USA V FERNANDEZ

ROBERT MERCADO, JR., aka Seal K; OPINION

aka Gato; ERNESTO MURILLO, aka

Seal L; aka Solo; ROLAND

RAMIREZ, aka Seal N; aka Capone;

aka Rolland Ramirez; JESUS

ROCHIN, aka Seal O; aka Gizmo;

FERNANDO ALVIDREZ; aka Cuate;

JAVIER ALVIDREZ DUARTE; MARIO

CASTILLO; DOMINICK SHEWMAKER

GONZALES, aka Solo; aka Dominick

Gonzales; GERARDO JACOBO, aka

Blanco; ADRIAN NIETO; SALLY

PETERS; SUZANNE SCHOENBERG,

Defendants-Appellees.

14285

Appeal from the United States District Court

for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Argued and Submitted

August 11, 2000--Pasadena, California

Filed November 7, 2000

Before: John T. Noonan, Stephen S. Trott, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Trott

14286 14287 14288

COUNSEL

Ronald L. Cheng, (Argued and On the Briefs), Assistant

United States Attorney, Los Angeles, California, for the

plaintiff-appellant.

14289

Dale Michael Rubin (Argued and On the Briefs), San Marino,

California, for defendants-appellees Gerardo Jacobo, Marcel

Arevalo, Javier Alvidrez Duarte, Daniel Bravo, Mario Cas-

tillo, and Robert Mercado.

Larry M. Bakman, (On the Briefs), Los Angeles, California,

for defendant-appellee Gerardo Jacobo.

Michael Belter, (On the Briefs), Riverside, California, for

defendant-appellee Marcel Arevalo.

Morton Philip Borenstein, (On the Briefs), Encino, California,

for defendant-appellee Javier Alvidrez Duarte.

John Cotsirilos, (On the Briefs), San Diego, California, for

defendant-appellee Daniel Bravo.

Michael M. Crain, (On the Briefs), Santa Monica, California,

for defendant-appellee Mario Castillo.

Jack M. Earley, (On the Briefs), Costa Mesa, California, for

defendant-appellee Robert Mercado.

_________________________________________________________________

OPINION

TROTT, Circuit Judge:

The question before us is whether the district court properly

sanctioned the United States for violating a discovery order

by precluding the government from seeking the death penalty

against Fernando Alvidrez, Marcel Arevalo, Daniel Bravo,

Javier Alvidrez Duarte, Gerardo Jacobo, and Robert Mercado

(collectively "Defendants"). The district court's decision to

impose this sanction was based on the government's refusal

to turn over its confidential predecisional death penalty evalu-

ation form and prosecution memorandum, which contained

14290

information concerning the Attorney General's pending deci-

sion whether to seek the death penalty against Defendants. On

appeal, the United States argues that the district court's dis-

covery order is clearly erroneous because (1) Defendants have

no right to discover these documents, and because (2) the doc-

uments are protected by the deliberative process and work

product privileges. For the reasons discussed below, we agree

with the government. We therefore reverse and remand to the

district court.

I

FACTUAL BACKGROUND

Defendants, alleged members of the "Mexican Mafia,"

have been charged with various violations of federal law,

including participation in the murders of Richard Serrano,

Jose Martin Gutierrez, and Enrique Delgadillo. Because these

murders allegedly were committed in furtherance of racke-

teering activity, see 18 U.S.C.A. § 1959(a)(1) (Supp. 2000), 1

and involved the use of a firearm, see id.§ 924(j) (2000), 2

_________________________________________________________________

1 18 U.S.C. § 1959 provides, in relevant part, that:

(a) Whoever, as consideration for the receipt of, or as consid- eration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, mur- ders, kidnaps, maims, assaults with a dangerous weapon, com- mits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or con- spires so to do, shall be punished-- (1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both.

2 18 U.S.C. § 924 provides, in relevant part, the following:

(j) A person who . . . causes the death of a person through the use of a firearm, shall --

(1) if the killing is a murder . . . be punished by death or by

imprisonment for any term of years or for life.

14291

they are punishable by death. This means that the Federal

Death Penalty Act (the "FDPA"), enacted by Congress in

1994, may apply. See id. § 3591 et seq. (Supp. 2000).

The FDPA, which authorizes the death penalty for more

than forty federal crimes, sets forth the general procedures for

imposing a death sentence in federal cases. First, if the gov-

ernment intends to seek the death penalty for a certain defen-

dant, it must notify the defendant "a reasonable time before

trial" of its intent to do so. Id. § 3593(a)(1) (Supp. 2000). Sec-

ond, the government must notify the defendant of all aggra-

vating factors that it "proposes to prove as justifying a

sentence of death" if the defendant is convicted of the under-

lying offense. Id. § 3593(a)(2). Finally, the FDPA requires

separate guilt and penalty phases for a death penalty prosecu-

tion. Id. § 3593(b).

However, these provisions of the FDPA are implicated only

if the government has made an authoritative decision to seek

the death penalty. In making this decision, the government is

guided by specific provisions in the United States Attorneys'

Manual ("USAM" or "Manual") that the Attorney General

issued shortly after Congress enacted the FDPA. Generally,

the USAM outlines the internal polices and procedures for the

prosecution of all federal cases involving death-eligible

offenses. See USAM § 9-10.000 et seq. (1997).

The Manual provides that, in all federal capital cases, the

ultimate decision to seek the death penalty lies with the Attor-

ney General. Id. §§ 9-10.020, 9-10.080. Before the Attorney

General renders her written decision, however, her assistants

must comply with certain operating procedures. To begin,

when a United States Attorney charges a defendant with an

offense subject to the death penalty, the attorney must submit

certain documents to designated persons in the Justice Depart-

ment. Id. §§ 9-10.040, 9-10.070. More specifically, the U.S.

Attorney submits a death penalty evaluation form and a prose-

cution memorandum to the Attorney General's Death Penalty

14292

Committee (the "Committee"), which assists the Attorney

General in deciding whether to seek the death penalty in a

certain case. Id. §§ 9-10.040, 9-10.050, 9-10.070. The guide-

lines require the U.S. Attorney to submit these documents no

later than thirty days before the government must file its "No-

tice of Intention to Seek the Death Penalty." Id. § 9-10.040.

Once the U.S. Attorney provides the Committee with these

documents, a meeting is held at which the defendant is given

an opportunity to persuade the government not to seek the

death penalty. Specifically, the guidelines provide that

"[c]ounsel for the defendant shall be provided an opportunity

to present to the Committee, orally or in writing, the reasons

why the death penalty should not be sought." Id. § 9-10.050.

After this meeting, the Committee then makes a recommenda-

tion to the Attorney General, who makes the final decision

whether to seek the death penalty in a particular case. Id.

II

PROCEDURAL BACKGROUND

In the case at bar, defendant Gerardo Jacobo filed a motion

on August 30, 1999, prior to scheduling of a meeting with the

Committee, in which he sought "Discovery Relevant to

Authorization to Seek the Death Penalty." In this motion,

Jacobo sought "all information that may tend to mitigate the

sentence in this case," so that he could make an"informed,

accurate and meaningful presentation to the government." The

government opposed the motion, arguing that Jacobo did not

have any right to such discovery and, moreover, that the docu-

ments at issue were protected by the deliberative process and

work product privileges.

On September 27, 1999, the district court held a hearing to

consider the motion. During the hearing, the district court

opined that the Attorney General's procedure for deciding

14293

whether to seek the death penalty was "illusory. " Specifically,

the district court judge stated:

See, why create this illusion . . . if you're defense counsel . . . and you were defending somebody, how can you really defend somebody if you can't and you don't know what the other side is saying about them?

The government responded that, although defendants may have a right to discover certain information about the govern- ment's case and intentions before trial, such a right does not extend to the meeting before the Committee.

The district court ruled on Jacobo's motion on October 7,

1999, ordering the government to provide all capital-eligible

defendants with its completed death penalty evaluation form

and prosecution memorandum not later than ten days before

each defendant's presentation to the Committee in Washing-

ton, D.C. In response, on October 19, 1999, the government

filed a "Notice of Non-Compliance with Court's Order and

Suggested Procedure," in which the government respectfully

but firmly informed the district court that it would not comply

with its order dated October 7, 1999.

The district court considered the matter again on October

21, 1999, and made the following ruling:

Basically [prosecutor] I'm going to put it this way to you. If you don't do what I previously ordered [then] I'm not going to allow the Government to seek the death penalty as against those individuals that have been defined by the Government as being eligible for the death penalty . . . . Now, if you feel I'm wrong you appeal me.

Nevertheless, the government maintained its position and refused to produce the death penalty evaluation form or the

14294

prosecution memorandum. As a result, on October 26, 1999,

the district court issued a written order precluding the govern-

ment from seeking the death penalty against Defendants

unless it complied with the October 7, 1999 discovery order.

The United States now appeals from that order.

III

JURISDICTION

As an initial matter, we must consider Defendants' argu-

ment that this court lacks jurisdiction over the United States'

appeal because the district court"s decision was not a final,

appealable order. Defendants' contention lacks merit.

In United States v. Wilson, 420 U.S. 332 (1975), the

Supreme Court interpreted 18 U.S.C. § 3731 and held that

government appeals in criminal cases are not restricted to the

specific categories listed in section 3731. 3 The Court

explained that "Congress intended to remove all statutory bar-

riers to Government appeals and to allow appeals whenever

the Constitution would permit." Id. at 337. Under Wilson,

therefore, a government appeal is barred only if it implicates

the concerns protected by the double jeopardy clause of the

Fifth Amendment. See United States v. Hetrick , 644 F.2d 752,

755 (9th Cir. 1981) (holding that, under section 3731, the

_________________________________________________________________

3 18 U.S.C. § 3731 provides, in relevant part, the following:

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 prosecution. . . . The provisions of this section shall be liberally construed to effectuate its purposes.

18 U.S.C.A. § 3731 (Supp. 2000).

14295

court had jurisdiction to review a district court's order reduc-

ing a sentence).

At the same time, as we have previously recognized, sec-

tion 3731 does not "abolish the final judgment rule of section

1291 for criminal appeals prosecuted by the Government."

United States v. Dior, 671 F.2d 351, 355 (9th Cir. 1982); see

28 U.S.C. § 1291 (providing for appeal only"from all final

decisions of the district courts"). The final judgment rule,

however, does not block this appeal. For while discovery

orders themselves are not generally "final" for purposes of

section 1291, Church of Scientology v. United States, 506

U.S. 9, 18 n.11 (1992), "parties who face such an order have

the option of making the decision `final' simply by refusing

to comply," and appealing the resulting sanction. Pennsylva-

nia v. Ritchie, 480 U.S. 39, 50 (1987); see also United States

v. Richter, 488 F.2d 170, 172 (9th Cir. 1973) (reviewing dis-

missal of an indictment because of the government's noncom-

pliance with a discovery order); but cf. Cunningham v.

Hamilton County, 527 U.S. 198 (1999) (holding that no inter-

locutory appeal lies from a purely retrospective, monetary

sanction imposed pursuant to Federal Rule of Civil Procedure

37(a)(4)). Accordingly, the Supreme Court has "consistently

held that . . . one who seeks to resist the production of desired

information [must choose] between compliance with a trial

court's order to produce prior to any review of that order, and

resistance to that order with the concomitant possibility of an

adjudication of contempt if his claims are rejected on appeal."

United States v. Ryan, 402 U.S. 530, 533 (1971).⁴ Here, the

_________________________________________________________________

4 We express no opinion whether a discovery order disposing of an

asserted claim of privilege could be independently appealed under the col-

lateral order doctrine of Cohen v. Beneficial Industrial Loan Corp. 337

U.S. 541 (1949), a question on which our sister circuits are divided. Com-

pare Pearson v. Miller, 211 F.3d 57, 64 (3d Cir. 2000) ("An order denying

the applicability of a claimed privilege conclusively determines the ques-

tion, and does so in a way that is effectively unreviewable: once released,

information has lost a measure of confidentiality that can never fully be

14296

government selected the latter option. It refused to comply

with the district court's order, willfully incurring a sanction

and thereby rendering the decision final and reviewable. See

United States v. Cheely, 36 F.3d 1439, 1441 (9th Cir. 1994)

(not mentioning the §1291, but implicitly finding an order that

the defendant could not be subjected to the death penalty suf-

ficiently final, presumably under the Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949) collateral order

rule, to permit review).

IV

DISCUSSION

A. Standard of Review

We review de novo the question whether the district court

had any legal basis for its discovery order. United States v.

Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992). If it did, then

the court's choice of a sanction for a violation of its order is

reviewed for an abuse of discretion. Id.

B. Analysis

The USAM provides the defendant with an opportunity to

appear before the Committee and present reasons why the

government should not seek the death penalty. See USAM

§ 9-10.050. Defendants argued to the district court that once

the government decides to establish such a procedure, the

Sixth Amendment and due process require the government to

turn over all mitigating information to Defendants' attorneys

_________________________________________________________________

regained.") with Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122,

1124 (7th Cir. 1997) ("[A] discovery order is not deemed collateral even

if it is an order denying a claim of privilege.") and In Re United States,

680 F.2d 9, 11 (2d Cir. 1982) ("The assertion of a privilege . . . does not

convert what would otherwise be an interlocutory discovery ruling . . . into

a collateral, and therefore appealable, order.").

14297

so that they might effectively advocate on their clients'

behalf. The district court agreed with Defendants and ordered

the government to produce the death penalty evaluation form

and prosecution memorandum, notwithstanding that Defen-

dants did not request the production of these particular docu-

ments. The source of the district court's order was speculation

that without the disclosure, the process would somehow be

"unfair:"

I would think that if I was defense counsel in this case and I'm going to be . . . presenting all this[miti- gating evidence] . . . and then you have so called information that you are going to be feeding the Attorney General and I don't know anything about it I am going to say well that is unfair. That is totally unfair. At least [let] me . . . see some of that informa- tion because that information you might be spoon feeding the Attorney General is made up.

Because we find that the death penalty evaluation form and prosecution memorandum are privileged documents and find no legal basis for overriding the privilege, we vacate the dis- trict court's order requiring production of those materials.

1. USAM Guidelines

To begin, it is clear that the USAM does not create any

substantive or procedural rights, including discovery rights.

The USAM explicitly states that

[t]he Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substan- tive or procedural, enforceable at law by any party in any manner civil or criminal.

Id. § 1-1.100. In addition, several courts, including this cir- cuit, have consistently held that these guidelines do not create

14298

any rights in criminal defendants. See, e.g., United States v.

Montoya, 45 F.3d 1286, 1295 (9th Cir. 1995); United States

v. Piervinanzi, 23 F.3d 670, 682 (2d Cir. 1994); United States

v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993); United

States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987). Thus,

the USAM guidelines cannot serve as a legal basis for the dis-

trict court's discovery order.

2. Deliberative Process and Work Product Privileges In addition, the district court's discovery order reached too far because the death penalty evaluation form and prose- cution memorandum are protected by the deliberative process and work product privileges.

In order to be protected by the deliberative process priv-

ilege, "a document must be both (1) `predecisional' or `ante-

cedent to the adoption of agency policy' and (2)

`deliberative,' meaning `it must actually be related to the pro-

cess by which polices are formulated.' " National Wildlife

Fed'n v. United States Forest Serv., 861 F.2d 1114, 1117 (9th

Cir. 1988) (quoting Jordan v. United States Dep't of Justice,

591 F.2d 753, 774 (D.C. Cir. 1978)). By shielding such docu-

ments from discovery, the deliberative process privilege

encourages forthright and candid discussions of ideas and,

therefore, improves the decisionmaking process. Assembly of

the State of Cal. v. United States Dep't of Commerce , 968

F.2d 916, 920 (9th Cir. 1992). "It would be impossible to

have any frank discussions of legal or policy matters in writ-

ing if all such writings were to be subjected to public scruti-

ny." National Wildlife, 861 F.2d at 1117 (internal quotation

marks omitted).

Here, the death penalty evaluation form and the prose-

cution memorandum are both "predecisional" and"delibera-

tive." First, the documents are "predecisional " because the

U.S. Attorney submits these documents to the Committee

before the Attorney General makes the final decision whether

14299

to seek the death penalty. See USAM §§ 9-10.040, 9-10.050;

see also Federal Trade Comm'n v. Warner Communications,

Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (holding that for a

document to be "predecisional" it must have been generated

before the adoption of an agency's policy or decision).

Second, the death penalty evaluation form and prosecu-

tion memorandum are "deliberative" in that they "contain[ ]

opinions, recommendations, or advice about agency policies."

Id. Specifically, the USAM requires that the documents con-

tain the following information:

Following (i) an introduction, the prosecution mem- orandum should include a comprehensive discussion of (ii) the theory of liability, (iii) the facts and evi- dence, including evidence relating to any aggravat- ing or mitigating factors, (iv) the defendant's background and criminal history, (v) the basis for Federal prosecution, and (vi) any other relevant information. The Death Penalty Evaluation form is intended primarily to be used as a guideline and work sheet for the internal decision making process, and may be hand written.

USAM § 9-10.040. Although the documents at issue include "facts and evidence," which are not protected by the delibera- tive process privilege, see Warner Communications, 742 F.2d at 1161, that factual material is so interwoven with the delib- erative material that it is not severable. See Binion v. Depart- ment of Justice, 695 F.2d 1189, 1193 (9th Cir. 1983). "The evaluation form and memorandum are designed to help the Attorney General decide whether the death penalty is appropriate in any case in which the death penalty is a poten- tial sentence." Furrow, 100 F. Supp. 2d at 1174. As such, these documents clearly play an integral role in the govern- ment's deliberative and policy-making processes and, thus, are protected by the deliberative process privilege. See id.; see

14300

also United States v. Frank, 8 F. Supp. 2d 253, 284 (S.D.N.Y.

1998) ("Discovery of the deliberative materials would have a

chilling effect on the thorough evaluation of these issues and

hinder the just, frank, and fair review of the decision for every

individual defendant who faces the prospect of receiving a

Notice of Intent to Seek the Death Penalty.").

Likewise, the more general work product privilege

applies to the death penalty evaluation form and prosecution

memorandum. In Hickman v. Taylor, 329 U.S. 495 (1947),

the Supreme Court first acknowledged the work product privi-

lege, whose primary purpose is to "prevent exploitation of a

party's efforts in preparing for litigation." Admiral Ins. Co. v.

United States Dist. Court, 881 F.2d 1486, 1494 (9th Cir.

1989); see also United States v. Nobles, 422 U.S. 225, 238-39

(1975) (noting that the work product privilege also applies in

criminal cases). Additionally, Rule 16 of the Federal Rules of

Criminal Procedure recognizes the work product privilege and

exempts from production "reports, memoranda, or other inter-

nal government documents made by the attorney for the gov-

ernment or any other government agent investigating or

prosecuting the case." Fed. R. Crim. P. 16(a)(2). Thus, the

documents in question here fall squarely within the ambit of

the work product privilege as they both are internal govern-

ment documents prepared by the U.S. Attorney in anticipation

of litigation. See Furrow, 100 F. Supp. 2d at 1175; United

States v. Nguyen, 928 F. Supp. 1525, 1552 (D. Kan. 1996).

We therefore conclude that the specific documents at

issue in this case -- the death penalty evaluation form and the

prosecution memorandum -- are not subject to discovery

because they are protected by the deliberative process and

work product privileges.

3. Sixth Amendment Right to Counsel

Defendants suggest that the Sixth Amendment right to

counsel provides some right to discovery so as to assure effec-

14301

tive representation, and suggest that that right could override

the usual work product and deliberative privileges if those

privileges precluded effective representation. We need not

decide whether the Sixth Amendment-based discovery prem-

ise of Defendants' argument is correct, because the privileged

documents the district court ordered the government to dis-

closed would not be discoverable in any event.

The Sixth Amendment guarantees a defendant the right

to effective assistance of counsel at all critical stages of a

criminal proceeding. United States v. Gonzalez , 113 F.3d

1026, 1029 (9th Cir. 1997). Critical stages include those in

which "potential substantial prejudice to defendant's rights

inheres in the particular confrontation and . . .[counsel may]

help avoid that prejudice." Schantz v. Eyman , 418 F.2d 11, 13

(9th Cir. 1969) (internal quotation marks omitted). The

Supreme Court has further defined a "critical stage" in crimi-

nal proceedings as one which affects the defendant's right to

a fair trial. United States v. Wade, 388 U.S. 218, 226 (1967).

We need not decide whether the death penalty authori-

zation process created by the USAM is a "critical stage" of

the proceedings. Assuming, without deciding, that the death

penalty authorization process is a "critical stage," Defendants

still would not be entitled to the death penalty evaluation form

and prosecution memorandum because these documents are

protected by the deliberative process and work product privi-

leges, and these privileges apply during "critical stages." See,

e.g., Nobles, 422 U.S. at 239-40 (recognizing that the work

product privilege applies during a criminal trial, as long as the

privilege is not waived by its holder); United States v. Sal-

sedo, 607 F.2d 318, 320-21 (9th Cir. 1979) (holding that crim-

inal defendant's counsel waived work product privilege by

referencing the privileged document during cross-

examination). We therefore conclude that defendants do not

14302

have a right to discover the death penalty evaluation form and

prosecution memorandum pursuant to the Sixth Amendment.5

V

CONCLUSION

In summary, we hold that the district court clearly erred

and abused its discretion in issuing the October 7, 1999, dis-

covery order and the subsequent death penalty preclusion

order because it lacked a legal basis for either of these orders.

We therefore reverse and remand to the district court with

instructions to vacate and rescind its order and sanction and

to allow the government to proceed with the death penalty

authorization process and decision.

REVERSED and REMANDED.

_________________________________________________________________

5 We also reject Defendants' assertion that Brady v. Maryland, 373 U.S.

83 (1963), compels the government to produce the evaluation form and

memorandum before the Committee meeting. Brady merely requires the

government to turn over the evidence in time for it to be of use at trial.

See United States v. Gordon, 844 F.2d 1937, 1403 ("Brady does not neces-

sarily require that the prosecution turn over exculpatory material before

trial. To escape the Brady sanction, disclosure must be made at a time

when disclosure would be of value to the accused.") (internal quotation

marks omitted); see also United States v. Wilson , 160 F.3d 732, 742 (D.C.

Cir. 1998) ("[A] new trial is rarely warranted based on a Brady claim

where the defendants obtained the information in time to make use of it.").

Nonetheless, "the due process principles announced in Brady and its

progeny must be applied to" certain pretrial proceedings, such as suppres-

sion hearings. United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993).

Whether or not those principles apply to the Committee meeting, we find

that nondisclosure of the government's privileged internal evaluation form

and memorandum does not amount to a due process violation.

14303

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