United States Court of Appeals

For the First Circuit

No. 06-1640

UNITED STATES,

Appellee,

v.

CARLOS AYALA-LOPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

 Selya, Lynch and Howard,

Circuit Judges.

Rachel Brill, William Matthewman and Seiden, Adler &

Matthewman, P.A., and Juan A. Pedrosa-Trapaga on brief for

appellant.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Jacqueline D.

Novas, Assistant, U.S. Attorney, and Rosa Emilia Rodriguez-Velez,

United States Attorney on brief for appellee.

July 27, 2006
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Per Curiam. Defendant-appellant Carlos L. Ayala-Lopez is the

subject of three notices by plaintiff-appellee United States of

America under 18 U.S.C. § 3593(a), stating the bases of its intent

to seek the death penalty for the murder of a policeman employed by

the United States Department of Veterans Affairs. Ayala-Lopez

moved to strike the latest version of the notice submitted by the

appellee, but the U.S. District Court for the District of Puerto

Rico denied the motion. Ayala-Lopez seeks immediate review in this

court, arguing that the denial constitutes a 'collateral order'

relative to the final judgment rule. See 28 U.S.C. § 1291 ("The

courts of appeals ... shall have jurisdiction of appeals from all

final decisions of the district courts of the United States ....").

The government has moved to strike the appeal, but we ordered

merits briefing while that motion was held in abeyance. The

briefing is now complete.

We note that two other circuits have found this type of appeal

amenable to the collateral-order rule. See United States v.

Ferebe, 332 F.3d 722 (4th Cir. 2003)("[W]e conclude that district

court orders denying motions to strike Death Notices are collateral

orders susceptible to our review."); United States v. Wilk, 2006 WL

1685798, --- F.3d --- (11th Cir. 2006)("We agree with our sister

circuit..."). We shall assume in defendant-appellant's favor,

without deciding, that this is a correct interpretation of the

collateral-order rule. See generally Restoration Preservation
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Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59-60 (1st Cir.

2003)(inquiry into statutory jurisdiction is not mandatory

predicate to reaching merits). In any event, there is no need to

reach a more difficult non-Article III issue of appellate

jurisdiction if the case may be easily disposed of on the merits.

See Parella v. Ret. Bd. of R.I. Employees' Ret. Sys., 173 F.3d 46,

53-57 (1st Cir. 1999).

 On the merits, Ayala-Lopez argues that the amended notice of

intent to seek the death penalty was not provided "a reasonable

time before trial" as per § 3593(a). Ayala-Lopez cites Ferebe,

supra, for the proposition that "a reasonable time" is to be

measured 'objectively.' Id. at 731. His primary argument is that

he need not show any prejudice for the time period to be

unreasonable. The Ferebe majority apparently concluded that

reasonableness was to be measured without reference to prejudice to

the defendant. But cf. Wilk, supra, (applicable test is objective

reasonableness, determined by consideration of the totality of

circumstances). His argument is no doubt motivated by the fact

that he has suffered no prejudice.

Ayala-Lopez's trial in the district court began on February

15, 2006 with voir dire, as per a scheduling order of December 8,

2005. The amended notice in question was served on December 19,

2005. The original notice of intent to seek the death penalty was

served in December 2003, and a prior amended notice was served in
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May 2005. The timing of this third notice does not fall short of

any test for objective reasonableness. It contained no substantive

changes from a prior amended notice, which was served in May 2005.

It only corrected cross-references to renumbered counts in the

latest version of the indictment, while leaving the allegations of

aggravating factors exactly the same as the May 2005 notice. 

Contrary to appellant's alternate argument that he has

suffered prejudice, this purely technical, non-substantive change

created no uncertainty about the government's intent to continue

pursuing the death penalty, and it imposed no additional burden of

preparation on defense counsel. Since the December 2005 notice

contained no substantive changes from the notice served in May

2005, it raises no serious issue of reasonable timing in its own

right. Rather, again in defendant's favor, we will take the May

2005 notice, which added aggravating factors to those listed in the

original notice, as the proper reference point for determining

whether the defense was given sufficient advance warning of the

government's bases for seeking the death penalty. The December

2005 amendment has no practical impact on the determination.

Consequently, even assuming that an 'objective' standard of

reasonableness applies and, dubitante, that actual prejudice is not

required, service of the last amended notice nearly two months

before the trial proceedings of February 15 did provide a

reasonable interval of time in compliance with § 3593(a). 
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Ayala-Lopez contends that § 3593(a) requires that service of

a notice of intent to seek the death penalty be made on him

personally, as opposed to his lawyer. This contention is

untenable. The Eleventh Circuit, confronted with an identical

argument, rejected it out of hand in a single footnote. Wilk,

supra, at n.32. The rules by which courts and counsel operate

presuppose that communications, oral or written, with represented

parties will be through their attorneys. See Fed.R.Crim.P. R.

49(b); Model Rules of Prof'l Conduct R. 4.2. The reference in §

3593(a) to notice being "serve[d] on defendant" must be taken to

have been drafted with awareness of this settled practice.

Ayala-Lopez also contends that it was improper to allow

amendment of the notice of intent to seek the death penalty absent

a "showing of good cause" in conformity with § 3593(a). Even

without express leave of the district court, the allowance of the

amendment indicates an implicit finding of good cause, which makes

sense given that the amendment followed soon after the issuance of

a superceding indictment, was wholly technical in nature, and did

not change the substantive notification about the aggravating

factors to be alleged by the government.

For the reasons stated above, we also reject Ayala-Lopez's

contention that the errors he alleges cumulate decisively in favor

of reversal.

The order denying the "Motion to Strike the Government's
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'Third Notice of Intent to Seek the Death Penalty Against Carlos

Ayala Lopez'" is affirmed. The "United States' Motion to Strike

Interlocutory Notice of Appeal for Lack of Jurisdiction" is denied

as moot.