may please the court counsel the united states appeals an order of the district court striking a stand straight reining factor from the indictment suppressing evidence the government offer to prove that aggravating factor jury and a single hearing decide the issue of both whether the defendant is eligible for the death penalty and should receive the death penalty the district court cobbled together a two jury to hearing procedure whereby one jury that had decided that the defendant was eligible for the death penalty and found certain statutory aggravating factors that verdict would stand in a new jury would decide whether the defendant should receive the death penalty the result is that the new jury charge with the awesome responsibility of deciding whether angela johnson should live or die is bound and barred by decisions made and not made by a prior jury unanimously so in a prior jury trial the jury found many factor that the victim the adult victims were killed in a heinous and cruel manner though this new jury may disagree that the evidence shows that the court's order would bind them to accept that verdict and to somehow wave that factor even though they did not find it and may not agree with it the prior jury found that the minor children in this case were vulnerable victims and this new jury what was the judge's rationale for the exclusion the rationale for the exclusion is that the court found that the in the prior trial there was ineffective assistance of counsel in the defense attorney's presentation of mitigating evidence and so the district co prior trial during the eligibility section of the sensing hearing therefore the new trial should be limited simply to the selection phase of the penalty sentencing hearing the problem with that is that's not what the statute provides for a stance you provides for by its plain language sentencing hearing and which a jury one jury decides whether the defendant eligible and whether the fence should receive the death penalty we know this by looking at the statutory language itself the number of of things to stand out first of all the repeated use in the language or in the statu to the singular both with respect to the hearing so the statute uses the word a hearing and the like hearing and also with respect to the jury talks of age three shell decide th nowhere in the plain language of the statute many work does a contemplate the idea that the decision of whether somebody should die or live in a capital hearing should be decided by two different juries are two different times and more  second jury should be bound by decisions made by a prior jury that the second jury may not agree with and then ask that jury to weigh factors that it did not find and in this case bar this new jury from hearing factors or considering factors or considering evidence that the government alleged in the indictment the grand jury returned in the indictment and that they cannot decide that factor for themselves that they are bound not because the prior impose death penalty if we look at the statute as again at the plain language of the statute section eight forty eight j in this case provides that information presented during the sentencing hearing a main clue trial transcript and exhibit held if the sensing hearing or so before a jury that wasn't present the trial so the plain language of the stand she what they're talking about they're saying in the case that we're going to have a sense hearing separate from a case where the same jury decided guilty  because the defendant pled guilty to the crime or there has been like in his case a new sentencing hearing that the new jury can consider the evidence and transcripts and exhibits that occurred during the trial nowhere in the statutory language does it also say oh and by the way if the court then divides up the sensing hearing into the new jury can also consider the transcripts and exhibits that might have been presented during the eligibility portion of the prior trial there's no language in there that would even contemplate that if we look at section eight forty eight k it provides the jury shall consider all the information received during the hearing again nor in that plain language those congress at any point talk about that information including information provided presented during a nother portion of another sentencing hearing at a prior occasion and then if you think about the system the congress set up here that those courts approved in the supreme of the system was set up for a reason it's set up for the purpose of having a very deliberative purposeful review by jury about whether somebody should be executed or not and they do that in a couple different ways on is the narrow the group of people they're going to be subject to the death penalty by requiring the jury to determine if they find stanch or tour aggravating factors present that would make the person eligible for the death penalty if they find that then the evaluated and decided for themselves and the way all those factors and make a very hard and difficult decision about whether somebody should be executed or not by the court's order in this case the court is depriving the jury of the opportunity of weighing all those factors and so the jury in this case for example will be told under this court's order that the prior jury found a substantial point in premeditation as to the fifth murder now this jury may hear the same evidence of that fifth murder and may decide differently but they can't they're going to be told that it doesn't matter whether you think there are substantial planning premeditation fifth murder i'm telling you the was and you must now way that and ask the jury to weigh a factor that it did not find and a factor that i may disagree with his initial court to prove this type of i guess what's referred to as a try for cation and found that the the penalty phase would be bifurcated in the presentation of evidence for the reason that the government alleges among other things in the non stature a degree of factors that there was victim impact in the victim impact because we knew from a prior trial codefendant was it was very impactful very strong and the district court concluded that if the jury heard that evidence before they'd decided eligibility that it might influence their decision on whether the person's eligible or n since that wasn't a factor on eligibility the court said as as a matter of trial management we're going to change the presentation the manner the timing of when the jury hears that evidence not that another jury's going to decide the issue but the timing of when this jury's going to hear that evidence and so the court said we're going to first have that evidence come in on eligibility the juries and i'm going to decide the case on eligibility and then if they find eligibility and let me move on this court has eligibility factors and then bind a new jury who then has to decide the penalty in the case no court has found that and it's not provided for in the statutory language in this case the the upshot in this case and why the government is prejudiced by the court's decision not only is it just not right in this case but approaches the government in the sense that in this case the prior jury while it found substantial plenty of premeditation as to the fifth murder did not find it unanimously as to the first four murders the government would offer evidence and did in the first case that would show that the defendant very much did substantially plan a premeditated first four murders that  when the the government had a witness who testified against her boyfriend they hunted for him they tracked him down they found him hiding and living with an innocent woman single mother with her two little kids that weeks before the murder she went out and got a gun permit a handgun permit there weeks before the murder she bought an assault handgun in a store an hour's drive away from the town they lived in that the night of the murder taking duct tape and rope and using the ruse of being a lost sales lady and having the gun in that in the rope and the duct tape hidden inside a shopping or sales woman bag made entry into the house and held the family hostage that they weren't there at night at a time that they could have anticipated that the children and the mother would still be there and then they took them to a pre determined location where the codefendant shot them and then buried them and the government this case is now barred from present that evidence for the purpose of showing substantial planning premeditation now the district court inferred implied suggested that it would be admissible for other reasons that doesn't allow the government though to present away from it now the jury is not also able to determine that they may look at the same evidence and decide unanimously that there was substantial planning premeditation and they should be entitled to consider that and make that determination on their own the jury did not acquit the defendant of that prior fact in their prior cases simply didn't find it beyond a reasonable doubt but the effect of the court's order is this as if to find that the defendant was acquitted of that statutory aggravating factor  therefore the government can't present it in this case and the government believes that it's prejudiced in that sense counsel the aptly raise questions about our jurisdiction to hear the government's strikes a portion of the indictment the indictment again alleges as part of the indictment as part of what the grand jury found that the defendant engaged in substantial planning premeditation in the first four murders the court order now strikes that it's not because again of acquittal and simply because the effect of the court's order so the government even though it's alleged you know the grand jury found a government cannot apparently now assert that in this trial the found jurisdiction to hear the appeal in a thirty seven thirty one where a similar ruling was made where the court barred certain evidence for a particular purpose said my committee for other purposes but it can't come in for this purpose and the court of appeals there said that is suppression of evidence and we will not read into the statute we will not read into thirty seven thirty one which is supposed to be interpreted liberally we will not read into that statute a provision that it the court must strike and suppress evidence for all purposes before the co appeal so we believe jurisdiction lies in this court under section thirty seven thirty one in the alternative we also believe it lies in this court under the clowder order doctrine in this case we have an order entered by the court that does not address the merits of the case has to do with the court's interpretation of statutory procedure and in a manner that the government can't ever appeal after this trial if this defendant is  not if the jury does not return a death verdict and here we can't appeal at that point because of double jeopardy the case has gone to trial is over at that point if the jury finds the defendant should be executed it's moot at that point so this issue that has the potential for rising again because courts are going to in the future find just as this court did that defense counsel ineffective during the penalty phase and have a new sentencing hearing this issue will come up again the  and now this defendant is deprived of the opportunity of having this jury decide that and while that may be the case in a future case the government may may be a disadvantage the fact is it's not right it's not right and it's not what the statute provided in this case and in any case when we're asking a jury to make the very difficult a momentous decision about whether somebody should live or die that jury ought to be in a position where it can make all of the decisions on statutory and non statutory aggravating factors working decide what exists and what doesn't exist and then be in a position to realistically weigh those factors in making the decision has to make this case is one word this jury is going to be barred from making certain decisions and bound to make other decisions because of a prior jury and that's simply not provided anywhere in the statute in this case on a procedural point of what effect is the district court's refusal to rule on the other pending motions the motions in limine your honor yeah how the court ruled on emotion linney would be  brief repeatedly says that you know all the evidence will come in all the evidence will come in well the fact is they filed a motion in which they sought and their opinion under the court's order twenty nine different categories of evidence should be suppressed on the quarter under the an order on the motion in limine and they say that the evidence certain evidence let's say the fact that the defendant got a gun permit or went and bought the assault pistol weeks before the court may say that that evidence is only relevant for the purpose of stansell plenty of premeditation and so therefore the government cannot get that into evidence so there is a potential under those circumstances the government may disagree and may say no we think the admissible for some other reason and we may be in a position where we need to i reserved ten minutes of my argument for a bottle of this point i would ask the court has any immediate questions for me i would sit in on this point  express our appreciation for your willingness to continue in this case thank you your honor it's our privilege to continue the district court's ruling that mr johnson's retrial is to be commensurate with the relief granted is correct and should be  mr johnson's trial in two thousand and five was divided into three different phases the merits face which determine guilt innocence eligibility for the death penalty phase and then the penalty selection phase in twenty two fifty five proceedings mr johnson did not raise any error with respect to the eligibility phase of the trial in two thousand and twelve when the district court granted relief the court  granted relieved as to the penalty selection phase based on in effect of assistance of counsel at that phase the subsequently the district court refined its ruling  order that the scope of the retrial would be limited to the error found at the penalty selection phase your honor is the same statutory language that gives the district court discretion to try for  the trial cannot be said to disallow the court from ordering a retrial that is commensurate with the relief granted counsel the trial the jury in the first trial heard both the penalty phase yes the actually the eligibility phase which is whether the statutory requirements for death penalty eligibility did not consist of any new evidence it was just argument by the parties on the evidence presented at the guilt phase but the jury heard guilt penalty guilt eligibility and then the penalty selection pace so why should everything the first jury did it will hear everything the first jury will hurt your honor the district court has ruled that it does not read the statute as requiring the court to limit evidence of the retrial to the reporters transcript in the exhibits at the original trial the district court has ruled that the prosecution will be able to present actual we witnesses and will be able to fully present the guilt phase evidence that was the basis for both the guilt phase findings and the eligibility findings so the prosecution will not be hampered all that evidence be presented it would be presented by witnesses we have a seventy five eighty witness list that we've received from the government before this interlocutory pelosi what will the government not be able to present and present but the only thing the government would be precluded from doing and this is not a question of presenting evidence it terms of our argument the only thing the government would be precluded from doing is arguing to the jury that there was substantial planning and premeditation as to the july one thousand nine hundred ninety three crimes on the basis for that ruling was what the basis for that ruling was the district court's finding that there was no error at the eligibility face and therefore the retrial should be confined to the penalty phase essentially your honor the prosecution in this case at the retrial if judge bennett's order is upheld will be in the same place that it was at the beginning of the penalty selection phase in two thousand and five it will not be able to argue substantial planning and  premeditation as to the one nine hundred ninety three crimes because it was not found by the jury in two thousand and five there's no doubt difference in the prosecution's posture if judge bennett's ruling is followed and the way the prosecution appeared before the jury in two thousand  it find it found that trial counsel rendered ineffective assistance at the penalty selection phase because they did not properly discover and present evidence in mid mitigation that should have been presented substantial planning in premeditation as to the one nine hundred ninety three crimes with the sweet your honor our view is that the court granted relief as to the penalty phase and that legally it was appropriate to retry only the penalty phase you know it that was simply our legal analysis of the situation we could have made tactical decisions but one that was legally sound some the the defendant then could benefit from the district court has entered rulings that for example precludes us from at this point legally challenging by way of motion in limine e both the substantial planning and premeditation aggravator as to count five in the heinous cruel and deprived aggravator as to three of the homicides we believe there are legal challenges that could be made but we will not be able to make them but if the government's appeal succeeds johnson guilty of these crimes and a jury they will be told that a prior jury found mr johnson in the following statutory aggravators to be present in that they are bound by those finding something that happens in capital re trials commonly honour's we believe that we're here today because the prosecution seeks to effectively set aside the jury's verdict on the eligibility phase and to expand the scope of t beyond the relief granted by the district court and the prosecution has been candid it disagrees with the eligibility findings or lack of eligibility findings by the jury as to the nine hundred ninety three murders it disagrees and thought the substantial planning and premeditation should have been found as to the nine hundred ninety three july nine hundred ninety three crimes and it wants to retry the eligibility face with the same evidence that was heard by the jury because it hopes to do better this time others who would be similarly situated to your client don't you think there might be others who who would like the opportunity to retry the only billet he faces but if we were to follow what you're recommending  for those defendants that won't be possible it won't be possible your honor i mean this is this rule in essence prevents the parties from kind of jockeying for the most favorable of the trial that is the scope of the penalty retrial it prevents the prosecution from coming in in this case for example and saying that well the jury got it wrong we disagree we think we can do better so we want to retry it it prevents defense counsel in a case where the lawyer believes that there is insufficient evidence to prove non statutory aggravators found by the prior jury it prevents that attorney from coming in and saying we want to redo the eligibility phase because we think we can do better at that fa continue the prosecution cannot appeal the original jury's findings at the eligibility phase that much is clear prosecution cannot appeal at this point in time the district court's order  granting a retrial as to penalty phase on the twenty two fifty five motion because that does not become a final judgment until mr johnson is recent and we think that given this precedent  the prosecution are not to be allowed to appeal the eligibility verdict and to appeal the twenty two fifty five ruling by invoking section thirty seven thirty one which allows the court knows suppressing or excluding evidence or dismissing all or part of an indictment we disagree with the government's assertion that united states versus dilatory is directly on point i won't repeat the facts dilatory because mister williams did that but i will suggest that what distinguishes this case from dell a tory is first that the order being appealed is a ruling on a twenty to fifty five s that were unanimous in beyond a reasonable doubt so we are we believe in a very different posture from  the government's argument that this is a case where the district court suppressed evidence or dismissed part of an indictment is it has merit only if the court accepts the second part which is the substantive argument made by the government that the district court erred in limiting the scope of brief trial to the relief granted in ruling that the prosecution can't re jury findings beyond a reasonable doubt and with unanimity if the court had the discretion to limit the retrial to the relief granted then there has been nothing excluded is your principle case for the proposition the principle case from that proposition would be this court's decision in united states versus both bold and which discussed the second circuit's opinion in united states versus fell and ruled i i'm blanking on the court's exact words but it did approve that so that given the fact that the judge had the authority to try try for kate i think it must follow that the court has the authority to grant relief consistent with to order a retrial consistent with its grant of relief i think the quote would abuse its discretion if it went beyond its the narrow basis of the reversal in this case for penalty phase in effective assistance and for example opened up the eligibility eligibility phase again or indeed opened up the guilt phase again because after all the jury is going to be saddled with the guilt phase for ticks and the prosecution doesn't suggest that that's something that should never occur the order in this  case is unlike many of the other cases that have considered thirty seven thirty or thirty one in this context this order does not dismiss a death notice as was the case in united states  it does not declare the relaxed evidentiary standard of the federal death penalty act to be unconstitutional as was the case in united states versus fell it does not declare the federal death penalty act in it inapplicable to the state of iowa which is what happened in united states versus a custom mightiness which held that the federal death penalty act didn't apply to the territory of puerto rico and it doesn't hold the federal death penalty act unconstitutional as in united states which is called can own as in those cases the courts had no problem finding jurisdiction because there were there was by the court's order a material alteration of the trial the orders rendered the case non capital orders meant that it would not be tried by a death qualified jury jury in this case the court's order does none of those things the case is capital it will remain capital if the if it's not appealable are with the government obtain review of this question some questions the government cannot obtain review of and i think this is what one of them i mean i certainly don't think that the collateral order doctrine is appropriate  i think that the there was some disagreement by the government of our statement that the government must show some irreparable injury or a right that would last i think that's a solid reading of the beneficial industrial one loan corporation and mohawk industries versus a car carpenter but our position is that the government has no right to seek review of the first jury's eligibility phase verdicts because it disagrees with them and it has no right to seek review of the district courts twenty two fifty five ruling because mr johnson hasn't been  if there is no right at issue how could the government lose a right and because of the loss of their right invoke the collateral order doctrine if the issue is whether delaying review on this case would imperil a substantial public interest or some particular value of a high order i think the answer must be no the case is now and will be a capital case going to briefly talk about mandamus because it's a drastic and extraordinary remedy that is reserved for truly extraordinary situations it is invoked where the exceptional circumstances amounting to do dishes or usurpation of power or blatantly wrong ruling by the district court under this court's statements in united states versus bol order to the court's authority to grant relief consistent with the relief granted is the driving principle you know there were three phases of the trial if there were not three phases of the trial we wouldn't be here to day because it would be up for review but there were three three separate faces of the trial and having divided the case into three  it's really kind of i mean the second two phases are really different i mean it's really the same issue of imposition of the death parallel a lot of comes three if for instance if or some if if the jury were not to find the person death eligible there would be a third phase that's correct and they are different in the sense that the death eligibility factors must be charged in the indictment and they must be found unanimously and beyond a reasonable doubt in order to get to the penalty selection face so in that sense it the eligibility confrontation cause issues of you know the relaxed evidentiary standard comes into play so there is there is a power user allow more latitude in introducing evidence at that face  i would be a eligibility and penalty both concern the death penalty but only in the sense that in less the requirements of you know t with respect to counsel failure to present mitigating evidence to the jury at the penalty selection for writing notes on some great specificity like the neuropsychologist or whatever it's called but that related only to what partial portion of the penalty phase is that related only to the selection portion of the penalty phase prosecution characterizes it as a question of statutory construction that is reviewed to denote well i think there are two points that i'd like to make that i think demonstrate that the prosecution is wrong about the standard of review first the prosecution has conceded in its reply brief that the original order of trifurcation was a matter of trial management hence subject to  of discretion standard if the initial decision to try for kate is reviewed by an abusive decision standard not stretched reconstruction it seems to me that the decision to limit retrial to the relief granted ought to be subject to the same standard second the prosecution urges that this court has jurisdiction because the trial court order excluded or suppressed evidence well we disagree with this characterization of the court order if the issue is exclusion of the evidence by the district court then the review standard review should be that for exclusion of evidence which is an abuse of just discretion we think that the prosecution's characterization of the standard of review as is statutory construction is is properly viewed as an effort to  avoid review under the more deferential standard of abuse of discretion finally i'd like to return to the merits briefly again the government doesn't challenge the district court discretion to order separate trials for eligibility and for penalties so the selection of the court's order was fashioned in an effort to preserve those aspects of the jury's verdict that it could mean it the court was concerned we believe about the integrity of the jury's findings of guilt and at the eligibility phase the prosecution which has no right to challenge verdicts or appeal at this point the twenty to fifty five ruling seeks to do that it believes the jury rendered a bad decision at the first eligibility  phase i don't think that the prosecution's complaints about the jury being saddled with empty labels at the retrial are to be taken seriously because the vibes as i explained the district court has ruled that all of the information from the guilt phase and everything that the jury had with which to find verdicts at the eligibility phase will be coming in  the government will be able to order argue the heinous cruel and deprived aggravator as to the deaths of the three adults it will be able to argue the vulnerable victim aggravator is to the two children it will be able to argue substantial planning and premeditation as to terri to goose and as to all five yes the government is free to argue the statutory aggravating factor as to intent which is found by the jury which basically said the defendant intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim which resulted in the death of the victim it is difficult in my mind to doesn't include the word substantial this is a ruling that doesn't affect only the prosecution it's a ruling that would preclude the defense from attack a challenging the applicability of statutory aggravating factors of heinous cruel into praised and substantial planning and premeditation which we believe should not have been even presented to the jury as to miss johnson the statute requires that the defendant or just because there was no error the district court's finding with respect to the finding of only substantial planning of the one murder one or more statutory aggravating factors does the jury get to hear about non statutory aggravation and mitigation and then ultimately go on to weigh the decision the judge's order limiting  on the process for making the penalty determination under the burden of provisions of former eight forty eight and the lack of any allegation or finding of error and eligible the phase of the twenty to fifty five percent and that's part of  straightforward there is an unpublished case united states versus john johnson out of the eastern district of louisiana which confronted this situation the court tried for created the case it granted relief on penalt defense counsel and i think it's important to note that the court found no government contribution to the error that the government did nothing in the original trial to cause error it was the defense counsel who the court found to be ineffective and in this ruling granting a new sentencing hearing the court used that language we are going to have a new sentencing hearing we're going to a new sentencing hearing under the provisions of twenty one u s c section eight forty eight separate subsections g s through oh unless the government provides notice that it's not going to seek the death penalty we provided notice that we were demanding that hearing the court granted it and the parties move forward toward trial on a sentencing hearing it was only retrial to only the penalty selection phase so the government here is is not appealing in the district courts original order granting a new sensation hearing while we may disagree with that we agree with the defense that it doesn't appear the government can people that order until we spend a lot of money in a lot of months trying this case all over again but that's not what we're feeling we are appealing a later order entered by this just record  deciding on how this new trial is going to be tried and in their case the court has said that we're now going to only try a portion of it now the defense repeatedly relied upon and cited in articulate that this is nothing different from bifurcation the penalty phase it is fundamentally different from that when the court is bifurcating the penalty phase or try for katie in the entire capital case what the court is doing is deciding when the jury will make decisions and hear evidence about aggravating factors when not if the order in this case is a sighting if it's deciding that this jury shall not even hear or make the decision on any factors in fact the course decide in this case that this new jury will never get to make that decision this new jury is going to charge her with this awesome responsibility of weighing all these factors are going to tell what factors they have  without having a an opportunity to decide those factors for themselves and be able to figure out you know of it and of course i keep coming back to george smith's masterly on what was the basis what caused the district court put only things but that is the evidence that you will be precluded from presenting yes and for that purpose and so the the district court reach that decision again because the defense in their reply brief decided that since the court had only found air by the trial counsel during the selection penalty phase that therefore the new trial should only be asked to that portion of the of the hearing and the that there is no provision and some fact is contrary to the plain language of the statute and it's contrary to what congress contemplated want to set up this very elaborate system for having a jury make these hard decision and so you're saying if if if some defect occurs in the proceeding in one aspect of the second two phases in a trial for katie case such as ineffective assistance of absolutely and that's a lot more it congress designed and if you again keep going back to this that's if you look at the plain language of the statute that's what talks of it talks about a jury making this decision of both aggravating saturated many factors eligibility and the non statutory really factors that talks about a hearing the hearing that's the plain language of it and that's the scheme that congress designed and so if a court finds that there was no error as it did in this case in the guilt phase but finds that there is error in the sentencing phase then for fairness to all the parties in fairness ultimately to the jury house to make this decision we have to redo the sentencing from the beginning because that's where the error lies you can't take part of the sentencing and say we're only to redo part of it imagine for example if there was the during the closing arguments in the penalty phase of the trial the court found that there was error somewhere that really government said something wrong or the defense said something wrong if you take it to its logical extreme then we would have every trial that only consisted of closing arguments on the jury be told everything that happened beforehand and be bound by that it's not that absurd in this case but it's nearly that absurd in this case because we're asking jurors to be b weigh factors that they never found and they may disagree with and then be precluded from considering evidence for factors that are allegedly indictment but apparently they can't hear and that's not what congress designed that's not what was in place here  the defense counsel mentioned that you know govern has no problem with the court or the new jury being saddled if you will with the prior guilt for it well that's true because of two things one is the statute provides for that the statute contemplates a situation where a jury will decide only the sentencing hearing there is no such provision for parchin portion of the sentencing hearing and the other thing is there's a fundamental difference between a jury accepting guilt verdict mean told the defendant's guilty now you're going to sentence and being told you have to accept certain aggravating factors and that is because the jury doesn't weigh guilt guilt is simply a fact of the person's guilty no where in the way in process does the fact of guilt get everything from the beginning just like they would in any sense in hearing the  the difference again on the between the trial management and decision that would be reviewed for discretion is again what does what does the court doing it was management trial decides if the jury is even going to hear that evidence to begin with that's want to goes to statutory interpretation the court of step beyond any discretion at that point and simply misinterpreted what the statute allows and what relief or how a new capital hearing should be tried under the circumstances a sensing capital sensing hearing then and deal with whether the jury gets to decide it all it's simply on the order and the timing of when the jury gets to hear the evidence and decide the evidence in this case so again the government is seeking here simply to have the order put in place of the district court ordered when it issued relief and joint fifty five and that is they said we're going to have a new sensing hearing on to the procedures set forth by the statute that's all the government's asking for we're asking for a clean slate where this jury has the opportunity to make all the decisions it needs to make in order to determine whether somebody should live or talk and not be banned by decisions made by a prior jury that they