U.S. v. Navarro, CR. S-94-390 LKK.

• Decision Date: 09 April 1997
• Docket Number: No. CR. S-94-390 LKK.,CR. S-94-390 LKK.
• Citation: 959 F.Supp. 1273
• Parties: UNITED STATES of America, Respondent v. Anthony NAVARRO, Movant.
• Court: U.S. District Court — Eastern District of California

959 F.Supp. 1273

UNITED STATES of America, Respondent v. Anthony NAVARRO, Movant.

No. CR. S-94-390 LKK.

United States District Court, E.D. California.

April 9, 1997.

Nancy Simpson, Assistant United States Attorney, Sacramento, CA, for Respondent.

Brenda Grantland, Mill Valley, CA, for Movant.

ORDER

LAWRENCE K. KARLTON, Chief Judge Emeritus.

Movant filed the instant suit pursuant to 28 U.S.C. § 2255. He claims that the Special Assistant United States Attorney appearing in the criminal case underlying this litigation was without authority to represent the United States during the relevant period, and accordingly, this court lacked jurisdiction to entertain that prosecution.

The matter was briefed, an evidentiary hearing was held, argument was heard and the matter was taken under submission. It is disposed of herein.

I. FACTS

At all times relevant herein, Dale Kitching was a Deputy District Attorney in the County of Sacramento, and was Supervisor of that office's major narcotics unit. Pursuant to those responsibilities, Mr. Kitching became involved in the Sacramento County Sheriff's investigation of the movant. After Navarro's arrest, Mr. Kitching telephoned Nancy Simpson, then Chief of the Narcotics and Violent Crime Section of the office of the United States Attorney for the Eastern District of California. His purpose was to propose the federal prosecution of the movant.

Ms. Simpson agreed that the case fell within the standards adopted by this district's United States Attorney for the prosecution of narcotics cases. Upon Ms. Simpson's agreement, Mr. Kitching, in his capacity as a Special Assistant United States Attorney ("SAUSA"), prepared a complaint which was forwarded to and filed by the office of United States Attorney in this court on October 31, 1994. The complaint showed as the prosecuting attorneys, Ms. Simpson and Mr. Kitching.¹

Thereafter, on November 10, 1994, Mr. Kitching appeared alone before the grand jury and obtained an indictment of Mr. Navarro. In due course, negotiations between Mr. Kitching and Navarro's various attorneys resulted in a plea agreement being struck on March 7, 1995, the first day of trial. The defendant was sentenced on July 12, 1995.

Although Mr. Kitching consulted with Ms. Simpson before disposition of the case, quite understandably because of his long experience as both a county prosecutor of narcotics cases and as an SAUSA, he essentially acted without supervision or direction from the United States Attorney or members of his staff. Despite this absence of supervision, the court finds that in terms of Mr. Kitching's conduct of the case, nothing untoward occurred. Accordingly, movant has not, and could not, show prejudice by virtue of the fact that he was prosecuted by Mr. Kitching. As I explain below, however, if the court actually lacks jurisdiction, movant need not show prejudice. For that reason, I now outline the facts pertaining to the prosecutor's appointment.

II. MR. KITCHING'S APPOINTMENT

Mr. Kitching's appointment history as a SAUSA is somewhat tortured, and the appointing papers are less than perfectly clear. It appears, however, that his original appointment was on June 17, 1985, to remain effective to November 30, 1985. Thereafter, his appointment was extended to November 11, 1986 and then again to November 30, 1987. It appears this appointment expired on that date. On December 12, 1987, Mr. Kitching was reappointed as a Special Assistant, his term to last through November 30, 1988. It appears that the appointment expired on that date.

It next appears that Mr. Kitching was reappointed effective May 5, 1989 through November 30, 1990. That appointment was renewed on October 25, 1990 effective through November 30, 1991. Once again the appointment expired.

On March 17, 1992, Mr. Kitching was again reappointed effective through March 31, 1993. That term expired.

Mr. Kitching was again reappointed on September 1, 1994 effective through August 31, 1995. This appointment was extended August 15, 1995, through August 31, 1996. His appointment then expired on that date and he was reappointed September 4, 1996 through August 31, 1997.

Throughout the period of appointment, extension, expiration and reappointment, Mr. Kitching took only two oaths of office. He first took an oath as a Special Assistant on July 16, 1985, and the second time was on September 6, 1996.

III. ANALYSIS

As noted above, the pertinent dates relative to movant's prosecution and plea are between October 31, 1994, the date the complaint was filed, and July 12, 1995, the date of sentencing. By a fluke, the pertinent dates eliminate one basis for attacking Mr. Kitching's authority to act for the United States. Since it appears that Mr. Kitching had been reappointed in September of 1994 effective through August 31, 1995, at least he was not acting while his appointment had lapsed.² That issue being foreclosed, the movant attacks Mr. Kitching's status as a Special Assistant on the basis that under the law he may not be reappointed more than two times, (i.e., there is a four year limit), that the apparent appointing authority was without authority to make the appointment, and that Mr. Kitching had not taken the oath of office subsequent to the pertinent appointment despite the fact that the appointing document and the applicable federal statute required him to do so.

To say the least, the question of the effect of various defects in the appointing process of Special Assistant United States Attorneys is less than pellucid. The Supreme Court has spoken of unauthorized litigation as going to the court's jurisdiction. The Ninth Circuit, however, has generally treated flaws in the appointment of special prosecutors as a question of procedural defects. Below, the court briefly examines the origin and development of the doctrine, and thereafter addresses the matter at bar.

A. PROVIDENCE JOURNAL AND ITS PROGENY

The seminal case giving rise to the doctrine which informs the issues tendered herein is United States v. Providence Journal Company, 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). There, the Supreme Court held that where an attorney purportedly representing the United States is without authority to do so, "we must dismiss the heretofore granted writ of certiorari for want of jurisdiction." Id. at 699, 108 S.Ct. at 1506.

The issue of the effect of unauthorized representation arose because, generally speaking, under 28 U.S.C. § 1254(1) only the Solicitor General may authorize the filing of a petition for certiorari in the Supreme Court on behalf of the United States.³ In Providence Journal, however, the Court had granted certiorari upon the petition of a special prosecutor which had been filed without permission of the Solicitor General. The Court concluded that the petition for certiorari was tendered and prosecuted by a attorney who, under the statute, had no authority to represent the United States, and held that under such circumstances it was without jurisdiction to entertain the litigation.

As with proceedings before the Supreme Court, the Congress has also limited those who may appear on behalf of the United States in subordinate courts. It has provided that such appearance is limited to officials of the Department of Justice, see 28 U.S.C. § 516,⁴ and the authority to prosecute federal crimes is further limited to the United States Attorney for the district. See 28 U.S.C. § 547(1).⁵ The Congress has, however, provided for the appointment of assistants to aid the United States Attorney in the discharge of his duties. See 28 U.S.C. § 543(a).⁶

Because only the United States Attorney, whether personally or through his assistants, may appear in a criminal case, it would seem to follow that a criminal case prosecuted by an unauthorized attorney is noncognizable. For that reason, the district court, although having subject matter jurisdiction "of all offenses against the laws of the United States," see 18 U.S.C. § 3231, is, under Providence Journal, without jurisdiction over such a case. See United States v. Durham, 941 F.2d 886 (9th Cir.1991).⁷

Since "[j]udicial jurisdiction implies the power to hear and determine a cause ..." United States v. O'Grady, 89 U.S. 641, 647, 22 Wall 641, 22 L.Ed. 772 (1875), in the absence of jurisdiction a court may neither hear nor dispose of a case. Because jurisdiction goes to the power of the court to act, jurisdictional defects cannot be waived, see, e.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-42, 95 L.Ed. 702 (1951) (superseded by statute on other grounds), and, for the same reason, are not subject to harmless error analysis. Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 2248, 104 L.Ed.2d 923 (1989) (magistrate lacks jurisdiction to voir dire felony jury and conviction must be reversed without regard to whether error harmless); see also Farley Transp. Co., Inc. v. Santa Fe Trail Transportation Co., 778 F.2d 1365, 1368 (9th Cir.1985) (failure to properly appeal is jurisdictional and not subject to harmless error analysis).

Nonetheless, it does not follow that every defect in the appointment of a special prosecutor makes his appointment void. Rather, the Ninth Circuit has treated a variety of defects in the appointment of Special Assistants as waivable or curable procedural defects and thus not going to the jurisdiction of the court. See United States v. Plesinski, 912 F.2d 1033, 1039 (9th Cir.1990) (failure to readminister oath after reappointment and unauthorized presence in grand jury procedural), cert. denied, 499 U.S. 919, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991); United States v. Durham, 941 F.2d at 892 (SAUSA appointed by person outside the chain of those authorized to appoint not fatal if he was under direction and supervision of United States Attorney); United States v. Davis, 932 F.2d 752, 763 (4th Cir.1991) (absence of written delegation of authority to appoint SAUSA cured by nunc...