U.S. v. Navarro, 97-16794

• Citation: 160 F.3d 1254
• Decision Date: 24 November 1998
• Docket Number: No. 97-16794,97-16794
• Parties: 98 Daily Journal D.A.R. 11,967 UNITED STATES of America, Plaintiff-Appellant, v. Anthony NAVARRO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1254

160 F.3d 1254

98 Daily Journal D.A.R. 11,967

UNITED STATES of America, Plaintiff-Appellant, v. Anthony NAVARRO, Defendant-Appellee.

No. 97-16794.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1998.

Decided Nov. 24, 1998.

Thomas E. Flynn, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellant.

Brenda Grantland, Mill Valley, California, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Chief District Judge Emeritus, Presiding. D.C. No. CV-96-02079-LKK CR-94-00390-LKK.

Before: ARTHUR L. ALARCON, DIARMUID F. O'SCANNLAIN and FERDINAND F. FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Anthony Navarro pled guilty to possession of cocaine and methamphetamine with intent to distribute, and was sentenced accordingly. See 18 U.S.C. § 841. Thereafter, he commenced this action under 28 U.S.C. § 2255 in which he requested that the district court set aside the judgment and dismiss the indictment. He asserted that Dale E. Kitching, the Special Assistant United States Attorney (SAUSA), who handled proceedings against him, could not act in that capacity because he was barred by the Intergovernmental Personnel Act, 5 U.S.C. § 3372 (the IPA). The district court agreed, vacated the judgment, and dismissed the indictment. ¹ The government appealed and we reverse.

BACKGROUND

Navarro, admittedly, engaged in the possession of cocaine and methamphetamine in the County of Sacramento, California. During the period relevant to this case, Kitching, a Deputy District Attorney in that county, was involved in the investigation and arrest of Navarro for those offenses. Kitching had worked for many years as a SAUSA; he contacted Nancy L. Simpson, Chief of the Narcotics and Violent Crime Section of the United States Attorney's Office for the Eastern District of California, and suggested federal prosecution of Navarro. Simpson agreed that the case met the standards for narcotics prosecutions used by her office. Acting as a SAUSA, and with Simpson's agreement, Kitching prepared a complaint, which was filed by the United States Attorney's Office. Simpson and Kitching were listed in the complaint as the prosecuting attorneys, but Kitching made the sole appearance before the grand jury at which the indictment was obtained. Kitching then conducted negotiations leading to a guilty plea in exchange for the government's promise not to oppose a two-level reduction in the sentencing guideline range for acceptance of responsibility and to recommend a sentence at the low end of the range. Simpson approved of that plea agreement.

After Navarro pled guilty, was sentenced, appealed, and lost, he commenced this action in which he claimed, among other things, that because Kitching had first become a SAUSA as early as June of 1985, he had clearly exceeded the maximum term of four years provided by the IPA and, therefore, his purported representation of the United States during the course of this prosecution--1994-1995--was incurably void. As a result, Navarro argued, the district court had no jurisdiction over the prosecution. The district court agreed, and granted Navarro relief. Thereafter, it denied the government's motion for reconsideration, and this appeal followed. ²

STANDARDS OF REVIEW

We review the grant of a § 2255 motion de novo. See Sanchez v. United States, 50 F.3d 1448, 1451 (9th Cir.1995). However, we review factual findings for clear error. See United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996). We review the district court's interpretation of a statute de novo. See United States v. Jarvouhey, 117 F.3d 440, 441 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 866, 139 L.Ed.2d 764 (1998).

DISCUSSION

The government has mounted a number of attacks regarding the propriety of the district court's, and our, hearing Navarro's petition at all. It argues that the issue is not cognizable on a motion under 28 U.S.C. § 2255. But, Navarro asserts, under § 2255, jurisdictional issues can be considered. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). The government also argues that this challenge cannot be brought because it comes after Navarro's guilty plea and, therefore, comes too late. But, Navarro responds, jurisdictional issues are not necessarily waived by a guilty plea where the defect appears on the face of the proceeding without the need of further evidentiary development of the record. See United States v. Broce, 488 U.S. 563, 574-76, 109 S.Ct. 757, 765-66, 102 L.Ed.2d 927 (1989); United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.1979). Then the government hurls an attack on Navarro's revetment on the theory that the issue was not raised at trial or on direct appeal, and Navarro has not shown cause and prejudice. Navarro defends by arguing that a jurisdictional claim is not necessarily barred despite the failure to raise it at trial or on direct appeal. See Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.1994); United States v. Mitchell, 867 F.2d 1232, 1233 n. 2 (9th Cir.1989). Finally, the government says, if we uphold Navarro's position we will be adopting a new rule which he cannot take advantage of. See Teague v Lane, 489 U.S. 288, 311, 315, 109 S.Ct. 1060, 1075, 1078, 103 L.Ed.2d 334 (1989); United States v. Judge, 944 F.2d 523, 524-25 (9th Cir.1991). But Teague can be waived, see Goeke v. Branch, 514 U.S. 115, 116-18, 115 S.Ct. 1275, 1276, 131 L.Ed.2d 152, 156-57 (1995) (per curiam), and the government at the very least placed its position in serious jeopardy when it did not bother to raise the issue until it propounded its motion for reconsideration to the district court. See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 380 (9th Cir.1997); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985).

We have touched on the parties' arguments rather sententiously because we need not resolve them. As is apparent, they hinge on the question of whether the district court was entirely deprived of jurisdiction by the allegedly insurmountable defect in Kitching's SAUSA appointment wrought by 5 U.S.C. § 3372. In turn, the pin on which the hinge inevitably rotates is the question of whether § 3372 applies to the appointment at all. If it does not, Navarro's argument and all of the jurisdictional and procedural complexities it could present will fall. Therefore, rather than pother over them in the abstract, we will first look to see whether the pin itself has substance. If it does not, our inquiry will be at an end.

The IPA provides, in pertinent part, that the "head of a federal agency may arrange for the assignment of ... an employee of a State or local government to his agency...." 5 U.S.C. § 3372(a)(2). It then continues. "The period of an assignment under this subchapter may not exceed two years. However, the head of a Federal agency may extend the period of assignment for not more than two additional years." Id. All agree that Kitching's appointments went on for more than four years. Thus, § 3372 would present difficulties, if it were the only possible source of the SAUSA appointment power.

It is not. Congress conferred a separate power of appointment upon the Attorney General many decades ago when it declared that, "[t]he Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires." 28 U.S.C. § 543(a). ³ There are no time restrictions whatever upon that power, and we see no reason to add any.

The district court applied what it took to be the plain meaning of § 3372(a), said that it and § 543 could coexist, and noted that the fact that § 543 was earlier did not necessarily control the analysis. See Navarro I, 959 F.Supp. at 1279; see also Navarro II, 972 F.Supp. at 1305-06. It concluded that the "inevitable result" was that § 3372(a) controlled. Navarro I, 959 F.Supp. at 1279. With all due respect, we approach the matter from a slightly different angle and reach a very different result.

We agree that the two statutes can coexist, but that is because each is a star in the constellation of powers conferred upon the Attorney General, and neither interferes with or eclipses the other. See Hawthorne, 449 F.Supp. at 1055-56 (separate code sections constitute independent statutory bases for the appointment of attorneys and narrowing language in one--28 U.S.C. § 515--does not affect the breadth of the other--28 U.S.C. § 543). That is particularly true where, as here, Congress has specifically conferred a power upon the Attorney General. A later statute, which applies to government agencies generally, cannot be said to restrict that more specific grant of power.

It has long been understood that general statutory provisions, like the provisions of § 3372, do not control specific ones, like the provisions of § 543, where some conflict seems to exist between them. As the Supreme Court said not so very long ago, "[i]t is an elementary tenet of statutory construction that '[w]here there is no clear indication otherwise, a specific statute will not be controlled or nullified by a general one....' " Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 375, 110 S.Ct. 680, 687, 107 L.Ed.2d 782 (1990) (citation omitted). It expressed the same view over a century before that when it pointed out that it was then a "well-settled rule, that general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general." Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362, 27 L.Ed. 1012 (1883). In so doing, the Court, as its language suggests, was pointing to a rule of even older provenance, which was well summed up in the following passage quoted by the Ohio Supreme Court:

"In regard to the...