United States Court of Appeals

For the First Circuit

No. 05-1014

UNITED STATES OF AMERICA,

Appellant,

v.

DARRYL GREEN ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

___________________

No. 05-1151

IN RE UNITED STATES,

Petitioner.

____________________

PETITION FOR A WRIT OF MANDAMUS TO THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Selya, Lynch and Lipez,

Circuit Judges.

Steven L. Lane, Attorney, Appellate Section, Criminal

Division, U.S. Dep't of Justice, with whom Michael J. Sullivan,

United States Attorney, Theodore B. Heinrich and Lori J. Holik,
Assistant United States Attorneys, were on brief, for appellant.

Max D. Stern, with whom Randolph Gioia, Elizabeth Billowitz,

Sarah Jennings Hunt, William Brennan, and Brennan, Trainor, Billman

& Bennett, LLP were on brief, for appellee Darryl Green.

Max D. Stern, with whom Patricia Garin, Kenneth M. Resnik,

Jeffrey Wiesner, Stern, Shapiro, Weissberg & Garin, LLP, David P.

Hoose, and Katz, Sasson, Hoose & Turnbill were on brief, for

appellee Branden Morris.

John H. Cunha, Jr., with whom George F. Gormley, Christie M.

Charles and George F. Gormley, P.C. were on brief, for appellee

Jonathan Hart.

John H. Cunha, Jr., with whom Stephen Super and Cunha &

Holcomb, P.C. were on brief, for appellee Edward Washington.

Judith H. Mizner on brief for Federal Defender Office, amicus

curiae.

May 12, 2005
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SELYA, Circuit Judge. The district court, presiding over

a complex multi-count, multi-defendant capital case, issued a

pretrial order calling for the empanelment of two separate juries:

one to determine guilt and the other, totally different in

composition, to determine whether to impose the death penalty.

Before us, the government asserts that the Federal Death Penalty

Act (FDPA) forbids this binary course of action. We conclude that

the district court's unprecedented order presents a basic,

previously undecided question of substantial public importance and,

accordingly, entertain the government's petition for advisory

mandamus. Exercising that jurisdiction, we proceed to correct and

countermand the district court's erroneous interpretation of the

FDPA.

I. BACKGROUND

In 2003, a federal grand jury sitting in the District of

Massachusetts charged five men in a seventeen-count superseding

indictment. The golconda of charges included racketeering, 18

U.S.C. § 1962(c); racketeering conspiracy, id. § 1962(d); murder in

aid of racketeering, id. § 1959(a)(1); and conspiracy to commit

murder in aid of racketeering, id. § 1959(a)(5). Four of the five

defendants — Darryl Green, Branden Morris, Jonathan Hart, and

Edward Washington — are parties to this proceeding. We focus

exclusively on them.
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The indictment alleged that the foursome were all members

of the Esmond Street Posse, variously described as a Boston street

gang or criminal enterprise, which was engaged in peddling

marijuana and crack cocaine. Count Sixteen of the indictment

charged Green and Morris, but not Hart or Washington, with the

murder of one Terrell Gethers in aid of racketeering. Under the

controlling statute, 18 U.S.C. § 1959(a)(1), that was a capital

charge, carrying a potential penalty of death for the two affected

defendants.

In response to a flurry of severance motions, see Fed. R.

Crim. P. 14, the district court ruled that the capital defendants

should not be tried together. United States v. Green, 324 F. Supp.

2d 311, 324-25 (D. Mass. 2004) (Green I). Relatedly, the court

decreed that Hart would be tried with Green and that Washington

would be tried with Morris. Id. at 326-28. These rulings brought

to the fore a concern previously voiced by the non-capital

defendants, Hart and Washington, who had posited that it would be

unfair to force them to trial before a death-qualified jury.

We pause to place this concern into proper perspective.

The Supreme Court has held that, in a capital case, the government

may exclude from jury service those individuals whose personal

opposition to the death penalty is such that it would prevent or

substantially interfere with their ability to apply the law.

Wainwright v. Witt, 469 U.S. 412, 424 (1985). The process of
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winnowing out such conscientious objectors in jury selection is

known as death-qualification.

A capital case potentially involves two separate trial

phases. In the first phase, the jury determines whether the

capital defendant is guilty of the crime(s) charged. If the

defendant is convicted of a capital offense, a second proceeding

ensues to determine whether that offense, under the circumstances

of the case, warrants the death sentence. As a single jury

normally hears both the guilt and penalty phases, deathqualification occurs as part of the original jury empanelment.

The defendants in this case insist that the process of

selecting a single death-qualified jury to consider both the guilt

and penalty phases has the correlative effect of putting a jury in

the box that will be more prone to convict. To support this

notion, the defendants proffered below statistical evidence

purporting to indicate that African-Americans were significantly

underrepresented in the local jury venire and that deathqualification would further reduce the possibility that any

African-Americans — a group more likely to oppose the death penalty

than non-African-Americans — would be able to serve on the jury.

The defendants also tendered statistical evidence indicating a

similar, though less pronounced, effect as to potential female

jurors. The defendants then submitted studies purporting to show

that death-qualified jurors are significantly more likely to
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convict than non-death-qualified jurors. Hart and Washington

argued that these perceived consequences of death-qualification

were particularly unfair as applied to defendants who were not

themselves facing the death penalty.

In responding to these plaints, the district court

conceded that the defendants (including the non-capital defendants)

had no constitutional entitlement to a non-death-qualified jury.

See Green I, 324 F. Supp. 2d at 330 (citing Buchanan v. Kentucky,

483 U.S. 402 (1987)). The court, however, did not stop there; it

viewed the defendants' importunings as raising a case management

issue within the realm of trial court discretion. Id. 

Noting the concerns enumerated by the non-capital

defendants along with the potential strain on judicial resources

that would accompany a further proliferation of the number of

trials needed, the court devised two potential solutions and

invited briefing on them. One entailed selecting a single jury

(including the maximum number of alternates) for each trial, but

deferring death-qualification until after the guilt phase had

concluded. If a capital conviction ensued, the court would then

attempt to death-qualify the jury before the penalty phase began

and, if the number of remaining jurors and alternates fell below

the requisite twelve, would discharge that jury and empanel a new,

death-qualified jury exclusively for the penalty phase. Id. at

331. The second proposal contemplated selecting two distinct
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juries at the outset, one (non-death-qualified) to hear the guilt

phase and the other (death-qualified) to hear the penalty phase.

Id.

In the briefing that followed, the government denigrated

both options and the defendants lobbied for the second. On

November 3, 2004, the district court ordered two juries empaneled

for each of the scheduled trials (one to adjudicate guilt and the

second, if needed, to fix the nature of the penalty). United

States v. Green, 343 F. Supp. 2d 23, 25 (D. Mass. 2004) (Green II).

The court determined that the applicable provision of the Federal

Death Penalty Act, 18 U.S.C. § 3593(b), did not require a unitary

jury. Id. Even if it did, the court held, the defendants were

entitled to waive the requirement. Id.

The government appealed this order and filed a protective

petition for a writ of mandamus under the All Writs Act, 28 U.S.C.

§ 1651(a). We turn first to the jurisdictional question and then

to the merits of the lower court's order.

II. APPELLATE JURISDICTION

The government's roadmap to review traces several

possible avenues through which our jurisdiction may attach. We can

entertain an interlocutory appeal, the government says, because the

order appealed from is a collateral order, that is, an order that

conclusively determines an important legal question, which is

completely separate from the merits of the underlying action and is
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effectively unreviewable by means of a archetypical end-of-case

appeal. See, e.g., Rhode Island v. U.S. EPA, 378 F.3d 19, 25 (1st

Cir. 2004) (noting circumstances in which interlocutory orders are

immediately appealable under the collateral order doctrine); In re

Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire

Litig., 982 F.2d 603, 608-09 (1st Cir. 1992) (similar); see also

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).

We view the use of the collateral order doctrine as

problematic in the circumstances of this case. This court has been

wary of creating running room for back-door attempts to evade the

longstanding rule that appeals by the government in criminal cases

must be specifically authorized by statute. See United States v.

Watson, 386 F.3d 304, 307-08 (1st Cir. 2004); United States v.

Kane, 646 F.2d 4, 5-7 (1st Cir. 1981). This wariness arises, in

part, because of a realization that criminal matters are different

— and special concerns counsel against permitting government

appeals in criminal cases under the collateral order doctrine. See

United States v. Horn, 29 F.3d 754, 768-69 (1st Cir. 1994). Among

them are "speedy trial and double jeopardy concerns." Id. at 768;

see also United States v. McVeigh, 106 F.3d 325, 330-32 (10th Cir.

1997) (per curiam) (citing Horn and noting that the "principal

prudential bases are the avoidance of undue delay, and the

avoidance of harassment" (citations omitted)).
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At a bare minimum, then, allowing a government appeal to

go forward by way of the collateral order doctrine in a criminal

case requires both that "the conditions of the collateral order

doctrine are satisfied, and [that] the prudential concerns that

traditionally militate against allowing the government to appeal in

a criminal case favor, or are at least neutral in respect to, the

availability of a government appeal." Horn, 29 F.3d at 769. This

court has found such concerns overcome only on rare occasions, such

as where, prior to the entry of the order appealed from, guilt has

been determined, sentence imposed, "and no prospect of piecemeal

litigation endures." Id. at 768-69. Because it is arguable how

these prudential concerns cut in this case, we question whether an

appeal from a dual jury order in a criminal case comes within the

narrow purview of the collateral order doctrine. This doubt is all

the more profound because of our uncertainty about whether an order

affecting sentencing procedure can be considered "completely

separate" from the merits of the underlying action. See Sell v.

United States, 539 U.S. 166, 176 (2003) (permitting collateral

appeal in criminal case when issue was wholly distinct from

"questions concerning trial procedures"); McVeigh, 106 F.3d at 328,

332 (holding order barring victim-impact witnesses from observing

guilt phase of capital trial not sufficiently separate from merits

of case); United States v. Patterson, 882 F.2d 595, 599 (1st Cir.

1989) (holding that the "sentencing process . . . is an integral
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aspect" of a criminal case and "is not in any sense independent of

the main course of the prosecution" (citations and internal

quotation marks omitted)).

In the final analysis, we need not definitively resolve

the appealability question. Review is available, in our

discretion, by way of mandamus. We explain briefly.

Broadly stated, there are two types of mandamus. The

more common is supervisory mandamus. See, e.g., In re Atlantic

Pipe Corp., 304 F.3d 135, 139-40 (1st Cir. 2002); Horn, 29 F.3d at

769 & n.19. That strain of mandamus generally is limited to

situations in which the party seeking the writ has a clear

entitlement to relief, yet is threatened with irreparable harm

should that relief be delayed or deferred. See, e.g., In re

Sterling-Suárez, 306 F.3d 1170, 1172 (1st Cir. 2002); In re

Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995). The defendants

argue that neither requirement is met here — and they are probably

correct with respect to the second requirement.

The government suggests that it shares an interest with

the public at large in seeing that the courts properly apply the

FDPA — an interest that would be irreparably harmed if the district

court proceeded with dual juries despite a contrary statutory

command. This suggestion lacks force. If a blow to the public

interest caused by a court's erroneous interpretation of a

statutory provision were to constitute irreparable injury, the bar
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would be set so low as to render the requirement superfluous. As

Justice Rehnquist wrote, "to issue a writ of mandamus under such

circumstances would undermine the settled limitations upon the

power of an appellate court to review interlocutory orders." Will

v. Calvert Fire Ins. Co., 437 U.S. 655, 661 (1978) (plurality op.)

(citation and internal quotation marks omitted).

The second type of mandamus — known as advisory mandamus

— is more apt in the circumstances at hand. Mandamus, in any form,

is an extraordinary remedy, but advisory mandamus is available only

in a tiny subset of cases. Such cases are those that present novel

questions of great significance which, if not immediately

addressed, are likely to recur and to evade effective review.

Horn, 29 F.3d at 769. The aim of advisory mandamus, then, is to

settle substantial questions of law in circumstances that "would

assist other jurists, parties, [and] lawyers." Id. at 770. To

obtain relief under this species of mandamus, the petitioner does

not need to show irreparable harm. See Atlantic Pipe, 304 F.3d at

140.

This case lends itself to an application of the advisory

mandamus doctrine. The district court's interpretation of section

3593(b) is unprecedented, and it hardly needs explaining why proper

death penalty procedure is of great importance to the

administration of justice. If the propriety of the district

court's interpretation is not evaluated here and now, it would very
1To be sure, a defendant might be able to test, by an end-ofcase appeal, an order refusing to constitute dual juries. However,

that is not the type of order with which we are confronted.

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likely evade review. On the one hand, if successive juries convict

and then impose the death penalty, the government will not be able

to appeal this favorable verdict, see United States v. Moran, 393

F.3d 1, 12 (1st Cir. 2004), and the defendants, having urged the

district court to abandon a unitary jury in favor of dual juries,

could not be heard to complain about this procedural innovation,

see United States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990)

(holding that a criminal defendant cannot complain of invited

error). On the other hand, if the first jury acquits or the second

jury declines to impose capital punishment, the defendants will

have no incentive to appeal and double jeopardy principles will

prevent the government from doing so. See Watson, 386 F.3d at 308;

see also Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003)

(noting that "the Double Jeopardy Clause [applies] to capitalsentencing proceedings where . . . the prosecution [must] prove

certain statutorily defined facts beyond a reasonable doubt to

support a sentence of death").1

To cinch matters, the question will almost certainly

recur. There is a longstanding belief in certain quarters, shared

by the defendants in this case, that an accused's guilt or

innocence is likely to be judged less harshly by a non-deathqualified jury. Indeed, a federal district court in Texas already
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has relied on the procedural innovation implemented in this case as

precedent for issuing a similar order in a different capital case.

See United States v. Williams, 400 F.3d 277, 282 & n.4 (5th Cir.

2005) (per curiam) (vacating district court's order).

Consequently, we deem this case an appropriate candidate for the

exercise of our advisory mandamus authority.

III. ANALYSIS

The district court's primary justification for its dual

jury order rests with its interpretation of the relevant section of

the FDPA. The court concluded that 18 U.S.C. § 3593(b) permits a

court to decide, before trial commences, that good cause exists to

discharge the original jury once it has adjudicated the defendant's

guilt and then empanel a new jury for the penalty phase. Green II,

343 F. Supp. 2d at 30; Green I, 324 F. Supp. 2d at 331. As a

secondary ground, the court held that if the statute does require

a unitary jury to be empaneled at the outset of the trial, the

defendant may unilaterally waive that requirement. See Green II,

343 F. Supp. 2d at 30-31; Green I, 324 F. Supp. 2d at 331-32.

18 U.S.C. § 3593(b) provides that if a defendant is found

guilty or pleads guilty to a capital offense, there "shall" be a

separate sentencing hearing. Id. The statute further provides

that "[t]he hearing shall be conducted before the jury that

determined the defendant's guilt." Id. § 3593(b)(1). The statute

proceeds to carve out a series of exceptions. These contemplate
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that the penalty phase may be conducted before a jury empaneled for

that purpose alone if — and only if — one of four circumstances

obtains:

(A) the defendant was convicted upon a plea of

guilty;

(B) the defendant was convicted after a trial

before the court sitting without a jury;

(C) the jury that determined the defendant's

guilt was discharged for good cause; or

(D) after initial imposition of a sentence

under this section, reconsideration of the

sentence under this section is

necessary . . . . 

Id. § 3593(b)(2). Finally, the statute provides that the penalty

phase may be tried "before the court alone, upon the motion of the

defendant and with the approval of the attorney for the

government." Id. § 3593(b)(3).

The question before us concerns the proper interpretation

of section 3593(b)(2)(C). The government argues that this is a

narrow jury-discharge provision that only comes into play if, after

a finding of guilt, good cause to discharge the original jury

arises. The defendants argue that this is a broader, more

malleable provision, one that should be construed against the

backdrop of a trial court's extensive case management powers. On

this basis, the defendants exhort us to hold that section

3593(b)(2)(C) requires only that the discharge of the guilt phase

jury must occur before a new penalty phase jury is empaneled. As

a necessary corollary of this interpretation, the defendants reason

that the district court may decide at any time — even in advance of
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trial — that it will discharge the guilt phase jury for what it

deems to be good cause and empanel a new jury for the penalty

phase.

In mulling the validity of these competing claims, we

start with the text of the statute. See Sepulveda v. United

States, 330 F.3d 55, 64 (1st Cir. 2003). Section 3593(b)(2)(C)

says that a new penalty phase jury will hear the case if "the jury

that determined the defendant's guilt was discharged for good

cause." That phrasing tells us a great deal about Congress's

intent. The use of the word "determined," in the past tense, makes

clear that the phrase "discharged for good cause" refers to

discharge for events arising after the guilt phase has been

concluded. See Jones v. United States, 527 U.S. 373, 418 (1999)

(Ginsburg, J., dissenting) (opining that "[d]ischarge for 'good

cause' under § 3593(b)(2)(C) . . . is most reasonably read to cover

guilt-phase . . . juror disqualification due to, e.g., exposure to

prejudicial extrinsic information or illness"); see also id. at 381

(majority op.) (expressing agreement with dissent's interpretation

of the phrase "good cause"); Williams, 400 F.3d at 282. This makes

perfect sense: jurors who originally were qualified to sit may, by

some untoward exposure or affliction, become incapacitated after

the guilt phase ends but before the penalty phase ends so that a

properly empaneled jury that has determined guilt will not be able

to continue to serve.
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The structure of a statute often informs its text. See

Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir. 2002);

United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99

(1st Cir. 1994). Here, the structure of section 3593(b) reinforces

the reading suggested by its plain language. The default rule,

expressed in subsection (b)(1), is that the jury that determines

the guilt phase of a federal capital case shall also serve as the

jury that determines the penalty phase. That provision is set

forth first, in mandatory language and without condition.

Subsection (b)(2) spells out four exceptions to the default rule of

subsection (b)(1). That subsection is conditional; it directs that

a new jury shall be empaneled for the penalty phase "if" one of

four situations arises.

The common denominator among these four exceptions is

that they all appear to represent situations in which it is either

impossible or impracticable to apply the default rule of a unitary

jury. This is unarguably true of subparagraphs (A) and (B); each

of those subparagraphs deals with a situation in which guilt is not

determined by a jury at all. That is also readily apparent with

respect to subparagraph (D). The vast majority — if not all — of

situations requiring the reconsideration of an imposed sentence

will be those that occur when direct or collateral review has

identified, months or years later, some defect in the original

sentencing proceeding. Assuming that a jury participated in the
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original proceeding, it would have been long since discharged and

recalling it would, for a variety of reasons, be infeasible.

Structurally, this leads to the conclusion that

subparagraph (C) should be read as referring to those situations in

which empaneling a fresh penalty phase jury is unavoidable because

of some exigency associated with, or arising after, the

determination of the defendant's guilt. This is the most natural

(and, therefore, the favored) reading of the statute. So

construed, subsection (b) presents a coherent, unified theme: a

single, properly constituted jury will hear both phases of a

federal capital trial unless circumstances definitively rule out

that option.

The defendants read the statute differently. They invite

us to find that the function of subsection (b)(2)(C) is to vest in

the district court wide discretion as to whether one or two juries

is appropriate in a particular capital case. In their view,

Congress's choice of language was intended only to prevent two such

juries from being sworn simultaneously. This is resupinate

reasoning.

First and foremost, the defendants' reading contradicts

the structure of the statute by turning the "good cause" language,

clearly written in the form of an exception, into a threshold

question to be posed at the time of the original jury empanelment

in every capital case. Moreover, even if we were disposed to
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ignore the structure of the statute — which we are not — construing

the language of subparagraph (C) as providing wide trial court

discretion over the deployment of dual juries would require a

linguistic contortion to reach a result that Congress could have

accomplished much more simply and straightforwardly. Courts ought

to construe statutes, whenever possible, "in a commonsense manner,

honoring plain meaning, and avoiding absurd or counter-intuitive

results." United States v. Carroll, 105 F.3d 740, 744 (1st Cir.

1997) (internal citations omitted). The defendants' interpretation

of the FDPA violates all three of these tenets.

Of course, there are circumstances, albeit few and far

between, in which the apparent meaning of a statute must yield to

other considerations. See Greebel v. FTP Software, Inc., 194 F.3d

185, 192 (1st Cir. 1999) ("Even seemingly straightforward text

should be informed by the purpose and context of the statute.");

see also N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 6 (1st

Cir. 2000) (suggesting that there sometimes may be "sound reason

for departure" from the apparent meaning of statutory language).

The defendants strive to persuade us that this is such an instance

— that the substantial discretion enjoyed by district courts in

managing cases must inform our reading of the statute. To this

end, they cite our decision in Atlantic Pipe for the proposition

that Congress must speak in "clear and unmistakable" terms in order

to "cabin the district courts' inherent powers." 304 F.3d at 142.
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The defendants misread Atlantic Pipe, which squarely

holds that a court's "inherent powers cannot be exercised in a

manner that contradicts an applicable statute or rule." Id. at

143. This is just such a case: section 3593 limns a set of

procedural rules applicable to federal capital cases. A brief

glance at the other subsections, apart from subsection (b), makes

this transparently clear. Subsection (a) mandates that the

government "shall" provide pretrial notice of its intent to seek

the death penalty and specify the aggravating factors that it

intends to prove in support of that penalty. 18 U.S.C. § 3593(a).

Subsection (c) delineates the procedures for how the parties must

go about proving aggravating or mitigating factors. Id. § 3593(c).

Subsection (d) sets forth a requirement for "special findings"

identifying which aggravating and mitigating factors were proven.

Id. § 3593(d). Subsection (e) memorializes the requirement that

the factfinder "shall consider" whether the aggravating factors

outweigh the mitigating factors in the case, and then (if a jury,

by unanimous vote) "shall recommend" the penalty. Id. § 3593(e).

Subsection (f) directs that the court "shall instruct the jury"

that it cannot consider the race, color, religious belief, national

origin, or gender of the defendant or the victim in deciding

whether to apply the death penalty. Id. § 3593(f).

These provisions are of a piece with subsection (b)

which, as previously described, specifies that the jury that
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determined guilt "shall" hear the penalty phase unless one of four

narrow exceptions applies. All of these provisions employ

mandatory language directing that particular rules of procedure

"shall" be followed. This refutes any notion that Congress

intended the district courts to retain discretion to disregard any

or all of the prescribed rules. See Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (explaining that

statutory procedural rules couched "in terms of the mandatory

'shall' . . . normally create[] an obligation impervious to

judicial discretion").

The bottom line is this: where Congress has provided a

specific panoply of rules that must be followed, the district

court's discretionary powers simply do not come into play. Because

this is such an instance, there is no reason to distort the plain

meaning of the statutory text in an effort to preserve those

powers. We hold, therefore, that the language of the exception in

section 3593(b)(2)(C), ("the jury that determined the defendant's

guilt was discharged for good cause . . . ") refers exclusively to

a jury that has returned a guilty verdict in a federal capital

case. Accord Williams, 400 F.3d at 282 (holding that the "'good

cause' language pertains to discharging a jury that has already

decided the defendant's guilt" and that "[t]he provision does not

allow a pretrial option for a bifurcated jury").
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In a further effort to justify its order, the court below

made an alternate holding: that "to the extent that § 3593 can be

read to require a unitary jury, defendants [may] waive that

requirement." Green II, 343 F. Supp. 2d at 25. We reject that

holding as well.

Section 3593 sets forth a set of general rules that

govern all parties and the court itself. In those instances in

which the statute does create rights that accrue to only one side

or the other, the statute is explicit. For example, section

3593(c) specifies that the government "shall open the argument" and

the defendant "shall [then] be permitted to reply." So too section

3593(b)(3), which makes specific reference to the ability of the

parties jointly to waive certain of the rules (e.g., the right to

a sentencing jury). The statute does not offer any such option

with respect to the unitary jury rule of subsection (b)(1). The

intentional inclusion of a waiver mechanism in one part of the

statute persuasively indicates that the exclusion of such a waiver

provision in another part of the same statute was intentional. See

Duncan v. Walker, 533 U.S. 167, 173 (2001) (describing as "wellsettled" the proposition that "where Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion" (citation and internal quotation marks omitted));
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Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 68 (1st Cir. 2002)

(explaining that "in harmony with the maxim inclusio unius est

exclusio alterius, the explicit provision of remedies within a

statute cuts sharply against the implication of [others]"). A

federal capital defendant can no more waive the default rule of a

unitary jury than the government can waive the rule that requires

the court to instruct the jury to disregard the defendant's race.

If more were needed — and we doubt that it is — we would

find it surpassingly difficult to believe that a statute that

requires government approval of the defendant's motion to dispense

with a sentencing jury would sub silentio permit a defendant to

obtain two juries as of right. With respect to the deployment of

a unitary jury in a federal capital case, "Congress intended to

give no options, only commands." Williams, 400 F.3d at 282. As

such, the district court's order cannot be sustained on the basis

of its alternate holding.

Our odyssey is not yet completed. The government invites

us to pass upon the validity of the district court's suggestion

that it might defer death-qualification altogether until after it

takes a verdict on the issue of guilt or innocence. See Green I,

324 F. Supp. 2d at 331. We decline the invitation. Despite the

nomenclature, advisory mandamus does not permit federal courts to

issue advisory opinions. See Rhode Island v. Narragansett Indian

Tribe, 19 F.3d 685, 705 (1st Cir. 1994) ("Article III of the
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Constitution forbids courts from issuing advisory opinions or

answering hypothetical questions."). The suggestion against which

the government seeks protection is not embodied in an order and the

defendants have thus far decried the concept. See Green II, 343 F.

Supp. 2d at 25. Consequently, there is no live controversy as to

that suggestion.

III. CONCLUSION

Section 3593(b)(2) requires that, in a federal capital

case, the jury that determines guilt also must determine the

penalty unless one of four exceptions pertains. The exception

relied upon by the lower court — "discharge[] for good cause," 18

U.S.C. § 3593(b)(2)(C) — requires that there be a dismissal of the

jury for good cause after it has returned a verdict in the guilt

phase of the trial. The district court's order is incompatible

with our reading of this statute.

We are not unmindful that the FDPA, as written, may

complicate the trial of mixed capital and non-capital charges. But

our task is to attempt, as best we can, to follow Congress's

prescription, not to endeavor to improve upon it. The Supreme

Court has made it pellucid that a death-qualified jury

constitutionally may hear and determine non-capital charges, at

least where there are "significant interests" in trying a noncapital defendant jointly with a defendant who is facing a capital

charge. See Buchanan, 483 U.S. at 420. At the same time, this
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language cannot be read to provide the government with an absolute

entitlement to joint capital/non-capital trials whenever it

pleases. Thus, we are confident that the district court, armed

with the discretion to sever charges and defendants, will be able

to ensure fundamental fairness in the trial of such mixed cases.

We need go no further. Inasmuch as the central issue

presented in this case is novel, of great importance, likely to

recur, and otherwise apt to evade review, we grant the government's

petition for a writ of mandamus, vacate the dual jury order, and

remand the case for further proceedings consistent with this

opinion.

So Ordered.