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 No.  97-284 (JAF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

 

UNITED STATES OF AMERICA, Plaintiff,

 v.

NICHOLAS PENA-GONZALEZ, Defendant.

                                   

MOTION TO STRIKE THE DEATH PENALTY BASED UPON THE COURT’S NONCOMPLIANCE WITH 18 U.S.C. 3005 AND LOCAL RULE 428 AS TO DEFENDANT NICHOLAS PENA-GONZALEZ

 

The Defendant, NICHOLAS PENA-GONZALEZ, by and through his undersigned counsel, pursuant to 18 U.S.C. 3005, Local Rule 428 of the United States District Court for the District of Puerto Rico, Fed.R.Crim.P. 12, the Due Process clause and the Equal Protection Clause of the United States Constitution, and pursuant to other applicable rules, law and constitutional protections, respectfully requests that this Honorable Court enter an Order striking the death penalty as to NICHOLAS PENA-GONZALEZ, based upon the following:

 

I. STATEMENT OF FACTS

1. On July 28, 1998, Defendant NICHOLAS PENA-GONZALEZ had his initial appearance in this case [D.E. # 119].  On July 30, 1998, attorney Thomas R. Lincoln was appointed pursuant to the Criminal Justice Act to represent Defendant NICHOLAS PENA-GONZALEZ . On July 30, 1998, the Defendant was arraigned and entered a plea of not guilty to counts 1, 2 and 3 of the indictment [D.E. # 130].

2. On July 31, 1998, the Defendant NICHOLAS PENA-GONZALEZ filed his Motion for Appointment of Counsel in a Capital Case [D.E. # 131]. 1

3. On or about August 28, 1998, the Court entered an Endorsed order in which it wrote as follows: Order: M. Muldrow shall report in sealed filing on this request” [D.E. # 131-1].

4. Thereafter, on September 1, 1998, the Court entered an Order denying without prejudice Defendant NICHOLAS PENA-GONZALEZ’S motion for appointment of counsel in a capital case [D.E. # 142].

5. On November 3, 1998, the Defendant NICHOLAS PENA-GONZALEZ pro se filed a motion for attorney Thomas Lincoln to withdraw [D.E. # 170]. The motion evidenced a deep distrust on the part of Defendant NICHOLAS PENA-GONZALEZ for his then-court appointed attorney, Mr. Lincoln.

6. On November 16, 1998, the Government filed its Informative Motion in which it requested that all death penalty eligible defendants, including Defendant NICHOLAS PENA-GONZALEZ, provide a mitigation submission [D.E. # 175]. 2

7. On December 9, 1998, the Court entered an Endorsed Order on Defendant NICHOLAS PENA-GONZALEZ’S pro se motion for attorney Thomas Lincoln to withdraw, as follows: Order: Mr. Lincoln will be notified with a copy of this order and will report to the Court before December 20. [D.E. # 170-1].

8. On December 17, 1998, the Government filed its Notice of Intention to Seek the Death Penalty as to Defendant NICHOLAS PENA-GONZALEZ and three other co-defendants [D.E. 183]. 3

9. On December 18, 1998, a further Motion for attorney Thomas Lincoln to withdraw was filed on behalf of Defendant NICHOLAS PENA-GONZALEZ [D.E. # 185].

10. On December 21, 1998, the Court granted the motion of attorney Thomas Lincoln to withdraw as attorney for Defendant NICHOLAS PENA-GONZALEZ [D.E.# 185-1].

11. On December 23, 1998, this Court appointed Rafael Anglada-Lopez, Esq., as local counsel for Defendant NICHOLAS PENA-GONZALEZ and William D. Matthewman, Esq., as learned counsel for the Defendant. [D.E. # 190].

 

II. RELIEF SOUGHT

12. During the time period in which the United States Attorney for the District of Puerto Rico and the Attorney General of the United States were considering whether or not to seek the death penalty as to Defendant NICHOLAS PENA-GONZALEZ, and during this period when a mitigation letter was supposed to be prepared and forwarded on behalf of the Defendant by his counsel, the Defendant was denied “learned” counsel. This was clearly contrary to law, as discussed further below.

13. Moreover, due to the obvious conflicts between Defendant NICHOLAS PENA-GONZALEZ and his prior attorney Thomas Lincoln, evidenced by the motions to withdraw during this critical stage of the proceeding, Defendant NICHOLAS PENA-GONZALEZ in actuality had no representation while the death penalty decision was being made. No mitigation letter was prepared on behalf of Defendant NICHOLAS PENA-GONZALEZ. No attorney appeared on behalf of Defendant NICHOLAS PENA-GONZALEZ when the critical meeting of the Department of Justice’s “death penalty committee” was held in Washington, D.C. on December 4, 1998. In effect, nothing was done on behalf of Defendant NICHOLAS PENA-GONZALEZ during this critical death investigation stage of the case, leading to the Government’s filing of its death notice as to this defendant on December 17, 1998  [D.E. # 183].

14. Due to the Court’s failure to appoint learned counsel as required by law, the Defendant NICHOLAS PENA-GONZALEZ has been severely prejudiced as discussed further herein below in this motion.   The irreparable damage done to Defendant NICHOLAS PENA-GONZALEZ can never by reversed or repaired.

15. Accordingly, the only correct course for this Court to take is the relief that the Defendant now seeks, to wit:  the striking of the death penalty as to Defendant NICHOLAS PENA-GONZALEZ at this juncture and the treating of this case as an ordinary felony case.

 

 III. APPLICABLE LAW

16. The law could not be more clear in this area. 18 U.S.C. 3005 states as follows:

 “Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant’s request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours...”

17. In the case of Defendant NICHOLAS PENA-GONZALEZ, the clear language of the above statute was violated by the Court’s failure to appoint “learned” counsel during a critical stage of this case, that is, during the time period from the date of Indictment through the government’s filing of its Notice to seek death. 4

18. In addition to the clear terms of 18 U.S.C. 3005, Local Rule 428 of the United States District Court for the District of Puerto Rico, entitled “Appointment of Counsel and Case Management in Capital Cases,” has at all relevant times been in full force and effect herein, and “all capital cases in the District of Puerto Rico must abide by [its] provisions”. See United States v. Colon Miranda, 985 F.Supp. 31 (D.Puerto Rico 1997). This Local Rule also mandates the appointment of learned counsel in capital cases upon indictment and the governments’ filing of a notice that the case is death eligible, well prior to the time the Department of Justice makes its decision as to whether the government will seek the death penalty against the defendant.

19. Local Rule 428 was violated by the Court due to its failure to appoint learned counsel prior to the filing of the death notice in this case by the government. According to Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 12 § 3153 at 224 (1st ed.1973):

Because local rules do have the force of law, they should be held to be binding upon the parties and upon the court that promulgated them until they are changed by a majority of the judges in the district. (emphasis added)

20. Recently, Judge Salvador Casellas of this District cited the above passage with approval in Futura Development Of Puerto Rico, Inc. v. Estado Libre Asociado de Puerto Rico, 962 F.Supp. 248 (D. Puerto Rico 1997).

21. Courts within the First Circuit have demanded strict compliance with the requirements set forth in the Local Rules for the District Court of Puerto Rico.  See, i.e., United States v. Irizarry-Sanabria, 94 F.3d 640 (1st Cir. 1996) (“under Local Rule 510.2 of the District of Puerto Rico, [the defendant] has waived [his double jeopardy] argument by failing to object to the magistrate judge's report and recommendation in writing within ten days”) , Keyla Tosado Cotto, Milagros Tosado v. General Accident Insurance Company of Puerto Rico, Limited, ABC Insurance Co., 1997 WL 555639, (D.Puerto Rico 1997) (Failure to comply with Rule 108 of the Local Rules of the District Court for the District of Puerto Rico requiring English translation of any document presented as evidence “is inexcusable and renders the statement inadmissible”), Roldan v. Secretary of Health and Human Services, 612 F.Supp. 1155 (D.Puerto Rico 1985) (then Chief Judge Perez-Giminez held that where the Secretary of Health and Human Services “clearly failed to comply” with the time requirements of Local Rule 801.3(B), the Secretary was “precluded from filing her memorandum of law”).

22. In highlighting the importance of the parties' compliance with procedural rules, the First Circuit recently noted that:

[Local] Rules of procedure are vitally important in judges' efforts to manage burgeoning caseloads with some semblance of efficiency.  Within wide limits, it is for courts, not litigants, to decide what rules are desirable and how rigorously to enforce them. Valid local rules are an important vehicle by which courts operate. Such rules carry the force of law, and they are binding upon the litigants and upon the court itself…

… District courts enjoy broad latitude in administering local rules… In the exercise of that discretion, district courts are entitled to demand adherence to specific mandates contained in the rules. 

In this instance, the local rules explicitly warn litigants that the court will "not accept any motions not in compliance with procedures outlined in [the local rules]." This provision, aposematic in and of itself, is reinforced by a further provision that clearly contemplates the striking of noncompliant pleadings. Mindful of this profusion of red flags, we cannot say that the judge responded inappropriately to appellant's breach of Local Rule 11(b). Indeed, it is difficult to imagine how a judge could be found to have abused his discretion in following the very course of action openly advocated by the court's rules. (emphasis added) (citations omitted)
Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 26 F.3d 220 (1st Cir. 1994)

 

Strikingly similar sub judice, Local Rule 428 explicitly warns litigants and Courts and establishes the “red flags” that the First Circuit spoke of in Air Line Pilots Ass’n, supra .

 

IV. PREJUDICE TO DEFENDANT AND CONSTITUTIONAL VIOLATIONS

23.  In United States v. Colon-Miranda, 985 F.Supp. 36 (D.Puerto Rico 1997), this Court recognized that Local Rule 428 was “borne of due process considerations”. Likewise, 18 U.S.C. 3005 is a statue borne out of due process considerations.  This Court, in failing to comply with 18 U.S.C. 3005 and Local Rule 428 due to its failure to appoint learned counsel in a timely manner as required by law, has violated the Defendant’s due process rights. There must be a remedy to this violation, and that remedy is the striking of the death penalty in this case as to NICHOLAS PENA-GONZALEZ. This is especially true in the instant case where the record reflects that not only was Defendant deprived of learned counsel during this critical stage of the proceeding, he was in effect denied any counsel during this critical phase of the proceeding. This is a violation of the Defendant’s due process rights as guaranteed by the United States Constitution. 5

24. Moreover, the failure to appoint learned counsel prior to the filing of the death notice in this case has violated the Defendant’s equal protection rights as guaranteed by the United States Constitution. Other defendants similarly situated to Defendant NICHOLAS PENA-GONZALEZ are appointed learned counsel routinely under 18 U.S.C. 3005 and Local Rule 428, since the law clearly provides for such appointment.  There was no legal basis to exclude the Defendant NICHOLAS PENA-GONZALEZ from the protections of the law in this case. The violation of Defendant’s equal protection rights requires the striking of the death penalty as a possible sanction as to NICHOLAS PENA-GONZALEZ in this case.

25. The prejudice to Defendant is severe, irreparable, and immediate. Attached hereto as Exhibit “A” is an Affidavit of Federal Death Penalty Resource Counsel Kevin McNally. This Affidavit clearly shows that although the Attorney General approves seeking the death penalty in approximately 1 in 5 cases in the first instance, the Attorney General permits withdrawal of a decision to seek the death penalty after the death decision has been made in only approximately 1 in 10 cases. The clear import of these statistics is startling -- a Defendant has a substantially greater chance to convince the Department of Justice to not seek death in the first place than the Defendant does in convincing the Department to withdraw a death decision previously made. Undersigned counsel, who has appeared before the DOJ death penalty committee approximately 10 times over the years, is well aware of these statistics and the fact that it is much easier and probable to prevent the death decision initially than it is to get DOJ to overturn its death decision once that decision has been made.

26. Due to the Court’s failure to appoint learned counsel as required by law, and due to the fact that Defendant NICHOLAS PENA-GONZALEZ effectively had no counsel whatsoever acting on his behalf when the Department of Justice made the decision to seek the death penalty against him, the Defendant forever lost the opportunity to convince the Department of Justice in the first instance that it should not seek death in this case against him.  Defendant’s excellent odds of convincing DOJ in the first instance (4 in 5) not to seek death against him were significantly better than the dismal odds he now faces (1 in 10) to convince DOJ to withdraw its death notice. This amounts to severe and irreparable harm to the Defendant.

27. In this case as to NICHOLAS PENA-GONZALEZ, the “horse has been let out of the barn”, that is, the government has made its decision to seek death against the Defendant, and it is virtually a statistical and legal certainty that undersigned counsel will not be able to “put the horse back in the barn” for the Defendant, that is, convince the Department of Justice to reverse its decision to seek death. However, had learned counsel been appointed at the early stage of this proceeding prior to the filing of the death notice as required by law, it is much more likely that learned counsel could have “kept the horse in the barn” and convinced the Department of Justice not to seek the death penalty in the first instance.

 

V. CONCLUSION

28. Due to the constitutional and statutory violations in this case as to Defendant NICHOLAS PENA-GONZALEZ, the Defendant has been irreparably, materially and severely harmed. The Court should be required to abide by laws and statutes just as litigants are required to so abide. When there is a violation of the law as to a defendant, as there was in this case, there must be a concomitant remedy. The only correct and lawful remedy is for this Court to strike the death notice as to Defendant, and to order that this case against NICHOLAS PENA-GONZALEZ shall proceed as an ordinary felony case.

WHEREFORE, the Defendant NICHOLAS PENA-GONZALEZ requests that this Court grant the foregoing motion and strike the death penalty as to said Defendant .

Respectfully submitted this ____ day of April, 1999.

 

WILLIAM D. MATTHEWMAN,  P.A.
CO-COUNSEL FOR PENA-GONZALEZ
44 WEST FLAGLER STREET
SUITE 1700
MIAMI, FL   33130
Phone: 305-577-3707
Fax: 305-373-6658

William D. Matthewman, Esq.
Florida Bar No. 372757


FOOTNOTES

1. It was clear at this point that this case was a federal capital case. The government had filed a Notice of certification of death penalty eligible case months earlier on February 11, 1998 [D.E. # 54], and this Court on March 13, 1998 had appointed  “learned” counsel Jayne C. Weintraub, Esq., to represent co-defendant Victor M. Valle-Lasalle and Steven M. Potolsky, Esq., to represent co-defendant Jose Rodriguez-Marrero.

2 No mitigation submission was ever submitted on behalf of Defendant NICHOLAS PENA-GONZALEZ.

3 At the time this Notice was filed, the Court had not appointed “learned” counsel; the Defendant NICHOLAS PENA-GONZALEZ and his counsel were “estranged” and a motion for Attorney Lincoln to withdraw was pending; and no mitigation letter or submission of any kind had been sent to the United States Attorney or the Attorney General in an effort to avoid the death penalty for this Defendant.

4. The Department of Justice Protocol on death penalty cases requires the local United States Attorney to consider any mitigation submission by defense counsel, and permits the attendance of defense counsel at the DOJ death penalty meeting in Washington, D.C. See, United States Attorney’s Manual Sec. 9-10.000 (“the USA should give counsel for the defendant a reasonable opportunity to present any facts...”). None of this was done on behalf of NICHOLAS PENA-GONZALEZ.

5. The Defendant adopts and incorporates herein the co-defendant Jose Rodriguez Marrero’s Notice of Filing of Supplemental Authority In Support of all Motions on the Grounds that “Death is Different”, dated February 9, 1999 in this case.