                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3199
                                   ___________

                                        *
                                        *
In re: United States of America;        *
Janet Reno, Attorney General;           * Petition for a Writ of Mandamus.
and Eric H. Holder, Jr., Deputy         *
Attorney General,                       *
                                        *
                                        *
             Petitioners.               *
                                        *
                                   ___________

                             Submitted: October 20, 1999
                                Filed: December 8, 1999
                                 ___________

Before McMILLIAN, BRIGHT, and MURPHY, Circuit Judges.
                            ___________

MURPHY, Circuit Judge.

       This petition for a writ of mandamus is related to a federal prosecution in the
Eastern District of Arkansas in which the United States Attorney filed notices of
intention to seek the death penalty against Chevie O’Brien Kehoe and Daniel Lewis
Lee. Both defendants were charged with racketeering and murder in aid of
racketeering and were subsequently found guilty by a jury. After a verdict of life
imprisonment without release was returned for Kehoe, the United States Attorney
unsuccessfully sought permission from the Department of Justice (“DOJ”) to withdraw
the death notice in Lee’s case. The jury recommended that Lee be sentenced to death,
and he moved to set aside the death verdict. Lee sought discovery in support of the
motion and subpoenaed Attorney General Janet Reno and Deputy Attorney General
Eric Holder in connection with the procedures used in deciding not to withdraw the
death notice. Petitioners Reno and Holder moved to quash the subpoenas, the district
court denied their motion, and petitioners now seek a writ of mandamus.

                                             I.

       The Federal Death Penalty Act of 1994 provides procedures for federal capital
cases. 18 U.S.C. § 3591(a) et seq. (Supp. II 1999). If the government decides to
seek the death penalty in a federal criminal case, it must file and serve upon the
defendant a notice of that intention at a “reasonable time” prior to trial. 18 U.S.C. §
3593(a). The district court conducts a separate sentencing hearing to determine
whether the death penalty will be imposed in cases where a defendant is found guilty
of a capital count. 18 U.S.C. § 3593(b). Special findings on any aggravating or
mitigating factor are to be returned by the jury, or the court if it is the factfinder. 18
U.S.C. § 3593(d) The factfinder then makes the ultimate sentencing finding of death,
life imprisonment without release, or some lesser sentence. 18 U.S.C. § 3593(e). If
the recommendation is “death or life imprisonment without possibility of release, the
court shall sentence the defendant accordingly.” 18 U.S.C. § 3594.

       Shortly after the passage of the Federal Death Penalty Act, the Attorney General
promulgated a death penalty protocol, now found in § 9-10.000 et seq. of the United
States Attorney’s Manual (the “Manual”). The protocol provides for centralized
review of any death penalty decision made by attorneys acting on behalf of the United
States. When a federal indictment charges a capital count, the prosecutor is to send to
the DOJ Criminal Division a completed death penalty evaluation form describing the
facts and evidence, the theory of liability, the federal interest in the case, and any other
information relevant to the charging decision. Manual at § 9-10.040. This evaluation
form is reviewed by the Attorney General’s Review Committee on Capital Cases (the

                                            -2-
“committee”) whose members are appointed by the Attorney General. The committee
presently consists of the Deputy Attorney General, the Assistant Attorney General of
the Criminal Division, and several other DOJ officials. The Attorney General decides
whether the government will seek the death penalty after receiving a recommendation
from the committee. Id. A prosecutor who wishes to withdraw a previously filed
death notice must notify DOJ and state the reasons for the request. The DOJ
committee then reviews the request and makes a recommendation to the Attorney
General, who decides whether the death notice will be withdrawn. Id. at § 9-10.090.

       Respondent Daniel Lewis Lee and his co-defendant, Chevie O’Brien Kehoe,
were charged with murder in aid of racketeering, in violation of 18 U.S.C. §
1959(a)(1), and various other offenses. Prior to trial Paula Casey, the United States
Attorney for the Eastern District of Arkansas, filed notices of intention to seek the
death penalty against both defendants. Evidence at trial showed that they had
committed numerous crimes to further the goals of a white supremacist organization,
including the robbery and murder of a gun dealer, William Mueller; his wife, Nancy
Mueller; and their eight year old daughter, Sarah Powell. Both defendants were found
guilty on the three capital counts on May 4, 1999, and separate sentencing hearings
were scheduled for each.

       Before the sentencing verdict in Kehoe’s case was returned, the district court
asked the lead prosecutor whether that verdict would affect the government’s charging
decision in Lee’s case. The prosecutor expressed some uncertainty about whether
DOJ approval would be required, but he believed the government would not seek a
death sentence against Lee if the jury did not recommend death for Kehoe. After the
jury returned with a verdict of life without release for Kehoe, the court was informed
that United States Attorney Casey wanted to withdraw the death notice in Lee’s case
but that it was not clear whether she had the authority to do so without DOJ approval.
The court called a recess to allow Casey to contact the department.


                                         -3-
       Casey then spoke with Deputy Assistant Attorney General Kevin V. DiGregory,
a member of the death penalty committee, who told her that decertification required
DOJ approval and that she would have to speak with the committee. Because Attorney
General Janet Reno was in a meeting at the White House, DiGregory referred the
matter to Deputy Attorney General Eric Holder who convened the other members of
the committee to meet with Casey in a telephone conference. At the end of the
conference, Holder stated that the death notice would not be withdrawn and told Casey
that she should proceed accordingly. She reported the government’s position to the
court, and Lee’s penalty phase began the following morning. The jury returned with
a verdict of death.

      Lee moved under FED. R. CRIM. P. 33 and 35 to set aside the verdict, asserting
that DOJ had not followed the protocol in the Manual requiring that the Attorney
General make the final decision regarding the decertification of a death notice. He
claimed that he had the right to have the protocol followed, relying on a series of
Supreme Court cases that require administrative agencies to abide by their internal
regulations when taking actions that affect individual rights. Lee also moved for the
issuance of subpoenas to compel testimony by the Attorney General and her deputy.
The motion was granted, and subpoenas were issued directing Reno and Holder to
appear at a district court hearing on June 29, 1999. The subpoenas were not served,
however, and counsel for the parties testified at the June 29 hearing about what had
occurred in respect to Lee’s penalty proceeding. The district court decided to amend
the subpoenas to require appearances by Reno and Holder on July 29, but continued
them pending its resolution of a motion by the government to quash the subpoenas.

       In its motion to quash, the government argued that high government officials like
the Attorney General and the Deputy Attorney General can only be compelled to testify
under extraordinary circumstances not present in this case and that the Manual and its
death penalty protocol have not created procedural or substantive rights enforceable by
Lee. The government argued further that Deputy Attorney General Holder had

                                          -4-
statutory authority to act in the Attorney General’s absence under 28 U.S.C. § 508(a),
the DOJ decision making process is protected from inquiry by the deliberative process
and the work product privileges, and Lee failed to comply with regulations governing
the release of DOJ material. 28 C.F.R. § 16.21 et seq. (the “Touhy” regulations). As
a supplement to its motion, the government submitted the affidavit of DiGregory which
stated that at the time Casey requested a decision on withdrawal of the death notice in
Lee’s case, the Attorney General was in a meeting at the White House and unavailable
to decide the question, that Deputy Attorney General Holder convened the committee
to meet with Casey, and that Holder then made the decision not to withdraw the death
notice.

       Lee urged the court to deny the motion to quash, arguing that he had a right to
enforce the provisions of the Manual, but if not, the Manual should be disregarded and
the local prosecutor’s decision to decertify the death notice should be implemented.
Lee claimed in addition that the testimony of Reno and Holder was necessary to
determine whether Attorney General Reno was legally absent at the time that Holder
made the decision not to withdraw the death notice in Lee’s case. Finally, Lee argued
that the deliberative process and work product privileges were inapplicable to the
testimony he sought.

       The district court denied the government’s motion to quash. In its written
opinion, the court suggested that the death penalty protocol contained in the Manual
might be enforced by a criminal defendant under certain circumstances, rejected the
privilege claims and the argument that Lee had failed to comply with the Touhy
regulations, and decided that the sworn statements that Attorney General Reno had
been unavailable and that Holder was authorized to act in her absence did not foreclose
the need for discovery. The district court concluded that the DiGregory affidavit was
insufficient to resolve questions of fact it considered relevant to Lee’s motion to set




                                          -5-
aside the jury verdict and that further discovery from Reno and Holder was required
before it would address the merits of Lee’s motion.1

       Attorney General Reno and Deputy Attorney General Holder then filed a petition
for a writ of mandamus, asking this court to intervene to protect them from the
subpoenas issued in the district court.2 They argue that the circumstances of this case
do not permit the particular discovery sought against them as high government officials
and that Lee’s argument that he has a due process right to enforce the death penalty
protocol has no merit. Lee continues to assert a right to obtain more discovery before
the resolution of his motion to set aside the jury’s death verdict.

         The writ of mandamus is an “extraordinary writ and ‘is not ordinarily available
to a litigant to obtain appellate review of interlocutory discovery orders.’” In re Bieter,
16 F.3d 929, 931 (8th Cir. 1994) (quoting Diversified Indus., Inc. v. Meredith, 572


      1
          The district court stated that additional discovery was required on the following
issues:

      [T]he whereabouts of the Attorney General on May 10, 1999, and the
      extent of her knowledge of, or participation in, the Protocol [;] whether
      the Defendant had an adequate opportunity to be heard; whether a
      recommendation was in fact made by the committee; whether the
      recommendation was conveyed to the individual vested with ‘final’
      authority; whether, if in fact the Attorney General did not participate, she
      was legally ‘absent’ on that date; whether she specifically authorized the
      Deputy Attorney General to act in her stead in this case; and whether,
      after the fact, the Attorney General has reviewed the procedures and the
      decision of the Deputy Attorney General and approves or disapproves of
      the procedures used and agrees with or disagrees with the decision of the
      Deputy Attorney General.
      2
        The district court has stayed the subpoenas pending this court’s decision on the
petition.
                                             -6-
F.2d 596, 599 (8th Cir. 1977)). Nonetheless, the writ is the appropriate remedy when
there are “serious policy considerations . . . sufficiently compelling to require
immediate appellate attention” and direct appeal cannot provide an adequate remedy.
 Id. (internal quotation marks and citation omitted).

                                            II.

       The need for controlling the use of subpoenas against high government officials
was recognized by the Supreme Court in United States v. Morgan, 313 U.S. 409, 421-
22 (1941). In that case involving a subpoena directed to the Secretary of Agriculture,
the Court stated that regular examination of high officials concerning the reasons for
their official actions would undermine the integrity of the administrative process. Id.
at 422. Other courts have reasoned similarly. Because “[h]igh ranking government
officials have greater duties and time constraints than other witnesses . . . [they] ‘should
not, absent extraordinary circumstances, be called to testify regarding their reasons for
taking official actions.’” In re United States (Kessler), 985 F.2d 510, 512 (11th Cir.
1993) (per curiam) (quoting Simplex Time Recorder Co. v. Secretary of Labor, 766
F.2d 575, 586 (D.C.Cir. 1985)). If other persons can provide the information sought,
discovery will not be permitted against such an official. Id. at 513; see also In re
FDIC, 58 F.3d 1055, 1062 (5th Cir. 1995) (“We think it will be the rarest of cases . .
. in which exceptional circumstances can be shown where the testimony is available
from an alternate witness.”). Allegations that a high government official acted
improperly are insufficient to justify the subpoena of that official unless the party
seeking discovery provides compelling evidence of improper behavior and can show
that he is entitled to relief as a result. See In re FDIC, 58 F.3d at 1062.

       It is not disputed here that the Attorney General and the Deputy Attorney
General are high government officials. Lee must therefore establish at a minimum that
the Attorney General and the Deputy Attorney General possess information essential
to his case which is not obtainable from another source. Kessler, 985 F.2d at 512-13;

                                            -7-
see also In re FDIC, 58 F.3d at 1062. This means both that the discovery sought is
relevant and necessary and that it cannot otherwise be obtained. Kessler, 985 F.2d at
512-13. Without establishing this foundation, “exceptional circumstances” cannot be
shown sufficient to justify a subpoena. See id.

        Petitioners argue that Lee has not established that no one else could provide the
information he seeks from Reno and Holder and that the DiGregory affidavit provides
all the facts Lee needs for the legal claim he is pursuing. Lee asserts that the district
court found that only Reno and Holder can testify to “the transparency of the record;
[] what Ms. Reno knew or did not know about the decision to move forward with Mr.
Lee’s penalty phase; whether Ms. Reno had issued standing orders that might permit
the Deputy Attorney General to, contrary to protocol, make the final decision about Mr.
Lee’s penalty phase; and whether Ms. Reno was, in fact, legally ‘unavailable’ on May
10, 1999, so that Mr. Holder could act in her absence.” He further suggests that Reno
and Holder could have offered testimony by stipulation or affidavit, and that the rules
protecting high government officials should be relaxed in this case.

       Lee’s counsel conceded at oral argument that he needed to establish only the
following facts in order to provide a factual basis for his claim: that Reno did not
participate in or approve the decision not to withdraw the death notice in his case, that
Reno did not know of Casey’s request to withdraw the notice, and that the death
penalty protocol was not followed. The record as developed at the June 29 hearing
and in the DiGregory affidavit contains sufficient evidence to establish each of these
facts, none of which appears to be disputed by the government. Testimony by Reno
and Holder is not necessary to establish a factual basis for Lee’s attempt to overturn
the jury’s sentencing recommendation on the basis of noncompliance with the protocol.
Lee has also not shown that there are no other sources for the information he seeks, and
the suggestion that petitioners might supply evidence without actually appearing in
Little Rock does not call for application of a different standard. See In re Office of


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Inspector General, 933 F.2d 276, 278 (5th Cir. 1991) and United States Bd. of Parole
v. Merhige, 487 F.2d 25, 29 (4th Cir. 1973).

       In order to obtain discovery from high government officials a party must also
show an entitlement to the relief sought in the case. See In re FDIC, 58 F.3d at 1062.
Petitioners argue that the legal theory underlying the subpoenas is without merit and
cannot support the discovery request. The district court found Lee’s claim that he had
enforceable rights arising from the death penalty protocol sufficiently meritorious to
allow discovery to proceed, and Lee argues that cases holding that administrative
agencies are bound by their own regulations show that he has rights he can assert under
the death penalty protocol.

        In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-68 (1954),
the Supreme Court vacated a deportation order because of the violation of a procedural
regulation, and the Accardi case has come to stand for the proposition that
administrative agencies may not take action inconsistent with their internal regulations
when it would affect individual rights. This doctrine has been applied in a variety of
settings. See, e.g., Morton v. Ruiz, 415 U.S. 199, 235 (1974) (unpublished guidelines
could not be given substantive effect because Bureau of Indian Affairs manual required
that eligibility guidelines be published); Yellin v. United States, 374 U.S. 109, 121-22
(1963) (reversing contempt citation issued by Congress); and Service v. Dulles, 354
U.S. 363, 373 (1957) (vacating termination of government employees).

       No case has ever held that the Accardi doctrine applies to the internal regulations
of the DOJ. Courts have generally refrained from judicial review of asserted violations
of DOJ policies or regulations because of the unique nature of prosecution and the
“broad discretion” granted the Attorney General and federal prosecutors in their
enforcement of the laws of the United States. United States v. Armstrong, 517 U.S.
456, 464 (1996) (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)). See
United States v. McVeigh, 944 F. Supp. 1478, 1483-84 (D. Colo. 1996). Many cases

                                           -9-
in this circuit and elsewhere have applied this principle in connection with the Petite
policy, an internal DOJ policy that prohibits a federal prosecution ‘if the alleged
criminality was an ingredient of a previous state prosecution against that person’”
unless “specifically authorized in advance by the Department of Justice itself, upon a
finding that the prosecution will serve ‘compelling interests of federal law
enforcement.’” United States v. Basile, 109 F.3d 1304, 1308 (8th Cir. 1997) (quoting
Thompson v. United States, 444 U.S. 248, 248 (1980) (per curiam)). This court has
held that this internal policy “confers no substantive rights on the accused[,]” United
States v. Moore, 822 F.2d 35, 38 (8th Cir. 1987) (per curiam), and its implementation
by DOJ “cannot form the basis of a claim [by a defendant] that the prosecution was
improper.” United States v. Lester, 992 F.2d 1304, 1308 (8th Cir. 1993).

       The death penalty protocol contained in the Manual is an internal DOJ policy
directing the exercise of prosecutorial discretion. The Manual itself states that its
content “provides only internal Department of Justice guidance. It is not intended to,
does not, and may not be relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or criminal.” Id. at § 1-1.100. Some
courts have relied on this language in holding that the Manual does not create rights
enforceable by criminal defendants. See United States v. Myers, 123 F.3d 350, 355-
56 (6th Cir. 1997) (Manual creates no enforceable procedural or substantive rights);
United States v. Goodwin, 57 F.3d 815, 818 (9th Cir. 1995) (same); see also United
States v. Craveiro, 907 F.2d 260, 263-64 (1st Cir. 1990) (policy in DOJ Handbook on
the Comprehensive Crime Control Act of 1984 did not create enforceable rights).

       Courts that have addressed directly whether the death penalty protocol described
in the Manual creates any substantive or procedural rights enforceable by a defendant
have held almost uniformly that it does not. Nichols v. Reno, 931 F. Supp. 748, 751
(D.Colo.), aff’d, 124 F.3d 1376 (10th Cir. 1997) (death penalty protocol does not
create enforceable rights); see also United States v. McVeigh, 944 F. Supp. 1478,
1483-84 (D.Colo. 1996) (same); United States v. Feliciano, 998 F. Supp. 166, 169

                                          -10-
(D.Conn.1998) (same); United States v.Roman, 931 F. Supp. 960, 964 (D.R.I. 1996)
(same); but see Walker v. Reno, 925 F. Supp. 124, 132 (N.D.N.Y. 1995) (failure to
follow protocol might provide basis to “remand the matter to the Attorney General for
reconsideration[.]”).

        The merits of the issue are not directly before us as to whether the death penalty
protocol creates any right Lee can enforce, and we hold only that on the record before
us at this time Lee has not made a sufficient showing of entitlement to relief to enable
him to obtain the additional discovery he seeks.

                                           III.

       Lee has not established extraordinary circumstances requiring the discovery
sought from Attorney General Reno and Deputy Attorney General Holder. Even
though a writ of mandamus will generally not be available to obtain interlocutory
review of a discovery order, petitioners have shown that in this matter there are
significant policy issues requiring immediate attention and that direct appeal from the
final order of the district court would not give them an adequate remedy. See In re
Bieter, 16 F.3d 929, 931 (8th Cir. 1994). The district court has yet to rule on Lee’s
motion to set aside the verdict, and to require petitioners to respond to the subpoenas
and wait to raise their objections on direct appeal of the court’s final order would
deprive them of the protection to which they are legally entitled. The petition is thus
granted, and the matter is remanded to the district court for further proceedings
consistent with this opinion.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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