United States v. Choi ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
Petiti0ner, )
)
v. )
) Magistrate No. 10-739-ll
DANIEL CHOI )
’ ) FI LE D
R d .
espon ent § 0 1 1 2011
) Clerk, U.S. District & BankruPf°¥
Courts for the District ot Golumbla
MEMORANDUM OPINION
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 govemment’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 l5, 2010, in protest of the anned forces’ then-current "Don’t Ask, Don’t Tell"
policy.l The United States Park Police directed the protestors to leave the area three times,z 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 govemment 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 govemment 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 govemment 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, govemment
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 govemment 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 govemment 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. ln the motion, the government argued l) that a selective
prosecution claim must be raised in a pre-trial motion to dismiss or is otherwise waived under
‘ The military’s "Don’t Ask, Don’t 'l``ell" policy directed servicemen and women to neither inquire nor volunteer
information about the sexual orientation of other servicemen and women. The Pentagon formally repealed the
policy on September 20, 2011, allowing openly gay individuals to serve in the armed forces. See generally Ed
O’Keefe, " ‘Don ’t ask, don 'l tell ' ends in quier, personal ways," washington P0st, September 20, 2011.
2 Respondent contends that the police issued orders to leave the sidewalk, and that the defendant, while chained to
the White House fence, was not actually on the sidewalk but on the masonry base.
Rule l2(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, 201 l, the govemment requested
that Magistrate Judge Facciola rule on the motion in limine. Govemment 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 govemment 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 govemment whether it wished for him to stop the
proceedings to allow the govemment to seek mandamus; the govemment agreed, and Magistrate
Judge Facciola stayed the proceedings.
The government filed the instant Petition for Writ of Mandamus on September l2, 201 l.
The govemment seeks a writ of mandamus directing Magistrate Judge Facciola to l) 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. DISCUSSION
A. 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. § l65l. 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.
1n 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 p1aintiff.
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 Servz``ce v. Eastland, 426
F.2d 1379, 1384 (2d Cir. 1970) ("[l]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 Easilana’ 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. Rada’atz, 447 U.S. 667, 681-84 (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 C0rp. v. Daiflon, Inc., 449 U.S.
33, 35 (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 (noting that
under the Act, "courts of appeals may issue a writ of mandamus . . ." (emphasis added)); see,
e.g., 1n re Papana’reou, 139 F.3d 247 (D.C. Cir. 1998) (issuing writ of mandamus to a district
court). Key to a couit’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 Circuii, 398 U.S. 74, 86
(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. Fela’rnan, 460 U.S. 462, 476 (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.,
1nt’l v. Dep’t ofTransp., 880 F.2d 491, 503 (D.C. Cir. l989).
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 to entertain jurisdiction
"over actions in the nature of mandamus" notwithstanding Rule 8l(b), In re Cheney, 406 F.3d
723, 729 (D.C. Cir. 2005) (en banc) (quotations omitted), the Court indicated that the Rule "long
ago abolished the writ of mandamus in the district courts (although not in the appellate courts),"
ia’. (emphasis added). Thus, under D.C. Circuit precedent, it is unclear whether any powers of
appellate mandamus that a district court may have held under the All Writs Act survived the
adoption of Rule 81(b).
Reference to a district court’s purported power of appellate mandamus seems
oxymoronic, as a district court is a trial level court in the federal judicial system. lt generally
lacks appellate jurisdiction over other judicial bodies, and cannot exercise appellate mandamus
over other courts. See, e.g., Lewis v. Green, 629 F. Supp. 546, 553 (D.D.C. 1986) (finding that
the Court lacked authority to issue a writ of mandamus to a judge in another district court, and
that such a writ "may be issued only by a superior court"); Fabuluje v. Sana’ers, Civ. No. 01-992,
2001 U.S. Dist. LEXIS 13231, *4 (N.D.Tex. June 20, 2001) (holding that a district court lacks
authority to issue "a writ of mandamus to another judge of the same couit"). However, this case
is of the unique posture where this Court is being asked to review the conduct of a magistrate
judge in a quasi-appellate capacity. Although the nature of the district court-magistrate
relationship is usually not analogous to the relationship between a court of appeals and a district
court, this case presents important distinctions.
Generally, a magistrate judge’s acts are subject to the full supervisory authority and
control of the district court. Cf Raaldatz, 447 U.S. at 681-84. Thus, when a district court judge
considers objections to a magistrate judge’s ruling, see Local Criminal Rule 59.1, 59.2, the
exercise is not an "appeal." The magistrate judge is not an inferior court, and the district court
does not stand in an appellate capacity over the magistrate. But where, as here, a magistrate
judge conducts a trial of a federal misdemeanor offense pursuant to 18 U.S.C. § 3401, Federal
Rule of Criminal Procedure 58, and Local Criminal Rule 58, the matter is more complicated.
Section 3401 grants magistrate judges "jurisdiction to try persons accused of, and sentence
persons convicted of, misdemeanors committed within that judicial district" if the defendant does
not object. 18 U.S.C. § 3401(a). 1n turn, Federal Rule of Criminal Procedure 58 governs the
process Fed. R. Crim, P. 58(g)(2)(A) covers "[i]nterlocutory [a]ppeal[s]," allowing parties to
"appeal an order of a magistrate judge to a district judge . . . if a district judge’s order could
similarly be appealed" (emphasis added). Similarly, Local Rule 58(e) refers to "[a]ppeal from a
magistrate judge’s order or judgment.” In a federal misdemeanor case, unlike in other settings a
district court judge does not refer the matter to a magistrate, and does not exercise blanket
supervisory powers; to the contrary, the district court judge cannot intervene prior to a final
judgment unless a court of appeals could so intervene. 1n that sense, the magistrate judge’s
direction of a misdemeanor trial more closely appears to constitute a separate "court" than do
most magistrate functions
Further complicating the matter is the occasional willingness of courts to rely on the All
Writs Act to issue writs of mandamus to Article 1 agencies over which the court retains appellate
jurisdiction. See Cox v. W, 149 F.3d 1360, 1364 (Fed. Cir. 1998) (approving of Court of
Veterans Appeals issuance of writ to Board of Veterans’ Appeals). In addition, district courts
have occasionally, in an appellate capacity, issued writs of mandamus directed to bankruptcy
courts. See, e.g., In re Calore Express Co., 266 B.R. 727, 733 (D. Mass. 1998); cf In re Pappas
& Rose, P.C., 229 B.R. 815, 818 (W.D. Okla. 1998) (deterrnining that a district court lacks
mandamus jurisdiction over a bankruptcy court decision unless the district court’s appellate
jurisdiction is invoked). Thus, although the All Writs Act would generally not permit a district
court judge to issue a writ of mandamus to an Article 1-created magistrate judge exercising
authority subject to the supervision of the district court, the situation in which a magistrate judge
conducts a misdemeanor criminal trial creates a situation to which the All Writs Act may apply.
Cases petitioner cites provide little guidance. 1n Washington Post v. Robinson, 935 F.2d
282 (D.C. Cir. 1991), the district court considered both a petition for writ of mandamus to the
magistrate judge and an appeal from the magistrate judge’s order denying a motion to unseal
portions of a plea agreement. The district court denied the petition and affirmed the order; the
D.C. Circuit vacated the affirmance and the magistrate judge’s order. Id. at 292. The D.C.
Circuit did not pass on the propriety of the filing of the petition in the district court. Similarly, in
United States v. Lee, 786 F.2d 951 (9th Cir. 1986), the Ninth Circuit expressly did not determine
whether it is proper to file a petition for writ of mandamus with a district court. Id. at 956 ("We
need not reach that issue.") Finally, in Califano v. Moynahan, 596 F.2d 1320 (6th Cir, 1979), the
Sixth Circuit declined to issue a writ of mandamus when the petitioner could have moved for the
district judge to vacate the magistrate’s order or to obtain a report and recommendation from the
magistrate. Ia’. at 1322. None of these cases squarely addresses the issue at hand.
United States v. Ecker, 923 F.2d 7 (lst Cir. 1991), most directly advances petitioner’s
case. There, the First Circuit noted that the defendant could have obtained review of a
magistrate’s commitment order from the district court by moving for reconsideration in the
district court. Following that conclusion, the Court continued: "If [defendant] wanted a writ of
mandamus directing the magistrate to rescind his commitment order . . . he should have directed
his argument to the district court originally." Ia’. at 9. lt is unclear whether by "directed his
argument to the district court originally," the Court was referring to filing a petition for writ of
mandamus with the district court, or to the simple motion for reconsideration to which it earlier
alluded. Assuming the fonner, this quotation, which cites to Califano, appears to approve of the
practice of filing a petition for writ of mandamus to a magistrate judge with a district court.
However, Califano does not stand for that proposition, and Ecker is bereft of further reasoning as
to why the district court would be the appropriate venue.
1n the absence of any case squarely finding jurisdiction in a district court to issue a writ
of mandamus pursuant to the All Writs Act to a magistrate judge, the Court is wary of finding
the existence of such jurisdiction. Although exceptions exist, the All Writs Act generally applies
only when a true superior court ~ the Supreme Court, or a circuit court of appeals ~ issues a writ
of mandamus to a true inferior court, primarily a district court. Further, the D.C. Circuit’s
indication in Cheney that district courts’ authority to issue writs of mandamus under the All
Writs Act has been abrogated provides this Court further reason not to purport to exercise such
jurisdiction. But although this Court is hesitant to do so, the analogy between a federal circuit
court of appeals and a district court on the one hand, and a district court and a magistrate on the
other, is inescapable in misdemeanor cases such as these where the magistrate judge exercises
full authority over the trial, subject to review of the district court only insofar as a circuit court of
appeals could exercise review over a district court trial. ln this situation, as when a district court
reviews a bankruptcy court order, see In re Calore Express Co., 266 B.R. at 733, the district
court is acting as an appellate body. The D.C. Circuit’s language in Cheney, while appearing to
deem mandamus jurisdiction non-existent at the district court level, did not seem to take account
of the limited but important appellate functions that a district court occasionally fulfills.
Accordingly, the Court holds that the All Writs Act permits district courts to issue writs of
mandamus to magistrate judges when, under the applicable statutes and rules, the district court
sits in an appellate capacity vis a vis the magistrate judge.
B. Merits
The issuance of a writ of mandamus pursuant to the All Writs Act "is a drastic and
extraordinary remedy reserved for really extraordinary causes." Cheney v. United States District
Court, 542 U.S. 367, 380 (2004) (quotations omitted). "[O]nly exceptional circumstances
amounting to a judicial usurpation of power, or a clear abuse of discretion, will justify the
invocation of this extraordinary remedy." id (quotations and internal citations omitted). In order
to establish a right to this rare form of relief, a petitioner must show l) that he has "no other
adequate means to attain the relief he desires," in order to prevent use of the writ as an end run
around the normal appeals process, id. at 380-81, 2) that his "right to issuance of the writ is clear
and indisputable," ia’. at 381 (quotations omitted), and 3) that the lower court has a clear duty to
act, United States v. Monzel, 641 F.3d 528, 532 (D.C. Cir. 2011). Furtherrnore, even if the
petitioner is able to satisfy the above criteria, the Court must still avail itself that, "in the exercise
of its discretion . . . the writ is appropriate under the circumstances." Ia'.
1 . No adequate means
Petitioner seeks essentially two types of mandamus relief. First, petitioner seeks an order
preventing Magistrate Judge Facciola from considering selective or vindictive prosecution as a
defense on the merits. Second, petitioner seeks to bar Magistrate Judge Facciola from dismissing
the information based on selective or vindictive prosecution. As to the first form of requested
relief, petitioner indeed has no other adequate means of relief other than a writ of mandamus
Once the prosecution in respondent’s bench trial called its first witness, respondent’s rights
against double jeopardy attached, Serfass v, United States, 420 U.S. 377, 388 (l975). 1f
Magistrate Judge Facciola enters a judgment of acquittal in favor of respondent, petitioner will
be unable to appeal that decision. Yeager v. United States, 129 S. Ct. 2360, 2366 (2009). Thus,
mandamus is the only means by which petitioner can obtain review of its argument that selective
and vindictive prosecution are not defenses on the merits to a prosecution.
Respondent counters by asserting that petitioner could have obtained review of
Magistrate Judge Facciola’s decision to pennit a selective or vindictive prosecution defense in
this Court. However, a party may only appeal a Magistrate Judge’s order in a misdemeanor
criminal trial if it could appeal a similar order rendered by a district court judge. Fed. R. Crim.
P. 58(g)(2)(A). The government may only pursue an interlocutory appeal from a district court
order in a criminal case in limited circumstances, such as where the order dismisses an
indictment or inforrnation, grants a new trial, excludes or suppresses evidence, or grants the
defendant release. 18 U.S.C. § 373 l. Neither the Magistrate Judge’s denial of the prosecution’s
motion in limine, nor the Magistrate Judge’s mid-trial decision to allow the respondent to pursue
a selective or vindictive prosecution defense, is an order from which the govemment could take
an interlocutory appeal - the Magistrate Judge’s order did not exclude or suppress any evidence
or dismiss the information. Respondent posits no other procedural posture, and the Court is
unaware of any, by which petitioner could otherwise seek review of this issue. Mandamus is
thus petitioner’s only option.
Petitioner’s other desired form of relief is a directive to Magistrate Judge Facciola that
respondent has waived any selective or vindictive prosecution argument in support of dismissal.
As to a sua sponte dismissal by Judge Facciola, the government would indeed lack an altemate
form of relief, The govemment may only appeal from a dismissal of an indictment or
information under 18 U.S.C. § 3731 if such appeal would not conflict with the defendant’s
double jeopardy rights Accordingly, petitioner can only appeal an order by Magistrate Judge
Facciola sua sponte dismissing the information against respondent to this Court if such an appeal
would be consistent with the Double Jeopardy Clause. While the constitutional protection
against double jeopardy is not a bar to a govemment appeal from the dismissal of an indictment
or information upon motion of the defendant, United States v. Scott, 437 U.S. 82, 101 (1978),
double jeopardy protects a defendant from retrial when the defendant does not consent to the
dismissal. See id.; United States v. Pharis, 298 F.3d 228, 244 (3d Cir. 2002) (en banc). Defense
counsel indicated at oral argument that respondent would not consent to a dismissal. Such a
dismissal would thus preclude further review of the issue.
Because respondent apparently would not consent to a dismissal of the information, it is
unlikely that he will file a motion to dismiss on his own accord. Such a dismissal would be
reviewable by this Court because, under Scott, double jeopardy would not bar a subsequent
prosecution. Normally, the availability of this altemate means of review would prevent this
Court from issuing a writ of mandamus preventing respondent from filing a motion to dismiss on
this basis. However, the requirement that there be no adequate means of review may be waived
if the petitioner will suffer irreparable harm as a result of a delay in review. Banks v. U]j'ice of
the Senate Sergeant-at-Arms, 471 F.3d 1341, 1350 (D.C. Cir. 2006). Here, petitioner alleges that
it would incur significant expense in conducting discovery, and responding to discovery requests,
regarding a selective or vindictive prosecution claim. Indeed, petitioner intimates that
developing a response to such a claim could be so costly as to prohibit continued prosecution,
Assuming that respondent has clearly and indisputably waived a motion to dismiss on these
grounds, the Court agrees that petitioner would be irreparably harmed in having to disprove a
legal claim that respondent is not entitled to make.
Respondent contends that petitioner will not be harmed because Magistrate Judge
Facciola may ultimately convict respondent of the offense, notwithstanding the selective or
vindictive prosecution defense. True enough. But the harm alleged here is not the potential
erroneous dismissal or acquittal; it is the expense required to disprove the claim. The decision to
pennit a selective or vindictive prosecution defense or dismissal need not necessarily be
outcome-determinative in respondent’s favor in order to be subject to a writ of mandamus. C f La
Buy v. Howes, 352 U.S. 249, 260 (1957) (affirming circuit court of appeals’ issuance of writ
directing district court to vacate order referring antitrust cases for trial before a special master).
Accordingly, even though petitioner would have a right to appeal a dismissal of the information
if made on motion by respondent, the Court will not treat this as a bar to mandamus relief.
2. Clear and indisputable right to issuance, and clear duty to act
In addition to showing a lack of altemative means for review of the decision complained
of, petitioner must show a clear and indisputable right to issuance of the writ and a clear duty on
the part of the lower court to act. As to the issue of the use of selective or vindictive prosecution
as a defense on the merits, petitioner is successful. Claims of selective and vindictive
prosecution are indisputably not "defense[s] on the merits to the criminal charge itself, but . . .
independent assertion[s] that the prosecutor has brought the charge for reasons forbidden by the
Constitution." United States v. Armstrong, 517 U.S. 456, 463 (1996); see also United States v.
Washington, 705 F.2d 489, 495 (D.C. Cir. 1983); United States v. Jarrett, 447 F.3d 520, 525 (7th
Cir. 2006) (applying Armstrong to vindictive prosecution claim). Such claims do not bear on the
fact of a defendant’s guilt or innocence, but instead allege a bar against prosecution, lndeed,
while respondent repeatedly refers to the claim as a "defense," he concedes that it is not a
defense on the merits. There is no legal basis for Magistrate Judge Facciola to enter a judgment
of acquittal on the grounds that the govemment selectively or vindictively prosecuted
respondent, and thus the magistrate has a clear duty to refrain from entering such an acquittal.
Petitioner is thus entitled to a writ of mandamus on this issue.
Respondent argues that the D.C. Circuit approved the use of a selective prosecution
defense on the merits in United States v. Washington. Reliance on that case is misplaced. In
Washington, the defendant was convicted for submitting forged birth certificates in connection
with a passport application. The defendant on appeal argued that she was selectively prosecuted
because she was a member of the Black Hebrews, a religious group then engaged in settlement
disputes with the lsraeli govemment. The defendant contested the trial court’s resolution of the
issue, arguing that a claim of selective prosecution was an issue of fact for resolution by the jury.
1n affirming the trial court, the D.C. Circuit noted that "the issue of selective prosecution is one
to be determined by the court . . . as it relates to an issue of law entirely independent of the
ultimate issue of whether the defendant actually committed the crimes for which she was
charged." Washington, 705 F.2d at 495. The case in no way can be read to support the notion
that a successful selective prosecution claim constitutes a basis for an acquittal.
Petitioner has additionally shown a clear and indisputable right on its part, and a duty on
the part of Magistrate Judge Facciola, regarding a dismissal on the merits. Petitioner asserts that,
under the Federal Rules of Criminal Procedure, a selective or vindictive prosecution claim
normally must be made prior to trial. Petitioner is correct. Rule 12(b)(3)(A) requires defendants
to raise "a motion alleging a defect in instituting the prosecution" before trial commences
Under Arrnstrong and Washington, a claim of selective or vindictive prosecution is a claim that
alleges a defect in instituting the prosecution - namely, that the government is bringing the
prosecution for constitutionally forbidden reasons These claims thus must be made prior to the
commencement of trial, or they are by default deemed waived under Rule l2(e). See, e.g.,
United States v. Huber, 404 F.3d 1047, 1054-55 (8th Cir. 2005). Because respondent did not
submit a pre-trial motion to dismiss on the basis of these claims, he generally could not raise
them following the commencement of trial.
lt is true that Rule 12(e) contains a provision stipulating that, "[f]or good cause, the court
may grant relief from the waiver." Magistrate Judge Facciola would therefore have authority to
permit a mid-trial motion to dismiss the information on the basis of selective or vindictive
prosecution were he to determine that good cause for the delay existed. Petitioner vigorously
asserts that no good cause exists, primarily because respondent was aware of the basis for these
claims prior to the start of trial. This Court, seeing absolutely no basis in the record for a finding
of good cause, agrees Respondent tries to establish such cause by alleging that he could not
have made out a prima facie case of selective or vindictive prosecution prior to the development
of trial testimony. Respondent additionally appears to make an argument in support of good
cause based on defense counsel’s mistaken impression that, because Rule l2(e)’s text treats as
waived Rule l2(b)(3) motions "not raised by the deadline the court sets under Rule 12(0),"
Magistrate Judge Facciola’s failure to set a Rule l2(c) deadline earlier than the trial date
permitted defense counsel to make Rule 12(b)(3) motions after the commencement of trial.
These arguments defy reasonable belief, and thus Magistrate Judge Facciola could not find good
cause to excuse a Rule 12(e) waiver. The magistrate thus has a clear duty not to consider a
motion to dismiss on the basis of selective or vindictive prosecution, either sua sponte or on
motion by respondent.
3. Appropriate under the circumstances
lt appears to the Court that, as to all its forms of requested relief, petitioner has
established a right to a writ of mandamus The Court is further satisfied that, under the
circumstances issuance of the writ is appropriate. Although the issuance of a writ of mandamus
is an "extraordinary remedy," Cheney, 542 U.S. at 380, and although this Court approaches the
decision to issue the writ with reluctance and "with great caution," Banks v. Ojj‘ice of the Senate
Seargant-at-Arms, 471 F.3d 1341, 1350 (D.C. Cir. 2006), the Court is satisfied that this case
presents a rare set of circumstances requiring this Court’s intervention. Magistrate Judge
Facciola has indicated that he may enter a judgment of acquittal in favor of respondent for
reasons wholly unrelated to the merits of the respondent’s defense. Such a decision would be
unreviewable, since jeopardy has attached. Further, Magistrate Judge Facciola has indicated that
he may dismiss the information, sua sponte or on motion by respondent, on the basis of a legal
argument that respondent has waived. Although a motion by respondent to dismiss would be
reviewable, this Court sees no need to force petitioner to undergo the expense of responding to a
claim that the Federal Rules of Criminal Procedure bar respondent from making.
ln attempting to show that the equities are in his favor, respondent alludes to the alleged
strength of his claim, and argues that petitioner has "dirty hands" because its motion in limine
was filed close to the start of trial and because of delay in response to discovery requests But
none of these assertions would render mandamus inappropriate here. The law is straightforward:
selective and vindictive prosecution claims are not defenses on the merits but go to the
constitutionality of the prosecution, and motions to dismiss based on defects in the institution of
criminal proceedings must be brought prior to the start of trial unless good cause exists
otherwise. ln the exceedingly rare set of circumstances posed here, mandamus is the only
credible option to enforce the law.
III. CONCLUSION AND 0RDER
Petitioner is entitled to a writ of mandamus, and issuance of a writ is appropriate under
the circumstances The Court will therefore grant the Petition, and issue the writ.
A separate order shall issue as of this date.
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pate notice c. LAMBERTH
Chief Judge
United States District Court