United States of America v.  Donald Lee Ferebe

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-22 
DONALD LEE FEREBE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-97-329-L)
Argued: September 26, 2002
Decided: June 18, 2003
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Michael joined. Judge Niemeyer wrote a dis-
senting opinion.
COUNSEL
ARGUED: Michael Schatzow, VENABLE, BAETJER & HOW-
ARD, L.L.P., Baltimore, Maryland, for Appellant. James G. War-
wick, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Charles G. Bernstein, BERNSTEIN &
SAKELLARIS, Baltimore, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Appellant Ferebe challenges the district court’s denial of his
motion to strike and to bar the United States’ Notice of Intention to
Seek the Death Penalty (the "Death Notice") in his trial for the mur-
ders of Yolanda Evans and Benjamin Harvey Page, on the grounds
that notice was not provided to him a reasonable time before the trial
as required by Title 18, section 3593(a) of the United States Code.
Ferebe concedes that the district court’s order denying his motion to
strike the Death Notice is not a final judgment, and thus is susceptible
to our review only if it is a collateral order, subject to review under
the standards articulated in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949). See Under Seal v. Under Seal, 326 F.3d
479 (4th Cir. 2003) (discussing the collateral order doctrine and its
application in the Supreme Court and in the Fourth Circuit). The gov-
ernment contends that the district court’s order was not a collateral
order, but that if it was, the Death Notice was provided to Ferebe a
reasonable time before trial, because he was not prejudiced by any
tardiness in the filing of the Notice.
This case, having been fully briefed in December 2001, has now
been presented to, and considered by, two separate panels of our
court. Decision of the matter has been made difficult, both for the first
panel that heard this case and for our panel, because the issues pre-
sented by the appeal — one jurisdictional, one relating to the govern-
ing analytical framework, and one involving application of that
framework to the facts of the case — are tightly, if not inextricably,
interwoven. This interweave, coupled with the diverging opinions of
members of our court as to each issue, made attainment of dispositive
agreement especially tricky. Today, however, we reach dispositive
agreement on the required statutory analysis, and on its implications
for the jurisdictional question.
We conclude that the proper analysis that is to be applied in decid-
ing challenges to the timeliness of a filing under the Death Notice
statute, 18 U.S.C. § 3593(a), is that of a pre-trial inquiry into the
objective reasonableness of that timing. Because of the characteristics
of orders decided under this analytical framework, we conclude that
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district court orders denying motions to strike Death Notices are col-
lateral orders susceptible to our review. We are unable conclusively
to determine the merits of this case, however, because the district
court, operating under a different, and incorrect, analytical frame-
work, did not make certain findings critical to the merits determina-
tion with sufficient clarity that we may rely on them in this case of
life and death. Consequently, we vacate the appealed order and
remand the case for further proceedings in the trial court.
I.
Ferebe was first indicted on federal drug, gun, and murder charges,
along with a co-defendant, in September 1997.1 The murder charges
stemmed from the shooting deaths of Yolanda Evans and Benjamin
Harvey Page. Presumably because of the heinousness of the act, the
prosecution sought authorization from the United States Attorney
General to seek the death penalty for the charged murders. The Attor-
ney General, in May 1998, authorized the death penalty for one of the
two murders, and only against Ferebe. Because Ferebe alone was eli-
gible for the death penalty, the district court severed Ferebe’s trial
from that of his co-defendant.
Ferebe’s co-defendant proceeded to trial, was convicted in October
1998, and was sentenced to life imprisonment in 1999. Ferebe’s trial,
however, was continued because Ferebe, already serving a life sen-
tence for a conviction in a related case, preferred to wait until his
appeal in that case was final before proceeding in this case. In Sep-
tember 1999, this court affirmed Ferebe’s conviction and sentence in
that case, and certiorari was denied by the Supreme Court in early
2000. Around June 2000, the prosecution proposed that Ferebe plead
guilty to the charges in this case and, in exchange, receive concurrent
life sentences. Ferebe refused the offer in October 2000.
1More precisely, Ferebe and his co-defendant were indicted under four
provisions of Title 18 of the United States Code: section 924(j)(1) (fire-
arms murder during or in relation to drug trafficking crime); section
924(c) (use and carrying of firearms during and in relation to drug traf-
ficking crime); section 841(a) (conspiracy to distribute cocaine and mari-
juana); and section 2 (aiding and abetting).
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At a December 2000 hearing, the court scheduled Ferebe’s case for
trial in September 2001, and concurrently, the prosecution formally
withdrew its outstanding and unaccepted plea offer. Upon the district
court’s scheduling of the trial at that December 15, 2000 hearing, nine
months remained prior to the start of Ferebe’s trial. At that point, the
prosecution had not filed a Death Notice to inform Ferebe and the
court formally that it intended to seek the death penalty at Ferebe’s
trial, as authorized by the Attorney General.2
Ferebe presents some evidence, and the prosecution does not chal-
lenge it, that, nation-wide, federal prosecutors file Death Notices,
upon authorization by the Attorney General, with an average of 8.4
months remaining before trial. See J.A. at 82. Such filings are necessi-
tated and governed by section 3593(a), which provides that:
If, in a case involving an offense described in section 3591,
the attorney for the government believes that the circum-
stances of the offense are such that a sentence of death is
justified under the chapter, the attorney shall, a reasonable
time before the trial or before acceptance by the court of a
plea of guilty, sign and file with the court, and serve on the
defendant, a notice[.]
18 U.S.C. § 3593(a).
On May 28, 2001, with the trial set to begin in five months time,
the prosecution asked the Attorney General to reconsider the decision
not to authorize the death penalty on Ferebe’s second murder charge.
Before the Attorney General responded, Ferebe’s attorney contacted
the prosecution on or about June 15, 2001, and informed it that Ferebe
wished to enter a guilty plea, in exchange for concurrent life sen-
tences. The prosecution agreed to the terms and entered into an agree-
ment with Ferebe on June 19. The plea agreement, however, was
conditioned on approval by the Attorney General, as just a few weeks
earlier (June 7) a new Department of Justice ("DOJ") policy took
effect, requiring prosecutors to obtain the Attorney General’s consent
2At this point in the chronology, Ferebe’s indictment was more than
four years old and the Attorney General’s authorization of the death pen-
alty was more than three and a half years old.
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prior to consummating plea agreements with death-eligible defen-
dants.
As a consequence of the parties’ conditional plea agreement, the
parties and the district court agreed to postpone several scheduled
June and July hearings and conferences. These hearings and confer-
ences had been calendared in order for the parties and the court jointly
to prepare trial materials such as the jury questionnaires and to
address various pre-trial issues that needed to be settled prior to the
start of trial on September 10.
On July 6, 2001, two months before Ferebe’s trial was set to begin,
the Attorney General authorized the death penalty against Ferebe for
the second murder, as well as the first (which of course had been
authorized in 1998). Twenty days passed after authorization of the
death penalty prosecution as to the second murder before the Attorney
General responded to the request for approval of the conditional plea
agreement. On July 26, now just a month and a half before Ferebe’s
capital trial was set to commence, the Assistant Attorney General in
charge of DOJ’s Criminal Division informed the prosecution that the
plea agreement was unacceptable.
The district court, the prosecution, and the defense attorney met for
a conference on July 31, 2001, just over a month before the scheduled
start of Ferebe’s trial, to discuss the case and the ramifications of
DOJ’s rejection of the conditional plea agreement. At that meeting,
defense counsel responded to the plea agreement’s recision by
announcing that Ferebe would still plead guilty to the charges in the
absence of a plea agreement (because no Death Notice had yet been
filed, Ferebe faced a maximum life sentence).
The next day, August 1, 2001, the prosecution filed a Death Notice
for both of the murders with which Ferebe was charged. In light of
the government’s filing, Ferebe did not, as he announced he would
like to do on the prior day, plead guilty. Instead, Ferebe filed a motion
to strike and bar the Death Notice as being untimely filed under sec-
tion 3593(a)’s requirement that such notices be filed a reasonable time
before trial. Pursuant to Ferebe’s motion, the district court set a brief-
ing schedule. The court, on September 7, 2001, held a hearing on the
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matter, and on September 12 issued an oral opinion denying the
motion. It is that order to which this current appeal is directed.
II.
As to the threshold jurisdictional issue, we now hold that district
court orders denying motions to strike Death Notices as untimely filed
are immediately appealable under Cohen and Abney v. United States,
431 U.S. 651 (1977) (Burger, C.J.), as they fully satisfy the three
requirements for interlocutory appeal set forth by the Supreme Court.
See Under Seal, 326 F.3d at 483. In Abney, the Supreme Court
explained that a "final decision," as referenced in 28 U.S.C. § 1291,
is distinct from a "final judgment," and "[is] to be given a practical
rather than a technical construction," Abney, 431 U.S. at 658 (citing
Cohen). An order is sufficiently collateral to permit interlocutory
appeal if it fully disposes of the issue it addresses, rather than leaves
the issue "open, unfinished, or inconclusive," Abney, 431 U.S. at 658;
"resolves an issue completely collateral to the cause of action
asserted," as opposed to being simply "a step toward final disposition
of the merits of the case," id.; and "involves an important right which
would be lost, probably irreparably, if review . . . await[s] final judg-
ment." Id.
Itself unwilling to advance the position accepted by the dissent, the
government does not even argue that the district court’s order denying
the motion to strike the Death Notice and setting Ferebe’s capital case
for trial is inconclusive or that it is intertwined with the underlying
merits of the prosecution. Compare post at 43-45 (Niemeyer, J.)
(maintaining that the district court’s order is both inconclusive and
intertwined with the merits). The government’s tacit concession that
these two prongs of the collateral order inquiry are satisfied is under-
standable. There is no question but that the district court’s order fully
disposes of the issue to which it is directed. It denied once and for all
the motion to strike and scheduled Ferebe’s case for trial, the very
event that Ferebe claims entitlement to avoid, absent a reasonable
time for preparation between the time of notice and commencement
of trial. See Abney, 431 U.S. at 659 (finding order denying double
jeopardy defense to be conclusive because "no further steps [ ] can be
taken in the district court to avoid the trial the defendant maintains is
barred by the Fifth Amendment’s guarantee").
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The dissent believes differently, that, until "after [the] trial has
occurred," post at 45, the district court’s order "is merely specula-
tive," because the pendency of trial necessarily "leaves open the ques-
tion of the potential prejudice to Ferebe of trying a death penalty case
with inadequate preparation time," post at 44. It believes that the rea-
sonableness of the timing of the Death Notice depends entirely upon
"the preparation denied or adversely affected [i.e., prejudice] by a
notice allegedly given late. And ultimately the adverse effect of prep-
aration [i.e., again, prejudice] can only be measured by the defense
that the defendant presented at trial." Id. at 40 (emphasis added).
The flaw in this analysis is an underlying misunderstanding of sec-
tion 3593(a) and the right created thereby. The right requires, as a
prophylactic, reasonable notice before trial. And its indisputable pur-
pose is to ensure that the accused will not be required to stand trial
for his life without having received adequate notice before that trial
that he is to stand trial for capital offense (in addition to ensuring that
an accused will not receive the death penalty without having received
such notice). That Congress intended to protect the accused from hav-
ing to endure a capital trial for which he was provided inadequate
notice to prepare his defense is plain from the fact that it required the
Death Notice be given a "reasonable time" before the trial, not merely
"before" trial.
As a prophylactic statute, one of the chief aims of which is to pro-
tect the accused from having to endure a trial for his life for which
he was not on reasonable notice, the statute must be interpreted to
require an inquiry into the objective reasonableness of the time
between issuance of the Death Notice and the trial itself, in light of
the particulars of the charged offense and the anticipated nature of the
defense.
Section 3593(a) thus understood, it is evident that an analysis of the
finality of the denial of a motion to strike a Death Notice under that
section that turns wholly upon a post-trial assessment of prejudice to
the accused, as does the dissent’s, see post at 40 ("the adverse effect
of preparation [i.e., prejudice] can only be measured by the defense
that the defendant presented at trial"), cannot possibly be correct. For
such an analysis substitutes for the statutorily-mandated inquiry into
the pre-trial, objective reasonableness of the time between issuance of
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the Death Notice and trial, a quite different, post-trial inquiry into the
prejudice suffered by the accused as a result of the timing of the
Death Notice — in effect a "harmless error" inquiry. This is to trans-
form what was intended as a prophylactic statute into a mere remedial
one, and to deny to the accused the right afforded by the statute, not
merely to avoid sufferance of the punishment of death without ade-
quate notice, but to avoid sufferance of trial for capital offense except
upon adequate notice. To assure, as the dissent does, that review may
be had at a later time (even post-trial) through a renewal of the motion
to strike, see post at 44, is to provide no assurance whatsoever,
because the right guaranteed to the accused by section 3593(a) not to
stand trial for capital offense except upon adequate notice, like the
right not to be tried twice for the same offense, is denied if it is recog-
nized only after the trial that the accused is assured by section 3593(a)
he will not be required to endure.
The district court’s order denying Ferebe’s motion to strike the
Death Notice equally indisputably resolves an issue collateral to the
merits of the prosecution. The question of whether Ferebe received
the statutorily-required reasonable notice is entirely separate from the
question of his guilt for the murders committed, and its resolution will
neither affect nor be affected by resolution of this latter question. See
Abney, 431 U.S. at 659-60 (deciding that order denying double jeop-
ardy defense is collateral because it is "separable from the principal
issue at the accused’s impending criminal trial," "the [motion of the]
defendant makes no challenge whatsoever to the merits of the
charge," and "[t]he elements of that claim are completely independent
of his guilt or innocence") (emphasis added)).
The dissent comes to the opposite conclusion on this score, as well.
But, again, its error is attributable to its errant interpretation of section
3593(a). If one believes, as the dissent does, that section 3593(a) is
neither prophylactic in character nor protective of a right not to stand
trial except upon adequate notice, and therefore that the timeliness of
the Death Notice must be gauged by a post-trial prejudice standard,
then its conclusion that the questions of the timeliness of the Death
Notice and of the merits of the prosecution are intertwined follows
ineluctably. See post at 40 (concluding that "a ‘reasonable’ time must
focus on the preparation denied or adversely affected [i.e., prejudice]
by a notice allegedly given late" and that "the adverse effect of prepa-
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ration [i.e., prejudice] can only be measured by the defense the defen-
dant presented at trial").
On the dissent’s understanding of section 3593(a), the syllogism
that captures the proper analysis of the order’s collateral nature is this:
Section 3593(a) does not create an indefeasible right not to stand trial
for capital offense except upon reasonable notice. Instead, the statute
only ensures that an accused who is convicted and sentenced to death
will be afforded a new trial if his conviction and death sentence were
the result of an insufficient amount of time within which to prepare
for trial. Therefore, whether notice was timely is exclusively a ques-
tion of whether the conviction and sentence were attributable to an
insufficient amount of preparation time, i.e., whether actual prejudice
was suffered because too little time remained between notice and trial
to prepare the death penalty defense. Prejudice, being determined in
large part, if not in full, by evaluating whether the accused would
have been convicted and sentenced to death absent the alleged error,
the questions whether the notice was timely filed and whether the evi-
dence clearly established his guilt are necessarily and inextricably
bound up together.
But, of course, the statute is both prophylactic and protective of the
right not to be put to trial for capital offense except upon adequate
notice. As such, the timeliness of the provided notice, which must be
determined pre-trial and objectively, is unquestionably collateral to
the question of guilt.
The third and final inquiry under Abney is whether the right alleg-
edly at stake will likely be lost irreparably if immediate review is
denied. It is on this prong that the government does pitch its argu-
ment, contending that "Ferebe cannot show irrevocable harm."
Appellant’s Br. at 9-10; see also id. (arguing further that "no rights
would be irrevocably lost if he awaits final judgment"). But as to this
argument, the government (and the dissent, which accepts the argu-
ment) are also wrong, and because of the same misunderstanding of
section 3593(a).
The focus in this third prong is not on whether a court can later
adjudicate the claim asserted, as the dissent ultimately appears to
believe, compare post at 35 ("[T]he order must be effectively unre-
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viewable on appeal from final judgment." (emphasis added)), with
post at 46 ("Ferebe retains the full rights to review and remedy such
a violation at the end of the case"). Rather, the focus is on whether
the assurances underlying the asserted right will be reneged upon if
review is delayed until after trial. See, e.g., Abney, 431 U.S. at 661
(concluding that this prong was satisfied because rights conferred on
the defendant by the Double Jeopardy Clause would be "significantly
undermined if appellate review were postponed" since the defendant
would lose the assurance of the right that he would not be forced to
"endure the personal strain, public embarrassment, and expense of a
criminal trial"). Because one of the rights guaranteed by section
3593(a) is that not to be forced to stand trial for one’s life without
having received adequate notice of such, it follows, as in Abney with
respect to a claim under the Double Jeopardy Clause, that delay in the
review of a claimed denial of this right until after the trial itself has
taken place is tantamount to countenance of the denial of the right.
On this prong of the analysis, the dissent tilts the playing field, as
it were, by moving subtly from the properly framed inquiry —
whether the order "remains effectively reviewable upon final judg-
ment," post at 46 — to an entirely different inquiry, namely, whether
the order is in fact reviewable post trial, that is, whether, to quote the
dissent, Ferebe "retains the full rights to review and remedy [the
alleged] violation at the end of the case," id. at 46 (emphasis added).
Says the dissent, "[a]ssuming conviction . . . improper notice [can be]
vindicated through a new trial." Id. at 47 (emphasis added).
But, as explained above, and as is plain from Abney and our deci-
sion in United States v. Smith, 851 F.2d 706 (4th Cir. 1988) (holding
that district court order setting juvenile for trial as an adult constituted
an appealable collateral order), the focus of Abney’s third prong is not
on whether the question may be reviewed post-trial [i.e., whether
Ferebe has a right to post trial review], it always can be. Rather, the
focus is on whether the underlying right will be lost if review is post-
poned until after trial [i.e., has Ferebe lost his section 3593a right, not
his right to post-trial review of that underlying right]. Thus the proper
question: whether the order is "effectively unreviewable," not whether
it is in fact unreviewable, as the dissent’s conclusion suggests.
Of course, one can only decide whether the underlying right is
essentially lost, i.e., whether the order is "effectively unreviewable,"
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if review is delayed, if one knows what right is protected by the stat-
ute. The dissent, tellingly, founds its understanding of the right that
is protected by section 3593(a) on a self-contradictory formulation.
On the one hand, the dissent states that the section 3593(a) right "is
a procedural guarantee that [defendants] will be given adequate time
to prepare for a death penalty trial and sentencing." Post at 37
(emphasis added). On the other hand it states that that guarantee is not
a right not to stand trial without that adequate time to prepare for a
death penalty trial. See post at 38, 40. Having admitted that the sec-
tion 3593(a) right "guarantees" defendants that they will be given ade-
quate time to prepare for a death penalty trial, the dissent’s
subsequent conclusion that the right gives defendants no right not to
stand trial without such preparation time is analytically incomprehen-
sible. See infra pp. 13-14 (explaining this subject at greater length).
Since section 3593(a), affirmatively described, creates for defen-
dants not merely the right not to be convicted and sentenced without
adequate time to prepare, but also the right not to stand trial for one’s
life absent the same, vacature of sentence and remand after trial and
sentencing does not protect (nor, for that matter, even remedy the
denial of) the right not to be forced to endure a capital trial except
upon reasonable notice that one will be required to do so.
Because district court orders denying motions to strike Death
Notices under section 3593(a)’s timeliness provision are conclusive,
collateral to the merits, and if wrongly decided will irreparably
deprive capital defendants of an important right, the appealed order
is a reviewable collateral order, and we so hold.
III.
Turning to the merits of the appeal, our interpretation of section
3593(a) reveals that the lower court erred by adopting the analytical
framework that it did.3 The district court’s analytical approach (also
3The district court, in deciding to deny Ferebe’s motion to strike the
Death Notice, adopted the reasoning of the district court for the District
of Puerto Rico, which, like the dissent here, concluded that challenges to
Death Notices brought under section 3593(a)’s timeliness provision
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the premise of the dissent’s jurisdictional analysis) — relying on a
prejudice inquiry to vindicate the right created by section 3593(a) —
incorrectly substitutes a post-trial, harmless error inquiry for the
inquiry into pre-trial, objective reasonableness mandated by the statute.4
And thereby it fails to protect fully the right created by section
3593(a).
We, however, cannot proceed to dispose of Ferebe’s claim under
the proper analytical framework because the lower court, having
adopted an incorrect analytical framework, did not clearly address
certain necessary elements, without which findings a merits determi-
nation would not be appropriate. Consequently, we must vacate the
district court’s order and remand the case for further proceedings.
A.
1.
As discussed above, Title 18 Section 3593(a)’s plain language
guarantees all who are accused of capital offense the right not to stand
trial for their lives unless they have been provided notice a reasonable
time before trial that in fact they are to stand trial for their lives.
If, in a case involving an offense described in section 3591,
the attorney for the government believes that the circum-
stances of the offense are such that a sentence of death is
justified under the chapter, the attorney shall, a reasonable
time before the trial or before acceptance by the court of a
ought be evaluated under the analytical framework applied to Speedy
Trial Act claims. See United States v. Colon-Miranda, 985 F. Supp. 31
(D. P.R. 1997) (Death Notice struck for being filed two weeks before
trial, though a rescinded version was first filed three months before trial).
Said the district court here, "the most important factor is prejudice to Mr.
Ferebe." See J.A. at 211.
4Though the lower court did not claim that its analysis necessitates a
post-trial adjudication of motions to strike Death Notices, the logic of the
lower court’s prejudice-based analytical framework, as Judge Niemeyer
well explains, unavoidably leads to such a result.
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plea of guilty, sign and file with the court, and serve on the
defendant, a notice —
18 U.S.C. § 3593(a) (emphasis added).
The district court, in its merits analysis, did not recognize this fea-
ture of the right created by section 3593(a). Nor does the dissent,
despite its own conclusion that the section 3593(a) right "is a proce-
dural guarantee that [defendants] will be given adequate time to pre-
pare for a death penalty trial and sentencing." Post at 37 (emphasis
added). But (and this is doubtless the reason for the tension between
the dissent’s description of the guarantee and its assertion that there
is here no right not to stand trial absent the guaranteed preparation
time), it is impossible to identify the right established under section
3593(a), which requires that notice be provided to a defendant before
trial, without recognizing that the guarantee is that the defendant "will
not be tried for his life without having received a lawful Death
Notice." This statutorily-created right not to be tried for a capital sen-
tence without having received reasonable notice can only be effectu-
ated by an interpretation that the statute imposes a prophylactic
requirement which, in turn, necessitates a pretrial inquiry into the
objective reasonableness of the notice provided.
The dissent’s contrary conclusion well illustrates why only an
objective reasonableness analysis, undertaken pre-trial, adequately
protects the right created by the statute. For the dissent’s alternative
post-trial prejudice analysis requires capital defendants to risk perma-
nent forfeiture of the right that the statute guarantees them, by forcing
them to wait until after trial to learn whether the trials they were
required to endure were lawful.
In defending its post-trial, prejudice standard, the dissent, as
described above, supra pp. 10-11, offers a wholly self-contradictory
formulation of the section 3593(a) right, acknowledging that, on the
one hand, section 3593(a) creates a guaranteed "right to . . . a reason-
able time to prepare for a death penalty trial and sentencing." Post at
39 n.1. In that vein, it describes the right as "function[ing] to inform"
the defendant of the fact that his will be a capital trial and of the
grounds for that proposed penalty, as "afford[ing] the defendant an
opportunity to prepare his defense," and as "assur[ing] that the defen-
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dant and the court have notice of the penalty to be sought . . . and of
[the relevant] aggravating factors." Post at 37.
But, then, as if actually possessed of a different mind, the dissent
asserts that though Ferebe has a guaranteed right that he "will be
given adequate time to prepare for a death penalty trial and sentenc-
ing," that guarantee is not a right not to stand trial without that ade-
quate time to prepare for a death penalty trial. See post at 39 ("Indeed
. . . the statute provides no assurance that a capital trial can be denied
if the government fails to produce a timely notice[.]").
What the dissent gives with one hand — the "guarantee" — it takes
back with the other — the denial of a right not to stand for capital trial
in the absence of lawful notice. Were the dissent to set its "guarantee"
in immediate relief to its conclusion that Ferebe has no right not to
stand trial for his life in the absence of a lawful Death Notice, it sim-
ply could not avoid the conclusion that we reach: that section 3593(a)
guarantees defendants that they will not be tried for their lives without
lawful notice.
The analytical incomprehensibility of the dissent’s contrary conclu-
sion is not salvaged by its reliance on other procedural rights, which
it claims show that rights like the section 3593(a) right are not treated
as rights not to stand trial. See post at 38, 39 n.1. None of the rules
to which the dissent points establish prerequisites for trial as, by the
dissent’s own admission, does section 3593(a). Instead, those rules all
simply govern admission of evidence and legal arguments at trial,
which, by definition, are only violated when at trial on the merits
such are unlawfully admitted. And of course, a flawed indictment,
against which the dissent implies there is also no right not to stand
trial, see post 39 n.1, is unappealable collaterally because orders
denying challenges to indictments fail to qualify as collateral orders
under Abney, not because of an absence of a right not to stand trial
under a flawed indictment. A flawed indictment under Abney is unap-
pealable collaterally for the simple reason that it is not "separable
from the principal issue at the accused’s impending criminal trial,"
Abney, 431 U.S. at 659-60; it goes directly to the "merits of the
charge." Id.
Because an accused is assured by section 3593(a) that, a reasonable
time before trial, he will receive adequate notice that he is to be tried
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for capital offense, and consequently that he will not be required to
stand trial for such offense absent that notice, his rights are denied at
the point when he proceeds toward trial, or actually to trial, in the
absence of a reasonable time between his receipt of the Death Notice
and his capital trial. And this is so, regardless of whether he will or
will not be, or was or was not, prejudiced by an unreasonably delayed
Death Notice.
The dissent’s interpretation — that if, after trial, it appears that the
accused was not in any way prejudiced, then a fortiori he was pro-
vided reasonable notice — necessarily leads to the untenable conclu-
sion that the statute would be satisfied if notice were given after trial
commenced or, for that matter, never given, provided the accused is
not prejudiced thereby (for instance, because he proceeded throughout
on the assumption that his was a capital trial).
This analytical point lies at the heart of the divide between our
opinion and the dissent’s. The dissent addresses this issue in footnote
3 on page 43 of its opinion. There it reasons as follows:
If notice is given after trial has commenced, the objection
would be that notice was given after trial commenced, not
a "reasonable time before trial." Likewise, if notice is never
given, the objection would be that notice was never given.
Post at 43 n.3. This simply cannot be. For, as the dissent itself says,
because "Congress [has] not mandate[d] a particular deadline for pro-
viding the notice," post at 37, "the critical determination under
§ 3593(a) is whether the notice was provided a reasonable time before
trial," post at 37. Having thus explained the section 3593(a) right, any
objection raised on the right, whether to late notice before trial, to late
notice after trial begins, or to no notice at all, must establish that
notice was not provided a reasonable time before trial.
And, under the dissent’s analysis, the reasonable time that notice
must be provided before trial could well be never, since the statute
provides no "deadline" and prejudice is its sole concern. By way of
the dissent’s own contemplation: where a defendant "was able to pre-
pare based on [actual, though not formal] notice," post at 42, that
defendant would suffer no prejudice from lack of a Death Notice, the
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reasonable amount of notice time the defendant would need to prepare
would thus be zero, and the statute would be satisfied.
Ultimately, the dissent’s conclusion that the right turns on reason-
ableness, see post at 37, that reasonableness turns on prejudice, see
post at 40, and that prejudice turns on the defendant’s preparation at
trial, see id., cannot possibly be understood differently than to require
a conclusion that the statute is satisfied in every instance in which
there has been no prejudice. For if, as the dissent believes, adequate
preparation time is the only concern of the statute and prejudice is the
sole determinant of the adequacy of that preparation time, the statute
is satisfied upon a finding that the defendant suffered no prejudice,
regardless of when notice was given — and even if no notice were
ever given.
That under the dissent’s analysis a defendant who objects to the
government’s complete failure to provide him a Death Notice, but
whose objection is overruled, must undergo trial for his life, convic-
tion, being sentenced to die, and imprisonment on death row before
he may appeal the district court’s conclusion that the government’s
total failure to provide a Death Notice did not violate section 3593(a)
only reinforces the conclusion that no notice could be lawful under
the dissent’s analysis and that the dissent’s denial of this result is little
more than ipse dixit.
And, were the dissent to suggest that its analysis does not require
the conclusion that an order denying a challenge to a death penalty
trial for which notice was never given is unappealable collaterally, it
would then have to admit that the section 3593(a) right is a right not
to stand trial, after all. To do so, however, would require either its for-
feiting the entire analysis or relying upon the distinction that section
3593(a) is a right not to stand trial where notice is never given, but
is not a right not to stand trial if the notice given is inadequate for the
defendant to prepare his defense. As perhaps the dissent senses, such
a distinction — that no notice triggers a right not to stand trial, but
that late notice does not trigger that same right — is wholly uncon-
vincing. It fails analytically because both circumstances constitute the
same violation — lack of lawful notice. But also it yields an instinc-
tively unsatisfactory result. It would allow a defendant to bring a col-
lateral appeal if a Death Notice were filed the moment after the judge
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gavelled the trial’s voir dire to a start, but would not allow such an
appeal if that same notice were filed but a moment before the gavel
dropped.
That, in the end, these difficulties require the dissent to conclude
that defendants who never receive notice that they are to be tried for
their life must endure trial, conviction, death sentence, and death row
imprisonment before they may appeal the denial of their objection to
receiving no notice is but a symptom of the dissent’s analytical error
— its denial of the section 3593(a) right’s full import.
The dissent’s analysis also turns in on itself. The multiple factors
the dissent goes to length to identify as serving to remedy violations
of the statute confirm this. See post at 41. For, under the dissent’s
interpretation of section 3593(a), those many factors are actually
meaningless. Since ultimately reasonableness is determined by refer-
ence to prejudice under the dissent’s analytical framework, those
assertedly distinct factors only have relevance insofar as they reveal
prejudice.
We cannot embrace an interpretation of section 3593(a) that not
only requires a post-trial assessment of prejudice but forbids a pre-
trial assessment of the reasonable timeliness of the mandated Death
Notice, without at the same time denying to those capital defendants
who were provided no Death Notice or a Death Notice an unreason-
ably short time before their trials, the right that is conferred upon
them by section 3593(a). Accordingly, we must, and do, adopt the
objective assessment of pre-trial reasonableness described fully
above.
2.
That a post-trial, actual prejudice standard does not protect the
rights created by section 3593(a) is sufficient reason to reject it. But
the reasons assumed by the lower court and explained by the dissent
in support of such a standard, themselves, also confirm the need for
rejection of such a standard.
Both the lower court and the dissent superficially analogize the
right created under section 3593(a) to the speedy trial right, and
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because a post-trial assessment of prejudice is the governing standard
in the latter context, they conclude that the same standard should
apply under section 3593(a). Upon careful consideration, however, it
is plain that this analogy to the speedy trial right does not hold.
To begin with, even a quick comparison of the speedy trial right
and the section 3593(a) right reveals that the two are not at all similar
in the manners the dissent concludes. The Supreme Court provided a
detailed explication of the speedy trial right in Barker v. Wingo, 407
U.S. 514 (1972). There the Court noted that the speedy trial right is
unique in that it belongs to both the defendant and society.
The right to a speedy trial is generically different from any
of the other rights enshrined in the Constitution for the pro-
tection of the accused. In addition to the general concern
that all accused persons be treated according to decent and
fair procedures, there is a societal interest in providing a
speedy trial, which exists separate from, and at times in
opposition to, the interests of the accused.
Id. at 519. See also id. at 519-21 (noting that several explicit factors
create society’s interest in speedy trials, such as the backlog of cases
in the courts which, among other things, enables defendants to
achieve more attractive plea bargains; the fact that lengthy bond
releases allow criminal suspects to commit further crimes; the tempta-
tion a lengthy bond release gives to a suspect to jump bond; the detri-
mental effect delays between trial and arrest have on preservation of
evidence and the conduct of fair trials; the detrimental effect a delay
in punishment may have on rehabilitation; the deplorable jail condi-
tions that result from overcrowding worsened by those who cannot
make bond; the high cost of lengthy pre-trial detention; and the lost
wages of pre-trial detainees).
The Court further observed in Barker that violation of the speedy
trial right "might work to the accused’s advantage," id. at 521, since
it belongs to both the defendant and society. It also noted that the
right is "a more vague concept than other procedural rights . . . [since]
[it] cannot definitely [be said] how long is too long in a system where
justice is supposed to be swift but deliberate." Id.
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The section 3593(a) right differs from the speedy trial right in
every one of these respects. Unlike the speedy trial safeguards, sec-
tion 3593(a) does not protect any societal interest of the kind refer-
enced by the Court in Barker. To the contrary, this right to notice, like
"the other rights enshrined in the Constitution for the protection of the
accused," id., provides a guarantee only to the criminal defendant.
Relatedly, it is not even arguable that the enforcement of this right
might work to Ferebe’s advantage if the government tries him for his
life without providing a lawful Death Notice. Nor is it arguable that
the section 3593(a) right suffers from the vagueness problem that
inheres in rights that simultaneously protect multiple opposing inter-
ests.
These differences in characteristics are of no small moment,
because it was on the basis of these characteristics that the Supreme
Court held that a post-trial prejudice analysis must be applied to
speedy trial right claims. See Barker, 407 U.S. at 530 (reasoning that
a balancing test is necessary for proper vindication of the speedy trial
right because the right belongs to both the defendant and the society,
because violations of the right can benefit the defendant, and because
the right is vague by virtue of its belonging to both; and further rea-
soning that a prejudice inquiry is a necessary part of that balancing
test).
Equally unfounded is the dissent’s reliance on United States v.
MacDonald, 435 U.S. 850 (1978), which, still by way of analogy to
the speedy trial right, it maintains also dictates use of a post-trial prej-
udice standard to evaluate claims under section 3593(a). MacDon-
ald’s principal holding was that speedy trial claims can only be
evaluated post-trial, and so are not collaterally appealable. The Court
based this holding on the fact that Barker governed such claims, and
that Barker required a prejudice determination. The Court straightfor-
wardly reasoned that since prejudice could not be determined until
post-trial, pre-trial speedy trial claims were speculative, inconclusive,
and tied to the merits, and thus were undeserving of Cohen collateral
appealability. Insofar as MacDonald simply relied upon Barker’s
prejudice analysis governing the professedly-unique speedy trial right,
MacDonald is as inapplicable as is Barker itself.
Not only is MacDonald’s central analysis as inapplicable here as
Barker’s for the reasons stated, but MacDonald’s alternative rationale
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for decision points up a further difference between the speedy trial
right and the section 3593(a) right. MacDonald concluded that speedy
trial right claims are not collaterally appealable also because the
speedy trial right is not a right not to stand trial, thus making post-trial
adjudication sufficient for vindication of the right.
Unlike the protection afforded by the Double Jeopardy
Clause, the Speedy Trial Clause does not, either on its face
or according to the decisions of this Court, encompass a
"right not to be tried" . . . . It is the delay before trial, not
the trial itself, that offends. . . . If the factors outlined in
Barker v. Wingo, combine to deprive an accused of his
rights to a speedy trial, that loss, by definition, occurs before
trial. Proceeding with the trial does not cause or compound
the deprivation already suffered.
MacDonald, 435 U.S. at 861 (emphasis added). In contrast, section
3593(a), provides defendants a right not to be tried without valid
notice. See supra Part II.A.1. And proceeding with the trial most cer-
tainly compounds the deprivation.
Finally, the dissent justifies application of a post-trial, prejudice
inquiry under section 3593(a) on the ground that the statute might
appear to necessitate knowledge of the actual date that trial com-
mences. See, e.g., post at 28-29, 42-43. But even if one were required
to know the date that trial actually starts, it does not follow that a
post-trial inquiry is mandated, much less the post-trial prejudice
inquiry that the dissent would adopt. That the trial commencement
date would have to be known (if that is the case) would require at
most that the adjudication of the timeliness of a contested Death
Notice not occur until the instant the trial actually starts.
3.
Insofar as different, but analogous, rights and their required analy-
ses are instructive, the section 3593(a) right closely resembles the
constitutional right not to be tried twice for the same offence, as our
discussion of MacDonald confirms. Violations of the latter the
Supreme Court has of course never analyzed under a prejudice frame-
work.
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Additionally, there is also a powerful analogy between charging
instruments (i.e., indictments) and Death Notices. Both protect the
fundamental fairness of proceedings at which criminal defendants are
called upon to defend themselves. Both serve to set defendants on
notice so that they can adequately prepare to defend themselves.
Defendants have a right to receive both prior to trial. And violation
by the government of those rights, if properly objected to, will invali-
date the attendant proceedings. As with Double Jeopardy rights, the
Supreme Court has never suggested that where a defendant objects to
the unlawfulness of a charging instrument the lawfulness of the charg-
ing instrument should be evaluated under a prejudice framework.5
4.
In the final analysis, what must be borne in mind is that the inter-
pretation of 18 U.S.C. § 3593(a) turns not at all on the implications
of that interpretation for the separate question of appealability under
28 U.S.C. § 1291, even though the appealability under section 1291
turns dramatically on the interpretation of section 3593(a). It is the
complete independence of the interpretive question from the appeala-
bility question that the dissent fails to appreciate.
If one understands that these are and must be separate and indepen-
dent inquiries, then it is clear that whether there is prejudice cannot
possibly be determinative of whether the right protected by section
3593(a) was violated. Prejudice in the sense intended by one who
would assert that such is determinative of whether a statute has been
violated (like the dissent), is akin to harmless error. And, of course,
the harmlessness of an error is determined (and necessarily so) only
after an antecedent conclusion that there was in fact an error commit-
5Not only do the similarities between indictments and Death Notices
confirm that prejudice should not be used to analyze violations of the lat-
ter, but their differences are consistent with our earlier conclusion that
district court orders on Death Notice challenges are collaterally appeal-
able. District court orders upholding challenged indictments are, of
course, not collaterally appealable. This is so because indictments are
necessarily bound up with the merits of the case. Death Notices, on the
other hand, remain separate from the merits question of a defendant’s
guilt since their "charging" elements only pertain to sentencing.
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ted. To inform resolution of the question of whether the statute has
been violated by a prejudice inquiry is, pure and simple, to confuse
the question of harmlessness with the question of violation.
Congress spoke quite clearly in section 3593(a): The government
"shall, a reasonable time before the trial or before acceptance by the
court of a plea of guilty, sign and file with the court, and serve on the
defendant, a [Death Notice]." Because adoption of a post-trial, actual
prejudice standard would not fully protect this right created under the
statute; because there is no basis on which to analogize between the
speedy trial right and this right; and because the Supreme Court has
never suggested use of a prejudice inquiry to vindicate those rights
that are most analogous to the right found in section 3593(a), we con-
clude that there is no basis for applying a post-trial, prejudice standard
when a violation of section 3593(a) is alleged.
B.
Notwithstanding the dissent’s fundamental disagreement with the
court over the proper interpretation of section 3593(a), the first three
factors it identifies as informing the inquiry into the reasonableness
of the timing of the notice can, roughly, be legitimately encompassed
within the objective inquiry that is mandated by the statute. See post
at 41-42. To these, at least a fourth must be added. And consideration
of still other factors is not foreclosed. To judge an accused’s chal-
lenge to the reasonable timeliness of a Death Notice requires evalua-
tion of, among other factors that may appear relevant, (1) the nature
of the charges presented in the indictment; (2) the nature of the aggra-
vating factors provided in the Death Notice; (3) the period of time
remaining before trial, measured at the instant the Death Notice was
filed and irrespective of the filing’s effects;6 and, in addition, (4) the
6To quantify this interval, a court naturally must have reference to two
dates: the first, obviously, being the date the Death Notice is filed, and
the second, obviously, being the trial date. Less obvious is that the sched-
uled trial date may constitute the trial date for purposes of analysis under
section 3593(a) because of the prophylactic nature of the statutory right.
This latter conclusion is necessitated by the twin facts that the right
guarded by section 3593(a) is violated at the time that a defendant is
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status of discovery in the proceedings. It should be determined on the
basis of these factors whether sufficient time exists following notice
and before trial for a defendant to prepare his death defense.
C.
In this case, the district court analyzed Ferebe’s section 3593(a)
claims under a speedy trial act-type prejudice analysis. See supra note
3. This, as made clear by the above analysis, was error. We, however,
cannot simply conduct the merits analysis ourselves to correct the
error. For, as a consequence of the district court’s adoption of the
incorrect analytical framework, its decision did not sufficiently
address necessary elements of the section 3593(a) analysis and thus
did not produce certain findings indispensable to our review of the
order. As a consequence, we must vacate the challenged order and
remand the case to allow the district court to adjudicate the matter
under the proper analytical framework.
1.
One of the essential elements that a proper analysis of a motion to
strike a Death Notice for violation of section 3593(a)’s timeliness
requirement must clearly address is the period of time that remains
before trial, as of the moment of the Death Notice’s filing, and irre-
spective of that filing. See supra p. 20 (the third of the four non-
exclusive factors we set out for determining the pre-trial objective
reasonableness of the timing of a Death Notice). By logical necessity,
required to proceed to trial for his life with insufficient time to prepare,
see supra pp. 13-15, and that, like all rights, with the exception of the
unique, speedy trial act right, see supra pp. 16-17, violation of the sec-
tion 3593(a) right may be vindicated by objection at the moment of the
violation. The only other possible analytical framework for vindicating
the section 3593(a) right, one based on an after-the-fact review for preju-
dice, would allow notice never to be given and the notice requirement
still to be satisfied. The statutory language simply does not countenance
such a result. And so, we must prefer the pre-trial objective reasonable-
ness analysis, which by its character, for purposes of pre-trial Death
Notice challenges, references the set trial date as the date of trial.
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of course, before a court can assess the objective reasonableness of
this interval (i.e., the interval between the Death Notice’s filing and
trial), it must first quantify the interval. See supra note 6. If no date
of trial is identifiable, then the interval between the date of filing and
that yet unknown and unidentified date cannot be measured. And if
the interval cannot be measured, then the court cannot reach conclu-
sions, as the statute requires, about the objective reasonableness of
that interval.
Here, we are unable to address this third element — the time
remaining between the Death Notice’s filing and trial — with respect
to Ferebe’s section 3593(a) claim.7 The record does not clearly reveal
whether, at the instant the Death Notice was filed, a date existed on
which Ferebe’s trial was set to begin. We can discern that a trial date
of September 10 had been set by the district court in December of the
preceding year and that that trial date was never cancelled on the
record by the court. That suggests that a trial date was set. But, the
court’s words, recorded at the September 7, 2001 hearing on Ferebe’s
motion to strike the Death Notice (the "Motion Argument") and in its
September 12, 2001 oral opinion denying the motion (the "Order"),
cast doubt on whether that date in fact remained fixed.
The district court, noting that the parties postponed their June and
July pre-trial hearings and conferences after the conditional plea
agreement was reached in June 2001, suggested that the postpone-
ments had the practical effect of cancelling the September 10 trial
date. The court’s comments, however, do not establish that the trial
start date was cancelled in advance of the Death Notice’s filing and
irrespective of it.
In particular, the district court said as follows from the bench:
I think that in looking at issues in both criminal trials and
civil trials, you start with the schedule. And the schedule is
7Because the district court relied on a prejudice analysis to decide the
motion, it did not analyze this element, and, as the discussion below
makes clear, its peripheral discussions regarding the time trial was or was
not set to begin and the time remaining before trial lack the precision and
exactness necessary to the analysis.
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a reality. It can be worked with in some cases. But if there
are notice and other requirements, you start with when is the
trial date, where were the notices filed, and you don’t
always assume that the trial date is flexible and can be
moved. . . . [T]his trial has to be postponed in any event
because once I was advised that Mr. Ferebe had changed his
mind or that’s the way things were looking and that the case
was going to be worked out, resolved by a plea, the other
things got set in and hearing dates that we had scheduled for
June and July were taken off the table. So they’ve all not
been met and the most crucial one being working up the
questionnaire for the jury. I’ve been advised by the jury sec-
tion that that takes at least six to eight weeks. So that when
the jury questionnaire selection dates all slipped, that meant
that we were no longer looking at a September trial date.
We’re looking at something at least six to eight weeks
beyond that.
J.A. at 161 (Motion Argument) (emphasis added). And:
By the time [the Attorney General] made its [July 26] deci-
sion [rejecting the conditional plea agreement], the Septem-
ber 10 trial date was irretrievably lost. For one thing, I set
in other matters for September tenth.
Second, neither counsel for the defense nor counsel for
the government, as of the date of the turndown in late July
2001 would have been ready for a trial starting on Septem-
ber the 10th.
But the most crucial aspect as of the late July time period
was that we had no jury questionnaire appropriate to a
death penalty case. The timetable for drafting, investigating,
and approving such a questionnaire from which to pick a
qualified death penalty jury, that timetable had slipped
because of the decision by the court and counsel to stop
work, to stay our oars and see what would happen in Wash-
ington.
I have been advised by the jury section that it takes at
least eight weeks to go through the process of mailing the
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death penalty questionnaire, retrieving the responses,
reviewing the responses with court and counsel, and bring-
ing into court the qualified jury.
This case must, accordingly, be rescheduled, and any pos-
sible prejudice to Mr. Ferebe with respect to the guilt phase
or the sentencing phase will be cured by the additional time
that defense counsel will have to prepare their case[.]
J.A. at 214-15 (Order) (emphasis added).
The court’s words at the Motion Argument are susceptible to two
different interpretations. The court says that the trial was no longer
scheduled to start September 10 "when the jury questionnaire selec-
tion dates all slipped," pointing to the parties’ pre-Death Notice con-
duct as having voided the September 10 trial date as a practical
matter. But, the court also indicates, at the same time, that the Death
Notice’s filing was itself the but for reason for finding the September
10 trial date to have been practically voided. Thus, the court noted the
requirements of proceeding with a capital trial (the result of the
Death Notice’s filing) as the hurdles to keeping the September 10 trial
date. The former statement supports the conclusion that there was no
set trial date at the moment the Death Notice was filed, while the lat-
ter supports the conclusion that the September 10 date was set at that
moment, but that the court voided it in order to accommodate the cap-
ital trial called for by the prosecution’s delinquent Death Notice.
The Order’s language and analysis is not any more precise. The
Order says that the "most crucial" factor necessitating a re-scheduling
of the trial was the time it would take to construct the jury question-
naire and that that period would be at least eight weeks. This, of
course, adds weight to the second interpretation we offer above of the
court’s Motion Argument comments. It, too, implies that the trial
remained set for September 10, but that the court thought it necessary
to re-schedule it in order to accommodate a capital trial.
That the September 10 trial date continued in force at the moment
the Death Notice was filed is further suggested by the fact that the
district court had in August issued a written query to Ferebe inquiring
whether he "would be ready to go to trial on September 10, 2001,"
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see J.A. at 206 (the Order). Ferebe responded that he "would be ready
to go forward with trial on September 10, 2001[,] provided that the
trial was a non-death penalty trial." Id. The query suggests that the
court may have had in mind that the September 10 trial date remained
in force as late as mid-August.
But, at the same time, the conclusion that the trial was set for Sep-
tember 10 at the moment the Death Notice was filed is undercut by
the court’s assertion that the trial date "was irretrievably lost" as a
result of the postponement of the June and July hearing dates. Id. at
214. This statement directly contradicts our preceding observations
and suggests instead that the trial date was lost as a practical matter
prior to the Death Notice’s filing and irrespective of whether the
death penalty would be under consideration at trial.8
These varied aspects of the district court’s oral statements and the
posture of the case make unknowable for us whether at the moment
of the Death Notice’s filing, and irrespective of the procedural effect
of trying a capital case (which up until that point the trial was not),
Ferebe’s trial was set for September 10, for an equivalent date, or for
no date at all.
Because we cannot determine whether, at the time of the Death
Notice’s filing, a date existed on which Ferebe’s trial was set to start,
we cannot complete an evaluation of the merits of Ferebe’s claim. A
court necessarily errs where it rules on a motion to strike a Death
Notice under section 3593(a)’s timeliness requirement but no trial
date is set, or no trial has begun. As explained above, without a date
from which to measure the amount of time remaining from the filing
8Similarly ambiguous are the district court’s subsequent comments that
"any possible prejudice to Mr. Ferebe will be cured by the additional
time that defense counsel will have to prepare their case[,]" J.A. at 215,
as these comments also beg the question of whether that "additional
time" was a result of the fact that the trial date was truly lost (and not
lost because of the Death Notice filing), or if it was instead a result of
the delay in the trial occasioned by the Death Notice’s delinquent filing
(i.e., the delays occasioned by the unique requirements of a capital trial,
caused by litigation over Ferebe’s objection to the Death Notice, or cre-
ated by the court to provide additional time for Ferebe to prepare).
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to trial, a court cannot reach conclusions as to the objective reason-
ableness of that yet unknown and unidentified interval.
Thus, we must remand the case to allow the district court to
address the motion again, this time under the proper analytical frame-
work and with an eye towards deciding these unaddressed, yet indis-
pensable, factual issues.9
2.
Having determined that the district court applied an incorrect preju-
dice analysis in its initial adjudication of Ferebe’s motion to strike the
Death Notice, and having determined that remand is necessary so as
to develop the record further, we vacate the district court’s order
denying Ferebe’s motion and remand to that court for further proceed-
ings.
CONCLUSION
The judgment of the district court is vacated and the case is
remanded with instructions to proceed consistent with the opinion
herein.
VACATED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
Donald Ferebe, who has been indicted for two counts of capital
murder, filed this interlocutory appeal to challenge, as untimely, the
government’s notice, given pursuant to 18 U.S.C. § 3593(a), of its
intention to seek the death penalty. Section 3593(a) requires the gov-
ernment to serve notice of its intention to seek the death penalty "a
reasonable time before the trial." The district court denied Ferebe’s
motion to strike as untimely the government’s death penalty notice.
Because trial has not yet occurred and the facts necessary to review
9As should be evident from our discussion herein, district courts can-
not decide challenges to Death Notices brought under section 3593(a)’s
timeliness requirement until they have before them the requisite factual
elements. Where they do otherwise, they err.
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the reasonableness of the timing of the government’s notice will not
be ascertainable until the trial actually occurs, I would dismiss this
appeal from the district court’s order as interlocutory. See 28 U.S.C.
§ 1291.
The majority opinion views the statute as giving Ferebe a right not
to stand trial, the violation of which must be determined before trial.
Treating this right much as a double-jeopardy right, ante at 20-21, the
majority concludes that a violation can be appealed before trial. To
accomplish this, it reads the statute to require a death penalty notice
to be given a reasonable time before the date of trial, ante at 23-24,
not before the trial, as the statute provides. The majority’s approach
of using the scheduled trial date rather than the trial itself as the
benchmark for determining compliance with § 3593(a) rests satisfac-
tion of this procedural guarantee on speculation that a trial will pro-
ceed as scheduled. This approach finds no analytical relevance in
whether the defendant was actually prejudiced at trial or whether the
period actually elapsing between the death penalty notice and trial
was reasonable. In employing such an approach, the majority treats
a potential violation of § 3593(a), which would be wholly vindicable
post-trial, as one of those rare pretrial constitutional deprivations that
the Supreme Court has found deserving of immediate appeal.
Because I conclude that the district court’s order denying Ferebe’s
motion to strike the government’s notice of its intention to seek the
death penalty is an interlocutory order that is not appealable now
(before trial) as a final judgment under 28 U.S.C. § 1291, I would dis-
miss this appeal.
I
On September 16, 1997, Ferebe was indicted, along with Haywood
Carmichael, for, among other things, two counts of murder through
the use of a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c), (j)(1). The indictment charged that
on August 15, 1995, Ferebe shot Benjamin Harvey Page, a potential
witness against Ferebe on an unrelated 1994 murder charge then
pending, and Yolanda Evans, an innocent bystander caught in the
crossfire. The offenses carry a possible sentence of death.
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Upon receiving the recommendation of the U.S. Attorney to seek
the death penalty on both counts against both defendants, the Attor-
ney General of the United States convened a meeting of the death
penalty review committee on April 2, 1998, at which counsel for both
Ferebe and Carmichael presented arguments in mitigation of their cli-
ents’ respective roles in the two murders. In May 1998, the Attorney
General authorized the U.S. Attorney to seek the death penalty only
on the one count charging Ferebe with the murder of Page. Following
that decision, the district court severed the trial of Carmichael from
that of Ferebe. Carmichael’s case proceeded to trial, and he was sen-
tenced to two concurrent terms of life imprisonment.
Ferebe, however, did not wish to proceed to trial. Rather, he filed
a motion for a continuance and exclusion of the elapsed time from
operation of the Speedy Trial Act, seeking an indefinite postponement
of his trial until the appellate process could be completed on his con-
viction for the previous 1994 murder of Richard Thomas in further-
ance of racketeering activity, to which Page had been a potential
witness and for which Ferebe had been sentenced to life imprison-
ment. In his motion for an indefinite postponement in this case,
Ferebe noted that "[t]his capital punishment case is currently sched-
uled for trial the week of April 26, 1999. . . . [I]t is in the interest of
justice to postpone this case so that Mr. Ferebe’s previous conviction
may be appealed to the Fourth Circuit. Once the Fourth Circuit rules
on Mr. Ferebe’s appeal in his previous conviction, it may well then
be possible for the parties to resolve this extremely difficult and pro-
tracted case without a trial." The district court granted the motion and
postponed trial of Ferebe indefinitely, pending completion of the
appellate process in Ferebe’s prior murder conviction.
In September 1999, this court affirmed Ferebe’s conviction and
sentence on the prior charge, and in January 2000, the Supreme Court
denied Ferebe’s petition for a writ of certiorari. Turning his attention
thereafter to this case, Ferebe was, at his request, returned in June
2000 to the District of Maryland from Terre Haute, Indiana, where he
was serving his sentence on the prior conviction, to discuss with his
counsel the possibility of resolving this case through a plea agree-
ment. At that time, the government offered Ferebe the possibility of
pleading guilty to the murders of both Page and Evans and agreeing
to two concurrent life sentences to avoid the death penalty. But in
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October 2000, Ferebe declined the offer and insisted on proceeding
to trial. In response, the district court conducted a hearing in Decem-
ber 2000, during which it received Ferebe’s formal rejection of the
government’s offer and thereafter the government’s formal with-
drawal of the offer. A schedule for trial preparation and motions was
then fixed, and a capital trial was scheduled to commence on Septem-
ber 10, 2001, with the explicit understanding by the parties and the
court that the death penalty would be sought.
In May 2001, the U.S. Attorney asked the Attorney General in the
new administration to reconsider the decision not to permit him to
seek the death penalty with respect to the count charging Ferebe with
the murder of Evans. A month later and before the Attorney General
acted, counsel for Ferebe announced a "breakthrough" and advised
the government that Ferebe was now ready to plead guilty to both
murders in exchange for concurrent life sentences, and on June 20, a
formal plea agreement was signed to that effect by both Ferebe and
the U.S. Attorney, subject to the approval of the Attorney General.
The district judge was advised of the development, and, because the
plea agreement required the approval of the Attorney General, both
the court and counsel ceased their preparations for the trial to await
word from the Attorney General.
In early July 2001, the Attorney General granted the U.S. Attor-
ney’s earlier request to seek the death penalty on the Evans murder
charge, and on July 26, the Attorney General advised the U.S. Attor-
ney that the proposed plea agreement was not acceptable and that the
prosecution of the case as a death penalty case should proceed. In a
meeting with the court and all parties on July 31, defense counsel
indicated Ferebe’s desire to plead guilty even in the absence of agree-
ment, explaining that such a plea would subject Ferebe only to life
imprisonment because the government had not yet filed its notice of
intention to seek the death penalty. The next day, on August 1, 2001,
the government filed a formal notice, pursuant to 18 U.S.C. § 3593(a),
of its intention to seek the death penalty for the murders of both Page
and Evans.
Arguing that the death penalty notice was untimely, both because
it was so late after the indictment was filed and so short before the
September 10 scheduled trial date, which had not yet been postponed,
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Ferebe filed a motion to strike the notice. The district court conducted
a hearing on the motion on September 7, 2001, during the period orig-
inally set aside for a pretrial conference and, on September 12, denied
Ferebe’s motion to strike the death penalty notice. At the same time,
the court postponed the trial date to a new date on which the parties
could agree.
In denying Ferebe’s motion to strike, the district court concluded
that Ferebe had actual, albeit not formal, notice of the death penalty
for the first count and that the preparation for the second death pen-
alty count was not substantially different than that for the first count
on which Ferebe had actual notice. Recognizing that the statutory
standard for timeliness was that the notice be served a "reasonable
time before the trial" or before the court’s acceptance of a guilty plea,
the court concluded that the most important factor in determining
"reasonableness" was to examine any "prejudice to Mr. Ferebe" that
the timing of the notice caused. With respect to the Page murder
charge, the court concluded that there had been no prejudice:
This case was scheduled on December 15, 2000 as a death
penalty case. Defense counsel has had ample time and finan-
cial resources to prepare for a death penalty case involving
the murder of Benjamin Page. They have received discov-
ery, including a transcript of the Carmichael trial, and they
have filed motions appropriate in scope and dignity of prep-
aration to a death penalty case.
With respect to the Evans murder charge, the court concluded that
"the evidence for the Page murder is basically the same for the
Yolanda Evans murder, except for certain forensic evidence learning
how she was killed as she was sitting on the stoop that afternoon."
Accordingly, the court concluded that there was also no actual preju-
dice with respect to Evans, even though the death penalty notice gave
the defense its first formal notice of the government’s intent to seek
the death penalty on the Evans murder charge. While the court
acknowledged that there was a potential for prejudice with respect to
the Evans murder charge — because defense counsel did not have as
much preparation time for that charge — the court concluded that
"any prejudice accruing to the defendant will be cured by the time
that must pass between the original trial date of September 10, 2001
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and the new trial date that I must schedule at the end of this hearing."
The court explained that counsel for both sides, as well as the court,
"stop[ped] work in the expectation that Washington would approve
the plea bargain. Washington’s turndown in late July was not
expected, but it was also not unforeseeable." The court noted that by
the time the plea agreement was turned down, "the September 10 trial
date was irretrievably lost" by the actions of both parties and the
court. The court explained that it had scheduled other matters for Sep-
tember 10 and that neither counsel could have been ready by Septem-
ber 10 in view of the suspension of activities pending approval by the
Attorney General. The court explained further:
But the most crucial aspect as of the late July time period
was that we had no jury questionnaire appropriate to a death
penalty case. The timetable for drafting, investigating, and
approving such a questionnaire from which to pick a quali-
fied death penalty jury, that timetable had slipped because
of the decision by court and counsel to stop work, to stay
our oars and see what would happen in Washington.
I have been advised by the jury section that it takes at
least eight weeks to go through the process of mailing the
death penalty questionnaire, retrieving the responses,
reviewing the responses with court and counsel, and bring-
ing into court the qualified jury.
This case must, accordingly, be rescheduled.
Pursuant to the court’s invitation to have parties agree on a trial
date, Ferebe thereafter agreed to a trial on April 7, 2003 (which is
now also lost because of this appeal), and agreed to exclusion of the
elapsed time for Speedy Trial Act purposes.
From the district court’s interlocutory order of September 12, 2001,
denying Ferebe’s motion to strike the death penalty notice as untimely
under 18 U.S.C. § 3593(a), Ferebe filed this interlocutory appeal.
On appeal, Ferebe contends on the merits that the government’s
formal notice to seek the death penalty, served on August 1, 2001,
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when trial was still formally scheduled to take place on September 10,
2001, was untimely. Ferebe argues that the government violated the
requirements of a timely filing imposed by 18 U.S.C. § 3593(a) by
"waiting more than three years after the death penalty was authorized,
ignoring the deadline for filing motions, and waiting, without reason,
until just 39 days before trial."
The government contends on the merits that the September 10,
2001 trial date was effectively suspended in June 2001 by the court
and all counsel when the parties sought the Attorney General’s
approval of a proposed plea agreement. The government also asserts
that Ferebe had actual notice of the death penalty and of the aggravat-
ing factors to support it since November 1998 when Carmichael,
Ferebe’s co-defendant, was convicted, and that even before the de
facto suspension of the calendar in June 2001, Ferebe had filed all of
his motions and had conducted his discovery.
II
The government first contends, however, that we do not have juris-
diction to hear this appeal because the district court’s order of Sep-
tember 12, 2001, denying Ferebe’s motion to strike the death penalty
notice, was not a final order, as required by 28 U.S.C. § 1291. Ferebe
responds to this contention with the argument that his appeal is justi-
fied by the collateral order doctrine, articulated in Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). I agree with the govern-
ment that the district court’s order is not appealable at this time.
Section 1291 of Title 28 confers on the Courts of Appeals "juris-
diction of appeals from all final decisions . . . except where a direct
review may be had in the Supreme Court." 28 U.S.C. § 1291. Because
jurisdiction is a creature of statute and § 1291 is the purported source
of jurisdiction for this appeal, our authority to hear Ferebe’s appeal
depends on whether the "finality" predicate of § 1291 is satisfied. As
the Supreme Court has stated, "[t]he effect of the statute is to disallow
appeal from any decision which is tentative, informal or incomplete."
Cohen, 337 U.S. at 546. But in construing the finality requirement of
§ 1291, the Court in Cohen articulated a "collateral order doctrine" to
permit review of certain orders not terminating the action but other-
wise "final" within the meaning of the statute. Id. at 545-47. The
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Court recognized such orders as "final decisions" when they are "sep-
arable from, and collateral to, rights asserted in the action, too impor-
tant to be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the whole case
is adjudicated." Id. at 546.
The collateral order doctrine may be applied only if three require-
ments are satisfied. First, the district court’s order must have conclu-
sively determined the disputed question. Cohen, 337 U.S. at 546;
Abney v. United States, 431 U.S. 651, 658 (1977). Second, the order
must have resolved an important issue completely separate from the
merits. Cohen, 337 U.S. at 546; Abney, 431 U.S. at 658. And, third,
the order must be effectively unreviewable on appeal from final judg-
ment. Cohen, 337 U.S. at 546; Abney, 431 U.S. at 658.
Because of Congress’ expressed disfavor of piecemeal litigation,
the doctrine has been strictly applied, particularly in criminal litiga-
tion where delays are directly contrary to the social interest in speedy
resolution of criminal matters. See United States v. MacDonald, 435
U.S. 850, 853-54 (1978) ("The rule of finality has particular force in
criminal prosecutions because ‘encouragement of delay is fatal to the
vindication of the criminal law’" (quoting Cobbledick v. United
States, 309 U.S. 323, 325 (1940)); see also United States v. Lawrence,
201 F.3d 536, 537 (4th Cir. 2000) (noting the infrequent use of the
doctrine to hear interlocutory appeals in criminal cases). Indeed, the
Supreme Court has only employed the collateral order doctrine in
three criminal matters. See Helstoski v. Meanor, 442 U.S. 500 (1979)
(permitting immediate appeal of immunity afforded by the Speech
and Debate Clause); Abney, 431 U.S. 651 (permitting immediate
appeal of denial of double jeopardy claim); Stack v. Boyle, 342 U.S.
1 (1951) (permitting immediate appeal of denial of motion to reduce
bail). The Supreme Court has "repeatedly stressed that the ‘narrow’
exception should stay that way and never be allowed to swallow the
general rule that a party is entitled to a single appeal, to be deferred
until final judgment has been entered, in which claims of district court
error at any stage of the litigation may be ventilated." Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (internal cita-
tions omitted). The Court has further instructed that "the issue of
appealability under § 1291 is to be determined for the entire category
to which a claim belongs, without regard to the chance that the litiga-
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tion at hand might be speeded, or a particular injustice averted by a
prompt appellate court decision." Id. (internal quotation marks and
citations omitted). While recognizing this restrictive approach, we
have nonetheless applied the collateral order doctrine in a criminal
case to allow the immediate appeal of the denial of the right to be
tried as a juvenile. See United States v. Smith, 851 F.2d 706 (4th Cir.
1988).
III
In order to apply these well-established principles of the collateral
order doctrine to this case, it is necessary to understand the statutory
basis for the order from which appeal was taken.
The order denying Ferebe’s motion to strike was based on 18
U.S.C. § 3593(a), which provides:
If, in a case involving an offense described in section 3591,
the attorney for the government believes that the circum-
stances of the offense are such that a sentence of death is
justified under this chapter, the attorney shall, a reasonable
time before the trial or before acceptance by the court of a
plea of guilty, sign and file with the court, and serve on the
defendant, a notice —
(1) stating that the government believes that the
circumstances of the offense are such that, if the
defendant is convicted, a sentence of death is justi-
fied under this chapter and that the government
will seek the sentence of death; and
(2) setting forth the aggravating factor or factors
that the government, if the defendant is convicted,
proposes to prove as justifying a sentence of death.
* * *
The court may permit the attorney for the government to
amend the notice upon a showing of good cause.
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18 U.S.C. § 3593(a) (emphasis added). By requiring the government
to serve a death penalty notice "a reasonable time before the trial,"
Congress does not mandate a particular deadline for providing the
notice. Compare 18 U.S.C. § 3593(a) with 18 U.S.C. § 3432 (requir-
ing that indictments and lists of jurors and witnesses in a capital case
be disclosed "at least three entire days before commencement of
trial") (emphasis added); see also, e.g., Fed. R. Crim. P. 12.1(b)
(requiring government to give defendant notice of witnesses it will
use to rebut alibi-witness testimony "no later than 10 days before
trial") (emphasis added); Fed. R. Crim. P. 12.3(a)(3) (requiring gov-
ernment to give defendant notice of its response to a public-authority
defense "no later than 20 days before trial") (emphasis added).
Instead, the critical determination under § 3593(a) is whether the
notice was provided a reasonable time before trial. Cf. United States
v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985)
(requiring that Brady material be disclosed "in time for its effective
use at trial," which could even include disclosure at trial itself).
In applying the reasonableness standard to the timing of a notice
requirement, we must be guided by the purpose for which notice is
required and the context in which it is required to be given. The stat-
ute under review in this case — 18 U.S.C. § 3593(a) — functions to
inform the defendant and the court of the fact that the government
will seek the death penalty at trial and of the grounds on which it will
seek that penalty. This requirement affords the defendant an opportu-
nity to prepare his defense, targeting specifically the death penalty
aspect of trial. And in guilty pleas, to which the statute also applies,
the requirement assures that the defendant and the court have notice
of the penalty to be sought at the sentencing phase and of aggravating
factors relevant to a death sentence. In short, for the defendant this
statute is a procedural guarantee that he will be given adequate time
to prepare for a death penalty trial and sentencing, and its guarantee
is similar in nature to many other guarantees that give the defendant
an opportunity to prepare. See, e.g., 18 U.S.C. § 3432 (requiring pre-
trial notice of indictments and lists of jurors and witnesses in a capital
case); Fed. R. Crim. P. 12.1(b) (requiring pretrial notice by the gov-
ernment of witnesses to be called to rebut an alibi defense); Fed. R.
Crim. P. 16(a) (requiring government pretrial disclosure of evidence);
Fed. R. Crim. P. 26.1 (requiring pretrial notice of the use of foreign
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law); Smith Grading & Paving, Inc., 760 F.2d at 532 (requiring dis-
closure of Brady material "in time for its effective use at trial").
I thus disagree with the majority’s expansive reading of § 3593(a)
— which it interprets as protecting the right "not to stand trial for
one’s life absent [adequate time to prepare]," ante at 11, and the right
"not to be forced to endure a capital trial except upon reasonable
notice," ante at 11 — and its analogy to double jeopardy claims to
find Ferebe’s claim immediately appealable, ante at 20-21. I do not
find in the death penalty notice statute language that supports the con-
clusion that the defendant is given a substantive right not to stand trial
for a capital offense. Because "virtually every right that could be
enforced appropriately by pretrial dismissal might loosely be
described as conferring a ‘right not to stand trial,’" Digital Equip.,
511 U.S. at 873, the Supreme Court has instructed that "§ 1291
requires courts of appeals to view claims of a ‘right not to be tried’
with skepticism, if not a jaundiced eye,’" id.; see also Midland
Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) ("One must
be careful . . . not to play word games with the concept of a ‘right not
to be tried’"). As the Supreme Court noted in MacDonald:
Admittedly, there is value — to all but the most unusual liti-
gant — in triumphing before trial, rather than after it,
regardless of the substance of the winning claim. But this
truism is not to be confused with the quite distinct proposi-
tion that certain claims (because of the substance of the
rights entailed, rather than the advantage to a litigant in win-
ning his claim sooner) should be resolved before trial.
MacDonald, 435 U.S. at 860 n.7. And a "right not to be tried"
depends upon "an explicit statutory or constitutional guarantee that
trial will not occur." Midland Asphalt, 489 U.S. at 801; see, e.g., id.
at 802 (noting that the Grand Jury Clause satisfies this requirement
because it states that "[n]o person shall be held to answer" for a crime
without a grand jury indictment); Digital Equip., 511 U.S. at 870
(stating that the Double Jeopardy Clause "by its very terms" embodies
the principle of a "right ‘not to face trial at all’"). "[T]he mere identifi-
cation of some interest that would be ‘irretrievably lost’ has never
sufficed to meet the third Cohen requirement" to permit appeal to
avoid trial entirely. Digital Equip., 511 U.S. at 872 (citation omitted).
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As the Supreme Court stated in MacDonald with respect to speedy
trial claims:
There perhaps is some superficial attraction in the argument
that the right to a speedy trial . . . must be vindicated before
trial in order to insure that no nonspeedy trial is ever held.
Both doctrinally and pragmatically, however, this argument
fails. Unlike the protection afforded by the Double Jeopardy
Clause, the Speedy Trial Clause does not, either on its face
or according to the decisions of this Court, encompass a
"right not to be tried" which must be upheld prior to trial if
it is to be enjoyed at all. It is the delay before trial, not the
trial itself, that offends against the constitutional guarantee
of a speedy trial.
435 U.S. at 860-61.
Similarly, the protection afforded to the defendant by § 3593(a) is
not a right not to be tried as a capital defendant. Instead, it is a proce-
dural guarantee ensuring that the defendant has a sufficient time for
preparation between the government’s death penalty notice and trial.
Indeed, the plain language of the statute provides no assurance that
a capital trial can be denied if the government fails to produce a
timely notice of its intent to seek the death penalty.1
1The majority argues that my use of the word "guarantee" to describe
the procedural protection afforded to a defendant by § 3593(a) contra-
dicts my conclusion that § 3593(a) does not permit pretrial appellate
review of allegedly untimely death notices. Ante at 14. Inherent in this
assertion is the assumption that a guarantee must include immediate
appellate review. Immediate interlocutory appellate review, however, is
not essential to a guarantee. Indeed, almost all pretrial procedural guaran-
tees, such as pretrial rights of disclosure of Brady material, Jencks mate-
rial, alibi rebuttal witnesses, and the like, do not include a right to
interlocutory appeals. Even the right to be tried on an indictment in com-
pliance with the Constitution is not vindicated by interlocutory appeal.
Trials, including pretrial orders, involve a multitude of important issues
that are routinely and normally reviewed after judgment. Only in the rare
circumstances where an issue cannot effectively be reviewed after final
judgment is an exception made.
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Recognizing the statute’s role of assuring the defendant in a capital
case adequate preparation time, the guide for determining a "reason-
able" time must focus on the preparation denied or adversely affected
by a notice allegedly given late. And ultimately the adverse effect of
preparation can only be measured by the defense that the defendant
presented at trial. Thus, the reasonableness of any time before trial
will depend in large part on the nature and complexity of the case and
an evaluation of the preparation the defendant was able to undertake.
The analysis called for is not unlike that which has been adopted
for determining whether a defendant’s speedy trial right has been vio-
lated. While there are obvious differences between a claim that the
defendant was denied the right to receive a timely death penalty
notice and a claim that the defendant was denied a speedy trial, preju-
dice caused by the delay is a factor common to both analyses. See
Barker v. Wingo, 407 U.S. 514, 532 (1972) ("Prejudice, of course,
should be assessed in the light of the interests of defendants which the
speedy trial right was designed to protect"). In Barker, the Court iden-
tified the potential "inability of a defendant adequately to prepare his
case" as the most serious aspect of prejudice. Id. And subsequently
emphasizing the importance of being able to evaluate prejudice, the
Court in MacDonald noted that any effort to assess this prejudice
before the trial would "tend[ ] to be speculative," 435 U.S. at 858, and
that "there exists no . . . divorce between the question of prejudice to
The majority also argues that my analysis requires the "error" "that
defendants who never receive notice that they are to be tried for their life
must endure trial, conviction, death sentence, and death row imprison-
ment before they may appeal the denial of their objection to receiving no
notice." Ante at 16-17. But this assertion is true only if one accepts the
majority’s characterization of the statutory notice right as a right not to
stand trial, a characterization drawn in the face of weighty Supreme
Court authority counseling courts to "view claims of a ‘right not to be
tried’ with . . . a jaundiced eye." See Digital Equip., 511 U.S. at 873.
Although allegedly no notice is easier to identify than notice allegedly
provided an unreasonable time before trial, that distinction does not
transform a violation of § 3593(a) — whether before or after trial begins
— into a right to entirely avoid trial. As I have noted in this opinion, a
violation of § 3593(a) can be remedied by an array of responses.
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the conduct of the defense (which so often is central to an assessment
of a speedy trial claim) and the events at trial," id. at 859. Indeed, it
was just this speculation and inseparability from the merits that
prompted the Court in MacDonald to conclude that a "pretrial denial
of a speedy trial claim can never be considered a complete, formal,
and final rejection" of the speedy trial right. Id. at 859 (emphasis
added).
In addition to prejudice, the Supreme Court in Barker identified
other factors for consideration in determining whether a delay of trial
was unreasonable. The Court in MacDonald summarized the factors
as follows:
In Barker . . . the Court listed four factors that are to be
weighed in determining whether an accused has been
deprived of his Sixth Amendment right to a speedy trial.
They are the length of the delay, the reason for the delay,
whether the defendant has asserted his right, and prejudice
to the defendant from the delay. [Barker, 407 U.S.] at 530.
The Court noted that prejudice to the defendant must be
considered in the light of the interests the speedy trial right
was designed to protect: "(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will
be impaired. Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case
skews the fairness of the entire system." Id., at 532 (footnote
omitted).
435 U.S. at 858.
Because the speedy trial analysis focuses on delay and on the prej-
udice that the delay will cause to the ability of the defendant to pre-
sent his defense, it is relevant to the death penalty notice analysis
which too must evaluate the extent to which an allegedly late notice
affects the defendant’s ability to present his defense.
Thus, in determining what timing is a reasonable time before trial
for giving the death penalty notice under 18 U.S.C. § 3593(a), I would
conclude that a court should at least consider (1) the nature of the
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charges made in the indictment; (2) the nature of the aggravating fac-
tors provided in the death penalty notice; (3) the period of time before
trial that the notice was received by the defendant; (4) any actual
notice that the defendant had received before the formal notice was
filed and the extent to which the defendant was able to prepare based
on that notice; and (5) the prejudice that the timing of the formal
notice has on the defendant’s preparation for trial and on his presenta-
tion of the defense. Obviously, if the jury were to determine not to
impose the death penalty, then any alleged violation of § 3593(a)
would become moot.
The analysis proffered by the majority eclipses any consideration
of what effect an allegedly late notice would have on trial preparation
and thus the prejudice it causes the defendant. It focuses on the right
to such notice prospectively, making the inquiry a pretrial matter that
evaluates "objective reasonableness of the notice provided." Ante at
13. From that posture, the analysis finds irrelevant any determination
of whether the actual historical facts indeed frustrated the purpose of
§ 3593(a) to afford an adequate preparation time, focusing instead in
the abstract — and necessarily therefore upon speculation — about
whether the defendant’s right to have § 3593(a) enforced was denied
"at the point when [the defendant] proceeds toward trial." Ante at 14.
Apart from the speculation that this requires, it also yields no possibil-
ity of determining when a violation occurred because the violation as
defined by the majority occurs within the hurtle forward toward trial.
Such an approach encourages defendants to file, and district courts to
rule on, challenges to § 3593(a) notices as soon as the notices are
filed. It also freezes the inquiry into the reasonableness of timing as
of the time the notice is filed and presents the district court, in effect,
with only the options of striking the notice or not striking the notice.
It denies the court any flexibility in managing the period of trial prep-
aration by scheduling or postponing trial to give the defendant a rea-
sonable time to prepare. For if the district court tries to take this route,
its attempt will be cut off by an immediate appeal.
Moreover, the majority’s proffered analysis cannot withstand the
analysis for assessing the reasonableness of pretrial delay demanded
by the Supreme Court in Barker. While that analysis evaluated the
speedy trial right, it still involved an inquiry into the reasonableness
of pretrial delay, concluding that prejudice was the most serious fac-
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tor for consideration. Yet the majority’s pretrial analysis, of necessity,
cannot take prejudice into account. Accordingly, it concludes, as it
must, that any prejudice is irrelevant. Ante at 15. This approach over-
looks the entire purpose for which notice is required under § 3593(a).
Finally, the majority’s analogy to allegedly defective indictments,
to dismiss any consideration of prejudice for allegedly late death pen-
alty notices, overlooks § 3593(a)’s explicit standard of reasonable-
ness. And the majority’s analysis ignores the aspect of indictments
that is analogous to death penalty notices that both indictments and
death penalty notices contain elements inextricably bound up with the
merits of the case.2
In sum, we are presented in this appeal with a pretrial order deny-
ing a defendant’s motion to strike a death penalty notice made on the
ground that it was not given a "reasonable time before the trial." 18
U.S.C. § 3593(a). Yet, the trial that is referred to in the statute has not
even as of now commenced, much less been completed. Because
there has been no trial, no one can conclusively determine whether the
notice was given a reasonable time before trial. Moreover, no one can
state whether the defendant was adversely affected in any way by a
notice which cannot even be denominated "late."3
2If a death penalty notice under § 3593(a) contains "‘charging’ ele-
ments [that] only pertain to sentencing," ante at 21 n.5, one must wonder
how the majority reconciles its analysis to the date of trial, rather than
to the date of sentencing.
3Responding to an analysis of prejudice as part of the reasonableness
inquiry, the majority is simply incorrect in stating that incorporation of
prejudice into the analysis of whether notice was provided a "reasonable
time before the trial," 18 U.S.C. § 3593(a), "necessarily leads to the
untenable conclusion that the statute would be satisfied if notice were
given after trial commenced or, for that matter, never given." Ante at 15.
If notice is given after trial has commenced, the objection would be that
notice was given after trial commenced, not that notice was given an
"[un]reasonable time before trial." Likewise, if notice is never given, the
objection would be that notice was never given. Here, however, notice
was given, and notice was given before trial, and the only challenge is
to whether the notice was given a reasonable time before trial.
The majority also states that a prejudice-based analysis "necessitates
[of district courts] a post-trial adjudication" of motions to strike death
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In this context, I now apply the three requirements for finding "fi-
nality" under the collateral order doctrine.
IV
Applying the three Cohen factors for determining whether the dis-
trict court’s order denying Ferebe’s motion to strike the death penalty
notice was a final judgment for purposes of 28 U.S.C. § 1291, I first
observe that the district court’s order in this case did not conclusively
determine the disputed question, namely whether the death penalty
notice was filed a reasonable time before trial. Unlike the denial of
a double jeopardy claim or a decision to try a juvenile as an adult
where "[t]here are simply no further steps that can be taken in the Dis-
trict Court to avoid the trial the defendant maintains is barred," Abney,
431 U.S. at 659, the district court’s order, finding that the death pen-
alty notice was served a reasonable time before trial, is merely specu-
lative at this point. It leaves open the question of the potential
prejudice to Ferebe of trying a death penalty case with inadequate
preparation time. If Ferebe, during or after trial, renews his motion to
strike, the court will be able to evaluate the merits of his motion in
light of the period between the government’s death penalty notice and
the trial date to determine whether the notice was filed a reasonable
time before the trial. The district court’s denial of Ferebe’s motion on
September 12, 2001, before the trial commenced, could not be con-
clusive as there remain further steps available to Ferebe at the trial-
court level to vindicate his statutory right. Thus, a more apt analogy
is to a speedy trial claim, which is of a speculative nature before trial
and which the Court in MacDonald found not to satisfy the collateral
order doctrine. The Court explained:
Before trial, of course, an estimate of the degree to which
delay has impaired an adequate defense tends to be specula-
penalty notices, suggesting that a district court, under my analysis, would
not be in a position to rule on a pretrial motion to strike. Ante at 12 n.4.
But this general criticism is applicable to almost all pretrial and trial
motions that district courts have authority to consider and that appellate
courts review under a prejudice standard. The majority’s criticism also
overlooks the ordinary course of litigation in which the defendant can
appeal the district court’s unfavorable rulings when they merge into the
final judgment, not in a piecemeal fashion.
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tive. The denial of a pretrial motion to dismiss an indictment
on speedy trial grounds does not indicate that a like motion
made after trial — when prejudice can be better gauged —
would also be denied. Hence, pretrial denial of a speedy trial
claim can never be considered a complete, formal, and final
rejection by the trial court of the defendant’s contention;
rather, the question at stake in the motion to dismiss neces-
sarily "remains, unfinished [and] inconclusive" until the trial
court has pronounced judgment.
Id. at 858-59 (quoting Cohen, 337 U.S. at 546). Just as the resolution
of a speedy trial claim "necessitates a careful assessment of particular
facts of the case," MacDonald, 435 U.S. at 858, consideration of
whether a death penalty notice was submitted reasonably before trial
requires knowledge of the length of time between the notice and trial,
as well as an assessment of the particular facts of the case. We may
only weigh these factors after trial has occurred. For this reason, the
district court’s order is inconclusive within the meaning of Cohen.
Second, the timeliness of the death penalty notice filing is not an
issue sufficiently separate from the merits to satisfy the collateral
order doctrine. Again, MacDonald is instructive. In MacDonald, the
Court stated that whether the defendant had been prejudiced by the
length of delay before trial — the critical determination in speedy trial
claims — often depends on the events at trial. 435 U.S. at 859. The
Court stated:
The essence of a defendant’s [speedy trial] claim in the
usual case is that the passage of time has frustrated his abil-
ity to establish his innocence of the crime charged. Nor-
mally, it is only after trial that that claim may fairly be
assessed.
Id. at 860. The same may be said for Ferebe’s claim that the death
penalty notice was not served within a reasonable time before trial.
The timeliness of a death penalty notice depends on the "reasonable-
ness" of the time it was provided before trial, measured by how the
defendant’s preparation was affected, and that question, in turn,
depends on the evidence for and against the defendant and the com-
plexity of the case as may be revealed during the course of trial.
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Because Ferebe’s claim requires such an analysis, it is not sufficiently
separate from the merits to satisfy the second requirement of the col-
lateral order doctrine. See Flanagan v. United States, 465 U.S. 259,
268 (1984) ("It is sufficient to note that the second condition [of the
collateral order doctrine] — that the order be truly collateral — is not
satisfied if petitioners’ asserted right is one requiring prejudice to the
defense for its violation").
Finally, and perhaps most important to the analysis, an untimely
death penalty notice remains effectively reviewable upon final judg-
ment. Proceeding with trial does not deny Ferebe any relief available
for a violation of the statutory requirement to provide a death penalty
notice within a reasonable time before trial. Rather, Ferebe retains the
full rights to review and remedy such a violation at the end of the
case, assuming he is convicted and sentenced to death or Ferebe
objects to a noncapital sentence based on an inadequate preparation
for a death penalty trial caused by an untimely § 3593(a) notice. The
Supreme Court cases again are particularly instructive. In the three
pretrial criminal matters in which the Supreme Court has identified an
immediately reviewable collateral order within Cohen’s formulation,
the case involved "an asserted right[,] the legal and practical value of
which would be destroyed if it were not vindicated before trial." Mac-
Donald, 435 U.S. at 860 (citing Helstoski, 442 U.S. 500 (Speech and
Debate Clause claim); Abney, 431 U.S. at 651 (double jeopardy
claim); Stack v. Boyle, 341 U.S. 1 (1951) (right to reduced bail
claim)); see also MacDonald, 435 U.S. at 856 (identifying the lack of
an opportunity for vindication as perhaps the most important factor
influencing the conclusion in Abney); id. at 861 n.7 ("Certainly, the
fact that this Court has held dismissal of the indictment to be the
proper remedy when the Sixth Amendment right to a speedy trial has
been violated . . . does not mean that a defendant enjoys a ‘right not
to be tried’ which must be safeguarded by interlocutory appellate
review"). And we reached the same conclusion in Smith, noting that
"much of the sequellae of [the defendant’s] right to be tried as a juve-
nile, if that claim is meritorious, would be irretrievably lost" if the
denial of the right were not afforded immediate appeal. Smith, 851
F.2d at 708. Unlike rights where immediate appeal is the only way to
vindicate wrongful denial of the right, a timeliness objection to a
death penalty notice does not become effectively unreviewable after
the trial is held. Indeed, it may often be that it is only effectively
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reviewable then. Assuming conviction, a district court’s order errone-
ously denying a motion to strike the death penalty notice is effectively
reviewable because improper notice is vindicated through a new trial
or through resentencing after striking the death penalty notice. See
Midland Asphalt, 499 U.S. at 800 (stating that if the alleged violation
for which interlocutory appeal is sought can "provide the basis for
reversal of a conviction on appeal, it is obvious that [it is] not effec-
tively unreviewable on appeal from a final judgment" (quotation
marks omitted)).4
In sum, the district court’s order denying Ferebe’s motion to strike
the death penalty notice satisfies none of the three Cohen require-
ments.
V
Beyond any analysis under the collateral order doctrine, Ferebe
suggests that the unique nature of capital cases in general merits our
immediate review of this appeal. While I acknowledge that the grav-
4The Supreme Court in MacDonald also recognized the limitless char-
acter of appeals on speedy trial grounds, an additional argument against
immediate appealability applicable to Ferebe’s claim as well. The Court
stated:
Unlike a double jeopardy claim, which requires at least a color-
able showing that the defendant once before has been in jeopardy
of federal conviction on the same or a related offense, in every
case there will be some period between arrest or indictment and
trial during which time "every defendant will either be incarcer-
ated . . . or on bail subject to substantial restrictions on liberty."
Thus, any defendant can make a pretrial motion for dismissal on
speedy trial grounds and, if § 1291 is not honored, could imme-
diately appeal its denial.
435 U.S. at 862-63. Likewise, in every case in which the government
files a death penalty notice, the defendant would experience a period of
time between receipt of the notice and the time of trial and, "if § 1291
is not honored, could immediately appeal its denial." See id. at 863.
"[T]here is nothing about the circumstances that will support a [late death
penalty notice] claim which inherently limits the availability of the
claim." Id. at 862.
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ity of a possible death sentence may elevate the intensity of trial prep-
aration, to allow an immediate review of Ferebe’s claim based on that
ground would essentially allow interlocutory appeals of every disposi-
tive motion in a death penalty case, wholly frustrating the policies
against piecemeal appeals and favoring speedy trials in criminal
cases. The proper safeguard against an untimely death penalty notice
is an appeal after trial when the right can be completely reviewed and
the violation adequately sanctioned.
Alternatively, Ferebe argues that if the district court’s order is not
an appealable collateral order, we should grant his request for a writ
of mandamus to review the district court’s interlocutory order. For the
reasons given above, I also reject that request. The timeliness of a
death penalty filing — which, if not mooted, can be vindicated after
the trial — does not warrant issuance of such an extraordinary writ.
Accordingly, I would conclude that we do not have jurisdiction to
hear this appeal at this time.
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