U.S. v. Young, No. CR 07-1012 BB.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtBruce D. Black
Citation541 F.Supp.2d 1226
PartiesUNITED STATES of America, Plaintiff, v. Michael YOUNG, Defendant.
Decision Date04 April 2008
Docket NumberNo. CR 07-1012 BB.
541 F.Supp.2d 1226
UNITED STATES of America, Plaintiff,
Michael YOUNG, Defendant.
No. CR 07-1012 BB.
United States District Court, D. New Mexico.
April 4, 2008.

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Elaine Y. Ramirez, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

BJ Crow, Bowles & Crow, Albuquerque, NM, for Defendant.


BRUCE D. BLACK, District Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss Indictment Without Prejudice on the Basis that the Current United States Attorney has been Unconstitutionally Appointed [doc. 60]. The Court having reviewed the briefs of counsel and additional authority, finds the Motion is without any legal justification, and it will be Denied.

I. Facts

David C. Iglesias, former United States Attorney for the District of New Mexico, resigned his position effective February 28, 2007. In the immediate wake of Mr. Iglesias's 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). On September 26, 2007, Acting Attorney General Peter Keisler appointed Mr. Gomez as United States Attorney pursuant to 28 U.S.C. § 546(c)(2). This temporary appointment expired on January 25, 2008, and this Court appointed Gregory J. Fouratt as United States Attorney pursuant to Section 546(d).

Even when the United States Attorney for the District of New Mexico was "acting" or "interim" and by whomever he was appointed, the scores of Assistant United States Attorneys in the office have continued to carry out their duties, including presenting cases to the grand jury. The indictment in this case was signed by Rumaldo R. Armijo, a career Assistant United States Attorney who was duly appointed by, and who ultimately is responsible to, the Attorney General of the United States. In the instant case, the indictment was returned on May 22, 2007, while Mr. Gomez was the United States Attorney appointed by the Acting Attorney General.

II. Issue

Defendant Michael Young asks this Court to dismiss the indictment "on the basis that the prosecution is being pursued by a United States Attorney who has been unconstitutionally appointed." (Mot. Dismiss p. 1). He bases this on his assertion "that 28 U.S.C. § 546(d), on its face, and as applied in this case, violates the separation of powers and is patently unconstitutional." (Mot. Dismiss p. 4).

III. Congress has the Constitutional Authority to Authorize Judges to Appoint an Interim United States Attorney

Defendant argues that "[s]ince there is not a constitutionally appointed United States Attorney whose authority flows from the Executive Branch of government, the continued prosecution of Mr. Young is constitutionally impermissible and this case must be dismissed without prejudice until a constitutionally valid United States Attorney is appointed." (Mot. Dismiss p. 2). Defendant's position is without either historical or legal precedent.

A. Historically, Appointment of the United States Attorney was Not Exclusively an Executive Function

At common law, prosecution of criminal cases was not exclusively, or even primarily,

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a prerogative of the executive.1 During the colonial period, several cross currents influenced the development of the office of the criminal prosecutor. The English practice of private prosecution, with or without supervision by a corporate or royal official, intersected with the Dutch "schout" who would review citizen complaints and then make a court presentation, and the French "procureur." By the time of the American Revolution, private prosecution had radically declined and had been replaced by a range of public officials.2 However, even then it was clear the prosecuting attorney shared allegiance to, and the duties of, both the courts and the executive. "Some were county officials appointed by the courts; some were deputies of the Attorney General but were nominated by the county court and operating with little supervision; some were deputies of the Attorney General operating directly under his view." Jacoby at 19. The founders of the Republic recognized this close affiliation between the prosecutor and the judge. Edward Livingston, for example, was appointed by President Jefferson as the United States Attorney for New York in 1801 and served in that role while simultaneously acting as a judge of the City Court of Common Pleas. Stephen L. Carter, Comment, The Independent Counsel Mess, 102 HARV. L.REV. 105, 126 n. 78 (1988).

The ambiguity of the proper classification of the prosecuting attorney carried through the constitutional period. Only five of the original thirteen state constitutions even mention an attorney general and each of these places the office in the judicial, rather than the executive, article of the document. Jacoby at 22. In fact, in 1787 no state provided the executive officer unfettered control over the appointment and removal of prosecutors. Myers v. United States, 272 U.S. 52, 69-70, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (Brandeis dissenting). Indeed, at the time the Constitution was ratified, and for decades thereafter, several of the original states provided for the appointment of prosecutors by either the judiciary or legislature.3 Although the Federal Judiciary Act of 1789 ultimately gave the appointment to the executive, it originally provided for the judicial appointment of United States Attorneys.4

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It is not surprising, then, that the draftsmen of the Constitution did not perceive the three branches of government as completely separate and exercising exclusively delineated powers. James Madison, the principal architect of the system of divided governmental power, opined: "It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." THE FEDERALIST, NO. 48, p. 338 (J. Madison) (Bourne ed.1901). "The product was a constitution, not of separated powers, but of `separated institutions sharing powers.'" Joel Fleishman and Arthur Aufses, Law and Orders: The Problem of Presidential Legislation, 40 Law & Contemp. Prob. 1, 3 (1976). It is therefore clear that "[i]n designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence." United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

In her treatise, THE AMERICAN PROSECUTOR: A SEARCH FOR IDENTITY, Joan E. Jacoby, the executive director of the Jefferson Institute for Justice Studies, concluded:

We know that current descriptions of the prosecutor often refer to him as an executive officer with quasi-judicial functions. This most likely is based on a twist of historical fact. At the beginning of the nineteenth century in America, the district attorney was viewed as a minor figure in the court, an adjunct to the judge. His position was primarily judicial, and perhaps only quasi-executive. ... He was, in the eyes of the earliest Americans, clearly a minor figure in the court's structure.

Jacoby at 23; see also Rainville at 35. The ambiguity about the proper role and classification of the prosecuting attorney reflected by the constitutional draftsmen has persisted to the present day. Indeed, for virtually the entire period since the Civil War,5 Congress, through statutes similar to 28 U.S.C. § 546, specifically authorized the judiciary to fill any interim vacancy in the office of the United States Attorney. United States v. Sotomayor Vazquez, 69 F.Supp.2d 286, 295 (D.P.R. 1999); United States v. Mitchell, 136 F. 896, 906 (C.C.D.Or.1905).

B. The Courts have Resoundingly and Repeatedly Rejected Challenges to the Constitutionality of 28 U.S.C. § 5^6(c) and its Predecessors

Given this history, it is not surprising that the Supreme Court has repeatedly recognized that "the Constitution by no means contemplates total separation of each of these three essential branches of Government." Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). "[T]he Framers did not require — and indeed rejected — the notion that the three

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Branches must be entirely separate and distinct." Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Indeed, the Court itself has called "archaic" the view that the Constitution establishes "three airtight departments of government." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); see also Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 47 L.Ed. 79 (1902). "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson J., concurring). The proper question, then, is not whether the United States Attorney is a member of the executive or judicial branch. The issue is whether the law being challenged is one that "prevents the Executive Branch from accomplishing its constitutionally assigned functions." Nixon v. Administrator, 433 U.S. at 443, 97 S.Ct. 2777.

Congress has generally vested the appointment of United States Attorneys in the President of the United States, with the advice and consent of the Senate. 28 U.S.C. §...

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