United States v. Donald Lee Ferebe

722 Privette, v.

tency.” Smith N.C.App. 128 commission of a common-law tort as the (internal (1998) 395, 490, claim, 398 predicate negligent 495 for a retention S.E.2d omitted). The quotation marks district McLean’s evidence sufficient to survive underlying court concluded that tort I summary judgment. therefore dissent tort, rather than a must be a common-law majority’s from the conclusion that statutory tort based on a violation properly granted summary district court court, duty. state how- No North Carolina judgment negligent on McLean’s retention ever, requirement, has articulated such claim. why

and I can see no reason North Car- proper

olina to hold an would believe retaining an em-

employer responsible

ployee committed a common-law tort who retaining employee who

but not for statutory evi-

committed a tort. McLean’s

dence, accepted by jury, would cer- tainly Hodge indicate that violated Title America, UNITED STATES of VII, support which should be sufficient to Plaintiff-Appellee, claim. negligent retention v.

Moreover, underlying even if the tort tort, workplace must be a common-law ac FEREBE, Donald Lee Defendant- or racial tions that amount sexual Appellant. frequently can and do consti harassment No. 01-22. Smith, tute common-law torts. 495 (concluding S.E.2d 398 First Appeals, United States Court of preclude prosecution Amendment did Fourth Circuit. against claim negligent retention Argued: Sept. 2002. employees upon church church based minister); the “sexual misconduct” Decided: June Indus., Inc., Burlington Brown v. (1989) (af

N.C.App. 378 S.E.2d 232 jury’s

firming determination co-work amount pattern

er’s sexual harassment infliction of emotional

ed to intentional

distress, provided the basis for a against employer negli

verdict on a Bryant v. Thal claim);

gent retention cf. Bros., Inc., himer N.C.App. (1993) (concluding

S.E.2d 519 that evi supervi

dence of sexual harassment supported plain

sor verdict favor of the

tiff on a claim of intentional infliction of distress). I jury

emotional believe that a reasonably

could conclude from McLean’s Hodge committed

evidence various

torts, battery negligent such as or inflic

tion of Accordingly, emotional distress. requires

even if North law Carolina Schatzow,

ARGUED: Michael VENA- BLE, HOWARD, L.L.P., BAETJER & Baltimore, Maryland, Appellant. for Warwick, James G. Assistant United Baltimore, Attorney, Maryland, States for Appellee. ON BRIEF: G. Bern- Charles stein, SAKELLARIS, BERNSTEIN & Baltimore, Maryland, Appellant. DiBiagio, Thomas M. United States Attor- Baltimore, ney, Maryland, Appellee. NIEMEYER, LUTTIG, Before MICHAEL, Judges. Circuit by published and remanded Vacated opinion. Judge the opinion, LUTTIG wrote Judge joined. Judge in which MICHAEL dissenting opinion. NIEMEYER wrote a interweave, inextricably, OPINION interwoven. This coupled diverging opinions LUTTIG, Judge: Circuit issue, of our court as to each members challenges the district Appellant Ferebe dispositive agreement made attainment of of his motion to strike and to court’s denial however, tricky. Today, especially we Notice of Intention bar the United States’ dispositive agreement reach on the re- (the Penalty Death “Death to Seek the quired statutory analysis, impli- and on its Notice”) for in his trial the murders jurisdictional question. cations for the Benjamin Harvey Yolanda Evans and analysis proper We conclude Page, grounds on the that notice was not applied deciding challenges that is to be in provided to him a reasonable time before filing to the under the timeliness 18, by Title required the trial as section statute, 3593(a), Death Notice 18 U.S.C. Code. of the United States Ferebe pre-trial inquiry objec- is that of a into the the district court’s order concedes timing. tive of that Be- reasonableness denying his motion to strike the Death cause the characteristics orders de- judgment, not a final and thus is Notice is framework, analytical cided under this we susceptible review if it is a our denying conclude that district court orders order, subject to review under collateral motions to strike Death Notices are collat- in the standards articulated Cohen v. Ben- susceptible eral orders to our review. We Corp., Loan Industrial 337 U.S. eficial (1949). conclusively are unable to determine the 541, 1221, 93 L.Ed. 1528 S.Ct. case, however, merits of this Seal, because the v. Under 326 F.3d See Under Seal court, different, (4th Cir.2003) operating district under a (discussing the collateral incorrect, framework, analytical did application order doctrine and its in the findings not make certain critical Circuit). in Supreme Court and the Fourth clarity merits determination with sufficient government contends that the district may rely that we in them this case of order, order was not a collateral court’s Consequently, life and death. we vacate was, but that if it the Death Notice was appealed order and remand the case provided to Ferebe a reasonable time be- for proceedings further the trial court. prejudiced he fore because by any filing in the of the Notice. tardiness I. case, having fully been briefed in

This presented has now December been Ferebe was first indicted on federal to, by, separate panels drug, and considered two gun, charges, along and murder co-defendant, of our court. Decision of the matter has in September 1997.1 The difficult, been made both for the panel charges first murder stemmed from the shoot- our panel, ing Benjamin heard this case and for deaths of Yolanda Evans and presented by ap- Harvey Page. Presumably because issues because jurisdictional, act, peal relating one prosecution heinousness of the —one framework, governing analytical sought and one authorization from the United involving application Attorney of that framework to States General to seek the death tightly, the facts of the case—are if not for charged murders. The (use precisely, carrying during 1. More Ferebe and his co-defendant of firearms and in crime); provisions drug trafficking were under four of Title indicted relation to section 841(a) (conspiracy United States Code: section 18 of the to distribute cocaine and (firearms 924(j)(l) during marijuana); (aiding or murder in rela- and section 2 and abet- crime); 924(c) drug trafficking ting). tion to section General, 3593(a), May authorized erned Attorney provides section mur- the death for one of the two that: ders, only against Ferebe. Because If, in involving a case an offense de- eligible Ferebe alone was the death attorney scribed the district court severed Ferebe’s penalty, believes that the cir-

trial from that of his co-defendant. cumstances of the offense are such that proceeded

Ferebe’s co-defendant to tri- justified a sentence of death is under the al, convicted in October and was shall, chapter, attorney a reasonable imprisonment sentenced to life time before the accep- trial or before trial, however, Ferebe’s was continued be- tance plea the court of a of guilty, Ferebe, already serving cause life sen- sign court, and file with the and serve on case, tence for a conviction in a related defendant, a notice[.] preferred to until his in that appeal wait 3593(a). § 18 U.S.C. final in proceeding case was before 28, May 2001, On with the trial set to 1999, September case. In this court af- begin time, in five months the prosecution firmed Ferebe’s conviction sentence in and Attorney asked the General to reconsider case, by and certiorari was denied the decision not to authorize the death Supreme early Court in 2000. Around penalty on Ferebe’s second murder 2000, prosecution proposed June charge. Attorney Before the General re- plead guilty charges Ferebe to the in this sponded, attorney Ferebe’s contacted the and, in exchange, ease receive concurrent 15, prosecution 2001, on or about June and life sentences. Ferebe refused the offer informed it that Ferebe wished to enter a October 2000. guilty plea, exchange for concurrent life hearing, At a December 2000 the court prosecution agreed sentences. The in Sep- scheduled Ferebe’s case for trial agreement terms and entered into an with 2001, concurrently, prose- tember plea agreement, Ferebe on June 19. The formally outstanding cution withdrew its however, approval by was conditioned on unaccepted plea Upon offer. the dis- General, Attorney just as a few weeks trict scheduling court’s the trial at that (June 7) Department earlier a new of Jus- 15, hearing, December nine months (“DOJ”) effect, policy requiring tice took prior remained to the start of Ferebe’s prosecutors Attorney to obtain the Gener- point, prosecution trial. At that had prior consummating plea al’s consent not filed a Death Notice to inform Ferebe agreements death-eligible defendants. formally and the court that it intended penalty seek the death at Ferebe’s as As a consequence parties’ condi- Attorney authorized General.2 agreement, tional plea parties and the court agreed postpone district several evidence, presents Ferebe some and the that, July hearings scheduled June and and con- prosecution it, challenge does not na- tion-wide, hearings ferences. These and conferences prosecutors federal file Death Notices, par- had been calendared order for the upon authorization the Attor- ney General, jointly average with an ties and the court 8.4 See J.A. remaining jury questionnaires months before trial. at materials such as the filings gov- 82. Such are necessitated and pre-trial address various issues that point chronology, 2. At this in the Ferebe's was more than three and a half- years indictment was more than four old and years old. Attorney General’s authorization of the prior to the start of It ap- needed to be settled order to which this current peal 10. September trial on is directed. 2001, 6, July two months before Fer- On II. begin, Attorney

ebe’s trial was set the death General authorized jurisdictional As to the threshold murder, for the second as against Ferebe issue, we now hold that district court or .(which as first of course had well been denying ders motions to strike Death No 1998). Twenty days passed authorized in immediately untimely ap tices as filed are of the death after authorization pealable under and Abney Cohen v. United prosecution as to the second murder be- States, 431 U.S. 97 S.Ct. Attorney responded fore the General (1977) C.J.), (Burger, they L.Ed.2d 651 request approval conditional fully satisfy requirements the three plea agreement. July just On now interlocutory appeal set forth the Su month a half Ferebe’s Seal, preme Court. See Under 326 F.3d at commence, trial was set to the Assistant Abney, Court ex Attorney charge General DOJ’s plained decision,” that a “final as refer prosecution Division informed the Criminal enced in 28 U.S.C. is distinct from plea agreement unacceptable. judgment,” a “final given to be “[is] practical rather than a technical court, construc prosecution, The district tion,” Abney, 431 U.S. at 97 S.Ct. 2034 attorney met for a defense conference Cohen). (citing An sufficiently order is 31, 2001, just July on over a month before permit collateral to interlocutory appeal if trial, the scheduled start of Ferebe’s to fully disposes addresses, it of the issue it discuss the case and the ramifications of than “open, rather leaves the issue unfin rejection plea DOJ’s of the conditional ished, inconclusive,” Abney, or 431 U.S. at agreement. meeting, At defense 2034; 97 S.Ct. “resolves an issue com responded plea agreement’s counsel to the pletely collateral to the cause of action recision announcing that Ferebe would asserted,” opposed as being simply “a plead guilty charges still to the in the (because step disposition toward final of the merits plea agreement absence of no ease,” id.; of impor and “involves an filed, yet Death Notice had been Ferebe sentence). lost, tant probably which would be faced a maximum life irreparably, ... review final await[s] 1, 2001, day, August The next prose- judgment.” Id. cution filed a Death Notice for both of the murders Ferebe was charged. unwilling with which Itself position advance the In light government’s filing, dissent, of the accepted by Ferebe not, did as he announced he would like argue does not even the district Instead, prior day, plead guilty. do on the denying court’s order the motion to strike Ferebe filed a motion to strike and bar the the Death Notice and setting cap- Ferebe’s being untimely Death Notice as filed under ital case for trial is inconclusive or that it 3593(a)’srequirement that such no- is intertwined underlying with the merits prosecution. tices be filed reasonable time before Compare post at 750- motion, J.) trial. (Niemeyer, Pursuant Ferebe’s (maintaining that the briefing district court set a schedule. The district court’s order is both inconclusive court, 7, 2001, merits). September on held a hear- and intertwined with the The matter, ing on September government’s and on tacit concession that these issued an opinion denying oral the motion. prongs inquiry two of the collateral order having There is cused from endure a satisfied is understandable. he provided inadequate district court’s for which was no- question but no plain tice to his defense is of the issue to which from fully disposes order required all the the fact that it the Death once and for Notice It denied is directed. givén a “reasonable Ferebe’s be time” before the strike and scheduled motion to trial, merely very event that Ferebe “before” trial. case avoid, absent a rea- entitlement to claims statute, As a one of the prophylactic preparation between sonable time protect chief aims which is to the ac- of trial. time of notice commencement having cused from to endure a trial for his 97 S.Ct. 2034 Abney, 431 U.S. life for which he was reasonable de- (finding denying jeopardy double order notice, interpreted must statute further conclusive because “no fense objective into require inquiry rea- taken in the district court steps [ ] can be sonableness of the time issuance between maintains to avoid the trial the defendant itself, the Death Notice and the trial guar- by the Fifth Amendment’s is barred charged light particulars of the of- antee”). anticipated fense nature of the that, differently, defense. believes dissent occurred,” post until “after trial has [the] understood, thus Section it is merely order the district court’s “is analysis that an the finality evident of trial pendency because the speculative,” of a motion denial to strike Death question open “leaves necessarily turns wholly Notice under that section that trying to Ferebe of potential prejudice upon post-trial assessment of inadequate prep- case a death accused, dissent’s, does the see time,” It post aration at 751. believes (“the at 748 adverse post prepara- effect of the timing reasonableness [ie., prejudice] only can tion be measured entirely depends upon “the Death Notice by present- defense defendant adversely or affected preparation denied trial”), possibly ed at cannot be correct. [ie., by allegedly given a notice prejudice] analysis For such an substitutes for the ultimately late. And the adverse effect statutorily-mandated inquiry into pre- [ie., only again, prejudice] can preparation trial, objective reasonableness by that the de- be measured the defense issuance of the Death Notice and between trial.” Id. at 748 presented fendant at different, quite post-trial inquiry added). (emphasis prejudice by the accused into suffered underly- timing is an as a result of the of the Death analysis The flaw 3593(a) inqui- of section Notice—in effect a “harmless error” ing misunderstanding is thereby. right ry. The This to transform what was intend- created into a prophylactic no- ed as a statute mere requires, prophylactic, as a reasonable one, indisputable pur- deny its remedial accused tice trial. And before statute, by the pose is that the accused will not afforded to ensure punish- required merely with- to avoid sufferance of be to stand trial his life notice, adequate notice ment of death without but having adequate out received capital of trial for of- that he to stand trial for to avoid sufferance is (in except notice. To ensuring upon adequate fense capital offense addition does, assure, as the dissent review pen- an will receive accused notice). (even post-trial) had alty having may such at a later time without received strike, through ac- of the motion protect That renewal Congress intended [ie., provide adversely by is to no assurance affected post prejudice] at see whatsoever, right guaranteed allegedly given late” and that “the because 3593(a) [ie., preparation preju- adverse effect of by section not to to the accused only by can be measured capital except upon dice] offense the defense stand trial for trial”). presented the defendant notice, right not to adequate like the offense, for the same is denied tried twice On the dissent’s understanding of sec- recognized only if it is the trial that 3593(a), after syllogism tion that captures the accused is assured proper analysis of the order’s collateral required not be to endure. he will nature is this: Section does not create indefeasible not to stand Fer- denying The district court’s order trial for except upon offense rea- ebe’s motion to strike the Death Notice Instead, sonable notice. the statute equally indisputably resolves an issue col ensures that an accused who is convicted prosecution. lateral to the merits of the and sentenced death will be afforded a question of whether Ferebe received new trial if his conviction and death sen- statutorily-required reasonable notice tence were the result of an insufficient entirely separate question is from the amount of time prepare within which to committed, guilt his for the murders Therefore, trial. whether notice was time- its resolution will neither affect nor be ly exclusively a question of whether the ques affected resolution of this latter conviction and sentence were attributable 659-60, Abney, tion. 431 U.S. to an insufficient amount of preparation (deciding that denying S.Ct. 2034 order time, ie., whether actual jeopardy double defense is collateral be suffered because too little time remained “separable principal cause from the between notice and trial impending issue the accused’s criminal Prejudice, defense. being trial,” “the defendant [motion the] full, determined in large part, not in challenge makes no whatsoever evaluating whether the accused would have charge,” merits of the elements "[t]he been convicted and sentenced to death ab- that claim are completely independent error, alleged sent questions guilt his or innocence ’’(emphasis add timely whether the notice was filed and ed)). clearly whether the evidence established The opposite dissent comes to the con- guilt necessarily his are inextricably and score, But, clusion on this well. again, as up together. bound its error is attributable to its errant inter- But, course, pro- statute is both 3593(a). pretation of section If one be- phylactic protective right not to lieves, does, as the dissent that section put to trial for except offense 3593(a) prophylactic is neither in character such, upon adequate notice. As the timeli- nor protective of a right not to stand trial notice, provided ness of the which must be notice, except upon adequate and therefore pre-trial objectively, determined un- is the timeliness of the Death Notice questionably question collateral to the gauged by must be a post-trial prejudice guilt. standard, then its conclusion that ques- tions of the timeliness of the Death Notice The third and final inquiry Abney under and of prosecution the merits of the right allegedly is whether the at stake will intertwined ineluctably. post likely follows irreparably be lost if immediate re- at (concluding that “a ‘reasonable’ time view is denied. It is on prong this preparation must focus on the government pitch argument, denied or does .con- its post entirely inqui cannot irrevo- 752 — to different tending that “Ferebe show 9-10; ry, namely, Br. at see whether the order is in Appellant’s harm.” cable fact is, whether, rights post that “no (arguing further reviewable also id. dissent, quote if awaits final Ferebe irrevocably lost he “retains the full would be remedy argument, rights alleged] But as to this to review and judgment”). [the (and dissent, case,” which ac- violation at the end of the id. at 752 added). dissent, wrong, (emphasis Says are also cepts argument) “[a]s- misunderstanding suming conviction ... improper of the same because 3593(a). through vindicated a new trial.” [can be] section added). (emphasis Id. at 753 prong in this third is not on The focus But, above, adjudicate explained later plain whether a court can and as is asserted, ultimately from Abney claim as the dissent and our decision United (4th believe, Smith, appears compare post 745 States v. 851 F.2d 706 Cir. 1988) (“[T]he effectively (holding order must be unre- that district court order set- juvenile appeal judgment.” ting viewable on from final for trial as an adult constitut- (“Fer- added)), order), post appealable with at 752 ed an fo- (emphasis collateral rights Abney’s full to review and cus of prong ebe retains the third is not on remedy question may such a violation at the end of the whether be reviewed case”). Rather, [i.e., post-trial right the focus is on whether whether Ferebe has a ], underlying post always the asserted trial review it can be. assurances Rather, reneged upon if review is the focus on whether right will be is the under- See, e.g., Abney, lying trial. if delayed right post- until after will be lost review is [ie., (concluding poned 97 S.Ct. 2034 until after trial has Ferebe lost prong right, right was satisfied because his section 3593a not his post-trial underlying right]. on the defendant review of that rights conferred “signifi- proper question: would be Thus the Jeopardy Double Clause whether unreviewable,” cantly appellate “effectively undermined if review were order is unreviewable, it postponed” since the defendant would lose whether is in as the fact suggests. conclusion the assurance of the he would dissent’s personal forced to “endure the course, Of one can decide whether strain, embarrassment, public expense lost, i.e., underlying right essentially is trial”). of a criminal Because one of the “effectively whether the order is unreview- rights guaranteed by section is able,” delayed, if one review is knows that not to be forced to stand trial for protected what the statute. having adequate life received one’s without dissent, tellingly, its under- founds such, follows, Abney notice of as in standing protected respect Jeop- to a claim under the Double self-contradictory on a for- Clause, ardy delay in the review of a hand, mulation. On the one the dissent until right claimed denial of this after the 3593(a) right that the section “is a states place trial itself taken is tantamount to has procedural guarantee [defendants] right. countenance of the denial of the given adequate prepare will time to for prong analysis, sentencing.” the dis- a death trial and On this added). field, were, playing by (emphasis sent tilts the as it Post at 37 On the other not a moving subtly properly guarantee from the framed hand it states that that is not to trial without that ade- inquiry right the order “remains stand effec- —whether a tively upon judgment,” quate prepare reviewable final time to for post Having analytical trial. See 748. admit- adopting framework that it 3593(a) right “guaran- ted that section did.3 The district analytical ap- court’s (also they given proach defendants that will be the premise tees” of the dissent’s pen- jurisdictional to for a death adequate time analysis) relying prej- — alty subsequent the dissent’s conclu- udice to inquiry right vindicate the created right gives by defendants no 3593(a)' incorrectly sion section substitutes — such right prepa- post-trial, not to stand without inquiry harmless error for the analytically incomprehensi- pre-trial, inquiry objective ration is into reasonable- pp. (explaining 731-732 ble. ness mandated And statute.4 infra subject greater length). thereby protect it fails to fully 3593(a). created section 3593(a), affirmatively section

Since de- We, however, scribed, proceed dispose cannot not merely creates for defendants claim analyt- Ferebe’s under the proper to be convicted and sentenced court, ical framework because the lower adequate prepare, without time to but also having adopted an analytical incorrect right not to stand trial for one’s life framework, clearly did not same, certain vacature of address absent sentence and elements, necessary sentencing findings without which remand trial and does not after (nor, matter, merits determination ap- even would not be protect remedy for of) propriate. Consequently, we be forced must vacate the denial the district court’s order upon and remand the capital except endure reason- proceedings. case for further required able notice one will be to do so. A. district denying

Because court orders motions strike Death Notices under sec- 1. 3593(a)’s provision tion timeliness are con- above, As discussed Section Title 18 clusive, merits, collateral to the and if 3593(a)’s plain language guarantees all decided wrongly irreparably deprive will who accused of capital offense the an important right, defendants of right not to stand trial for un- their lives order appealed reviewable collater- they provided less have been a rea- order, al and we so hold. time before trial they that in fact sonable are to stand trial for their lives.

III. If, in a case involving an offense de- Turning ap merits section attorney scribed peal, interpretation our section believes that the cir- reveals that the lower court erred cumstances the offense are such that court, deny 3. deciding trial). The district Fer- filed was first three months before Notice, motion to ebe's strike the Death here, impor- Said district court “the most adopted reasoning court district tant factor to Mr. Ferebe.” See which, Rico, the District of Puerto like the J.A. at 211. here, challenges dissent concluded that brought Death Notices 3593(a)'s under Though the lower court did not claim that provisionought timeliness be evalu analysis adjudica- its posi-trial necessitates a analytical applied ated under the framework Notices, tion of to strike motions Death Speedy Trial Act claims. See United States logic prejudice-based the lower court’s ana- Colon-Miranda, (D.P.R. F.Supp. v. framework, 1997) (Death lytical Judge Niemeyer as being well Notice struck filed for two trial, though weeks before explains, unavoidably rescinded version leads to such result. justified under the In defending post-trial, prejudice of death is its a sentence shall, standard, dissent, above, as attorney a reasonable described chapter, 729-730, supra pp. offers a accep- wholly the trial or before self- time before contradictory formulation of the by plea guilty, the court of a section tance 3593(a) right, that, court, acknowledging on the file and serve on sign and 3593(a) hand, one section defendant, guaran- creates a a notice— “ right teed to ... a reasonable time to 3593(a) added). (emphasis 18 U.S.C. prepare penalty for a death trial and sen- court, analysis, The district its merits vein, tencing.” Post at 748 n.l. In that it right this feature of the recognize did right “functioning] describes the as in- 3593(a). Nor does the created section form” the defendant of the fact that his dissent, own conclusion that the despite its capital be a trial grounds will guar- right procedural “is a penalty, for that proposed [ing] as “afford given antee that will be ade- [defendants] an opportunity prepare the defendant quate penalty time to for a death defense,” “assuring] his and as sentencing.” (empha- Post at 746 defendant and the court have notice of the added). (and But this is doubtless the sis sought to be ... and of rele- [the the dis- reason for the tension between aggravating vant] factors.” Post guarantee and description sent’s its But, then, if actually possessed right assertion that there is here no mind, different the dissent asserts guaranteed prepara- stand trial absent the though guaranteed right Ferebe has a time), impossible identify tion it is given adequate he “will be time to prepare 3593(a), right under section established for a sentencing,” provided that notice be to a requires guarantee right is not a not to stand recognizing defendant without adequate trial without that time to prepare guarantee is that the defendant post for a death trial. See at 748 having “will not be tried his life without (“Indeed provides ... the statute no as- received a lawful Death Notice.” This capital surance that a trial can be denied if statutorily-created right not to be tried for timely produce fails capital having without received sentence [.]”). can reasonable notice be effectuated im- interpretation an the statute gives What the dissent with one hand— which, poses prophylactic requirement “guarantee” takes with the back —it turn, pretrial inquiry necessitates a into right other —the denial of a not to stand objective of the notice reasonableness trial in the of lawful absence provided. “guar- notice. Were the dissent to set its antee” immediate relief to its conclusion contrary The dissent’s conclusion well that Ferebe has no not to stand trial why only objective illustrates reason- for his life in the absence of a Death lawful analysis, pre-trial, ableness undertaken ad- Notice, simply could not avoid the con- equately protects created clusion that we reach: that section post- statute. For the dissent’s alternative guarantees they defendants that will not prejudice analysis requires capital de- tried for their lives lawful no- without permanent fendants risk forfeiture tice. them, guarantees that the statute by forcing analytical incomprehensibility them to wait until after trial to they contrary learn whether the trials were re- dissent’s conclusion is not sal- quired vaged by procedural to endure lawful. its reliance on other were rights given or, show that

rights, which it claims like were after trial for commenced 3593(a) right matter, are provided the section not treated as ac- given, never (for rights trial. at post not to stand is not in- prejudiced thereby cused stance, the rules n.l. None to which because proceeded throughout he of points prerequisites dissent establish assumption on the his capital was a admission, as, trial). own by trial the dissent’s 3593(a). Instead, those does section rules analytical This lies at point the heart admission simply govern all of evidence opinion divide between our which, trial, at legal arguments dissent’s. The dissent addresses this issue definition, at are violated when page-of opinion. footnote 3 on its unlawfully are admit- on the merits such it There reasons as follows: course, indictment, flawed ted. And. given If notice is after trial has com- against implies the dissent there is menced, objection would no- be that trial, post also no not to stand see commenced, given tice was after n.l, collaterally because unappealable not “reasonable trial.” before denying challenges orders to indictments Likewise, if is never given, notice qualify fail to collateral under orders objection would that notice was never

Abney, not an of a because absence given. not to under a flawed stand indictment. A flawed indictment under at 750 simply Post n.3. This cannot be. Abney collaterally for the unappealable For, says, as the dissent itself because “separable it simple reason that is not “Congress particu- not mandate [has] [d] from the issue at principal the accused’s providing notice,” lar post deadline trial,” impending Abney, criminal 431 U.S. at “the critical determination under 659-60, 2034; it goes directly 97 S.Ct. is whether the notice provid- was charge.” the “merits of the Id. trial,” ed a reasonable time post before Having explained thus the section

Because an accused is assured sec- 3593(a) right, any objection raised that, a tion reasonable time before trial, right, whether to late notice before trial, adequate he will receive notice that notice begins, late after trial or to no- no offense, he for capital is to be tried all, tice at must establish that he consequently required will not be provided not a reasonable time tri- such stand trial for offense absent that al. notice, rights point his denied at the trial, proceeds he toward actually

when or And, under the analysis, dissent’s trial, in the absence reasonable time reasonable time that notice pro- must be receipt between his of the Death Notice never, vided before trial could well be since so, and his trial. And this is re- provides no statute “deadline” and be, gardless he will or not whether will prejudice is By its sole concern. way not, prejudiced or or was un- contemplation: the dissent’s own where reasonably Death delayed Notice. prepare defendant “was able to based on if, [actual, interpretation dissent’s af- though notice,” post formal] —that ter appears accused was preju- defendant would suffer no in any way prejudiced, Notice, then a from lack dice of a Death fortiori he was provided reasonable notice—neces- reasonable amount notice time de- sarily leads to the untenable conclusion fendant would need thus would zero, that the statute would satisfied notice be and the would statute be satisfied. perhaps his Ultimately, the dissent’s conclusion defense. As the dissent reasonableness, senses, such a distinction —that post on see no notice right turns trial, triggers right a not to stand preju- turns on but that at that reasonableness trigger late notice does not dice, prejudice and that same post see wholly right unconvincing. It fails an- preparation turns on the defendant’s —-is alytically id., because both circumstances con- trial, possibly cannot be understood see stitute the same violation—-lack of lawful differently require than to a conclusion yields notice. But it an instinctively also in- every satisfied in the statute is unsatisfactory result. It would allow a no preju- stance which there has been bring defendant to a collateral if appeal a believes, if, dice. For as the dissent ade- Death Notice were filed the moment after only time is the concern quate preparation judge gavelled the trial’s voir dire to a prejudice is the sole of the statute and start, but would not allow such an appeal adequacy prepa- of that determinant of the that same notice were filed but a moment time, upon is ration the statute satisfied gavel dropped. before the no finding that the defendant suffered prejudice, regardless of when notice was That, end, in the these difficulties re- even if no notice were ever given quire the dissent to conclude that defen- —and given. dants who never receive that they notice are to be tried for their life must endure analysis a de- That under the dissent’s trial, conviction, sentence, and death objects government’s fendant who imprisonment they may appeal row before him a complete provide failure to Death objection receiving the denial of their to no Notice, overruled, objection but whose is symptom notice is but a of the dissent’s life, conviction, undergo must trial for his analytical error —its denial of the section die, being imprisonment sentenced to 3593(a) right’s import. full may appeal on death row before he govern- court’s conclusion that the district analysis The dissent’s also turns provide failure ment’s total Death multiple itself. The factors the dissent 3593(a) only Notice did not violate section goes length identify serving no reinforces the conclusion that remedy violations of the statute confirm analysis could be lawful under the dissent’s For, post this. See under the and that the dissent’s denial this result 3593(a), interpretation dissent’s of section than ipse is little more dixit. many actually meaning- factors those ultimately less. Since reasonableness is And, that its suggest were the dissent prejudice determined reference to un- analysis require does not the conclusion framework, analytical der the dissent’s challenge to a denying that an order assertedly distinct factors have those trial for which notice was they prejudice. relevance insofar as reveal given unappealable collaterally, never is interpretation would then have to admit that the section cannot embrace an We 3593(a) right only requires a right is a not to stand section that not so, however, post-trial all. To do re- assessment of but for- after would quire forfeiting analy- pre-trial either its the entire bids a assessment of the reason- relying upon sis or the distinction that able timeliness of the mandated Death No- tice, denying section stand trial without at the same time provid- given, where notice is never but is not those defendants who were or a Notice an given not to stand trial if the notice ed no Death Notice Death trials, unreasonably their inadequate for the defendant to short to, upon opposition that is conferred them the interests 3593(a). must, Accordingly, we accused. do, objective assessment of adopt 519, Id. at 92 S.Ct. 2182. See also id. at fully pre-trial reasonableness described 519-21, (noting 92 S.Ct. 2182 that several above. explicit society’s factors create in interest trials,

speedy backlog such as the of cases which, in the courts among things, other enables defendants to achieve more attrac- post-trial, prejudice That a actual stan- plea tive bargains; lengthy the fact that rights protect by dard does not created bond suspects releases allow criminal 3593(a) reject section is sufficient reason to crimes; commit temptation further a by it. But the reasons assumed lower lengthy gives bond suspect release to a sup- court and the dissent in explained bond; jump the detrimental delays effect standard, themselves, port of also such between trial and arrest have on preserva- rejection confirm the need for of such a tion of evidence and the conduct of fair standard. trials; delay the detrimental effect a in Both the lower court the dissent punishment may rehabilitation; have on superficially analogize right created deplorable jail conditions that result 3593(a) speedy to the under section trial from overcrowding worsened those who right, post-trial and because assessment bond; cannot make high cost of governing in is the standard lengthy pre-trial detention; and the lost context, they conclude latter detainees). wages pre-trial apply same should under standard section The Court further observed in Barker 3593(a). consideration, Upon careful how- speedy violation of the trial right ever, plain analogy it this to the is “might work to the advantage,” accused’s speedy right trial does not hold. id. at belongs 92 S.Ct. since it with, begin quick comparison To even a both the society. defendant and It also trial speedy right and the section right noted that “a vague is more 3593(a) that the right reveals two are not concept procedural than other ... rights at all similar in the manners the dissent definitely [since] [it] cannot [be said] how provided concludes. The Court long long system justice is too in a where explication speedy detailed supposed trial is to be swift but deliberate.” right in Wingo, Barker v. 92 Id. (1972). L.Ed.2d 101 S.Ct. There 3593(a) right The section differs from speedy right the Court noted trial speedy right every in one of these unique belongs

is in that it to both the respects. speedy Unlike the trial safe- society. defendant and 3593(a) guards, section protect does not right speedy generically to a trial is any societal interest of the kind referenced any rights different from of the other the Court Barker. To contrary, notice, in the right enshrined Constitution for the rights this like “the other protection of the accused. In addition enshrined in the pro- Constitution for the general accused,” id., concern that all accused tection of the provides a persons according guarantee be treated to decent only to the criminal defendant. procedures, there is a societal Relatedly, arguable it is not even fair providing speedy interest enforcement of right might work to separate from, exists and at times advantage Ferebe’s analy- providing without Not MacDonald’s central him for his life tries arguable inapplicable Nor sis as here as Barker’s for the Death Notice. lawful stated, from suffers reasons but MacDonald’s alterna- that the section problem points up inheres rationale for decision a fur- vagueness tive protect multiple simultaneously speedy difference rights that ther between and the right. interests. Mac- opposing speedy Donald concluded that These differences characteristics collaterally appealable are not also claims moment, on the no small because it was speedy right the trial a because is not Su- these characteristics that the basis of trial, right making post- stand thus post-trial preju- that a preme Court held adjudication trial sufficient for vindication analysis applied speedy must be dice right. the Barker, 407 right claims. See U.S. trial protection the afforded the Unlike (reasoning a 92 S.Ct. 2182 that balanc- Clause, Jeopardy Speedy Double the proper necessary test is vindication ing not, Trial Clause either its face does on right the speedy right trial because according or to the decisions of this the defendant and belongs both Court, “right encompass not to be can society, right violations of the because trial, delay tried”.... It is defendant, and because benefit trial that ... If itself, not the belonging virtue of its offends. vague by is Wingo, the factors outlined Barker v. both; reasoning preju- and further that combine to of his deprive accused necessary that inquiry part is a dice loss, rights to a speedy test). balancing definition, trial. Proceed- occurs before reli- Equally unfounded is dissent’s ing with trial does not cause or MacDonald, 435 on States v. ance United already compound deprivation suf- 850, 98 56 L.Ed.2d 18 S.Ct. fered. which, (1978), by way analogy still MacDonald, 435 U.S. S.Ct. trial it maintains also dic- speedy right, added). contrast, (emphasis section prejudice of a standard post-trial tates use 3593(a), provides not to defendants 3593(a). to evaluate claims under section supra tried without valid notice. be MacDonald’s, holding principal II.A.1. with the trial proceeding Part And trial speedy claims can be evaluated certainly compounds deprivation. most collaterally ap- so are not post-trial, and holding Finally, justifies application on The Court based this dissent pealable. claims, prejudice inquiry under sec- governed post-trial, the fact that Barker such of a 3593(a) that the statute required ground de- tion prejudice Barker appear knowledge necessitate straightforwardly might termination. The Court See, date that trial commences. prejudice reasoned that since could not the actual 740-741, 749-750. But even post-trial, pre-trial e.g., post determined until speculative, required trial incon- to know the date that speedy claims were one were starts, clusive, merits, actually and thus it does follow tied mandated, much less undeserving ap- inquiry of Cohen is posi-trial were collateral simply post-trial prejudice inquiry that pealability. Insofar as MacDonald Barker’s, analysis would That the trial com- upon prejudice adopt. relied dissent speedy would have be known governing professedly-unique mencement date case) (if require at most right, that is the would inapplicable MacDonald as adjudication of the as is Barker timeliness itself. not occur until though appealabil- contested Death Notice the U.S.C. even actually ity dramatically starts. under section 1291 turns instant the 3593(a). interpretation

on the of section It the complete independence of the inter- pretive question appealability from the different, analogous, but Insofar as question that appreci- the dissent fails to analyses in- rights required and their are ate. structive, right closely the section resembles the constitutional not to be If one understands that these offence, our tried twice for the same separate independent must inqui- confirms. discussion MacDonald Viola- ries, then it is clear whether there is tions of the latter the Court has prejudice possibly cannot be determinative analyzed of course never under a right protected by of whether the framework. Prejudice in was violated. Additionally, powerful there is also a sense intended one who would assert analogy charging between instruments that such is determinative of whether a indictments) (i.e., and Death Notices. (like dissent), has statute been violated protect Both the fundamental fairness of And, course, akin to harmless error. of proceedings at criminal defendants the harmlessness of an error is determined upon are called to defend themselves. (and so) necessarily only an anteced- after Both serve to set defendants on notice so ent conclusion that there in fact they adequately prepare can to de- error committed. To inform resolution of a fend themselves. Defendants have question of whether the statute has prior to receive both to trial. And viola- is, by prejudice inquiry been violated by government rights, tion of those pure simple, question to confuse the objected to,

properly will invalidate the question harmlessness with the of viola- proceedings. attendant As with Double tion. Jeopardy rights, Supreme Court has suggested that never where defendant Congress spoke quite clearly section objects to charging the unlawfulness of a 3593(a): “shall, a reason- charging instrument the lawfulness of the able time before the trial or accep- instrument should be evaluated under a plea guilty, tance the court of a sign prejudice framework.5 court, and file with the serve defendant, a [Death Notice].” Because adoption post-trial, of a actual prejudice

In analysis, fully the final what must be protect borne standard would not this interpretation statute; mind is of 18 created under the because there 3593(a) not at all on the analogize U.S.C. turns is no basis on which to between implications interpretation of that speedy for the right; this separate question appealability under 28 because the Court has never sug- course, 5. Not do collaterally appealable. the similarities between indict- This is so preju- ments and Death Notices confirm that necessarily up because indictments are bound analyze dice should not be used to violations Notices, with the merits of the case. Death latter, but their differences are consis- hand, separate on the other remain from the tent with our earlier conclusion that district question guilt merits defendant's since challenges court orders on Notice Death “charging” only pertain their elements to sen- collaterally appealable. District court orders tencing. are, upholding challenged indictments following to vindi- notice and before trial for a de- prejudice inquiry gested use analogous are most fendant to his death defense. rights those cate 3593(a), we right found section C. applying there is no basis for conclude that standard when a post-trial, prejudice case, analyzed the district court alleged. of section violation Ferebe’s section claims under speedy act-type prejudice analysis. B. This, supra note 3. as made clear We, analysis, the above was error. howev- Notwithstanding the dissent’s fun er, simply cannot conduct the merits anal- with the court over disagreement damental For, ysis ourselves to correct the error. section proper interpretation consequence as a of the district court’s 3593(a), it identifies the first three factors adoption analytical of the incorrect frame- the reason informing inquiry into work, sufficiently its decision did not ad- can, timing of the notice ableness necessary elements of the dress encompassed with roughly, legitimately 3593(a) analysis and produce thus did not objective that is mandated inquiry in the findings indispensable certain to our re- To post the statute. See at 748-749. consequence, view of the order. As a we these, at a fourth must be added. least challenged must vacate the order and re- of still other factors is And consideration mand case to allow the district court to judge To an accused’s not foreclosed. adjudicate proper the matter under the timeliness of a challenge to the reasonable analytical framework. of, evaluation requires Death Notice may appear rele among other factors (1)

vant, charges present the nature of the (2) indictment; that a in the nature of the One of the essential elements ed the analysis in provided proper factors the Death of motion strike aggravating (3) Notice; of period remaining the of time Death Notice for violation section 3593(a)’s trial, requirement must measured at the instant the timeliness clearly of time that irrespective period Death Notice was filed and of address is the (4) and, addition, effects;6 in as of the moment of filing’s the remains before filing, irrespective and discovery proceedings. the status of the the Death Notice’s (the filing. supra p. It on the basis of of that See third should be determined non-exclusive factors we set these factors whether sufficient time exists of the four interval, naturally exception unique, speedy right, trial act quantify this a court 6. To first, 733-734, supra pp. must have reference to two dates: the see violation of the section 3593(a) obviously, being right may by objection the date the Death Notice is be vindicated filed, second, obviously, being and the the at the moment of the violation. The trial date. Less is that the scheduled obvious analytical possible framework for vindi- other may date the trial date for trial constitute 3593(a) right, cating, one based on the section 3593(a) purposes analysis under section prejudice, would an after-the-fact review for prophylactic because of the nature of the stat- given to be and the notice allow notice never utory right. requirement to be satisfied. The statuto- still ry simply language does not countenance by This latter conclusion is necessitated the twin so, prefer we the such a result. And must right guarded by facts that the section analysis, pre-trial objective reasonableness is violated at the time that defendant is character, pre- purposes by its for required proceed to trial for his life with challenges, the Notice references prepare, supra pp. trial Death insufficient time to see that, 731-732, rights, date of trial. and like all with the set trial date as the objective comments, however, pre-trial do determining out not establish that Death trial timing start date was cancelled in ad- reasonableness course, Notice). By necessity, filing vance the Death logical Notice’s and objective irrespective court can assess the it. before a (i.e., in- of this interval reasonableness particular, the district court said as filing the Death terval between Notice’s from follows the bench: trial), quantify it must the inter- and first looking I think that in issues both If trial supra val. note 6. no date of trials, you criminal and civil start trials identifiable, the interval then between with the schedule. And schedule is yet unknown filing and date can reality. It be worked with in and date cannot be measured. unidentified if some cases. But there are notice and measured, interval cannot be And requirements, you with other start when conclusions, reach then the court cannot date, is the trial where were the notices requires, objective the statute about the filed, you always and don’t assume that of that interval. reasonableness and date flexible can be Here, post- moved.... to be [T]his we unable to has address any I remaining poned be event because once was third element —the trial— had filing changed tween the Death Notice’s advised Mr. Ferebe way things his mind or that’s the respect Ferebe’s were clearly looking claim.7 The record does not reveal going case was whether, out, plea, at the instant Death Notice aby be worked resolved filed, was a date existed which Ferebe’s things got hearing other set in and dates begin. set to We can discern July that we had scheduled for June September that a trial date of 10 had been they’ve were taken off table. all So set district court December of been and the crucial met most one year that that preceding trial date being working up questionnaire cancelled on record jury. never been jury I’ve advised suggests court. that a trial That date was section that takes least six to words, But, set. the court’s at recorded So eight weeks. that the jury when September hearing the 2001 on Ferebe’s questionnaire slipped, selection dates all (the motion to strike the Death Notice longer that meant that we were look- no Argument”) “Motion and its September ing September at a trial date. We’re opinion denying 2001 oral the motion looking something at at least six to (the “Order”), that cast doubt whether eight weeks that. beyond date in fixed. fact remained (Motion Argument) (emphasis J.A. 161 added). And: court, noting par-

The district pre- Attorney ties postponed July By their June and the time [the General] hearings trial [July [rejecting conferences after the made its decision 26] and the plea conditional agreement plea agreement], Sep- was reached conditional the 2001, suggested postpone- irretrievably June that the date tember trial was cancelling effect I practical thing, ments had the lost. For one set in other mat- the 10 trial date. court’s September September The ters tenth. preju- the regarding Because district court relied on a the was not set time was or to motion, analysis begin remaining dice to decide the it did not and the time before trial lack and, element, analyze precision necessary as the discussion exactness to the and the clear, analysis. peripheral below makes its discussions filing) Notice’s as

Second, for the de- Death the hurdles to neither counsel September the date. government, keeping the as The counsel for fense nor supports former statement the conclusion July in late of the turndown of the date that there was no set trial date for a trial ready have been 2001 would filed, Notice moment the Death while September the 10th. starting on supports that latter the conclusion aspect most crucial But the September 10 that date was set at mo- was that we had July period late ment, that it but the court voided in order to a jury questionnaire appropriate no trial called for accommodate The case. timetable for death delinquent Death prosecution’s No- approving and drafting, investigating, tice. pick from which to questionnaire such a jury, that time- qualified analysis language The Order’s is not slipped

table had because decision any precise. says The more Order work, stop by the court and counsel necessitating the “most crucial” factor hap- stay oars and see what would re-scheduling our time it Washington. pen in jury question- would take to construct the period naire and would be at jury I sec- have been advised This, course, least eight weeks. adds eight tion it at least weeks to takes interpretation weight to the second we of- mailing through the go process Argument fer above court’s Motion questionnaire, retrieving It, too, implies that the trial comments. reviewing responses, responses September remained set for but that counsel, bringing court thought necessary to re-sched- court jury. qualified into court a capital ule it in order to accommodate must, accordingly, case re- This trial. scheduled, any possible prejudice respect guilt

Mr. Ferebe with September 10 trial date contin- That sentencing will phase phase or the be ued in force at the moment the Death by the time that de- cured additional suggested Notice was filed is further will have to their fense counsel had in Au- the fact that the district court case [.] gust query issued to Ferebe written inquiring ready he “would be added). whether (Order) (emphasis J.A. 214-15 2001,” see go September to trial on J.A. Argu- The court’s words at Motion (the Order). responded at 206 Ferebe susceptible ment to two inter- different ready go that he “would be forward says the trial pretations. court 2001[,] provid- September trial no longer Septem- was scheduled start the trial a non-death ed that jury questionnaire ber “when selec- The query suggests trial.” Id. par- slipped,” pointing tion dates all to the Sep- have that the may court had mind pre-Death having ties’ Notice conduct as remained force as tember 10 date September 10 voided the trial date as mid-August. late as But, practical matter. the court also indi- time, cates, time, But, at the the conclusion at the same the Death same for 10 at filing September itself the but reason that the trial was set Notice’s the Death Notice was filed finding September 10 trial date to moment Thus, practically have undercut the court’s assertion been voided. irretrievably “was lost” a re- requirements proceed- court noted date (the postponement sult of the June ing capital with a result Id. July hearing unaddressed, dates. 214. This deciding yet these indispens- directly preced- able, statement contradicts our factual issues.9 ing suggests observations instead that practical

the trial date was lost as a matter 2. prior filing to the Death Notice’s and irre- Having determined that the district spective of whether the death applied court an incorrect analy- at trial.8 would be under consideration adjudication sis in its initial of Ferebe’s Notice, motion to strike the Death aspects of

These varied the district having determined that remand is neces- posture oral statements and the court’s sary further, develop so as to the record the case make unknowable for us whether we vacate the district deny- court’s order filing, at the moment of the Death Notice’s ing Ferebe’s motion and remand to that irrespective procedural effect of (which court for further proceedings. trying up case capital until that not), point the trial was Ferebe’s trial was CONCLUSION September equivalent

set for for an date, or for no date at all. judgment of the district court is vacated and the case is remanded with whether,

Because we cannot determine proceed instructions to consistent with the at the time of filing, the Death Notice’s opinion herein. date existed on which Ferebe’s trial was start, set complete we cannot an evalua- AND VACATED REMANDED tion of the merits of Ferebe’s claim. A necessarily

court where it errs rules on a NIEMEYER, Circuit Judge, dissenting: motion to strike a Death Notice under Ferebe, Donald who has been indicted 3593(a)’s requirement timeliness murder, for two capital counts of filed this set, but no trial date is or no trial has interlocutory appeal challenge, as un- above, begun. explained As without a date timely, notice, government’s given pur- from which to measure the amount of time 3593(a), suant to 18 U.S.C. of its inten- trial, remaining filing from the a court tion to seek penalty. the death Section cannot reach conclusions as objec- to the 3593(a) requires to serve tive reasonableness of yet unknown its intention to seek the death and unidentified interval. penalty “a reasonable time before the tri-

Thus, we must remand the case allow al.” The district court denied Ferebe’s court district to address the motion motion to untimely govern- strike as again, proper analyt- under the ment’s death notice. Because trial ical framework and eye yet with an towards has not occurred and the facts neces- Similarly ambiguous unique requirements the district court's caused subsequent "any possible prej- comments that by litigation objection over Ferebe’s udice to Mr. Ferebe will be cured Notice, Death pro- or created the court to additional time that defense counsel will have vide prepare). additional time for Ferebe to case[,]” their J.A. at as these beg question comments also of whether 9. As should be evident from our discussion that "additional time" was a result of the fact . herein, district courts cannot decide chal- (and truly that the trial date was lost not lost lenges brought to Death Notices under section filing), because the Death Notice or if it 3593(a)’s requirement they timeliness until delay was instead a result of the in the trial requisite have before them the factual ele- occasioned delinquent the Death Notice's otherwise, they ments. Where they do err. (i.e., filing delays occasioned for, among things, other two counts of reasonableness sary to review a firearm dur- through murder the use of will not government’s timing of drug trafficking and in relation to a ing actually oc- until the be ascertainable 924(c), crime, § of 18 U.S.C. violation from the curs, appeal this I dismiss would charged that on (j)(l). The indictment interlocutory. See order as court’s district 15, 1995, Benjamin Ferebe shot August § 1291. 28 U.S.C. Harvey potential against a witness Page, views the statute majority opinion The 1994 murder Ferebe on an unrelated trial, stand giving as Ferebe Evans, charge pending, then and Yolanda be determined of which must the violation bystander caught an innocent the cross- right much as a Treating this trial. before possible carry fire. The offenses sen- 735-736, right, ante double-jeopardy tence of death. violation can be that a majority concludes this, accomplish Upon receiving trial. To the recommendation appealed penal- death require Attorney death to seek the reads the statute defendants, given ty against a reasonable on both counts both notice to be penalty trial, Attorney ante at 737- General of the United States the date time before trial, meeting penalty as the statute of the death convened not before 2, 1998, majority’s April of us- on approach review committee provides. rather than Ferebe and Carmi- trial date which counsel for both ing the scheduled arguments mitigation for deter- presented the benchmark chael the trial itself as § rests roles in the two respective with their clients’ mining compliance guarantee May Attorney In Gen- procedural of this murders. satisfaction Attorney as to seek proceed that a trial will eral authorized the U.S. speculation on analyt- the one count finds no the death approach This scheduled. Page. murder of charging the defendant Ferebe with the ical relevance whether decision, court Following at trial or whether the district actually prejudiced from that between the the trial of Carmichael actually elapsing severed period proceeded reason- case notice and of Ferebe. Carmichael’s to two con- approach, such an and he was sentenced employing able. imprisonment. potential violation current terms of life majority treats 3593(a), wholly vindica- § which would Ferebe, however, pro- did not wish to pretrial one of those rare post-trial, ble Rather, a motion for he filed ceed to trial. deprivations Su- constitutional elapsed and exclusion a continuance of imme- deserving has found preme Court Speedy Trial operation of the time from appeal. diate Act, seeking postponement an indefinite I the district process

Because conclude could appellate trial until the his denying Ferebe’s motion court’s order for the completed on his conviction inten- government’s notice of its strike the of Richard Thomas previous 1994 murder activity, is an inter- racketeering tion to seek in furtherance of appealable now locutory order that is not witness potential had been a Page trial) (before judgment final under 28 as a Ferebe had been sentenced and for which 1291,1 appeal. would dismiss for an U.S.C. In his motion imprisonment. to life case, in this Fer- postponement indefinite

I “[tjhis capital punishment ebe noted for trial the 16, 1997, currently scheduled in- case is Ferebe was September On Carmichael, is in the April [I]t 1999.... dicted, week of along Haywood justice postpone respect charging of this case so to the count with interest Ferebe may previous that Mr. Ferebe’s conviction the murder Evans. A month later and acted, appealed Attorney to the Fourth Circuit. Once before the General counsel “breakthrough” Fourth rules on Mr. Ferebe’s the Circuit Ferebe announced conviction, in previous may government his it the appeal and advised that Ferebe parties ready then possible plead guilty well for the to was now both extremely pro- exchange this difficult and in life resolve murders concurrent sentences, 20, The district and on plea tracted case without a trial.” June a formal granted postponed agreement signed court the motion and to that effect indefinitely, pending of Ferebe com- and the Attorney, both Ferebe U.S. sub- ject approval in pletion appellate process Attorney Ferebe’s Gener- prior judge murder conviction. al. the The district was advised of and, development, plea because the agree- September In this court affirmed ment the required approval of the Attor- on Ferebe’s conviction and sentence the General, ney both the court and counsel January 2000, charge, and prior preparations ceased their for the trial to petition Court denied Ferebe’s Attorney await word from the General. Turning for writ of certiorari. his atten- case, was, July tion thereafter Ferebe In early Attorney General request, granted his returned June 2000 to the Attorney’s the U.S. earlier re- Maryland Haute, quest District from Terre penalty to seek the death on the Indiana, serving where he was his sen- charge, July Evans murder and on conviction, prior on Attorney tence to discuss General advised the Attor- his counsel possibility resolving ney proposed with plea agreement was through plea this case At agreement. acceptable prosecution and that time, offered Ferebe a death penalty case as case should possibility of pleading guilty proceed. meeting In a with the court and of both Page July murders Evans and all on parties defense counsel agreeing to two life concurrent sentences Ferebe’s plead guilty indicated desire to penalty. to avoid the death But agreement, October even in the absence of explain- 2000, Ferebe declined the offer and insist- ing plea subject that such would Ferebe on proceeding response, ed imprisonment trial. In gov- life because the court hearing district yet conducted a De- ernment had not filed its notice of 2000, during cember which received Fer- intention to seek the penalty. rejection formal 1, 2001, ebe’s government’s day, August next on govern- government’s notice, offer thereafter for- ment filed a formal pursuant to 18 A 3593(a), mal withdrawal the offer. schedule U.S.C. of its intention to seek preparation for trial and motions was then penalty the death for the murders of both fixed, and a Page was scheduled to and Evans. 10, 2001, on September commence with the Arguing the death explicit understanding by parties untimely, both because it late was so

the court that the death would be after indictment was filed and so short sought. September before the scheduled May 2001, Attorney date, the U.S. asked had yet been postponed, Attorney General in the new adminis- Ferebe filed motion to strike the notice. tration to reconsider the decision not to court The district conducted a hearing permit him to 7, 2001, seek the on September during the motion the pre- penalty for ernment’s intent to seek death originally set aside a period the charge. on the murder the and, Evans While September de- conference on that acknowledged po- court there was a motion to strike the death nied Ferebe’s prejudice tential for with to the respect time, the notice. At the same penalty charge Evans defense murder date to a new the trial postponed court —because have as much preparation counsel did not agree. could parties which the date on for charge' time that court concluded —-the strike, to denying Ferebe’s motion “any accruing that to the defen- prejudice that court concluded Ferebe the district by dant will the must be cured time that formal, actual, notice of the had albeit original pass between the trial date of first count and that penalty for the death September 2001 and the trial date new pen- second death preparation for the the that I of this must schedule the end substantially count was not different alty hearing.” explained The court that coun- count on for the first which than sides, court, sel for both as well the Recognizing had notice. Ferebe actual “stop[ped] expectation in the work for timeliness statutory standard Washington approve plea would the bar- that the notice be served “reason- was gain. July turndown in late Washington’s or the time the trial” before able it was not un- expected, was but also plea, acceptance guilty court’s by The court noted that foreseeable.” important that the most court concluded down, agreement time thé was turned plea determining “reasonableness” factor September “the 10 trial date irretriev- was to any “prejudice Mr. Fer- was to examine ably by parties lost” actions of both notice timing of the caused. ebe” that and the The court that it explained court. murder Page charge, respect to With Septem- had other matters for scheduled there had no the court concluded that been ber 10 that neither could have counsel prejudice: by 10 in ready September been view case scheduled on December This approval activities suspension pending De- penalty 2000 as death case.- court ex- Attorney General. The ample counsel has had time and fense plained further: financial for resources aspect But most crucial as of penalty involving ease murder death had no July period late was that we Benjamin They have received Page. to a jury questionnaire appropriate transcript discovery, including a for case. timetable they have filed Carmichael approving drafting, investigating, and scope dignity appropriate motions pick from questionnaire such a death case. preparation time- qualified penalty jury, slipped table because of the decision respect charge, Evans murder had With work, stop and counsel that “the court the court concluded evidence stay hap- our oars and see what would basically the Page murder is same pen Washington. murder, except for cer- the Yolanda Evans learning how she jury tain forensic evidence I advised sec- have been sitting stoop killed as she was at least weeks eight tion that it takes Accordingly, process mailing afternoon.” the court go through retrieving questionnaire, was also no actual death penalty concluded there Evans, reviewing responses respect responses, even counsel, bringing with court and though gave the death qualified jury. into court the gov- notice of the defense its first formal must, accordingly, This case II re- scheduled. however, government contends, The first jurisdiction that we do not have to hear Pursuant to court’s invitation to have this appeal because the district or- court’s date, agree on a trial parties Ferebe there- 12, 2001, der of September Fer- denying 7, agreed April after to a trial on 2003 ebe’s motion to strike the death (which is now also lost because of this notice, order, was final required not a appeal), agreed to exclusion of the by § 28 responds U.S.C. 1291. Ferebe elapsed Speedy pur- time for Trial Act argument this contention with the that his poses. justified appeal by is the collateral order doctrine, in Cohen v. articulated Beneficial From interlocutory the district court’s 541, 546, Indus. Loan Corp., 337 U.S. 69 12, 2001, September order of denying Fer- 1221, (1949). S.Ct. 93 L.Ed. agree 1528 I ebe’s motion to strike the death penalty with the government the district untimely notice as under 18 U.S.C. court’s appealable order is not at this time. 3593(a), § interlocutory Ferebe filed this Section 1291 Title of 28 confers on the appeal. “jurisdiction Courts of Appeals of appeals On appeal, Ferebe contends on the mer- from all final ... decisions except where government’s its formal notice to direct may review be had in seek the death penalty, August served on § Court.” juris- 28 U.S.C. 1291. Because 1, 2001, still formally when trial was sched- diction is a § creature of statute and 1291 place September 10, 2001, uled to take on is the purported jurisdiction source untimely. argues Ferebe this appeal, authority our to hear Ferebe’s appeal government requirements depends violated the whether “finality” predicate § timely is filing 1291 satisfied. As the imposed 18 U.S.C. stated, Supreme Court has “[t]he effect “waiting more than three appeal any statute is to disallow from years after the death was autho- tentative, decision which is informal in- or rized, ignoring filing the deadline for mo- Cohen, complete.” 546, 337 U.S. at 69 tions, reason, and waiting, without until S.Ct. 1221. construing finality But in just days 39 before trial.” requirement 1291, §of the Court in Cohen The contends on the merits articulated a “collateral order doctrine” 10, that the September 2001 trial date was permit review of certain orders not termi- effectively suspended in June 2001 nating the action but otherwise “final” court and all counsel when the parties within the meaning the statute. Id. at sought the Attorney approval General’s of 545-47, 69 S.Ct. 1221. recog- The Court proposed plea agreement. govern- nized such “final orders as decisions” when ment also from, asserts that they to, Ferebe had actual are “separable and collateral rights action, notice of the and of asserted in the too important to be denied review and too aggravating support independent factors to it since No- require the cause itself to that appellate Carmichael, vember 1998 when Ferebe’s consideration be until deferred the whole co-defendant, convicted, and that even adjudicated.” case 546, Id. at 69 S.Ct. before the suspension of the calen- defacto 2001, dar June Ferebe had filed all of

his motions and had conducted his discov- The collateral order may doctrine ery. applied only requirements if three are sat-

745 First, party rule a. to a general order entitled the district court’s isfied. the dis- conclusively appeal, determined until final single must have to be deferred Cohen, 69 337 U.S. at question. entered, puted judgment has in which been States, 1221; 431 Abney v. United S.Ct. stage court error any claims district 651, 658, L.Ed.2d 52 S.Ct. litigation may Digi be ventilated.” (1977). Second, have the order must Direct, Inc., Desktop v. Equip. Corp. tal completely important issue resolved 863, 868, 511 U.S. S.Ct. Cohen, U.S. from the merits. 337 separate (1994) (internal 842 omit L.Ed.2d citations 1221; Abney, at 546, 431 U.S. 69 S.Ct. at ted). The further Court has instructed And, third, 658, order the 97 S.Ct. 2034. under appealability that “the issue of appeal on effectively must unreviewable be § 1291 is to be determined for the entire Cohen, at final 337 U.S. judgment. from category belongs, to which a claim without 658, 1221; 546, Abney, 431 U.S. 69 S.Ct. regard litigation to the chance that the 97 S.Ct. or might speeded, particular hand expressed of disfavor Congress’ Because injustice prompt appellate averted the has litigation, doctrine piecemeal of (internal quotation Id. court decision.” in crimi- strictly particularly applied, been omitted). While marks citations directly delays litigation where nal we recognizing approach, this restrictive speedy in contrary to social interest the the or applied have nonetheless collateral of criminal matters. United resolution See doctrine in a criminal to allow the der case MacDonald, 853-54, 850, 435 U.S. v. States appeal immediate of the denial of the (1978) (“The 1547, L.Ed.2d 18 56 98 S.Ct. juvenile. to be tried as a See United finality force in crim- particular rule of has (4th Smith, F.2d Cir. v. 851 706 States ‘encouragement prosecutions inal because 1988). delay is fatal to the vindication of ”) v. (quoting law’ Cobbledick criminal States, 323, Ill 325, 60 S.Ct. 309 U.S.

United (1940)); 540, L.Ed. also United 84 783 see In these apply order well-established (4th Lawrence, 536, 537 v. 201 F.3d States collateral order doctrine principles the Cir.2000) infrequent use of the (noting the case, necessary to understand to this is interlocutory appeals doctrine hear statutory for the order from basis cases). Indeed, criminal appeal was taken. which collateral only employed has Court criminal matters. order three doctrine motion to denying The order Ferebe’s Meanor, 500, 442 99 Helstoski v. U.S. 3593(a), § on 18 U.S.C. strike based (1979) 2445, (permit- 61 30 L.Ed.2d S.Ct. provides: which afford- appeal immunity ting immediate If, involving in a an offense de- case Clause); by the and Debate Speech ed attorney scribed 2034, 52 Abney, 431 97 S.Ct. U.S. the cir- government believes that appeal (permitting L.Ed.2d 651 immediate cumstances of the offense are such claim); jeopardy denial of Stack double justified is under of death sentence 72 S.Ct. 96 L.Ed. Boyle, v. shall, attorney a rea- chapter, (1951) immediate of de- (permitting appeal or before bail). sonable motion The Su- nial of to reduce plea the court of a acceptance by “repeatedly preme Court has stressed court, and guilty, sign and file with the stay that exception ‘narrow1 should defendant, on the a notice— serve way and never be allowed to swallow (1) government stating applying be- the reasonableness standard timing requirement, of a notice the circumstances we lieves that, guided purpose must for which if the offense are such defendant required notice is context which convicted, a sentence of is required given. it is to be The statute justified chapter under this and that review in this under case—18 U.S.C. government will seek the sentence to inform the defen- death; —functions dant and the court of the fact (2) setting aggravating forth the fac- will seek the death or government, tor factors that the trial and of grounds it will convicted, proposes the defendant that penalty. requirement seek This af- prove justifying a sentence of an opportunity pre- fords defendant death. defense, his pare targeting specifically the * * ^[*] guilty pleas, death penalty aspect to which the of statute trial. also And in ap- plies, requirement that assures may attorney The court permit the defendant and the court of have notice government to amend the notice to sought be at sentencing a upon showing good of cause. phase and of aggravating relevant factors 3593(a) added). § (emphasis 18 U.S.C. to short, a sentence. for the By requiring government to a serve defendant this procedural statute is a “a notice time reasonable guarantee that will given adequate he be trial,” Congress before the does not man to prepare time a death penalty trial date particular providing a deadline for sentencing, guarantee its is simi- 3593(a) Compare § notice. 18 U.S.C. with many lar nature to guarantees other § (requiring 18 3432 U.S.C. that indict give the defendant an opportunity to jurors See, (re- ments and lists of witnesses prepare. 18 e.g., § U.S.C. 3432 a capital case be pre-trial disclosed “at least three quiring notice of indictments and days jurors entire tri of capital commencement lists in a witnesses before of ”) added); also, 12.1(b) (emphasis case); al see Fed. Fed.R.Crim.P. e.g., (requiring 12.1(b) pretrial R.Crim.P. notice (requiring government wit- nesses to be to give to defendant called rebut an alibi notice it will de- witnesses fense); 16(a) Fed.R.Crim.P. (requiring use to rebut testimony alibi-witness “no government pretrial ”) disclosure evi- later than 10 days (emphasis trial before dence); Fed.R.Crim.P. 26.1 (requiring pre- added); 12.3(a)(3) (requir Fed.R.Crim.P. law); foreign trial notice of use of ing government give to defendant Inc., Grading Paving, Smith & 760 F.2d its to response public-authority a defense at (requiring Brady 532 disclosure of ma- ”) (em “no later than days 20 trial “in terial time for its effective use at tri- added). phasis Instead, the critical deter al”). § mination under is whether the provided

notice was a reasonable be time disagree I thus majority’s with the ex- trial. United States v. Smith pansive reading §of it in- fore Cf. —which Inc., Grading & Paving, 760 F.2d 532 terprets protecting as “not right to (4th Cir.1985) (requiring that mate Brady trial for [adequate stand one’s life absent rial be disclosed “in time for its effective to prepare],” ante at and the trial,” use at which could even include right “not to be forced endure a itself). disclosure at notice,” trial except upon reasonable ante

747 jury for a jeopardy grand crime without a indict analogy at 729—and its double ment); 870, 114 511 Digital Equip., U.S. immediately find claim claims to Ferebe’s S.Ct. (stating Jeopar I Double ante 735-736. do find appealable, dy “by very Clause its terms” embodies notice statute lan the death principle “right ‘not to face trial at supports the conclusion that guage that an»»). mere identification of some “[T]he given substantive defendant ‘irretrievably interest would be lost’ a capital trial for offense. to stand has to meet third never sufficed Cohen every “virtually could Because requirement” to permit appeal avoid appropriately by pretrial be enforced dis entirely. Digital Equip., might loosely missal be described con ” (citation omitted). 872, 114 As S.Ct. 1992 trial,’ Digital ‘right not to stand ferring stated in Court MacDonald 873, 114 Equip., 511 U.S. at S.Ct. respect with trial claims: speedy Supreme Court has instructed “ perhaps superficial There is some at- requires appeals courts view argument traction ‘right not to tried’ with claims of ... speedy must be vindicated id.; jaundiced eye,’” skepticism, not a before trial in order to insure that no v. Asphalt Corp. see Midland United also nonspeedy ever Both trial is held. doc- 794, 801, States, 489 U.S. 109 S.Ct. however, trinally and (“One pragmatically, (1989) must 103 L.Ed.2d 879 argument protection fails. Unlike the games ... not play careful word by Jeopardy afforded the Double ”). of not tried’ concept ‘right the a to be Clause, the Trial Speedy Clause does in Supreme As the Court noted Mac not, according on face or to either its the Donald: Court, of encompass decisions this a all Admittedly, there is value—to but “right not to be tried” which must be litigant triumphing unusual the most —in upheld if it prior enjoyed to trial is to be trial, it, regard- than before rather after trial, delay at It all. is the winning the of the less of substance itself, against the trial that offends the to claim. But truism is not this be speedy tri- guarantee of a constitutional quite proposi- confused with the distinct al. (because of tion that certain claims the entailed, 860-61, rights of 435 at 98 S.Ct. 1547.

substance the rather U.S. litigant to a in advantage than the win- Similarly, the afforded the protection sooner) ning his claim should re- 3593(a) §by is not a not to defendant trial. solved before Instead, a it capital be tried as defendant. MacDonald, 7, guarantee ensuring 435 at n. 98 is a that procedural U.S. 860 S.Ct. “right depends 1547. to be has a sufficient time for And a tried” defendant upon explicit statutory preparation government’s “an or constitution- between Indeed, guarantee al that trial will not occur.” death and trial. penalty notice 801, Asphalt, plain language provides 489 109 of the statute no Midland see, 1494; 802, that e.g., capital S.Ct. id. 109 assurance a trial can be denied S.Ct. Jury produce timely 1494 (noting that the Grand Clause fails penal- it its to seek requirement satisfies this because states notice of intent person ty.1 that shall held answer” “[n]o majority my argues my

1. that use of the contradicts conclusion that The word "guarantee” permit procedural pro- pretrial appellate review of describe does not untimely §by allegedly death notices. Ante at 731. tection afforded to a defendant 748 Barker, protect”). the statute’s role of assur- In

Recognizing the Court identified in a ade- ing potential “inability the defendant case of a defendant ade- time, guide quate for de- preparation quately prepare his case” as the most focus termining “reasonable” must aspect prejudice. Id. serious And sub- adversely or on the denied preparation emphasizing importance sequently allegedly given a notice late. affected being prejudice, able to evaluate the Court ultimately And effect prepa- adverse any noted MacDonald that effort to ration can be measured the de- prejudice assess this before the trial would presented fense trial. defendant 858, speculative,” “tend[ ] to be U.S. at 435 Thus, of any the reasonableness time be- 98 S.Ct. 1547 and “there exists no ... depend large fore part trial will question prejudice divorce between the complexity nature and an case (which to the conduct of the defense so preparation evaluation the defen- often is central to an assessment of a dant was able undertake. claim) speedy trial,” and the events at unlike analysis is not called for 859, Indeed, id. at S.Ct. determining been adopted has just speculation inseparability speedy whether a defendant’s that prompted from merits the Court has been violated. there are obvi- While a “pretrial MacDonald to conclude that ous a claim differences between speedy denial trial claim can never be was denied the to receive defendant formal, complete, considered and final timely and a claim rejection” speedy right. Id. at speedy the defendant was denied a added). (emphasis S.Ct. 1547 delay caused is a prejudice, addition to analyses. factor common both Wingo, Court Barker identified other factors Barker v. 407 U.S. (1972) (“Preju- in determining S.Ct. 33 L.Ed.2d 101 consideration whether a de- dice, course, lay of should assessed in the of trial was The unreasonable. Court light of the interests of defendants which in MacDonald summarized the factors as the speedy right designed to follows: trial, conviction, assumption Inherent is the assertion their life must endure guarantee ap- sentence, that a must include immediate imprisonment and death row pellate interlocutory ap- review. Immediate they may appeal objection the denial of their review, however, pellate is not to a essential receiving to no notice.” Ante at 733-734. Indeed, guarantee. pretrial proce- almost all accepts But this assertion is true one if guarantees, pretrial dural as rights such of majority's the the characterization of statuto- material, material, Brady of disclosure Jenclcs trial, ry right right notice as stand to witnesses, like, alibi and the rebuttal do not weighty characterization drawn in the of face right interlocutory appeals. include a to authority counseling Court courts to right the to be tried on an Even indictment 'right "view claims of a be tried' to compliance with the Constitution is not vindi- jaundiced eye.” Digital Equip., ... a 511 Trials, by interlocutory appeal. cated includ- at Although S.Ct. 1992. alleg- 114 orders, ing pretrial involve a of multitude identify edly no notice to is easier than notice important routinely issues that nor- are allegedly provided an unreasonable time be- mally judgment. Only reviewed after in the fore that distinction does not transform rare an circumstances where issue cannot 3593(a) § a violation of before or effectively be judgment reviewed final after —whether begins- right entirely after trial to exception an made. —-into opinion, trial. avoid As I noted in this have majority argues my analysis also that re- 3593(a) quires § of can the "error” "that defendants nev- violation be remedied who an they array er receive are responses. notice to be tried for (5) prejudice timing listed four ... the Court

In Barker weighed to be deter- prep- that are formal has on the factors notice defendant’s has an accused been mining whether presentation aration for trial and on his right Amendment Sixth deprived of his Obviously, jury the defense. were to They length trial. speedy to a to impose penalty, determine not the death delay, delay, the reason 3593(a) alleged §of any then violation has asserted his defendant whether the would become moot. to the defendant right, prejudice majority The analysis proffered [Barker, 407 delay. U.S.] from the eclipses any of what effect Court noted consideration 2182. The S.Ct. to the defendant must be prejudice late would on trial allegedly notice have light in the of the interests considered preparation prejudice and thus the designed to speedy It causes the defendant. focuses on “(i) prevent oppressive pre- protect: making prospectively, to such notice (ii) incarceration; to minimize anxi- inquiry pretrial matter that evalu- (iii) accused; ety and concern “objective the no- ates reasonableness of possibility limit the defense provided.” tice at 731. From that Ante these, Of most impaired. will be analysis any posture, the finds irrelevant last, inability because the serious is determination of the actual histor- whether adequately his of a defendant purpose ical indeed frustrated the facts the fairness of the entire case skews adequate prepara- § to afford an (foot- Id., 92 S.Ct. system.” time, ab- focusing tion instead omitted). note necessarily upon stract —and therefore 435 U.S. 98 S.Ct. speculation whether the defen- —about analysis speedy trial focus- Because the have enforced dant’s on the delay es the point “at when defen- [the was denied ability defen- delay will cause at 732. toward trial.” Ante proceeds dant] defense, it is present his relevant dant this re- Apart speculation from the analysis the death yields of deter- quires, possibility it also no must the extent to which an too evaluate a violation occurred because mining when notice affects the defendant’s allegedly late majority the violation defined present his ability defense. toward the hurtle forward occurs within Thus, determining timing is a in what approach encourages trial. defen- Such giving trial for the reasonable time before on, file, rule dants and district courts to to 18 penalty notice under U.S.C. death § as notices as soon challenges 3593(a), § that a court I would conclude the the are It also freezes notices filed. (1) the of should least consider nature timing into the of inquiry reasonableness (2) indictment; in charges made the the pres- of the is filed and as the time notice aggravating pro- nature the factors the of court, effect, in ents district the (3) notice; the penalty death vided the the notice or options striking that the notice period of time before trial court It denies the striking the notice. (4) defendant; any by was received any flexibility managing period that the defendant had re- actual notice scheduling postpon- or preparation was filed ceived before the formal notice ing give the defendant reasonable to which defendant was extent if the court notice; time For district prepare. on that able based route, attempt tries to its will inextricably take elements up bound with the appeal. cut off an immediate merits of the case.2 sum, presented we this appeal Moreover, majority’s proffered anal- with a pretrial order denying defendant’s ysis analysis cannot withstand for as- motion penalty to strike a death sessing pretrial reasonableness de- ground made on the given that it was not lay demanded Court “reasonable time before the trial.” analysis Barker. evaluated While 3593(a). Yet, § U.S.C. the trial speedy right, it an inqui- still involved referred to in the statute has not even as ry pretrial into the reasonableness of de- commenced, of now much less been com- lay, concluding prejudice was the pleted. trial, Because there has been no most serious factor for consideration. Yet no one can conclusively determine whether majority’s pretrial analysis, of necessi- given notice was a reasonable time ty, prejudice cannot take into account. Moreover, before trial. one no can state concludes, must, it Accordingly, as whether the defendant adversely af- any prejudice is irrelevant. Ante at 732. any way by fected in a notice which cannot approach This overlooks the pur- entire even be denominated “late.”3 pose required for which notice is under 3593(a). § context, In this I apply now the three requirements for finding “finality” under Finally, majority’s analogy to alleg- the collateral order doctrine. indictments, edly defective any dismiss of prejudice consideration for allegedly IV notices, late penalty death overlooks 3593(a)’s § explicit standard of reasonable- Applying the three Cohen factors for majority’s analysis ness. ignores And the determining whether the district court’s aspect analogous of indictments that is denying order Ferebe’s motion to strike penalty death notices that both indict- the death penalty notice judg- final ments and death notices contain § ment for purposes of 28 U.S.C. I § If a Here, notice under given. that notice was never 2. howev- " 'charging' er, only per- contains [that] elements given, notice was given and notice was sentencing,” trial, tain to ante at n. one must only challenge is to before majority wonder analy- how the its reconciles given whether the notice was a reasonable sis to the date of rather than to the date time before trial. sentencing. The majority prejudice-based also states that a analysis "necessitates Responding analysis prejudice [of to an district courts] posf-trial part adjudication” of motions to inquiry, majori- strike reasonableness notices, ty simply suggesting stating that a incorpo- incorrect in dis- court, my trict analysis analysis, ration under into the would of wheth- not be provided position in a pretrial er notice to rule on a was trial,” a "reasonable motion 3593(a), strike. general 18 U.S.C. Ante 730 n. 4. "neces- But this sarily applicable leads to the pretrial untenable conclusion that criticism is all almost the statute would satisfied if notice and trial were motions that district courts have or, given authority after trial commenced appellate that mat- to consider and that ter, given.” never Ante at 732. If notice prejudice courts review under a standard. commenced, given objec- after trial has the majority’s criticism also overlooks the tion would be that notice given after ordinary litigation trial course of which the de- commenced, given not that notice was appeal an fendant can court's district unfa- "[unjreasonable Likewise, time rulings trial.” vorable they merge when into the final before given, objection notice is never judgment, piecemeal would in a fashion. contention; rather, at question order stake the district court’s first observe conclusively necessarily determine in the motion to dismiss “re- did not in this case mains, namely whether un- disputed question, unfinished inconclusive” [and] filed a reasonable notice was penalty pronounced judg- death til the trial court has the denial of a trial. Unlike time before ment. try claim or a decision jeopardy double 858-59, 1547 (quoting Id. 98 S.Ct. Co- “[tjhere are juvenile as an adult where a 1221). hen, 546, 337 U.S. at 69 S.Ct. Just can be taken steps that simply no further speedy as the resolution of a trial claim trial the to avoid the

in the District Court par- “necessitates a careful assessment of barred,” Abney, 431 maintains is defendant case,” MacDonald, ticular facts of the 2034, 659, district S.Ct. U.S. consideration of 98 S.Ct. order, finding penal- that the death court’s a notice was whether death sub- a notice was served reasonable ty reasonably requires mitted before trial trial, at this merely speculative before knowledge length of the of time between question open It leaves point. trial, as well as an assess- the notice trying to Ferebe of a potential prejudice particular ment of the facts of the case. inadequate prepa- penalty case with may only weigh these factors after We Ferebe, during or after time. If ration reason, trial has occurred. For this strike, trial, the court his motion to renews court’s order is inconclusive within district his the merits of will be able to evaluate meaning of Cohen. light period between motion Second, pen of the death timeliness and the notice government’s alty filing sufficiently notice is not an issue the notice trial date to determine whether separate satisfy from the merits to time before was filed reasonable Again, order doctrine. Mac collateral of Fer- trial. The district court’s denial MacDonald, Donald is instructive. 12, 2001, be- September motion on ebe’s Court stated that whether the defendant commenced, could not be fore the trial delay prejudiced by length had been steps further conclusive as there remain trial — the critical determination in to Ferebe at the trial-court level available speedy depends trial claims—often on the Thus, statutory right. to vindicate his events at trial. 435 U.S. at 98 S.Ct. claim, analogy speedy is to a tidal apt more 1547. The Court stated: speculative is of a nature before [speedy The essence of defendant’s found and which the Court MacDonald is that the claim the usual case trial] doctrine. satisfy not to the collateral order ability passage of time has frustrated his explained: The Court crime his innocence establish trial, course, an estimate of Before Normally, it is after charged. delay impaired has degree to which may fairly be assessed. that that claim specula- adequate defense tends may The same Id. at 98 S.Ct. 1547. pretrial motion to tive. The denial that the death for Ferebe’s claim be said speedy an indictment on dismiss served within a penalty notice was not not indicate that a like grounds does timeli- time before trial. The reasonable motion made after trial —when depends ness of death gauged can also be be better —would it was of the time Hence, the “reasonableness” pretrial denial of a denied. measured how the provided before trial claim can never be consid- speedy affected, and formal, rejec- preparation defendant’s complete, and final ered turn, on the evi- question, depends of the defendant’s tion court 752 1, 1, (1951) against

denee for and the defendant and 72 (right S.Ct. 96 L.Ed. 3 to may complexity of the case as be re claim)); MacDonald, reduced bail see also during vealed the course of trial. Because 856, 435 U.S. at 98 1547 (identifying S.Ct. requires analysis, claim such an it Ferebe’s opportunity the lack of an for vindication sufficiently from separate is not the merits as perhaps important the most factor influ- requirement the second satisfy encing the in Abney); conclusion id. at Flanagan collateral order doctrine. See v. 7, 861 n. (“Certainly, 98 S.Ct. 1547 the fact States, 259, 268, United 465 U.S. 104 S.Ct. that this has Court held dismissal of the (1984) (“It 1051, 79 L.Ed.2d 288 is suffi proper remedy indictment to be the when cient to note that the second condition [of right the Sixth Amendment speedy the collateral order the or doctrine]—that trial has ... been violated does not mean truly der be not if collateral—is satisfied that a enjoys ‘right defendant not to be petitioners’ requiring asserted is one tried’ which safeguarded by must be inter- violation”). prejudice to the for its defense review”). locutory appellate And we Finally, perhaps important most Smith, reached the same conclusion not- analysis, untimely penalty an ing that “much of sequellae of [the effectively notice upon remains reviewable juvenile, to be defendant’s] tried as a judgment. Proceeding final with trial does meritorious, if that claim is would be irre- deny any Ferebe relief available trievably lost” if the denial statutory requirement violation of the were not afforded immediate appeal. provide penalty a death notice within a Smith, 851 F.2d at rights 708. Unlike Rather, reasonable time before trial. Fer- where appeal only way immediate is the rights ebe retains the full to review and wrongful vindicate denial of right, remedy such a violation at the end of the objection timeliness to a no- case, assuming he is convicted and sen- tice does not effectively become unreview- objects tenced to death or Ferebe to a Indeed, able after the trial is may held. noncapital sentence on an based inade- only effectively often be that it is reviewa- quate preparation for a death conviction, Assuming ble then. a district untimely § caused notice. court’s order erroneously denying a motion The Supreme again partic- Court cases strike the death notice is effec- ularly pretrial instructive. In the three tively improper reviewable because criminal matters in which Supreme through vindicated a new trial or Court has identified an immediately re- through resentencing striking after Cohen’s, viewable collateral order within death penalty notice. See Midland As- formulation, the case involved “an asserted 800, phalt, 489 U.S. 109 S.Ct. 1494 right[,] legal practical value of (stating that alleged violation for destroyed which would be if it were not which interlocutory appeal sought can Mac-Donald, vindicated before trial.” 435 “provide the basis for reversal of a Helstoski, convic- (citing U.S. 98 S.Ct. 1547 tion on appeal, it is obvious that [it is] U.S. S.Ct. 61 L.Ed.2d 30 (Speech claim); effectively appeal and Debate Clause unreviewable on Abney, from a (double judgment” U.S. 97 S.Ct. 2034 final (quotation marks omit- claim); ted)).4 jeopardy Boyle, Stack v. 342 against Court in MacDonald applicable also rec- appealability immediate ognized appeals the limitless Ferebe’s claim as well. character of The Court stated: speedy grounds, argument claim, an additional jeopardy Unlike a double which re- quires showing at least a colorable I would sum, deny- Accordingly, court’s order conclude that we the district jurisdiction appeal do not have to hear this to strike the death Ferebe’s motion

ing at this time. of the three notice satisfies none penalty requirements. Cohen

V any analysis under the collateral

Beyond doctrine, suggests Ferebe

order general

unique nature of cases ap- immediate review of this Furlong ELLIOTT, merits our Patricia gravi- peal. acknowledge I Defendant-Appellant, While may death sentence elevate ty possible v. intensity preparation, of trial to allow America, UNITED STATES of of Ferebe’s claim an immediate review Plaintiff-Appellee. ground essentially would based on every dis- interlocutory appeals allow America, United States of case, penalty in a death positive motion Plaintiff-Appellant, wholly frustrating policies against v. favoring speedy tri- piecemeal appeals and proper in criminal cases. The safe- als Furlong Elliott, Patricia untimely guard against an death Defendant-Appellee. appeal after trial when the

notice is 02-4755, Nos. 02-4836. completely can be reviewed and the sanctioned. adequately violation Appeals, United States Court of Fourth Circuit. if Alternatively, argues Ferebe appealable district court’s order is not an Argued: April 2003. order, grant his re- collateral we should 18, 2003. Decided: June of mandamus to review quest for writ interlocutory court’s order. district above, reject I given For the reasons also of a death request. The timeliness mooted, if can

penalty filing which, —

be vindicated after the trial —does not war- extraordinary

rant of such an issuance

writ. Likewise, 862-63, jeopardy once before has been in 435 U.S. at 98 S.Ct. defendant every in which the files a

federal conviction on the same or a related case notice, offense, every peri- would ex- case there will be some the defendant perience period receipt of of time between od between arrest or indictment and trial and, during "every and the time of trial "if which time defendant will ei- the notice honored, immediately ap- § subject 1291 is not could ther be incarcerated ... or on bail Thus, liberty.” any peal S.Ct. 1547. its denial.” See id. at substantial restrictions on "[T|here pretrial nothing the circumstances make a motion for about defendant can and, support notice] speedy grounds [late that will dismissal on honored, availability inherently immediately ap- claim which limits the 1291 is not could 98 S.Ct. 1547. peal claim.” Id. its denial.

Case Details

Case Name: United States v. Donald Lee Ferebe

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 18, 2003

Citation: 332 F.3d 722

Docket Number: 01-22

Court Abbreviation: 4th Cir.