U.S. v. Baker

• Decision Date: 16 March 2007
• Docket Number: No. 4:06CR00041 GTE.,4:06CR00041 GTE.
• Citation: 504 F.Supp.2d 402
• Parties: UNITED STATES of America v. Antoine Demetris BAKER.
• Court: U.S. District Court — Eastern District of Arkansas

504 F.Supp.2d 402

UNITED STATES of America v. Antoine Demetris BAKER.

No. 4:06CR00041 GTE.

United States District Court, E.D. Arkansas.

March 16, 2007.

Patrick C. Harris, U.S. Attorney's Office, Little Rock, AR, for United States of America.

John Wesley Hall, Jr., Law Offices of John W. Hall, Jr., Little Rock, AR, Jack R. Kearney, CJA Kearney Law Office, Little Rock, AR, for Antoine Demetris Baker.

ORDER

EISELE, District Judge.

The Defendant, Mr. Antoine Baker, moves the Court pursuant to the All Writs Act and the Declaratory Judgment Statute to declare the Attorney General's appointment of Mr. Tim Griffin to serve as U.S. Attorney for the Eastern District of Arkansas "unconstitutional under U.S. Const., Art. § 2, cl. 2-3, or violating 28 U.S.C. § 541(a-b), or both."¹ In addition, the Defendant contends the position of the United States Attorney "is a Presidential appointment not an Attorney General's appointment."²

I. Background

The Defendant, Mr. Baker, is charged in this case with federal capital murder. The Superseding Indictment filed August 9, 2006, alleges a capital crime with aggravating circumstances. The original Indictment and the First Superseding Indictment filed August 9, 2006, were handed down by a grand jury during the tenure of Mr. Bud Cummins, the United States Attorney for the Eastern District of Arkansas. On. December 20, 2006, Mr. Cummins resigned, thereby creating a vacancy in the office, and on the same day the Attorney General, Alberto Gonzales, appointed Mr. Griffin as Interim United States Attorney. As of the time of this opinion, Mr. Griffin's name has not been submitted to the Senate. Nevertheless, the Government's Response states, "As the Attorney General has made clear, however, the Executive Branch is committed to having a Senateconfirmed United States Attorney for all 94, federal districts, and there is every intention of submitting a name for this United States Attorney position to the Senate for confirmation."³

On February 7, 2007, a Second Superseding Indictment was handed down by the Grand Jury and notice thereof submitted pursuant to 18 U.S.C. § 3593(a).⁴

The original Indictment filed February 8, 2006, was signed by the Foreperson of the Grand Jury and also by Assistant U.S. Attorney, Patrick Harris. The First Superseding Indictment was filed August 9, 2006. It also was signed by the Foreperson and Mr. Harris. Both were filed during Mr. Cummins' tenure and the signature line for the government's attorney shows Mr. Cummins' name as the then United States Attorney, but was signed only by Mr. Harris for the Government. The Second Superseding Indictment was filed on February 9, 2007. Again, it was signed by the Foreperson and by Mr. Harris under Mr. Griffin's name, who by that date was serving as Interim U.S. Attorney. It appears that the case is proceeding under the direction of Mr. Harris.⁵

The Defendant does not challenge the original Indictment or the First Superseding Indictment. However, he challenges the Second Superseding Indictment issued during the tenure of the Interim United States Attorney, Mr. Griffin.⁶

In his original motion, Defendant states his position as follows:

Griffin is the United States Attorney for the Eastern District of Arkansas and his name has not been, and likely will never be, submitted to the United States Senate for "advice and consent" as required by Art. II, § 2, cl.2 (with cl.3, collectively the "Presidential Appointments Clauses", quoted in ¶ 22, infra). Therefore, his appointment by the Attorney General, albeit under 28 U.S.C. § 546(c), as amended in March 2006, still does not obviate application of 28 U.S.C. § 541(a), and it violates the Presidential Appointments Clause of Art. II of the Constitution. Therefore, he cannot hold the office of U.S. Attorney.

Defendant takes three related approaches: First, even considering § 546(c) as an attempted "end run" around the Presidential Appointments Clauses, defendant submits that § 541(c) must still control to prevent an obvious absurdity enabled by the law, and Mr. Griffin's name still has to be submitted to the Senate. Second, the failure or refusal to submit his names means he holds his office in violation of the Presidential Appointments Clauses. Third, under the Constitution, only the President can appoint a U.S. Attorney, not the Attorney General, so this appointment is void.⁷

The Court concludes that Defendant does not have Article III standing to challenge the legality of Mr. Griffin's appointment; that 28 U.S.C. § 546 is not facially unconstitutional; and that his "as applied" challenge is not ripe for review. Ordinarily, the conclusion that Defendant lacks standing would make it unnecessary for the Court to reach and deal with the underlying constitutional questions. Nevertheless, out of an abundance of caution and in light of Defendant's status as one charged with a capital crime and who therefore may face the death penalty, the Court will address the constitutional issues raised by the Defendant.

II. Analysis

A. Standing

The Defendant contends that he has Article III standing to raise this issue because the federal government is seeking to take his life, "and an illegally appointed United States Attorney ... will be involved in this case."⁸ He attacks the constitutionality of 28 U.S.C. § 546(a-c) stating, "Because § 546(c) permits the Attorney General to appoint a U.S. Attorney [it] is unconstitutional under Article II, § 2, cl. 2."⁹

The Government responds:

That appointment was plainly lawful, and Defendant's arguments to the contrary lack merit. It cannot be disputed that Mr. Griffin's appointment was expressly authorized by section 546. The appointment was also entirely Constitutional. Because United States Attorneys are "inferior officers," the Appointments Clause of the Constitution expressly permits Congress to vest their appointment in the Attorney General, and does not require the advice and consent of the Senate before they may be appointed. And Mr. Griffin's interim appointment does not in any way undermine the President's power under the Recess Appointments Clause, because the President remains free to effect the removal of Mr. Griffin, like any interim United States Attorney, and thereafter to make a recess appointment (assuming such an appointment is otherwise permissible). Mr. Griffin's appointment pursuant to Section 546 therefore does not inhibit the President's power under the Recess Appointments Clause in any manner. The Attorney General's appointment of Mr. Griffin was therefore plainly lawful. But this Court need not reach that question because Defendant's motion fails for an entirely independent reason: It is well-established that a court cannot dismiss an indictment issued under a United States Attorney whose appointment was allegedly infirm. See, e.g., United States v. Gantt, 194 F.3d 987, 998 (9th Cir.1999). Thus, even if Mr. Griffin's appointment were improper (it is not), under well-settled authority Defendant is not entitled to have the indictment dismissed.¹⁰

The Government argues that the Defendant has no standing to challenge Mr. Griffin's appointment as Interim U.S. Attorney because none of his rights as the Defendant in this criminal case are compromised or adversely affected by that appointment. The law does not require U.S. Attorneys to sign indictments in any criminal case, capital or otherwise. The law simply requires that the indictment must be signed "by an attorney for the government." See Fed.R.Crim.P. 7(c)(1). Furthermore, all U.S. Attorneys are subject to the direction of the Attorney General, and this authority is nowhere more clearly apparent than in the processing of capital cases that permit the government to seek the death penalty, as here. Indeed, the Defendant's own motion cites many of the provisions of the U.S. Attorney's Manual which clearly spell this out.¹¹ The Defendant likewise notes the case of U.S. v. Lee, 274 F.3d 485 (8th Cir.2001), which arose in this Court, and made it clear that accused defendants have no enforceable rights based upon the Department of Justice's in-house death penalty protocols.

The Defendant states that "[t]his is not a motion to dismiss the indictment or prevent the prosecution, except to attempt to prevent application for the death penalty by an unauthorized U.S. Attorney."¹² But nothing prevents an Assistant U.S. Attorney from making the necessary preliminary communications to the Attorney General when it must be recognized that, in any event, the Attorney General, or in some cases, the Deputy Attorney General, has the final say when deciding whether to seek the death penalty or when to permit the government's attorney to withdraw a death penalty request previously authorized.¹³ From the filing of the First Superseding Indictment on August 9, 2006, the predicate for seeking the death penalty had been established. And, the Department of Justice rules require in such circumstances, that the death penalty issue be submitted to the Attorney General for his final decision whether the U.S. Attorney desires to seek, or not to seek, the death penalty. Indeed, the Attorney General, and in his absence, the Deputy Attorney General, can require the U.S. Attorney to seek the death penalty or to continue to pursue same, even when that U.S. Attorney disagrees.¹⁴

So, the identity of the U.S. Attorney or Interim U.S. Attorney for the Eastern District of Arkansas has no effect on any death penalty decision that may be made in his case. Nor does it affect any of his other rights as the Defendant in this case.

In United States v. Suescun, 237 F.3d 1284, 1287-88 (11th Cir.2001), the court stated:

A district court lacks jurisdiction to entertain a criminal case if it appears that the Government "lacked power to prosecute the defendant." United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir. 1996). An appointment of a United States Attorney that is not made as provided by the Appointments...