U.S. v. Peralta-Ramirez, Crim. 99-0016CCC.

• Decision Date: 11 February 2000
• Docket Number: No. Crim. 99-0016CCC.,Crim. 99-0016CCC.
• Citation: 83 F.Supp.2d 263
• Parties: UNITED STATES of America, Plaintiff, v. Elvin PERALTA-RAMIREZ, Carmelo Mercado-Ortiz, Jose Edgardo Medina, Jorge Luis Ortiz-Delgado, Fermin Hilario, Defendants.
• Court: U.S. District Court — District of Puerto Rico

83 F.Supp.2d 263

UNITED STATES of America, Plaintiff, v. Elvin PERALTA-RAMIREZ, Carmelo Mercado-Ortiz, Jose Edgardo Medina, Jorge Luis Ortiz-Delgado, Fermin Hilario, Defendants.

No. Crim. 99-0016CCC.

United States District Court, D. Puerto Rico.

February 11, 2000.

As Amended February 14, 2000.

Guillermo Gil, U.S. Attorney, Miguel A. Pereira, Assistant U.S. Attorney, Hato Rey, PR, for plaintiff.

Maria H. Sandoval, Howard Srebnick, for defendants.

ORDER

CEREZO, District Judge.

The Court has before it the Motion to Dismiss the Indictment filed by defendant Fermín Hilario on November 16, 1999 (docket entry 99), and the government's response filed on January 18, 2000 (docket entry 114). Mr. Hilario contends that the appointment of Mr. Guillermo Gil-Bonar as interim United States Attorney for the District of Puerto Rico made by the Judges of this Court on September 9, 1993, pursuant to 28 U.S.C. § 546(d), is unconstitutional on several grounds and argues that Gil-Bonar's participation in this case renders the Superseding Indictment pending against him null and void.

The issues raised in this case have been considered in other criminal proceedings before this Court and at the appellate level in United States v. Colon-Munoz, 192 F.3d 210 (1st Cir.1999). In the latter case, the Court defined the issues relevant to the constitutionality or legality of the September 9, 1993 appointment of Mr. Gil-Bonar as interim United States Attorney by this Court pursuant to 28 U.S.C. § 546(d). Of the five issues stated by the Court of Appeals in its April 9, 1999 Order, the parties in this case have addressed with particular emphasis those described under items 2 and 3 of the Order:

2. Whether 28 U.S.C. § 546 violates the Appointments Clause of the United States Constitution, art. 2, § 2, cl. 2 and the principle of separation of powers, on its face or as applied in the circumstances of this case....

3. Even if the statute is constitutional, does the length of the interim appointment of the United States Attorney violate Congress' intent in enacting 28 U.S.C. § 541, 546?

Although considering these to be "serious issues," the Court found that they had not been timely raised since Mr. Colón made the constitutional challenge to the judicial appointment of Mr. Guillermo Gil-Bonar as the interim United States Attorney for the District of Puerto Rico for the first time in his motion for judgment of acquittal. Colon-Munoz, 192 F.3d at p. 219.

At the district court level, the constitutional challenge was also raised in United States v. Sotomayor Vazquez, 69 F.Supp.2d 286 (D.P.R.1999), where defendant claimed that the length of Mr. Gil-Bonar's interim appointment constitutes a de facto permanent appointment in violation of the Appointments Clause and the doctrine of separation of powers. The decision striking down that challenge was adopted by another Judge of this Court in United States v. Sosa, 78 F.Supp.2d 20 (1999) (1999 WL1256301, District of Puerto Rico, December 6, 1999), without an independent discussion. We shall later address the parts of the Sotomayor analysis which are relevant to the resolution of the motion to dismiss the indictment based on the alleged unconstitutionality/illegality of this Court's interim appointment.

The Court finds that the length of the Interim appointment of the United States Attorney violates Congress' intent in enacting 28 U.S.C. §§ 541 and 546. It is unnecessary, therefore, to engage in the analysis of the constitutional issues raised. Any mention of the Appointments Clause is done strictly with reference to Congress' enactment of these statutes in conformity with that clause. Considering that the distinctive characteristics of the modes of appointment established by Congress in sections 541 and 546(d) have been blurred in reaching the conclusion that this interim appointment is valid, we feel constrained to commence the discussion by referring to the text of the Appointments Clause, the language of these statutory provisions and the relevant case law.

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 Ministers 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.

In United States v. Germaine, 99 U.S. 508, 509, 25 L.Ed. 482 (1878), the Court referred to the two modes of appointment stating that "[t]he Constitution for purposes of appointment very clearly divides all its officers into two classes." The Court referred to a "primary class [which] requires a nomination by the President and confirmation by the Senate." Id, at p. 510. It then referred to the alternative mode of appointment to deal with particular situations, such as "sudden removals" or the sheer number of positions which made the first mode "inconvenient." It concluded "there can be but little doubt" ... [t]hat all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment." Id. Reaffirming this basic tenet, the Court in Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659, (1976) said: "all Officers of the United States are to be appointed in accordance with the Clause." (Emphasis in original). It added: "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary" but "[n]o class or type of officer is excluded because of its special functions." Id.

The parties have cited no case, and the Court has found none, in which the mode of appointment by the President with Senatorial confirmation has been challenged.¹ Joseph Harris, in the introduction to his book The Advice and Consent of the Senate; A Study of the Confirmation of Appointments of the United States Senate (1953) addresses this situation, stating:

... No case has ever been taken to the Supreme Court to test the authority of Congress to require Senate approval of appointments, and it is unlikely that such a case will come before the Court. When the question has arisen collaterally, the Court has avoided ruling on the subject by holding that persons appointed by the President and confirmed by the Senate are "officers of the United States," and that those appointed otherwise are "inferior" officers. Although the federal courts have frequently interpreted the term "officer" as used in various federal statutes, these decisions do not indicate a uniform usage and, in any event, do not apply to the term as used in this section of the Constitution. The decision concerning which officers should be appointed by the President and confirmed by the Senate is essentially political in character and has appropriately been left to legislative rather than judicial determination."

Id. at p. 15. (Footnote omitted, emphasis ours.)

Mr. Justice Story observed in his Commentaries on the Constitution of the United States, (1991) that the propriety of the discretionary power granted to Congress by the Appointments Clause "cannot well be questioned" and that the limits of its discretion "could hardly admit of being exactly defined; and it might fairly be left to congress to act according to the lights of experience." Id. at pp. 384-85.

Courts and commentators have made statements that point to shared appointments as aiming at more qualified persons while the direct appointment is viewed as a practical means of dealing in a more agile manner with the business of government. Harris, for example, refers to the presidential appointments with Senate approval as including those officers who "provide the leadership, exercise general direction and control, and set the tone of the government" although recognizing that in that group are included "many subordinate officers and employees who do not determine policies but work under the direction and control of administrative superiors." Id. at p. 2. In 1903, the Supreme Court in Shurtleff v. United States, 189 U.S. 311, 315, 23 S.Ct. 535, 536, 47 L.Ed. 828 (1903), referred to the particular office involved in that case as regarded by Congress "of sufficient importance to make it proper to fill it by an appointment to be made by the President and confirmed by the Senate," thereby classifying it "as appropriately coming under the direct supervision of the President ... (and confirmed by the Senate) with reference to his constitutional responsibilities to see that the laws are faithfully executed." Mr. Chief Justice Taft in Myers v. United States, 272 U.S. 52, 161, 47 S.Ct. 21, 71 L.Ed. 160 (1926), observed that for forty years all postmasters were directly appointed by the Post-master General under the Excepting Clause but Congress changed the mode of appointment to a presidential appointment with the consent of the Senate. He expressed that this was "an indication that Congress deemed appointment by the President with the consent of the Senate essential to the public welfare." In Edmond v. United States, 520 U.S. at 658, 117 S.Ct. at 1578, Justice Scalia refers to the mode of appointment which vests in the President the power to appoint principal officers with the consent of the Senate as a "disposition ... designed to ensure a higher quality of appointments." And, citing Alexander Hamilton in The Federalist No. 77, he points to the public accountability ensured by the joint participation of the President and the Senate in the making of appointments. Id. The shared...