United States District Court, E.D. Missouri, Southeastern Division
REPORT AND RECOMMENDATION
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
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.)
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
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.
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.
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.
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.
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.
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.
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
See Designating an Acting Attorney General, 42 Op.
O.L.C. __, at 1 (Nov. 14, 2018) (OLC Memorandum),
slip-opinion version available at
disagrees with the conclusions of the OLC.
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.
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).
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?
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 ...