U.S. v. Martinez
| Decision Date | 09 May 2008 |
| Docket Number | No. CR-07-615 WJ.,CR-07-615 WJ. |
| Citation | 565 F.Supp.2d 1270 |
| Parties | UNITED STATES of America, Plaintiff, v. Toby MARTINEZ, Raul Parra, Manny Aragon, Sandra Martinez, a/k/a/ "Sandra Mata," and Michael Murphy, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Robert J. Gorence, Gorence & Oliveros PC, Ray Twohig, Timothy M. Padilla, J. Miles Hanisee, Mark Fine, Fine Law Firm, Robert Jason Bowles, Bowles & Crow, Albuquerque, NM, for Defendants.
Chris Lackmann, Jonathon M. Gerson, Paula G. Burnett, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.
THIS MATTER comes before the Court on Defendant Raul Parra's ("Parra's") Motion to Dismiss Indictment without Prejudice on the Basis that the Current United States Attorney ("U.S. Attorney") has been Unconstitutionally Appointed, filed January 30, 2008 (Doc. 199). Having considered the parties' legal memoranda, oral arguments of counsel and the applicable law, I find and conclude that the appointment of the current U.S. Attorney was constitutionally sound. Accordingly, Parra's motion is denied.
David C. Iglesias, former U.S. Attorney for the District of New Mexico, left office effective February 28, 2007. Immediately following Mr. Iglesia's departure, First Assistant U.S. Attorney Larry Gomez became Acting U.S. Attorney pursuant to the Vacancies Reform Act, 5 U.S.C. § 3345(A)(1). On September 26, 2007, Acting Attorney General Peter Keisler appointed Mr. Gomez as U.S. Attorney pursuant to 28 U.S.C. § 546(a).
By statute, Mr. Gomez's appointment as U.S. Attorney by the Attorney General could last for only 120 days. 28 U.S.C. § 546(c)(2). Thus, on January 25, 2008, the United States District Court for the District of New Mexico ("the District Court") exercised its discretion pursuant to 28 U.S.C. § 546(d) and appointed Gregory J. Fouratt as the interim U.S. Attorney for the District of New Mexico.
Approximately ten months earlier on March 29, 2007, Parra was indicted by the Grand Jury along with three other defendants in a 26 count indictment containing various counts relating to allegations of corruption involving the construction of the State of New Mexico Metropolitan Courthouse in downtown Albuquerque.1 Parra raises no challenge to the validity of the indictment against him when Larry Gomez was U.S. Attorney nor does Parra challenge the legitimacy of Larry Gomez's tenure as U.S. Attorney. Parra simply asserts that he is now being prosecuted by a U.S. Attorney whose appointment by the District Court under 28 U.S.C. § 546(d) violates the Appointments Clause of the United States Constitution and the constitutional doctrine of separation of powers. As a remedy for the alleged constitutional violation, Parra seeks an order of dismissal of the indictment without prejudice.
Congress has vested the appointments of U.S. Attorneys in the President of the United States with advice and consent of the Senate. 28 U.S.C. § 541(a).2 The statute Parra challenges, § 546(d), provides for a process, to fill the position of U.S. Attorney when there is a vacancy and the position cannot be filled by someone appointed by the President with the advice and consent of the Senate. Section 546 reads in its entirety:
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2) of this section, the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
Section 546(a) delegates the appointment power to the Attorney General when there is a U.S. Attorney vacancy; however, the Attorney General's appointment power is limited in candidacy and scope. The Attorney General cannot appoint an individual who was previously denied confirmation by the Senate. Further, an Attorney General's appointment lasts only until appointment of a U.S. Attorney by the President, but the Attorney General's appointment cannot exceed 120 days. § 546(c). If the Attorney General's appointment expires under the 120-day rule and no U.S. Attorney is appointed by the President with advice and consent of the Senate, the United States District Court in the district where there is a U.S. Attorney vacancy has the power to appoint an interim U.S. Attorney until a proper appointment by the President, with Senate confirmation, can be effected. § 546(d).
Congress has vested the federal judiciary with a role in interim appointments of U.S. Attorneys since 1863.3 The only break in the judiciary's appointment power since the Civil War came in 2006, with the passage of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub.L.No. 109-177, 120 Stat. 246. That year Congress struck the 120-day limitation of Section 546(c)(2) and struck Section 546(d) altogether. In 2007, however, Congress quickly reversed course and restored both the 120-day limitation upon the Attorney General's authority and the judiciary's power to make appointments of interim United States Attorneys under 546(d). See Preserving United States Attorney Independence Act of 1007, P.L. 110-34 (June 14, 2007).
The Appointments Clause of Article II of the Constitution reads as follows:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Minsters and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
U.S. Const., Art. II, § 2, cl. 2 (emphasis added).
The Appointments Clause vests the President with the exclusive power to select principal officers with the advice and consent of the Senate, but authorizes Congress to "vest the Appointment of ... inferior Officers ... in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const., Art. II, § 2. The Office of U.S. Attorney is an "inferior office" within the meaning of the Appointments Clause,4 a fact not disputed by Parra. See Deft's Mot. at 7, 8. Thus, the express, unlimited language of the Appointments Clause authorizes Congress to vest in Courts the authority to appoint inferior officers such as U.S. Attorneys. Notwithstanding this broad language regarding appointment of inferior officers, Congress' power to provide for interbranch appointments of "inferior officers" is not unlimited. Morrison v. Olson, 487 U.S. 654, 675-76, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). The Supreme Court has held that Congressional action to vest the appointment power in the Courts would be improper if there was some "incongruity" between the functions normally performed by the Courts and the performance of the duty to appoint. Id. (citing Ex parte Siebold, 100 U.S. 371, 398, 25 L.Ed. 717 (1880)).
In Morrison, independent counsel was appointed by a "special division" of Article III Judges, pursuant to a statutory provision in the Ethics and Government Reform Act to investigate former governmental officials. These former officials challenged the authority of the court appointed independent counsel to compel their testimony before a grand jury. The Supreme Court determined that the independent counsel was an "inferior officer" and held that the appointment of the independent counsel by the "special division" of judges did not run afoul of the Appointments Clause limitation on "incongruous" interbranch appointments. Id. at 676, 108 S.Ct. 2597. In upholding the constitutionality of the court appointed independent counsel, the Morrison Court cited various examples of courts appointing lawyers to various positions. The most notable example for purposes of the instant case is the citation to § 546(d) and the reference to United States v. Solomon, 216 F.Supp. 835 (S.D.N.Y.1963), a district court opinion upholding the constitutionality of a criminal defendant's information signed by an interim U.S. Attorney appointed by the judges of the Southern District of New York.
Parra urges this Court to follow the rationale of Justice Scalia's dissent in Morrison, 487 U.S. at 710, 108 S.Ct. 2597, the only dissent in a 7 to 1 decision.5 As a preliminary matter, the District Court as an inferior court is bound to follow the applicable precedent of the Supreme Court. United States v. Hatter, 532 U.S. 557, 567, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001). Accordingly, the precedent for which Morrison stands and which must be relied upon is Chief Justice Renquist's majority opinion, not Justice Scalia's dissent.
Some nine years after he dissented in Morrison, Justice Scalia wrote the majority opinion in Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), a case involving a constitutional challenge to the appointment of the judges to the Coast Guard Court of Criminal Appeals by the Secretary of the Transportation pursuant to...
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