Kelley v. United States ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1932
KEVIN M. KELLEY,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Inga L. Parsons for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
February 25, 2021
.
THOMPSON, Circuit Judge. Citing 28 U.S.C. § 2255 (the
federal habeas-corpus statute), Kevin Kelley asked a district
judge to vacate his conviction and sentence stemming from a 2003
plea agreement for being a felon in possession of a firearm.1
Pertinently here, Kelley's motion ran along these lines. Criminal
Procedural Rule 7 says that an indictment "must be signed by" a
government lawyer. See Fed. R. Crim. P. 7(c)(1). But an assistant
United States attorney ("AUSA" for short) in Kelley's case signed
the indictment in 2003 despite having a suspended license to
practice law (the AUSA had not paid his bar dues).2 And to Kelley's
way of thinking, that problem invalidated the indictment and so
robbed the district court of "jurisdiction to proceed" against
him, thus requiring a vacatur remedy (Kelley learned about the
1 Readers might be interested in knowing that we had affirmed
his conviction on direct appeal. See United States v. Kelley, 402
F.3d 39, 43 (1st Cir. 2005).
2 Government attorneys are "subject to State laws and rules,
and local Federal court rules, governing attorneys in each State
where such attorney engages in that attorney's duties, to the same
extent and in the same manner as other attorneys in that State."
See 28 U.S.C. § 530B(a). And AUSAs in the federal district court
in Massachusetts must be "in good standing" with the bar in every
jurisdiction to which they are admitted. L.R., D. Mass. 83.5.3(a)-
(b). Kelly thought — and thinks — that this AUSA was not in good
standing with a Massachusetts bar rule prohibiting attorneys
suspended for nonpayment of dues from practicing law until
reinstated. See Massachusetts Supreme Judicial Court R. 4.03(2)-
(3), 4.01 § 17(7).
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administrative suspension — since lifted — from a letter the United
States Attorney sent to the Federal Public Defender).3
The judge denied Kelley's motion, however, concluding
among other things that the evidence showed "that the United States
Attorney, acting through qualified representatives, agreed with
the grand jury that the indictment should issue." But the judge
did grant a certificate of appealability ("COA" for easy reference)
on whether the "indictment was invalid, and that [the district]
court therefore lacked jurisdiction, because the [AUSA] who signed
the indictment was not a licensed member of the bar."4
From that decision Kelley appeals. Unfortunately for
him, though, we — after reviewing fact findings for clear error
and legal issues de novo — end up affirming for many of the same
reasons the district judge gave in his able opinion. See
Bartolomeo v. United States, 960 F.3d 34, 45 (1st Cir. 2020)
(discussing the standard of review).
3 By the way: Kelley's motion purported to dress the same
argument in the garb of a due-process claim. But we need not
pursue that subject, given how Kelley argues the case to us. And
further by the way: The government does not challenge the
timeliness of Kelley's § 2255 motion.
4 A COA is necessary for us to review a denial of a § 2255
motion. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
See generally 28 U.S.C. § 2255, Rules Governing Section 2255
Proceedings for the United States District Court, Rule 11(a)
(stating that "[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant").
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As he did below, Kelley basically raises a two-step
argument: (1) the bar-suspended AUSA's indictment signature
constituted a Rule 7 violation that invalidated the indictment,
(2) meaning the district court lacked jurisdiction, which (citing
a civil case) he says he could not waive through his guilty plea.
His argument fails at step (1), however. So we need not consider
step (2). See generally PDK Labs. Inc. v. DEA, 362 F.3d 786, 799
(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring
in the judgment) (stressing that "if it is not necessary to decide
more, it is necessary not to decide more").
The principal purpose behind having a government
attorney sign the "indictment is to indicate that he joins with
the Grand Jury in instituting a criminal proceeding" — absent "his
agreement no criminal proceeding could be brought on the
indictment." United States v. Wright, 365 F.2d 135, 137 (7th Cir.
1966); see also Little v. United States, 524 F.2d 335, 336 (8th
Cir. 1975) (ditto); United States v. Levine, 457 F.2d 1186, 1189
(10th Cir. 1972) (same). Kelley does not suggest that the purpose
is otherwise. "Substantial compliance rather than technical
exactness" often satisfies Rule 7's provisos. See United States
v. Cox, 342 F.2d 167, 172 (5th Cir. 1965). See generally 1 Charles
Alan Wright et al., Federal Practice and Procedure: Criminal § 123
(4th ed. 2020) [hereinafter "Wright et al."] (making that point
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and collecting authority showing that "courts have been liberal in
enforcing" Rule 7's signature "provision").
With this framework in place, we move from the general
to the particular.
The undisputed affidavit evidence shows that in 2003,
"the policy and practice" of the United States Attorney's Office
that prosecuted Kelley "was not" to present the indictment
to a grand jury until the indictment, together
with a prosecution memorandum discussing the
relevant facts, evidence, and law, had been
reviewed and approved by, first, the Chief (or
Deputy Chief, if there was one) of the Unit of
which the AUSA was a part, and second, either
the Chief or Deputy Chief of the Criminal
Division.
The undisputed affidavit evidence also shows that "James F. Lang,
then the Chief of the Major Crimes Unit, and James B. Farmer, then
the Chief of the Criminal Division," "reviewed and approved" the
"indictment of Kelley," as well as "the accompanying prosecution
memorandum recommending indictment."5 The judge credited these
accounts. And because Kelley offers us no convincing reason to
5 Recall how Kelley pled guilty under a plea agreement. That
agreement's signature line listed four names: Michael Sullivan,
the United States Attorney; Farmer, the Chief of the Criminal
Division; Stephen Heymann, the Deputy Chief of the Criminal
Division; and the bar-suspended AUSA. Farmer, a member of the
bar, signed the plea agreement for the government. And "office
policy required both . . . Lang and . . . Farmer to review and
approve the plea agreement before . . . Farmer signed it."
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think the judge acted clearly erroneously, we must honor those
findings. See Bartolomeo, 960 F.3d at 45.
This spells trouble for Kelley. The Supreme Court, after
all, has long viewed a government lawyer's indictment signing as
"necessary only as evidence of the authenticity of the document,"
see Wheatley v. United States, 159 F.2d 599, 600 (4th Cir. 1946)
(citing In re Lane, 135 U.S. 443, 449 (1890)) — which jibes with
the purpose of Rule 7's attorney-signature provision: namely (and
as noted above), to vouch for the indictment's authenticity and to
signal the government's agreement with the grand jury's return of
it, see, e.g., Cox, 342 F.2d at 172; 1 Wright et al. § 123. Recall
as well that Rule 7's "intent is for common sense to prevail over
technicalities." See 1 Wright et al. § 123; see also United States
v. Morse, 613 F.3d 787, 793 (8th Cir. 2010) (citing authority from
other circuits calling "signatures on the indictment . . . a
formality"). And so it is unsurprising that many courts refuse to
stamp "invalid" an indictment signed by a prosecutor with bar-
license problems if other evidence shows the government backed the
prosecution — with some cases explicitly saying that in such a
situation, the complaining party cannot prove prejudice. See,
e.g., United States v. Bennett, 464 F. App'x 183, 185 (4th Cir.
2012) (holding that even though the AUSA "who signed the indictment
had had his bar license administratively suspended," his "errant
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signature was superfluous" because "the United States Attorney, an
authorized representative of the Government, also signed the
indictment"); Woods v. United States, Nos. 1:09CV917, 1:06CR189-
2, 2010 WL 4746138, at *2 (M.D.N.C. Nov. 16, 2010) (denying a
§ 2255 motion because while an unlicensed AUSA had a hand in the
indictment and plea-hearing phase, the § 2255 motioner "ha[d] not"
shown "prejudice" since "other" AUSAs "handled several critical
parts of the proceedings"); Parker v. United States, Nos.
4:98CR00236 GH, 4:03CV00058 GH, 2006 WL 2597770, at *15 (E.D. Ark.
Sept. 8, 2006) (denying a § 2255 motion because while the
prosecuting AUSA did not have a license in good standing in at
least one state, the § 2255 motioner could "[]not establish any
prejudice" since she "was acting on behalf of the U.S. Attorney
who was licensed to practice and authorized the indictment to be
presented to the grand jury"). The other evidence here — e.g.,
the unrebutted affidavit testimony that the United States
Attorney, through his designees, reviewed and approved the
indictment — dooms Kelley's appeal.
In arguing for a different result, Kelley pins his hopes
principally on United States v. Garcia-Andrade, No. 13-CR-993-IEG,
2013 WL 4027859 (S.D. Cal. Aug. 6, 2013). The district court there
dismissed an indictment, concluding that because the AUSA who
secured the indictment was not an active bar member when the
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indictment came down, she was not "a proper representative of the
government." Id. at *5-6, *9 (quoting United States v. Providence
J. Co., 485 U.S. 693, 708 (1988)). But Kelley gets no help from
Garcia-Andrade, because Garcia-Andrade discloses not even the
slightest whisper of a suggestion that the supervisors in the
United States Attorney's Office had — as here — examined and
approved the indictment. See generally id. at *6 n.2 (noting that
"no other attorneys work[ed] with [the AUSA] on th[e] case").
Providence Journal, a case Kelley talks up, is
distinguishable as well. There, a special prosecutor filed a
certiorari petition without getting the required consent from the
Solicitor General. See 485 U.S. at 708. So, in other words, he
lacked "authorization to appear on behalf of the United States."
Id. And without "a proper representative of the Government," the
Court had to dismiss the petition. Id. Contrastingly, in Kelley's
case, multiple government representatives authorized his
prosecution.
Kelley next says that the evidence about "other
prosecutors . . . authoriz[ing]" his indictment "is of no moment"
because they did not "sign" that document. But he does not develop
this theory in any meaningful way. For example, he offers no on-
point authority for his position. And he never explains how his
view squares with the purpose of Rule 7's signature provision (to
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show that the government joins with the grand jury in starting the
prosecution) and with the courts' liberal enforcement of that
provision. See Cioffi v. Gilbert Enter., Inc., 769 F.3d 90, 94
(1st Cir. 2014) (remarking that "it is not our place to do a
party's homework for [him]").
Kelley also claims that the fact that the bar-suspended
AUSA "was the only prosecutor in the grand jury" proceeding
violated Criminal Procedural Rule 6(d) — which says that "attorneys
for the government" "may be present while the grand jury is in
session." See Fed. R. Crim. P. 6(d)(1). The district judge, among
other things, deemed this issue waived by "perfunctory" treatment.
Kelley thinks we should deem it not waived. But even setting
waiver aside, his Rule 6(d) claim is outside the COA issued by the
judge. Which means we cannot consider it. See 1st Cir. Loc. R.
22.0(c)(1). Pressing on, Kelley insists that this claim actually
"falls well within" the COA. And that is so because, in his
telling, the judge issued the COA "on the question of whether the
indictment was invalid" (his falls-within-the-COA belief perhaps
explains why he did not apply to us "for an expanded" COA under
1st Cir. Loc. R. 22.0(c)(2)). But we cannot agree with him, given
how the judge stated with crystal clarity that he (emphasis ours)
granted the COA limited to the effect of the bar-suspended AUSA's
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"sign[ature]" on the indictment's "[]valid[ity]" and "DENIED" the
"COA . . . as to all other claims."
Our opinion coming to a close, we note that the
government told us in a post-argument letter that AUSAs "are
required to prove their bar standing on an annual basis" and "that
this certification requirement is currently formalized in the"
Justice Department's internal manual.
All that is left to say is: Affirmed.
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