U.S. v. Baldwin

• Decision Date: 26 February 2008
• Docket Number: No. CR 07-2240 JB.,CR 07-2240 JB.
• Citation: 541 F.Supp.2d 1184
• Parties: UNITED STATES of America, Plaintiff, v. Carl Dean BALDWIN, Defendant.
• Court: U.S. District Court — District of New Mexico

541 F.Supp.2d 1184

UNITED STATES of America, Plaintiff, v. Carl Dean BALDWIN, Defendant.

No. CR 07-2240 JB.

United States District Court, D. New Mexico.

February 26, 2008.

COPYRIGHT MATERIAL OMITTED

Gregory J. Fouratt, United States Attorney, Albuquerque, NM, Terri J. Abernathy, Luis A. Martinez, Assistant United States Attorneys, Stephen H. Wong, Special Assistant United States Attorney, Las Cruces, NM, for Plaintiff.

Robert Jason Bowles, B.J. Crow, Bowles & Crow, Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss Indictment Without Prejudice on the Basis that the Current United States Attorney has been Unconstitutionally Appointed, filed January 30, 2008 (Doc. 15)("Motion"). The Court held a hearing on February 19, 2008. The primary issues are: (i) whether the Court should reach the constitutional issues that Defendant Carl Dean Baldwin raises, or dismiss the indictment against Baldwin, given that the indictment was secured during the tenure of a prior, executive-appointed United States Attorney and was signed by an Assistant United States Attorney; (ii) whether the judicial appointment of Gregory Fouratt under 28 U.S.C. § 541(d) violates the Appointments Clause of the United States Constitution; (iii) whether the judicial appointment of Mr. Fouratt under 28 U.S.C. § 541(d) violates the separation-of-powers doctrine; and (iv) whether the judicial appointment of Mr. Fouratt under 28 U.S.C. § 541(d) is unconstitutional as applied to this case. Because the indictment is valid, regardless of how the Court decides the constitutional issues, the Court will deny Baldwin's request that the Court dismiss the indictment. Because the Court concludes that it should address Baldwin's constitutional arguments, the Court finds that § 541(d) is not unconstitutional under the specific arguments that Baldwin raises, and because the Court finds that Mr. Fouratt's judicial appointment is not unconstitutional, under Baldwin's facial or as-applied challenges to 28 U.S.C. § 541(d), pursuant to the Appointments Clause and the separation-of-powers doctrine, the Court will deny Baldwin's motion.

FACTUAL BACKGROUND

Former United States Attorney David C. Iglesias resigned his position effective February 28, 2007. See United States' Response to Motion to Dismiss Indictment on the Basis that the Current United States Attorney Has Been Unconstitutionally Appointed at 5, filed February 13, 2008 (Doc. 21)("Response"). In the immediate wake of Iglesias' resignation, First Assistant United States Attorney Larry Gomez became Acting United States Attorney under the Vacancies Reform Act, 5 U.S.C. § 3345(a)(1). See Response at 5. On September 26, 2007, Acting Attorney General Peter Keisler appointed Mr. Gomez as United States Attorney pursuant to 28 U.S.C. § 546(a). See Response at 5.

PROCEDURAL BACKGROUND

Baldwin was indicted before Mr. Fouratt was judicially appointed. See Indictment, filed November 6, 2007 (Doc. 1)(Court Only)("Indictment"). The indictment was secured under Mr. Gomez' tenure, and an Assistant United States Attorney signed the indictment. See Indictment at 6. The question is whether Mr. Fouratt should be allowed to participate in the prosecution of this case given the way that he secured his current position.

1. The Background of Baldwin's Case.

As the changes in the United States Attorney's Office have occurred, the Assistant United States Attorneys have continued to carry out their duties, including presenting cases to the grand jury. On November 6, 2007, during Mr. Gomez' term as United States Attorney, a grand jury returned the indictment against Baldwin. See Indictment. An Assistant United States Attorney, Chuck Barth, whom the Attorney General duly appointed to his position, signed the indictment. See id. at 6.

2. Mr. Fouratt's Appointment as United States Attorney.

By law, Mr. Gomez' appointment as United States Attorney expired after 120 days. See 28 U.S.C. § 546(c)(2). On January 25, 2008, a majority of the Article III judges of the United States District Court for the District of New Mexico, acting sua sponte, exercised the Court's authority under 28 U.S.C. § 546(d) and appointed Mr. Fouratt as the United States Attorney for the District of New Mexico. See Administrative Order (dated January 25, 2008), available at http://www.nmcourt.fed.us/ web/DCDOCS/dcindex.html. One active judge abstained from the discretionary appointment and one active judge dissented from the Court's exercise of its power to appoint. See id. at 1.

3. Motion to Dismiss.

On January 30, 2008, Baldwin filed a motion to dismiss his indictment without prejudice premised on Mr. Fouratt's appointment. See Motion. Baldwin requests that the Court dismiss the indictment on the basis that a United States Attorney, who has been unconstitutionally appointed, is pursuing the prosecution. See Motion. Baldwin argues that the Court's recent appointment of Mr. Fouratt under 28 U.S.C. § 546(d) as the United States Attorney for the District of New Mexico is unconstitutional. See id. Specifically, Baldwin contends that Mr. Fouratt's appointment offends the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, see Motion at 2-3, and violates the constitutional principle of separation of powers, both facially and as applied, see id. at 4. As part of his motion, however, Baldwin does not argue that the return of the indictment was in any way invalid.

Baldwin first argues that Mr. Fouratt's appointment by the district court violated the separation-of-powers doctrine. See Motion at 6. Baldwin contends that under, the test that Justice Scalia articulated in Morrison v. Olson, 487 U.S. 654, 697, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)(Scalia, J., dissenting), Mr. Fouratt's appointment was unconstitutional. See Motion at 7. He argues that Mr. Fouratt is "ultimately accountable to the judiciary, not the president." Id.

While Baldwin acknowledges that Mr. Fouratt is an "inferior" officer under the United States Constitution, id., he nevertheless argues that Mr. Fouratt's appointment violates the Appointments Clause of the United States Constitution, see id. at 8. Baldwin "asserts that the Appointments Clause is violated when a collage of Article III judges appoint the individual who has the responsibility to ensure that the laws of the United States are faithfully executed, yet who will keep his job only if he placates the very same supposedly neutral and detached judicial officers." Id. at 9. Baldwin argues that the district court appointment of Mr. Fouratt is incongruous with the constitutional function of the judiciary. See Defendant's Reply to the United States' Response to Motion to Dismiss Indictment on the Basis that the Current United States Attorney Has Been Unconstitutionally Appointed at 1-6, filed February 18, 2008 (Doc. 25)("Reply"). Baldwin argues that, because Mr. Fouratt has important decisions to make in his case, "including whether to offer a plea or whether to dismiss the case, or whether to seek a superseding indictment," 28 U.S.C. § 546(d) is constitutionally infirm as applied to his case. Reply at 9-10.

The United States responded to Baldwin's motion on February 13, 2008. See Response. The United States argues that the appointment of Mr. Fouratt did not violate the Appointments Clause because: (i) United States Attorneys are inferior officers under the Appointments Clause and (ii) the Supreme Court of the United States has already concluded that judicial appointment of prosecutors is not incongruous with judicial functions. See Response at 7 (citing Morrison v. Olson, 487 U.S. at 676-77, 108 S.Ct. 2597). The United States argues that the United States Court of Appeals for the First Circuit provided the proper standard for determining whether the appointment of Mr. Fouratt violated separation of powers in United States v. Hilario, 218 F.3d 19, 26 (1st Cir.2000), cert, denied 531 U.S. 1014, 121 S.Ct. 572, 148 L.Ed.2d 490 (2000). See Response at 12.

Under the inquiry in United States v. Hilario, the court must: (i) ask whether Congress, in vesting the power to appoint interim United States Attorneys in the district court, conferred upon the judges a power that usurped the prerogatives of another branch of government and, thus, effected an unconstitutional accumulation of power within the Judicial Branch; and (ii) ask whether the exercise of the power to appoint somehow impedes the proper functioning of the Judicial Branch. See United States v. Hilario, 218 F.3d at 27. The United States contends that 28 U.S.C. § 546(d) only "gives the district court a limited power of appointment, [and] ... does not grant the district court any authority to supervise or remove an interim United States Attorney." Response at 14. The United States argues that the appointment of Mr. Fouratt does not "impugn the judiciary's institutional integrity." Response at 16 (internal quotations omitted).

Finally, the United States contends that Baldwin's "as applied" argument fails because Mr. Fouratt is accountable to the Executive Branch, not the district court. Response at 17-18. The United States also notes that Baldwin does not explain why dismissal of his indictment is a valid remedy for his claimed constitutional injury because he "offers no explanation as to why a validly obtained indictment, filed during the tenure of a duly appointed United States Attorney, should be dismissed if a subsequent United States Attorney is defectively appointed." Id. at 19.

The Court held a hearing on February 19, 2008. Baldwin conceded that his indictment is valid, because, under rule 7 of the Federal Rules of Criminal Procedure, all that is required is the signature of an attorney for the United States. See Transcript of Hearing at 6:1-16 (taken February 19, 2008)("Tr.")(Gorence & Court).¹ Baldwin's...