# U nitedStates C ou rt o f App eals For th e First C ircuit

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 , A dler & Matthewman, P.A., and Juan A. Pedrosa-Trapaga on b r i e f 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, 2006-2-

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 Af f a i rs. 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. S ee 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 a s s ume in defendant-appellant's favor, without deciding, that this is a correct interpretation of the collateral-order rule. See generally Restoration Preservation-3-

M a s o n ry, 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 ti me period to be unreasonable. The Ferebe majority apparent l y c o ncluded 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 tota l i t yof circumstances). His argument is no doubt motivated by the fact that he has suffered no prejudice. Ayala-Lopez's trial in the district c o u r t began on February 15, 2006 with voir dire, as per a scheduling order of December 8, 2005. The amen d e d 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-4-

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.
I t o nly 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 alt e r nate argument that he has suffered prejudice, this purely technical, non-substantive change created no uncertainty about the government's int e n t to continue pursuing the death penalty, and it imposed no additional burden of preparation on defe n s e counsel. Since the December 2005 notice contained no substantive changes from the notice served in May 2005, it r a i s es no serious issue of reasonable timing in its own right. Rather, again in defend a n t ' s favor , we will take the May 2005 notice, which added aggravating factors to those listed in the original notice, as the pro p e r reference point for determining whether the defense was given sufficient ad v a nce warning of the
gover n m ent's bases for seeking the death penalty. The December 2005 amendment has no practical i mp a ct on the determination. Consequently, even assuming that an ' o b jective' standard of reasonableness applies and, dubitante, that actual prejudice is not required, service of the last amended notice nearly two months befo r e the trial proceedings of February 15 did provide a reasonable interval of time in compliance with § 3593(a).-5-

Ayala-Lopez contends that § 3593(a) requires that service of a notice of intent to seek the death penalty be made on him
per s o n a l l y , a s o p p o s e dt o h i s l a w y e r . T h i s c o n t e n t i o n is

u n t e nable. The Eleventh Circuit, confronted with an identical argument, rejected it out of h a n d in a single footnote. Wilk, supra, at n.32. The rules by which courts and counsel op e r a te 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

- L o pez 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 conformi t y w i t h § 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 chang e 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-6-

'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.