United States v. Choi

• Decision Date: 11 October 2011
• Docket Number: Magistrate No. 10–739–11.
• Parties: UNITED STATES of America, Petitioner, v. Daniel CHOI, Respondent.
• Court: U.S. District Court — District of Columbia

818 F.Supp.2d 79

UNITED STATES of America, Petitioner,

v.Daniel CHOI, Respondent.

Magistrate No. 10–739–11.

United States District Court, District of Columbia.

Oct. 11, 2011.

Angela S. George, U.S. Attorney's Office, Washington, DC, for Petitioner.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is the government's Petition for Writ of Mandamus [64]. The government seeks a writ of mandamus to prevent Magistrate Judge John Facciola from considering selective or vindictive prosecution as either a defense to the merits of the prosecution of respondent Daniel Choi, or as the basis for a dismissal of the prosecution. Upon consideration of the Petition, the respondent's Response thereto [70], the government's Reply [82], and the oral argument of counsel, this Court will GRANT the Petition and issue a writ of mandamus directing Magistrate Judge Facciola not to consider any claims of selective or vindictive prosecution as a substantive defense on the merits of the government's underlying prosecution, or to dismiss the information on those grounds, or to permit the introduction of evidence relevant to these claims.

I. BACKGROUND

This Petition arises out of the bench trial of respondent Daniel Choi by Magistrate Judge Facciola for failure to obey a lawful order under 36 C.F.R. § 2.32(a)(2), a Class B misdemeanor. Respondent and 12 other individuals handcuffed themselves to the White House fence on November 15, 2010, in protest of the armed forces' then-current “Don't Ask, Don't Tell” policy.¹ The United States Park Police directed the protestors to leave the area three times,² and arrested the protestors following their continued non-compliance. The arrest was respondent's third in nine months, each for the same criminal conduct. The government offered the protestors deferred-sentencing agreements, pursuant to which the protestors would plead guilty to the charge of failure to obey a lawful order and the government would refrain from prosecution, subject to various conditions. Respondent's 12 co-protestors accepted the agreements; respondent did not.

On August 24, prior to the start of trial, the government became aware during conversation between counsel that respondent was considering a selective prosecution claim, based primarily on the fact that he had been arrested twice prior for similar conduct but had not faced federal prosecution for those offenses. At a status conference the next day, government counsel raised this issue with Magistrate Judge Facciola and argued that the respondent had to raise it in a pre-trial motion to dismiss; Magistrate Judge Facciola responded that he would consider the issue at trial. The following day, the government offered the respondent a deferred-prosecution agreement, pursuant to which the government would dismiss the complaint, subject to various conditions. The respondent declined the offer. The government filed a pre-trial motion in limine on the evening of August 28, the day before the start of trial, to prevent defense counsel from raising this issue. In the motion, the government argued 1) that a selective prosecution claim must be raised in a pre-trial motion to dismiss or is otherwise waived under Rule 12(b)(3)(A), and 2) that the respondent failed to assert a prima facie case of selective prosecution.

Immediately prior to trial on the morning of August 29, 2011, the government requested that Magistrate Judge Facciola rule on the motion in limine. Government counsel again raised its argument that a selective prosecution claim is not a defense to the merits of the prosecution and must be raised pre-trial. Magistrate Judge Facciola continually referred to the issue as a defense and declined to rule on the motions. At that point, trial commenced. During trial, respondent presented evidence in support of his selective prosecution claim. Magistrate Judge Facciola on August 31 stated that he viewed the evidence as supporting a vindictive prosecution claim as opposed to a selective prosecution claim, that he would allow the respondent to further pursue the claim as a defense, and that he would ask for briefing on the issue at the conclusion of the trial. When asked by the government to clarify whether he would permit the defendant to pursue these claims as a defense on the merits, Magistrate Judge Facciola replied in the affirmative. At that point, Magistrate Judge Facciola asked the government whether it wished for him to stop the proceedings to allow the government to seek mandamus; the government agreed, and Magistrate Judge Facciola stayed the proceedings.

The government filed the instant Petition for Writ of Mandamus on September 12, 2011. The government seeks a writ of mandamus directing Magistrate Judge Facciola to 1) refrain from considering a defense of selective or vindictive prosecution, 2) refrain from allowing the defendant to introduce further evidence in support of such claims, 3) treat any motion to dismiss the prosecution based on such claims as waived, and 4) refrain from considering dismissal based on such claims sua sponte.

II. DISCUSSIONA. Jurisdiction

Respondent argues that this Court lacks jurisdiction to issue a writ of mandamus directed to Magistrate Judge Facciola. Respondent cites no law expressly forbidding a district court from issuing a writ of mandamus to a magistrate of the same court, but instead relies primarily on the novelty of such a writ. Although this Court is unaware of any reported decision in which a district court issued a writ of mandamus to a magistrate judge, the rarity of such an order is not conclusive. Rather, the Court must undergo an analysis of the statutory bases for mandamus jurisdiction to determine whether a district court is so empowered.

Writs of mandamus are governed by two statutes. The first, more general statute, is the All Writs Act, 28 U.S.C. § 1651. That Act states:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In turn, Congress has separately conferred jurisdiction on the district courts to entertain suits “in the nature of” mandamus in 28 U.S.C. § 1361:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Petitioner does not argue that 28 U.S.C. § 1361 grants the requisite authority. Although the text of the statute would seem to permit jurisdiction here—after all, magistrate judges are employees of the United States— § 1361 is only a source of jurisdiction for district courts to exercise writs of mandamus to employees of the Executive branch. See, e.g., Trackwell v. United States Government, 472 F.3d 1242, 1247 (10th Cir.2007); Liberation News Service v. Eastland, 426 F.2d 1379, 1384 (2d Cir.1970) (“[I]n enacting [ ] § 1361 ... Congress was thinking solely in terms of the executive branch.”) (Friendly, J.); King v. Russell, 963 F.2d 1301, 1304 (9th Cir.1992) (applying the rationale of Eastland to bar § 1361 action against bankruptcy court officers). A magistrate judge exercises Article I authority subject to the supervision of the district court, see United States v. Raddatz, 447 U.S. 667, 681–84, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), and is not a member of the Executive branch. A district court thus may not issue a writ of mandamus to a magistrate judge pursuant to § 1361.

The All Writs Act, upon which petitioner relies, is most commonly invoked by a federal circuit court of appeals to issue a writ of mandamus to a district court judge, or by the Supreme Court to issue a writ to a lower court judge. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (“[T]he writ of mandamus has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” (quotations omitted)); id. at 34, 101 S.Ct. 188 (noting that under the Act, “ courts of appeals may issue a writ of mandamus ...” (emphasis added)); see, e.g., In re Papandreou, 139 F.3d 247 (D.C.Cir.1998) (issuing writ of mandamus to a district court). Key to a court's issuance of a writ of mandamus is that it be acting in support of its appellate jurisdiction. Cf. Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 86, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) (holding that the Supreme Court can only issue a writ of mandamus “insofar as such writs are in aid of its appellate jurisdiction”). Thus, a federal court of appeals may not issue a writ of mandamus to a state court, because a federal court of appeals does not exercise appellate jurisdiction over any state court. See, e.g., White v. Ward, 145 F.3d 1139, 1140 (10th Cir.1998); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (noting that, unlike the federal courts of appeals, the Supreme Court does retain appellate jurisdiction over state courts). Likewise, a federal court of appeals may not issue a writ of mandamus to another federal court of appeals, or to a district court outside of the court of appeals' circuit. See Air Line Pilots Assn., Int'l v. Dep't of Transp., 880 F.2d 491, 503 (D.C.Cir.1989).

Tellingly, while Federal Rule of Appellate Procedure 21(a)(1) refers explicitly to “a writ of mandamus ... directed to a court,” and while Supreme Court Rule 20 governs petitions for extraordinary writs “in aid of the Court's appellate jurisdiction,” neither the federal rules of civil nor criminal procedure refers to appellate mandamus. Indeed, Federal Rule of Civil Procedure 81(b) purports to abolish the common-law writ of mandamus. And while the Circuit Court of Appeals for the D.C. Circuit has held that § 1361 permits district courts...