U.S. v. Sotomayor Vazquez

• Citation: 69 F.Supp.2d 286
• Decision Date: 25 October 1999
• Docket Number: No. CR. 97-091(JAF).,CR. 97-091(JAF).
• Parties: UNITED STATES of America, Plaintiff, v. Jeannette SOTOMAYOR VAZQUEZ (02); Defendant.
• Court: U.S. District Court — District of Puerto Rico

Page 286

69 F.Supp.2d 286

UNITED STATES of America, Plaintiff, v. Jeannette SOTOMAYOR VAZQUEZ (02); Defendant.

No. CR. 97-091(JAF).

United States District Court, D. Puerto Rico.

October 25, 1999.

Maria A. Dominguez-Victoriano, Asst. U.S. Attorney, Edna Rosario, Asst. U.S. Attorney, Guillermo Gil, U.S. Attorney, San Juan, PR, for plaintiff.

Francisco Rebollo-Casalduc, San Juan, PR, for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Defendant Jeannette Sotomayor-Vázquez ("Sotomayor") renews her motion challenging the constitutionality of the instigation of the government's investigation of her due to the alleged unconstitutional delegation of authority by interim United States Attorney Guillermo Gil.¹

We have already issued an Opinion and Order concerning the validity of Defendant Sotomayor's indictment. Docket Document No. 557.² We determined that the indictment was not legally flawed pursuant to Fed.R.Crim.P. 7(c)(1). Id. However, in that opinion, we declined to reach the constitutional issue and decided the question before us upon other grounds. Id. Defendant now renews her slightly-altered motion in light of the First Circuit's opinion in United States v. Colon-Munoz, 192 F.3d 210 (1st Cir.1999), which was pending decision at the time we issued our Opinion and Order. In that case, the Circuit determined that the defendant had failed to raise properly the constitutional issue prior to trial, thus constituting a waiver which effectively precluded appellate review. Id. Thus, Defendant asserts that since she preserved the issue in this case, the constitutional issue is ripe for review.

I. Relevant Factual Background

Daniel López-Romo resigned as United States Attorney ("U.S.Attorney") for the District of Puerto Rico in 1993. At that time, United States Attorney General Janet Reno appointed Charles Fitzwilliam as temporary U.S. Attorney pursuant to 28 U.S.C. § 546(a). After the one-hundred and twenty-day statutory period for Fitzwilliam's appointment expired, 28 U.S.C § 546(c), the Judges for the District Court in Puerto Rico appointed Mr. Guillermo Gil as interim U.S. Attorney pursuant to 28 U.S.C. § 546(d). Mr. Gil's appointment was filed with the Clerk of this Court on September 10, 1993, as required by 28 U.S.C. § 546(d).³ The President of the United States has not sent a nomination for U.S. Attorney for the District of Puerto Rico to the U.S. Senate for confirmation.

II. Procedural History

Defendant alleges a somewhat different position from the issue in Colon-Munoz. She alleges that the length of Mr. Gil's interim appointment constitutes a de facto permanent appointment in violation of both the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, and the foundational doctrine of separation of powers. Therefore, Defendant maintains that Mr. Gil's continued unconstitutional presence as United States Attorney for the District of Puerto Rico renders all of the actions that he authorizes contrary to the law. In essence, Defendant asserts that Mr. Gil was without the power to authorize the initiation of her prosecution pursuant to Fed. R.Crim.P. 12(b)(1).

Defendant bases her stance upon the fact that this lawsuit was initiated following a local House of Representatives referral directly to Mr. Gil and the fact that the government has not denied that Mr. Gil instructed his subordinates to initiate the investigation or was consulted about or approved of important matters throughout the trial. Without commenting upon the merits or weight of this purported foundation, we now find that it is time to give this constitutional issue, which has been haunting the halls of the Puerto Rico Federal Court, the meticulous attention it deserves.

III. The Appointments Clause

The Appointments Clause⁴ "is a bulwark against one branch aggrandizing its power at the expense of another branch and preventing the diffusion of the appointment power.'" Ryder v. United States, 515 U.S. 177, 181, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). The Clause dictates that the President, with the advice and consent of the Senate, possesses the sole authority to appoint "principal" officers of the United States. See Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); United States v. Germaine, 99 U.S. 508, 509, 25 L.Ed. 482 (1878). On the other hand, Congress is empowered to authorize 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, cl. 2.

Therefore, the first inquiry with which we grapple is whether United States Attorneys are principal or inferior officers. The Constitutional framers provided us with scant guidance as to what differentiates a principal from an inferior officer. See Morrison v. Olson, 487 U.S. 654, 671-77, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Nonetheless, the Court has held a number of officials to be inferior within the meaning of the Clause. See Id. (independent counsel); Edmond v. United States, 520 U.S. 651, 658-66, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) (judges of the United States Coast Guard Court of Appeals); Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-53, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (United States commissioners); Reagan v. United States, 182 U.S. 419, 424, 21 S.Ct. 842, 45 L.Ed. 1162 (1901) (same); Rice v. Ames, 180 U.S. 371, 378, 21 S.Ct. 406, 45 L.Ed. 577 (1901) (same); United States v. Eaton, 169 U.S. 331, 343, 18 S.Ct. 374, 42 L.Ed. 767 (1898) (vice consuls); Ex Parte Siebold, 100 U.S. 371, 397-98, 25 L.Ed. 717 (1879) (election supervisors); In re Hennen, 38 U.S. (13 Pet.) 230, 258-59, 10 L.Ed. 138 (1839) (district court clerks). Furthermore, other courts, which have addressed the issue, have concluded that United States Attorneys are inferior officers. See United States v. Gantt, 179 F.3d 782, 787-88 (1999) (citing Edmond, 520 U.S. at 662-63, 117 S.Ct. 1573); United States v. Solomon, 216 F.Supp. 835, 838-43 (S.D.N.Y.1963) (approving, in dicta, constitutionality of predecessor statute to 28 U.S.C. § 546(d) based on United States Attorneys being inferior officers). While never directly speaking upon the issue, the Supreme Court, in dicta, has indicated that United States Attorneys are inferior officers. See Myers v. United States, 272 U.S. 52, 129, 47 S.Ct. 21, 71 L.Ed. 160 (1926); see also Morrison, 487 U.S. at 676-77, 108 S.Ct. 2597 (citing Solomon approvingly). Moreover, the office of Legal Counsel of the Department of Justice has explicitly adopted such an approach. United States Attorneys — Suggested Appointment Power of the Attorney General — Constitutional Law (Article 2, § 2, cl. 2), 2 Op.O.L.C. 58, 58-59 (Feb. 28, 1978).

In its most recent opinion pertaining to the subject, the Morrison Court refrained from explicating precisely what differentiates principal from inferior officers. Morrison, 487 U.S. at 671, 108 S.Ct. 2597. The Court, however, did find certain indicia important in reaching its decision. Id. Among them were that removal power was vested in a higher officer of the Executive branch; that the independent prosecutor's authority was not plenary, but rather circumscribed to specific, limited duties; that the independent prosecutors office was one of limited jurisdiction; and that the office was "limited in tenure." Id. at 671-72. In a different opinion, the Court noted another significant, but not dispositive factor: Whether the official exercises significant authority on behalf of the United States. Edmond, 520 U.S. at 662, 117 S.Ct. 1573. The Edmond Court expounded that:

[t]he term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: whether one is an "inferior" officer depends on whether he has a superior ... "inferior officers" are officers whose work is directed and supervised at some level by others who are appointed by presidential nomination with the advice and consent of the Senate.

Id. at 662-63, 117 S.Ct. 1573.

We turn to a thorough examination of these factors. First, and foremost, it is indisputable that the Attorney General exercises significant control over United States Attorneys. Following a chaotic beginning with a decentralized legal system, Congress vested the Attorney General with "general superintended and direction duties ***" over United States Attorneys. Act of August 2, 1861, Ch. 37, 12 Stat. 185. In 1870, this power was further aggregated with Congress' creation of the Department of Justice. Act of June 22, 1870, Ch. 150, 16 Stat. 164. Today, there are numerous statutory grants expressly providing the Attorney General with significant supervisory power over United States Attorneys. See 28 U.S.C. § 509 (vesting Attorney General with "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice"); 516 (reserving the power to conduct litigation in which the United States is a party or has an interest to "officers of the Department of Justice, under the direction of the Attorney General"); 519 (directing that Attorney General shall supervise and "direct all United States Attorneys, assistant United States attorneys, and special attorneys appointed under Section 43 of this title in discharge of their respective duties"); see also Department of Justice United States Attorney's Manual, § 92.001 (authority of the United States Attorneys in criminal matters is subject to supervision and direction of Attorney General and his/her delegates). This supervisory power has been recognized by both the Supreme Court, McGrain v. Daugherty, 273 U.S. 135, 150, 47 S.Ct. 319, 71 L.Ed. 580 (1927); United States v. San Jacinto Tin Co., 125 U.S. 273, 278-79, 8 S.Ct. 850, 31 L.Ed. 747 (1888), and the drafters of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 48 Advisory Committee's note 2. Additionally, Congress has imposed upon United States Attorneys the concomitant statutory obligation to...