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United States v. Santos-Caporal

United States District Court, E.D. Missouri, Southeastern Division

January 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GABRIEL SANTOS-CAPORAL, Defendant.

          REPORT AND RECOMMENDATION

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the Court is Defendant Gabriel Santos-Caporal's Motion to Dismiss the Indictment. (Doc. 20.)

         Santos-Caporal is charged with a single count of unlawful reentry having been previously deported from the United States to Mexico on two prior occasions. He claims that the Indictment pending against him is invalid alleging it was secured under the supervision of an invalidly appointed Acting Attorney General (AG). Ultimately, Santos-Caporal asks this Court: a) to find that the Constitution was violated when Matthew Whitaker was temporarily appointed as Acting AG through application of the Federal Vacancies Act of 1998, 5 U.S.C. §§ 3345-3349 (FVRA), and b) to conclude that 28 U.S.C. § 508 governs how vacancies of the Attorney General's office are filled rather than the FVRA. Santos-Caporal offers dismissal of the Indictment, suppression of evidence, or re-litigation under a validly appointed AG as potential remedies.

         The Government opposes the Motion. (Docs. 21, 23.) First, the Government argues that the Acting AG's designation was valid in that Whitaker was appointed pursuant to 5 U.S.C. § 3345(a)(3) of the FVRA. Next, the Government explains that the United States Attorney and AUSA who secured the Indictment were acting under the supervision of the Deputy AG. Third, the Government further relies on the fact that a legally constituted and unbiased grand jury, “a constitutional fixture in its own right, ” returned the Indictment against Santos-Caporal acting independently from the prosecutor and judge. Furthermore, the Government underscores the validity of the Indictment based on the fact this Court has jurisdiction of the matter regardless of the lawfulness of Acting AG Whitaker's appointment.

         After consideration of the parties' briefs and the applicable law, the undersigned recommends that the following findings of fact and conclusions of law be adopted and that Santos-Caporal's Motion to Dismiss be denied.

         Findings of Fact

         On November 13, 2018, a Grand Jury was convened at the federal courthouse situated in the Southeastern Division of the Eastern District of Missouri. Under the supervision of the U.S. Attorney for the District, an AUSA presented evidence to the Grand Jury regarding the conduct of Gabriel Santos-Caporal on or about October 26, 2018 in Cape Girardeau County, Missouri. After hearing the evidence, the Grand Jury returned the instant Indictment.

         Santos-Caporal, who is from Mexico, was charged with Reentry into the United States without express consent from the Attorney General of the United States or the Secretary of the Department of Homeland Security to reapply for admission to the United States. The Indictment further alleges that Santos-Caporal was removed from the United States on two prior occasions due to his alien status.

         The Grand Jury Foreperson and the AUSA signed the Indictment. Above the AUSA's signature appears the name of the United States Attorney for the Eastern District of Missouri, who was appointed by the President and confirmed by the Senate.

         One week prior to the return of the Indictment, on November 7, 2018, Attorney General Jefferson B. Sessions, III, announced his resignation, and President Donald J. Trump appointed Matthew Whitaker as Acting AG of the United States. Prior to the appointment, Whitaker served as the Chief of Staff to Attorney General Sessions for more than one year.

         On November 14, 2018, the Office of Legal Counsel (OLC) for the Department of Justice issued an opinion concerning the appointment of Whitaker. A summary of the conclusion appears before the 28-page Slip Opinion:

The President's designation of a senior Department of Justice official to serve as Acting Attorney General was expressly authorized by the Vacancies Reform Act. That act is available to the President even though the Department's organic statute prescribes an alternative succession mechanism for the office of Attorney General.
The President's designation of an official who does not hold a Senate-confirmed office to serve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official's position into a principal office requiring Senate confirmation.

See Designating an Acting Attorney General, 42 Op. O.L.C. __, at 1 (Nov. 14, 2018) (OLC Memorandum), slip-opinion version available at https://www.justice.gov/olc/file/ 1112251/download.

         Santos-Caporal disagrees with the conclusions of the OLC.

         II. Conclusions of Law

          Santos-Caporal claims the charge against him should be dismissed. He alleges that in securing the instant Indictment, the United States Attorney for this District and the AUSA were “proceeding under the supervision of an invalidly appointed Acting Attorney General, rendering their actions ultra vires and void.” (Doc. 20 at 1.) He argues that President Trump's installation of Whitaker via the FVRA is a violation of the Appointments Clause of Article II of the United States Constitution in that appointment of the Attorney General of the United States requires the advice and consent of the Senate.

         To support his position, Santos-Caporal argues that the Attorney General has broad authority to supervise United States Attorneys and AUSAs (id. at 3-4); the installation of Whitaker as Acting AG violates the Appointments Clause (id. at 4-6); 28 U.S.C. § 508 governs the succession to the Office of Attorney General (id. at 6-7); the FVRA does not properly apply to Whitaker's installation (id. 7-8); the Doctrine of Constitutional Avoidance requires recognizing that § 508, not the FVRA, governs succession to the office of Attorney General of the United States (id. at 8-9); and Whitaker's installation violates § 508 and is invalid (id. at 9-12). Finally, Santos-Caporal claims that the actions of invalidly appointed officers have no force and effect (i.e., the activities of the presidentially appointed and Senate confirmed U.S. Attorneys in each of the 93 judicial districts in the nation along with the actions of AUSA's acting under them are void).

         The instant Motion requires the Court to address two questions. First, was Acting AG Matthew Whitaker's appointment invalid? Second, were the U.S. Attorney and AUSA who secured the Indictment proceeding under the supervision of an invalidly appointed Acting AG?

         II.A. The “special and temporary” appointment of an Acting AG is lawful

          Santos-Caporal claims that the appointment of Acting AG Whitaker without the advice and consent of the Senate violates the Appointments Clause of Article II of ...


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