United States v. Patara

365 F.Supp.3d 1085

UNITED STATES of America, Plaintiff,

v.Mambasse Koulabalo PATARA (1), German Ramirez-Gonzalez (2), Mary Aragon aka Mary Delgado (3), Defendants.

Case No.: 18-cr-2342-BTM

United States District Court, S.D. California.

Signed February 11, 2019

Lara Alaine Stingley, Assistant United States Attorney, U.S. Attorney's Office Southern District of California, San Diego, CA, for Plaintiff.

Federal Defenders, Timothy Robert Garrison, Public Defender or Community Defender Appointment, Federal Defenders of San Diego, San Diego, CA, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

[ECF No. 73]

Honorable Barry Ted Moskowitz, United States District Judge

This matter comes before the Court on the Defendants' motion to dismiss the third superseding indictment for violation of the Appointments Clause of the United States Constitution, filed on November 16, 2018. (ECF No. 73 ("Def.'s MTD").)¹ The government filed a response in opposition on December 1, 2018. (ECF No. 84 ("Government's Opp'n").) Defendant filed a reply in support of the motion on December 4, 2018. (ECF No. 86 ("Def.'s Reply").) The Court held a hearing on this motion on December 18, 2018. For the following reasons, the motion to dismiss is denied .

I. BACKGROUND

A. Factual Background

On April 15, 2018, the government filed a complaint charging Defendant Mambasse Koulabalo Patara with the illegal transportation of Mr. Fermin Lopez and Mr. German Ramirez-Gonzalez. (ECF No. 1.) On May 9, 2018, the grand jury indicted Defendant Patara. (ECF No. 17.) On July 5, 2018, the grand jury returned a superseding indictment charging Defendants Patara and Ramirez-Gonzalez with the illegal transportation of Mr. Lopez. (ECF No. 37.) On October 4, 2018, the grand jury returned a second superseding indictment, adding Mary Aragon as a defendant for assisting with the transportation of Mr. Lopez. (ECF No. 55.) Finally, on November 15, 2018, the grand jury returned a third superseding indictment. (ECF No. 71.) Under 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(II), Defendants Patara, Ramirez-Gonzalez, and Aragon are charged in count 1 with the illegal transportation of Lopez, and Defendants Patara and Aragon are charged in count 2 with the illegal transportation of Mr. Ramirez-Gonzalez. (Id.) Thus, Mr. Ramirez-Gonzalez is a defendant with respect to count 1 and an alleged smuggled alien with respect to count 2. (Id.)

B. Appointments Background

Mr. Adam L. Braverman served as United States Attorney in this district from November 17, 2017 to January 16, 2018. See General Order 669 , In the Matter of the Appointment of Adam L. Braverman as United States Attorney (March 12, 2018) (hereinafter "General Order 669"); see also Department of Justice, Robert S. Brewer, Jr. Sworn in as United States Attorney for the Southern District of California , https://www.justice.gov/usao-sdca/pr/robert-s-brewer-jr-sworn-united-states-attorney-southern-district-california (last visited Feb. 7, 2019) (hereinafter "Brewer Press Release"). Initially, under 28 U.S.C. § 546(a), former Attorney General Jeff Sessions appointed Mr. Braverman to be the United States Attorney for the Southern District of California for 120 days, effective on November 17, 2017. General Order 669. Then, upon the expiration of that time period, under 28 U.S.C. § 546(d), this Court appointed Mr. Braverman as United States Attorney. Id.

Mr. Robert S. Brewer is currently the United States Attorney for the Southern District of California, having been sworn in by the Court on January 16, 2019. See Brewer Press Release. President Trump nominated Mr. Brewer to serve as United States Attorney for this district on June 25, 2018, upon the recommendation of U.S. Senators Kamala Harris and Dianne Feinstein. Id. The full Senate unanimously confirmed his appointment on January 2, 2019. Id.

Mr. Matthew G. Whitaker is currently the acting Attorney General of the United States. See Designating an Acting Attorney General , 42 Op. O.L.C. No. 1, *1 (Nov. 14, 2018) (hereinafter the "OLC Opinion"). On November 7, 2018, former Attorney General Jeff Sessions resigned from office. Id. On the same day, President Trump directed Mr. Whitaker to serve as acting Attorney General under the Federal Vacancies Reform Act ("FVRA"), 5 U.S.C §§ 3345 - 3349d. Id. Before Mr. Whitaker was appointed to the role of acting Attorney General, he was Chief of Staff and Senior Counselor to the Attorney General, a position that did not require Senate confirmation. Id. at 1, 4.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 12 permits a court to consider pretrial motions that raise "any defense, objection, or request" that can be determined "without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "A pretrial motion is generally capable of determination before trial if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir. 1986).

III. DISCUSSION

Defendants bring this motion to dismiss, arguing that the appointment of Mr. Whitaker as acting Attorney General is invalid. First, Defendants argue that the appointment violates the Attorney General Succession Act, because under that statute, the Deputy Attorney General becomes the acting Attorney General when there is a vacancy in the office of Attorney General. Second, Defendants argue that the appointment is in violation of the Appointments Clause of the United States Constitution because Mr. Whitaker is not confirmed by the Senate. Consequently, Defendants assert that the judicial appointment of Mr. Braverman also violates the Appointments Clause during the time period he served as United States Attorney when there was no Senate confirmed Attorney General who directed and supervised his work. Thus, Defendants argue that any continuation of the prosecution has no force or effect.

The Court disagrees. First, as a statutory matter, the appointment of Mr. Whitaker was valid under the Federal Vacancies Reform Act ("FVRA"), codified in 5 U.S.C. §§ 3345 - 3349d. Second, the Court need not reach the constitutional question of whether that appointment violates the Appointments Clause, because even if it does, the United States Attorney in this district has had at all times the authority to prosecute the Defendants' case.

A. The Appointment of the Acting Attorney General Is Statutorily Valid

Defendants argue that under the Attorney General Succession Act, the Deputy Attorney General is the acting Attorney General. See 28 U.S.C. § 508. Defendants argue that because this statute creates the line of succession for the office of the Attorney General, the President did not have authority to appoint Mr. Whitaker. The government argues, however, that the President had statutory authorization under a separate statute, the FVRA. See 5 U.S.C. §§ 3345 - 3349d. Defendants argue that the FVRA is inapplicable to a vacancy in the office of the Attorney General because the Attorney General Succession Act supersedes the FVRA, while the government argues that the Attorney General Succession Act is not the exclusive means for addressing such a vacancy. The Court agrees with the government.

1. Plain Meaning

First, based on the plain meaning of the Attorney General Succession Act and the FVRA, the Court finds that the two statutes operate as alternatives for determining the succession of the Attorney General in light of a vacancy. The Court focuses on the statutory text because as the Ninth Circuit has stated, "[t]he preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous." Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946, 951 (9th Cir. 2009) (citing McDonald v. Sun Oil Co. , 548 F.3d 774, 780 (9th Cir. 2008) ); see also Palmer v. Stassinos , 348 F.Supp.2d 1070, 1078 (N.D. Cal. 2004) (citing Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ) ("A court should first apply the plain meaning rule: if the meaning of the statute is clear, no further construction is required....").

The Attorney General Succession Act establishes a default line of succession, and the FVRA provides an alternative that authorizes the President to appoint an officer or employee within certain limitations. The Attorney General Succession Act states:

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

28 U.S.C. § 508. Based on the plain text of the Attorney General Succession Act, it is clear that the Deputy Attorney General is the successor to the Attorney General. Id. at § 508(a). Moreover, the statute further delineates a line of succession when the Deputy Attorney General is not able to exercise the duties of Attorney General. Id. at § 508(b).

The FVRA states, in relevant part:

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) the first assistant to the office of such officer shall perform the functions and duties of the office

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