Quiel v. USA, No. 2:2016cv01535 - Document 38 (D. Ariz. 2018)

Court Description: ORDER denying 24 Petitioner's Amended Motion for Reconsideration. (See document for further details). Signed by Senior Judge James A Teilborg on 9/14/18. (LAD)

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Quiel v. USA Doc. 38 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Quiel, Petitioner, 10 11 v. 12 USA, No. CV-16-01535-PHX-JAT CR-11-02385-PHX-JAT ORDER 13 Respondent. 14 15 Pending before the Court is Michael Quiel’s (“Petitioner”) Amended Motion to 16 Reconsider Order, (Doc. 24), which fully incorporates Petitioner’s Motion to Reconsider 17 Order, (Doc. 23). Much of the background of this case is set out in this Court’s order 18 denying Petitioner’s request for 28 U.S.C. § 2255 relief. (Doc. 21). Subsequent to the 19 Court’s denial of § 2255 relief: (1) Petitioner filed a motion for reconsideration and an 20 amended motion for reconsideration, (Docs. 23 & 24); (2) the Government filed a 21 response to Petitioner’s amended motion for reconsideration, (Doc. 31), pursuant to this 22 Court’s order, (Doc. 28), and Petitioner permissibly filed a reply, (Doc. 32); and (3) the 23 Government filed evidence allegedly establishing that at least one attorney in the 24 underlying criminal case was appointed pursuant to the Appointments Clause and gave 25 the statutorily-required oath of office, (Doc. 35), as required by the Court, (Doc. 34), and 26 Petitioner objected to that evidence, (Doc. 36), which he later supplemented, (Doc. 37).1 27 1 28 Additionally, Petitioner has appealed this Court’s denial of § 2255 relief. (Doc. 25). The Ninth Circuit has held that appeal in abeyance pending resolution of Petitioner’s amended motion for reconsideration. (Doc. 27). Dockets.Justia.com 1 I. Governing Law 2 Motions for reconsideration are disfavored, and “[t]he Court will ordinarily deny” 3 such motions “absent a showing of manifest error or a showing of new facts or legal 4 authority that could not have been brought to its attention earlier with reasonable 5 diligence.” LRCiv 7.2(g). The party seeking reconsideration must “point out with 6 specificity the matters the movant believes were overlooked or misapprehended by the 7 Court, any new matters brought to the Court’s attention for the first time and the reasons 8 they were not presented earlier, and any specific modifications being sought in the 9 Court’s order.” Id. The movant is not permitted to repeat arguments that were rejected in 10 the challenged order. Id. The Court may deny a motion for reconsideration for failure to 11 abide by any of these rules. 12 13 14 II. Analysis Petitioner contends that the Court erred in deciding three of his arguments in favor of § 2255 relief. (Docs. 23 & 24). A. Appointments Clause2 15 16 Petitioner first contends that the Court erred in finding that the attorneys who 17 prosecuted his criminal case were appropriately appointed and had taken the statutorily 18 required oaths of office, and additionally by concluding that it had subject-matter 19 jurisdiction over the case. (Doc. 23 at 2–6); (Doc. 32 at 3–7). Given that this Court must 20 have subject-matter jurisdiction to render authoritative judgments, the Court ordered the 21 Government to produce evidence that at least one of the attorneys who prosecuted the 22 underlying criminal matter was properly appointed and took an oath of office. (Doc. 34). 23 In response, the Government submitted evidence establishing that Timothy Stockwell 24 25 26 27 28 2 The Court notes that the Ninth Circuit has recently suggested that Article II appointment deficiencies do not divest federal courts of Article III jurisdiction. See Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179 (9th Cir. 2016). This holding seems to conflict with prior cases finding that appointment defects are jurisdictional. See United States v. Durham, 941 F.2d 886, 892 (9th Cir. 1991); United States v. Plesinski, 912 F.2d 1033, 1036–39 (9th Cir. 1990). The Court need not resolve this potential intracircuit conflict, as Petitioner’s claim fails even if deficient appointments divest this Court of jurisdiction. -2- 1 (“Stockwell”) and Monica Edelstein (“Edelstein”) were both properly appointed and took 2 the required oaths of office. See (Docs. 35-1–35-4). 3 followed by a supplemental objection, to the Government’s evidence.3 4 Petitioner filed an objection, Petitioner seems to make three challenges to this evidence. First, Petitioner 5 challenges the authenticity of the appointment affidavits. Second, he argues that the 6 affidavits do not identify appropriate offices to which the attorneys were appointed. 7 Third, he argues that the attorneys’ oaths had expired. The Court will consider these 8 arguments in turn. 9 10 1. Authenticity Petitioner first challenges the Government’s evidence on the ground that it is not 11 authenticated and that its form suggests unreliability. 12 introduced upon the Court’s request in a § 2255 proceeding need not be authenticated. 13 Rule 7 of the Rules Governing Section 2255 Proceedings (“If the motion is not 14 dismissed, the judge may direct the parties to expand the record by submitting additional 15 materials relating to the motion. 16 authenticated.” (emphasis added)). Accordingly, the Court finds that the Government’s 17 evidence was appropriately introduced without authentication. (Doc. 36 at 3–4). Evidence The judge may require that these materials be 18 Furthermore, the Court does not agree that the Government’s evidence is in an 19 unreliable form. According to Petitioner, the fact that the date stamps on the documents 20 contain different fonts for the month and the day on the one hand, and the year on the 21 other hand, suggests the possibility of fraud. (Doc. 36 at 3–4). Additionally, Petitioner 22 contends that the appointment letters are different than others reviewed by Petitioner’s 23 counsel. (Id. at 4). Reasonable explanations exist for both discrepancies. As for the 24 stamps, it is likely that the Government has a different stamp for the year than it does for 25 the day and month. The difference in the wording and formatting of the appointment 26 3 27 28 While the Court will consider Petitioner’s objections to the Government’s evidence, see Rule 7(c) of the Rules of Section 2255 Proceedings, the Court did not grant Petitioner leave to file the additional supplement. The Court does not accept Petitioner’s justification for the supplement—that he had the opportunity to do additional research—as adequate to allow him to functionally amend his objection. -3- 1 letters is explained by the fact that they were written by different appointing officers. 2 Compare (Doc. 36-1 (providing that the appointing officer was John A. Marrella)), with 3 (Doc. 35-2 (providing that the appointing officer was Ronald A. Cimino)), and (Doc. 35- 4 4 (same)). 5 2. Identification of Office 6 Petitioner next contends that there is no “Office of the Trial Attorney” to which 7 Stockwell and Edelstein could be appointed. (Doc. 36 at 5–6). In Huff v. United States, 8 10 F.3d 1440, 1443–44 (9th Cir. 1993), however, the Ninth Circuit held that a “trial 9 attorney in the tax division of the Department of Justice” appropriately represented the 10 United States in a criminal tax prosecution. A necessary implicit assumption of Huff is 11 that a trial attorney is an officer, and proper representative, of the United States, even 12 where the office is not expressly established by statute. 13 Additionally, as Petitioner notes in his argument, “[a]ny appointee exercising 14 significant authority pursuant to the laws of the United States is an ‘Officer of the United 15 States.’” (Doc. 36 at 5 (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)). Accordingly, 16 it follows that the powers imbued in an individual, rather than a title, determines his or 17 her status as an officer. 18 Appointments Clause Practice, 93 Notre Dame L. Rev. 1501, 1509 (2018) (“The 19 background principle in administrative law is that functions, not labels, determine the 20 constitutional status of an administrative body.” (citing Lebron v. Nat’l R.R. Passenger 21 Corp., 513 U.S. 374, 392–93 (1995)). Both Stockwell and Edelstein were imbued with 22 the authority “to represent the United States in any kind of legal proceeding, civil or 23 criminal . . . in the District of Arizona.” (Docs. 35-2 & 35-4). See Aditya Bamzai, The Attorney General and Early 24 The officer who provided them with this authority was Acting Deputy Assistant 25 Attorney General Ronald A. Cimino (“Cimino”). (Docs 35-2 & 35-4). The Attorney 26 General appropriately delegated his appointment power to Cimino. See 5 U.S.C. § 301; 27 28 U.S.C. §§ 509, 510, 515, 516, 533; 28 C.F.R. §§ 0.13, 0.70; see also United States v. 28 Nixon, 418 U.S. 683, 694 (1974) (holding that 28 U.S.C. §§ 509, 510, 515, 516, and 533 -4- 1 permitted the Attorney General to appoint a Special Prosecutor); In re Sealed Case, 829 2 F.2d 50, 55 (D.C. Cir. 1987) (holding that 5 U.S.C. § 301 and 28 U.S.C. §§ 509, 510, and 3 515 provided implicit authorization for the Attorney General to create and appoint an 4 “Office of Independent Counsel.”). Petitioner argues that because Cimino was operating 5 in an acting role, rather than as a confirmed Deputy Assistant Attorney General, he was 6 not authorized to appoint Stockwell and Edelstein for longer than his acting tenure. (Doc. 7 36 at 7–8). Acting officers are permitted to operate in an acting capacity “for no longer 8 than 210 days beginning on the date the vacancy occurs.” 5 U.S.C. § 3346(a)(1); see also 9 5 U.S.C. § 3345. Thus, it is Petitioner’s contention that Cimino could have only 10 appointed Stockwell and Edelstein for 210 days. Furthermore, Petitioner contends that 11 even if Stockwell and Edelstein were properly appointed, their appointments lapsed when 12 presidential administration changed, on the theory that an officer’s term is commensurate 13 with that of his or her appointing officer. (Doc. 23 at 2–7). 14 This argument fails for two reasons. First, because Petitioner raises this issue for 15 the first time on a motion to reconsider, he has waived the argument. See LRCiv 7.2(g). 16 Second, no authority supports Petitioner’s proposition that an officer’s appointment is 17 commensurate with the tenure of the body that appoints them.4 Petitioner cites three 18 cases to support this proposition: Shurtleff v. United States, 189 U.S. 311 (1903), De 19 Castro v. Board of Commissioners of San Juan, 322 U.S. 451 (1944), and NLRB v. SW 20 General, Inc., 137 S. Ct. 929 (2017). None of these cases support Petitioner’s view. 21 Instead, Shurtleff and De Castro are focused on circumscribing limitations on the power 22 of removal, and do not provide for the automatic termination of an officer upon the 23 departure of his or her appointing officer. See Kalaris v. Donovan, 797 F.2d 376, 397 24 4 25 26 27 28 In fact, the enduring tenure of an inferior officer, which is not terminated by the departure of the appointing officer, is one factor that has been historically relevant in differentiating inferior officers—whose appointments must comply with the Appointments Clause—from non-officer “deputies.” See Bamzai, supra, at 1514 (“[V]acating the office of [a] superior would not have affected [the officer’s] tenure.” (quoting United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867) (first alteration added)). Because Petitioner contends that the prosecuting attorneys were officers, his argument that their officer status became void upon the departure of their appointing officer fails. -5- 1 (7th Cir. 1986) (interpreting these cases to “conclusively demonstrate that, in the absence 2 of a congressional statement to the contrary, inferior officers . . . serve indefinite terms at 3 the discretion of their appointing officers.”). 4 Furthermore, in SW General, the Court invalidated a complaint issued by the 5 NLRB’s acting general counsel when that officer was statutorily barred from holding that 6 position after being nominated by the President to permanently fill that role. 137 S. Ct. 7 929. Thus, while this case does support the uncontroversial view that non-officers cannot 8 perform the function of officers, it does not hold that the duration of an officer’s position 9 is commensurate with that of his or her appointing body. Petitioner claims that the Court 10 “explained that many individuals holding office of the United States were serving ‘well 11 beyond the time limits prescribed’ by law.” (Doc. 23 at 3.) As an initial matter, this 12 language does not come from the Supreme Court’s decision, but rather from the circuit 13 court decision that the Supreme Court was reviewing. See SW General, Inc. v. NLRB, 14 796 F.3d 67, 70 (D.C. Cir. 2015). Furthermore, the circuit court was expressly discussing 15 temporal limitations provided for in the Vacancies Act, which was a precursor to the 16 current vacancy statute, and was not implying that officers who were not temporarily 17 filling vacant positions were subject to temporal limitations. See id. 18 Accordingly, this Court does not find that an officer’s tenure is commensurate 19 with that of his or her appointing officer. Ultimately, Stockwell and Edelstein were 20 proper representatives of the United States, vesting this Court with subject-matter 21 jurisdiction. 22 3. Oath of Office 23 Petitioner argues that Stockwell and Edelstein’s oaths were deficient in various 24 ways. (Doc. 36 at 11–13). The Court rejected much of this argument in its original order 25 denying § 2255 relief, see (Doc. 21 at 24–25), and Petitioner’s additional claims do not 26 establish a “showing of manifest error or a showing of new facts or legal authority that 27 could not have been brought to [the Court’s] attention earlier with reasonable diligence.” 28 LRCiv 7.2(g). -6- 1 B. Perjury 2 Petitioner contends that this Court erred in finding that he procedurally defaulted 3 on his claim that Christopher Rusch (“Rusch”) and Cheryl Bradley (“Bradley”) perjured 4 themselves at trial by stating that they had handled Petitioner’s FBARs for the years 2000 5 to 2003. (Doc. 23 at 6–13); (Doc. 24). According to Petitioner, these FBARs do not 6 exist, which is made evident by the IRS’s failure to produce the forms to Petitioner after 7 repeated requests made after appeal. (Doc. 23 at 6–13); (Doc. 14). In Petitioner’s view, 8 this claim was not procedurally defaulted, because the “IRS Criminal Investigations” in 9 Phoenix “restrict[ed] access to” Petitioner’s litigation file “which can explain why the 10 IRS refused to answer [Petitioner’s] FOIA requests and why [Petitioner] could not get the 11 information previously.” (Doc. 24 at 1–2). 12 Petitioner fails to adequately justify why he could not have learned that the IRS 13 refused to turn over this information prior to his appeal. His conclusion that he could not 14 have learned of this information, because “IRS Criminal Investigations” was blocking his 15 access to the FBARs, misses the mark. If he had asked for the FBARs prior to appeal, 16 and had received them, then he would have evidence that they do exist, and would have 17 no basis to claim that Rusch and Bradley perjured themselves. Petitioner’s perjury claim 18 derives from precisely the allegations that the IRS will not turn over the FBARs because 19 they do not exist. Thus, because Petitioner’s claim only exists if the IRS refused to grant 20 him access to the FBARs, Petitioner’s failure to pursue the FBARs prior to appeal is not 21 excused by the IRS’s subsequent refusal to provide him with that information. 22 Accordingly, the Court will not reconsider its prior finding that Petitioner procedurally 23 defaulted this claim, because it “involves information that [Petitioner] could have learned 24 with reasonable diligence prior to appeal.” (Doc. 21). 25 C. Ineffective Assistance of Counsel 26 Petitioner largely restates the same arguments made in his original § 2255 petition 27 as to why his trial attorney, Michael Minns, was constitutionally ineffective. (Doc. 23 at 28 -7- 1 13–17).5 He has failed to put forth a “showing of manifest error or a showing of new 2 facts or legal authority that could not have been brought to [the Court’s] attention earlier 3 with reasonable diligence.” LRCiv 7.2(g).6 4 III. Conclusion 5 Based on the foregoing, 6 IT IS ORDERED that Petitioner’s Amended Motion for Reconsideration, (Doc. 7 8 24), is DENIED. Dated this 14th day of September, 2018. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Petitioner appears to suggest that the Court acted improperly in citing the record to evaluate his ineffective assistance of counsel claim. See (Doc. 23 at 13 (“This Court, with no assistance from the government, went to great lengths to try to find reasons why Mr. Minns’ performance was not deficient. This Court cited various places in the transcript to show there was no deficiency.”)); see also (id. at 14 (“This Court went to great length to create a reason why Mr. Minns did not call Mr. Kadish . . . .”)). The Court notes that in the normal course, the trial judge reviews a petitioner’s § 2255 claim because of “the obvious administrative advantage in giving [the trial judge] the first opportunity to decide whether there are grounds for granting the motion.” Rule 6(a) of Rules Governing Section 2255 Proceedings; see also Carvell v. United States, 173 F.2d 348, 348–49 (4th Cir. 1949) (noting that “it is highly desirable in [§ 2255] cases that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred.”). 6 For the sake of clarity, the Court notes that Petitioner mistakenly reported that the Court cited to pages 105 and 106 of Doc. 370 to support its conclusion that Mr. Minns made a reasoned choice to not call witnesses during the guilt-phase of the trial. (Doc. 23 at 16–17 (citing Doc. 370 at 105–106)). In fact, the Court cited to page 104 of that document, (Doc. 20 at 17 (citing (Doc. 370 at 104))), and was specifically referring to the following exchange between Mr. Minns and Mr. Braver: Q. Mr. Braver, first of all, you were originally engaged on this as a rebuttal witness when the Government changed their witness list and then you were disengaged because they didn’t -- were not able to put on their new witnesses. Do you remember that? A. I do. (Doc. 370 at 104). -8-

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