited information to the

defendant, and submitted other documents to the court in

camera. After reviewing that submission, the district court

“ In a third case, United States v. Glover, 43 F. Supp. 2d 1217,

1234-35 (D. Kan. 1999), the defendant pled guilty two weeks after the

district court issued a similar order, mooting the issue. See

http//www.capdefnet.org/fdpre/contents/shared_files/docs/time.htm, infra,

note 24.

" “('Tjhe court will allow the defense a short amount of time to

obtain the discovery it seeks, and admonishes both sides to be as

cooperative as possible so as to ensure that discovery is timely com-

pleted. ... The government contends that the material sought by

Defendant is protected by the deliberative process privilege. .. . Ai this

stage, the court is unable to determine whether the information sought

by Defendant would fall within either the deliberative process or work

product categories. However, once the defense sets forth precisely what

information it seeks, the court will permit the government to reassert

these privileges. The court might then order an in camera review of the

documents to determine if they truly fall within the parameters of these

two doctrines.” 880 F. Supp. 271, 281.

16

ruled against the defendant on the underlying motion to

dismiss for selective prosecution, and it held the Govern-

ment need not turn over to the defendant any of the

documents submitted for in camera review. United States

»y. Bradley, CR-92-200-01, Mem. & Order 4/27/94. More

recently, in United States v. Llera-Plaza, 181 F. Supp. 2d

414 (E.D. Pa. 2002), the district court ordered discovery of

documents pertaining to other capital-eligible federal

prosecutions in the Eastern District of Pennsylvania. After

two motions for reconsideration and partial production of

the requested documents, the district court ordered the

Government “to produce for the court, under seal for its in

camera inspection, certain of the materials” covered by the

earlier order, 181 F. Supp. 2d at 418. The Government

complied, id. at 420, and on the basis of that evidence the

district court ruled that “[t}he government will not be

directed to turn over any of the submitted materials to the

defendants because, in the court’s judgment, the materials

contain no evidence supportive of the defendants’ Motion

to Bar the Death Penalty.” 181 F. Supp. 2d at 420. Accord-

ingly, the defendants’ motion to dismiss was denied on the

merits. Id. at 421." |

- In other reported post-Armstrong cases in which the Government

has appealed district court orders granting discovery on claims of

sffidavits and testimony describing its charging practices. And in

United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997), the

(Continued on following page)

17

The issues of privilege, relevance and undue burden

are not the only ones that have been left unresolved in the

lower courts. The substantive motion to which the trial

court’s discovery order was directed — Respondent’s motion

to dismiss the request for the death penalty — has never

been reached. One of the important advantages of the in

camera production procedure suggested by the Sixth

Circuit is that it would enable the district court to address

the discovery motion and the underlying motion to dismiss

simultaneously, on the basis of adequate facts. This is

exactly what happened in United States v. Bradley, and

United States v. Llera-Plaza. In the present case, if the

discovery order is reversed on review, the district court

will have to consider that motion to dismiss in the absence

of any evidentiary assistance from the Government.

sesevery

F. Supp. 2d 4 (D. Mass. 1999), the Government complied with a similar

discovery order, and the same discovery available to several other

defendants in the same district; only one of the defendants who

neained di

denied. See, United States v. Daniels, 141 F. Supp. 2d 140, 143, 145 (D.

18

In addition, the Petition for Certiorari makes new

factual claims that were never made to the district court

and are not part of the record on appeal. The Government

criticizes the Sixth Circuit for relying “on incomplete

statistics from which the court drew inferences that are

now known to be incorrect.” Pet., p. 15. This is a disputed

factual argument, and, Respondent submits, it is wrong.

More important, the argument is based on materials that

the Government itself admits “were released after the

district court’s decision and provided to the court of ap-

peal” (Pet., p. 14) — to wit, the Ashcroft Report, supra note

2, which was lodged with the court the week before oral

argument. The Sixth Circuit, of course, could not properly

consider that report on appeal because it had not been in

the record before the district court. But if the report

materially supports the Government’s claims, why did the

Government fail to bring it to the attention of the district

court on remand, by motion for reconsideration or other-

wise?

Finally, the Government contends that the Sixth

Circuit’s discussion of data on plea bargains in federal

capital cases is immaterial because Respondent “was

offered a plea bargain but declined to take it.” (Pet., p. 16)

This is a highly debatable claim, to say the least, consider-

ing that there is a pending motion to dismiss the indict-

ment against Respondent, based on substantial allegations

of governmental misconduct that produced an extraordi-

nary violation of the confidentiality that was promised to

the Respondent in his plea negotiations with the Govern-

ment. See supra, note 2. More important, although the

Government raised this claim in oral argument in circuit

court, and in its petition for rehearing en banc, it has

never addressed the issue in district court — not in its brief

19

or argument on the original motion for discovery, not in its

motion for reconsideration, and not on remand from the

Sixth Circuit after the issue was addressed in that appel-

late court in the absence of a factual record.

III. THE DECISION BELOW AFFIRMING THE

DISCOVERY ORDER IS CONSISTENT WITH

CONTROLLING PRECEDENTS FROM THIS

COURT

The Government argues that the decision of the court

of appeals “violates the teachings of McCleskey v. Kemp

[481 U.S. 279 (1987)].” Pet., p. 17. The short answer is

stated succinctly in the Sixth Circuit’s opinion: The issues

are not the same. In McCleskey this Court had to decide:

whether the defendant had carried his burden of

proof on the merits of his selective prosecution

claim. In contrast, we must determine only

whether Bass has shown “some evidence tending

to show the existence of ... discriminatory in-

tent” sufficient to warrant discovery....

McCleskey will certainly preclude Bass’s selective

prosecution claim if, at the end of discovery, he

fails to show any additional evidence that the

United States intentionally discriminates

against blacks through the death penalty proto-

col. It does not, however, pose any bar to Bass at

this preliminary stage.

266 F.3d 532, 539-40 (citations omitted, emphasis added).

(McCleskey, of course, received extensive discovery in

preperation for his selective prosecution claim, beyond

20

anything Respondent has sought in this case.)" Ag the

circuit court points out, “[oJbviously, a defendant need not

prove his case in order to justify discovery on an issue”

Id., quoting United States v. Jones, 159 F.3d 969, 978 (6th

Cir. 1998).

Even so, an additional short comment on McCleskey is

in order. In McCleskey the Court denied the defendant’s

claim in part because it is extremely “difficult to deduce a

consistent policy by studying the decisions of [the] ...

many unique entities” involved in capital charging, prose-

cution and sentencing in Georgia. 481 U.S. at 295, n.15.

The Government cites this footnote but neglects to point

out the striking differences between the issues here and in

McCleskey. First, since the only question here is charging,

there is no need to consider the actions of juries (the most

unique and least accountable of the “many entities” in

McCleskey) or of judges. Second, even when the focus is

limited to the decision to charge, this case presents a far

simpler situation than McCleskey: the charging decisions

in McCleskey were made under the authority of hundreds

of separate District Attorneys, each of whom “is elected by

the voters in a particular county.” Jd., citing. Ga. Const.,

Art. 6, § 8, para. 1. The charging decisions here were all

made by a single unified agency, the United States De-

partment of Justice.

The Government faults Respondent for relying on

nationwide statistics, and argues that the various United

| ” See, e.g., 481 U.S. at 361 n.13: “As a result of McCleskey’s

discovery efforts, the record also contains relevant testimonial evidence

by two state officials.” (Describing the depositions of prosecutors Lewis

hw ona and Russel Parker on the bases for their capital charging

ons.

21

States Attorneys make “independent decisions” whether to

charge defendants with capital eligible offenses. Pet., p.

18. In fact, unlike the hundreds of constitutionally sepa-

rate and independently elected District Attorneys in

Georgia,

All functions of other officers of the Department

of Justice and all functions of agencies and em-

ployees of the Department of Justice are vested

in the Attorney General [except certain functions

concerning administrative law judges and Fed-

eral Prison Industries].

28 U.S.C. § 509; see also 28 U.S.C. § 519. Judge Learned

Hand described this system in 1930:

The Attorney General has powers c “general su-

perintendence and direction” over [United

States] district attorneys [citation omitted]... .

Thus he may displace [federal] district attorneys

in their own suits, dismiss or compromise them,

institute those which they decline to press. No

such system is capable of operation_unless his

powers are exclusive. ... His powers must be co-

extensive with his duties.

Sutherland v. International Insurance Co., 43 F. 2d 969,

970 (2d Cir. 1930); see also United States v. Sells Engineer-

ing, 463 U.S. 418, 470-72 (1983) (Burger, C.J., dissenting).

The Department of Justice’s official position is the same. 6

Op. O.L.C. 47 (1982) (T. Olson, Asst. A.G., O.L.C.). The

elaborate “protocols” that regulate federal capital charging

are a striking illustration of this centralized power. Just as

“(t]he decisions of a jury commission or of an employer

over time are fairly attributable to the commission or the

employer,” McCleskey, 481 U.S. at 295, n.15, the decisions

22

of a single prosecutorial agency over time are fairly attrib-

utable to the agency.

In United States v. Llera-Plaza, supra, the Govern-

ment took exactly the ppposite position to the one it arguvs

here:

[T]he government contends that it is inapposite

to single out another case in this district — Mer-

lino — for comparison with the case at bar, as dis-

tinct from comparing the case at bar with any or

all of the scores of federal criminal prosecutions

for death-eligible offenses*in other districts.

181 F. Supp. 2d at 420. In truth, discrimination by race at

either level is unconstitutional. It is a violation of the

equal protection clause to stop or search a motorist be-

cause of his race, United States v. Whren, 517 U.S. 806,

813 (1996), whether the decision to do so is based on a

general practice of the police department, or the individual

predilections of a specific officer. At this point, of course,

Respondent cannot prove discrimination either nationally

or locally, but he has made a sufficient showing to justify

the district court’s order granting discovery.

In determining that Respondent made a sufficient

showing to justify discovery, the court of appeals correctly

applied this Court’s decision in United States v. Arm-

strong, 517 U.S. 456 (1996). Under Armstrong, a defendant

seeking discovery must present “some evidence tending to

show the existence of the essential elements of the de-

fense” of discriminatory prosecution — that is, the defen-

dant must present some evidence of discriminatory effect

and discriminatory intent. Id. at 468, quoting United

States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974). In

the usual case, this preliminary showing on discriminatory

23

effect must include “some evidence that similarly situated

defendants of other races could have been prosecuted, but

were not... .” Id. at 469.

One could argue that the stark racial disparities

reflected in the DOJ Study are themselves “some evi-

dence” of differences in prosecution patterns by race” -

but thet is not necessary. As the court of appeals points

out, at the time the DOJ Study was released, Deputy

Attorney General Holder admitted this disparate impact:

“I can’t help but be both personally and professionally

disturbed by the numbers that we discuss today. ... [N]Jo

one reading this report can help but be disturbed, trou-

bled, by this disparity.... I’m particularly struck by the

facts that African-Americans and Hispanics are over-

represented in those cases presented for consideration of the

death penalty, and those cases where the defendant is

actually sentenced to death.” United States v. Bass, 266

* In AA Sin v. Wittman, 198 U.S. 500 (1905), the defendant

complained about his conviction under an ordinance “prohibiting

persons from setting up gambling tables in rooms barricaded to stop

police from entering.” See, Armstrong, 517 U.S. at 566. The Court held

that in addition to alleging “that the ordinance is enforced ‘solely and

exclusively against persons of the Chinese race and not otherwise’,” id.,

quoting Ah Sin, 198 U.S. at 507, he had to allege “that the conditions

and practices to which the ordinance was directed did not exist

exclusively among the Chinese, or that there were other offenders

against the ordinance than the Chinese as to whom it was not en-

forced.” Id. In Armstrong itself the comparable issue was the racial

composition of the corps of crack cocaine traffickers in Los Angeles in

1992. Arguably, a glaring racial disparity has more obvious implications

in the context of the entire universe of federal capital murder prosecu-

tions than in the comparatively obscure contexts in Ah Sin and

Armstrong — especially given such well known background facts as the

proportion of white defendants on federal death row (21% as of July,

2000) and the proportion of white defendants on state death rows

(55%). DOJ Study at 36 n.28.

24

F.3d at 538 (emphasis in original). In Armstrong the Court

reserved the question of whether a prosecutorial admis-

sion of discriminatory purpose would suffice to fulfil] the

defendants burden on discriminatory effect.” Here we

have a simpler situation: a Governmental admission of

discriminatory effect, which is necessarily sufficient proof

on the very point that is admitted.”

And what about discriminatory intent? In Armstrong

this Court did not specify how that element should be

proven, and for good reason. Ultimately, under McCleskey,

a defendant who alleges discriminatory prosecution must

prove discriminatory intent in his specific case, but, in the

nature of the issue, the lower burden that must be carried

at the initial stage of discovery will generally be met by

circumstantial evidence. In this case, the court of appeals

relied on two factors:

[T]he stark discriminatory effect of the federal

death penalty protocol, coupled with the De-

partment of Justice’s official statements recogniz-

ing the possibility of intentional discrimination

in light of the protocol’s discriminatory effect

” “We reserve the question whether a defendant must satisfy the

similarly situated requirement in a case ‘involving direct admissions by

[prosecutors] of discriminatory purpose.’ Brief for United States 15.”

Armstrong, 517 U.S. at 469 n.3.

* In addition, the Sixth Circuit notes that the record includes

evidence of a narrower class of white defendants who were treated more

favorably than black defendants in federal capital prosecutions: “ ...

Bass has identified a pool of similarly situated defendants — those

whose crimes shared sufficient aggravating factors that the United

States chose to pursue the death penalty against each of them. Of those

defendants, the United States enters plea bargains with one in two

aon it enters plea bargains vith one in four blacks.” Bass, 266 F.3d

at ,

25

presents some evidence tending to show that race

in fact plays a role in the United States’s deci-

sion-making process.

Bass, 266 F.3d at 540.

This last point deserves some emphasis. At the time

the DOJ Study was released, Attorney General Reno held

a press conference, a transcript of which is in the record

below. Joint Appendix (“JA”) pp. 94-104. After describing

the findings in general terms, and expressing her deep

concern about the racial disparities reported, she said:

More information is needed to better understand

_.. how homicides make their way into the fed-

eral system, and once in the federal system, why

they follow different paths. An even broader

analysis must be undertaken to determine if bias

does, in fact, play any role in the federal death

penalty system.

JA p. 96. She called for studies by experts outside the

Department. This was an official statement by the Attor-

ney General who authorized the request for the death

penalty in this very case, in reaction to a study she com-

missioned on the operation of the federal death penalty

protocols that were enacted in her administration and

under which this defendant was charged. As the Sixth

Circuit notes, the Attorney General (like the Deputy

Attorney General) was deeply troubled because race may

have been biasing federal capital charging, and required

more information — from outside experts — to know for

sure. 266 F.3d at 539. Accordingly, the court of appeals

concludes:

If the Department of Justice’s official position

is that these statistics, standing alone, show

26

sufficient evidence of the possibility of racia]

animus to warrant further study, we cannot

fairly deny Bass the same opportunity to investi-

gate [that claim]....

Id. Given the circumstances reflected in the record, it was

appropriate under Armstrong for the circuit court to

require the Government to at least attempt to address the

factual issues raised by Respondent’s motion for discov-

ery.

IV. THIS IS NOT AN APPROPRIATE CASE FOR

REVIEW BY THIS COURT ON CERTIORARI

In its petition to this Court, the Government argues

that the discovery order in Mr. Bass’s case “threatens to

stop federal death penalty prosecutions in their tracks,”

(Pet., p. 12) and “has the potential to disrupt all federal

capital cases ... .” Pet., p. 22. This is melodramatic hyper-

bole. In fact this case has few implications, if any, for other

federal prosecutions — as the Government’s petition itself

demonstrates.

The decision of the Sixth Circuit was filed on Septem-

ber 25, 2001. In footnote 8 to its petition (Pet., p. 22) the

* In the meantime, the National Institute of Justice issued a

request for proposals to conduct the independent study of the federal

death penalty that was ordered by Attorney General Reno in 2000, and

is in the process of awarding the contract for the study. See National

Institute of Justice, Solicitation, Research Into the Investigation and

Prosecution of Homicide: Examining the Federal Death Penalty System

(July 20, 2001). See also generally Dennis O’Brien and David Nitkin,

Glendening Halts Executions; Md. Governor Is Second to Impose

Moratorium; Racial, Geographic Inequality Seen; UM Study to Be

"ieee The Baltimore Sun, May 10, 2002,

P

27

Government lists a dozen cases in which discovery motions

similar to the one at stake were rejected. The first opinion

cited as inconsistent with the Bass decision - United

States v. Jones, 2002 WL 464678 (5th Cir. 2002) — was filed

in late March, 2002, six months after the Bass opinion; the

second opinion cited in that footnote, United States v.

Minred, 182 F. Supp. 2d 459 (W.D. Pa. 2002), was filed in

February, 2002, over four months after the decision in

Bass, and shortly before the Government requested an

extension of time to file its petition for certiorari. In

addition, although not cited by the Government, there is

United States v. Llera-Plaza, 181 F. Supp. 2d 414 (E.D. Pa.

2002), decided in early January, 2002, in which the district

court, after reviewing an in camera submission by the

Government, denied further discovery as well as the

defendant’s underlying motion to dismiss. See supra text

at notes 16-17. The Government's doomsday warnings

notwithstanding, this case has hardly affected other

federal prosecutions at all, let alone stopped the federal

death penalty in its tracks. This modest impact should be

no surprise, given the nature of the case: a circuit court

opinion on an interlocutory appeal, affirming a discretion-

ary discovery order by a district court judge and remand-

ing the case to give the Government an opportunity to

make a presentation to the district court in camera.

In addition, even if other courts were inclined to

exercise their discretion in the same manner as the dis-

trict court here, only a handful of other cases share the

same factual context. Respondent’s motion for discovery

was based primarily on a Department of Justice study of

the federal death penalty that was conducted under

former Attorney General Janet Reno, and on comments

made by Attorney General Reno and Deputy Attorney

28

General Eric Holder at the time that study was released.

As the Government points out (Pet., pp. 14-15), the cur-

rent Attorney General, John Ashcroft, released a second

internal study of the federal death penalty in June 2001,

which, he claimed, laid to rest any worry that the federa]

death penalty is affected by racial discrimination.™ |p,

addition, and more important, in June 2001, Attorney

General Ashcroft changed the “protocol” for charging

capital and potentially capital federal crimes in two major

respects: (1) United States Attorneys are now required to

report to the Justice Department in Washington any cases

that they might have charged as federal capital crimes but

did not; and (2) local federal prosecutors may no longer

enter into plea bargains in capital cases without the

approval of the Attorney General. Pet., p. 5, n.1.

Arguably, the record in this case speaks only to those

federal capital prosecutions that were begun before the

administration of Attorney General Ashcroft. Certainly

this record has no direct implications for any case in which

the request for the death penalty was filed later than

June, 2001. As best we can determine, among 31 pending

federal capital indictments, there are at most 7 cases (and

probably fewer) that are plausibly similarly situated to

Bass and in which the question before the Court has not

yet been reached,” and in some of those cases the

™ As Respondent has noted, supra note 2, the Government brought

that study to the attention of the circuit court on appeal, but made no

effort to put it before the district court on remand.

* In the absence of data from the Department of Justice itself,

the best available information on this issue can be found at http-/

www.capdefnet.org/fdpre/contenta/shared_files/doca/time htm, a web page

maintained by the Federal Death Penalty Resource Counsel (FDPRC),

an organization funded pursuant to the Criminal Justice Act to provide

(Continued on following page)

defendants have no standing to raise the issue at stake

here because they are white. (All future federal capital

cases, of course, will be well beyond the range of this

record). Judging from the track record to date, the Sixth

Circuit opinion in the present case is not likely to influ-

ence the course of even one of that handful of pending

prosecutions.

y. CONCLUSION

For the reasons stated, Respondent respectfully

requests that the Petition for Certiorari be denied.

Respectfully submitted,

ANDREA D. LYON

WILLIAM B. DANIEL

SAMUEL R. GROSS

Attorneys for Respondent

consultation and litigation support vervices to Federal Defenders,

courts, and private defense counsel appointed in federal death penalty

prosecutions. According to the FDPRC, there are 31 pending capital

indictments that have not been tried, involving 38 defendants. (An

additional three cases with four defendants are awaiting re-trial, but in

those cases this issue will have been raised, if at all, before the initial

trial). Of these 31 indictments, only 5 indictments, including 7 defen-

dants, were filed during the tenure of Attorney General Reno. An

additional 3 cases with 5 defendants were filed after Reno left office but

before June, 2001. For 3 single-defendant indictments the date on

which the notice of intent to seek the death penalty was filed is not

listed; judging from the trial and indictment dates it appears that in

one of these three cases the notice of intent was filed before June, 2001.

This means that 9 cases involving 13 defendants could possibly be

similarly situated to Mr. Bass. In at least 2 of these 9 cases, including 3

defendants, the motion at issue here has already been denied. United

States v. Llera-Plaza, supra; United States v. Minred, supra.