(1) GRANTING MOTION TO DISMISS INDICTMENT [Doc. No. 25]; (2) GRANTING MOTION FOR JOINDER IN CO-DEFENDANT'S MOTIONS [Doc. No. 26];
(3) GRANTING MOTION TO FILE AMICUS BRIEF [Doc. No. 36]; and (4) DENYING MOTION
TO STRIKE MOTION TO FILE AMICUS BRIEF [Doc. No. 37].
IRMA E. GONZALEZ, District Judge.
Presently before the Court are the motions of Defendant Rigoberto Gonzalez ("Defendant Gonzalez") to dismiss the indictment [Doc. No. 25, Def.'s Mot.] and Defendant Jose Usiel Garcia-Andrade ("Defendant Garcia-Andrade") for joinder in Defendant Gonzalez's motion. [Doc. No. 26.] For the following reasons, the Court GRANTS both motions.
On December 21, 2013, Defendants Gonzalez and Garcia-Andrade were arrested on or near a vessel that contained approximately 5, 500 kilograms of marijuana near Long Beach, California, and were taken into state custody. [Doc. No. 25-1, Def.'s Mot. at 1.] After state authorities declined to prosecute, Defendant Garcia-Andrade was transferred to federal custody on December 26, 2013 and charged with illegal reentry. [Id.; see Case No. 13cr316-IEG.] On January 24, 2013, the Government filed an information charging Defendant Garcia-Andrade with a violation of 8 U.S.C. § 1326(a) (Removed Alien Found in the United States). [Doc. No. 25-1, Def.'s Mot. at 1-2.] Defendant Garcia-Andrade pleaded guilty, and this Court sentenced him to time served in custody on March 21, 2013. [Id. at 2.]
On March 19, 2013, the Government filed a sealed indictment charging Defendants Garcia-Andrade and Gonzalez with a violation of 21 U.S.C. §§ 841(a)(1) and 846 (Conspiracy to Distribute Marijuana). [Id. at 2; Doc. No. 1, Indictment.] Both Defendants pleaded not guilty on March 20, 2013. [Doc. Nos. 7, 9.]
On May 25, 2013, Defendant Garcia-Andrade filed the present motion to dismiss the indictment based on Assistant U.S. Attorney Jaime Parks's ("Ms. Parks") bar status. [Doc. No. 25, Def's Mot.] On May 27, Defendant Gonzalez filed the present motion for joinder in Defendant Garcia-Andrade's motion. [Doc. No. 26.] The Government opposed the motion, but focused only on the underlying facts regarding Ms. Parks's bar status. [Doc. No. 32, Govt.'s Opp.] The Government failed to address Defendants' legal arguments regarding whether a dismissal of the indictment is warranted, and also failed to provide a declaration from Ms. Parks or anyone else. [See id.] The Government also failed to attach several documents referenced in their opposition brief including communications between Ms. Parks and the Virginia State Bar. [See id.] Subsequently, each Defendant filed a reply brief. [Doc. No. 34, Def. Gonzalez's Reply; Doc. No. 35, Def. Garcia-Andrade's Reply.]
On June 24, one day prior to oral argument on the present motion to dismiss the indictment, some members of the Criminal Justice Act Panel for the Southern District of California ("CJA Panel") and others filed a motion for leave to file an amicus brief, and attached their brief to the motion. [Doc. No. 36, Mot. to file Amicus Brief.] The Government moved to strike the amicus brief. [Doc. No. 37, Govt.'s Mot. to Strike.]
The Court held oral argument on the motion on June 25, 2013. [Doc. No. 39.] At oral argument, Defendants provided to the Court documents obtained by subpoena from the Virginia State Bar regarding Ms. Parks's bar status.
On July 8, 2013, Defendant Gonzalez filed a supplemental reply brief. [Doc. No. 40, Def.'s Supp. Reply.] Also on July 8, the Government filed a declaration from Ms. Parks. [Doc. No. 41, Parks Decl.]
The following facts regarding Ms. Parks's bar status are relevant to the motion before the Court. Both the Government and Defendants agree that Ms. Parks transferred her California bar membership from active to inactive status on February 1, 2013. [Doc. No. 32, Govt.'s Opp.; Doc. No. 25-1, Def.'s Mot. at 2.]
However, the Government and Defendants disagree about the time line regarding Ms. Parks's Virginia bar status. Defendants argue that Ms. Parks became an active member of the Virginia State Bar on May 7, 2013. [Id.] Defendants contend that therefore, Ms. Parks was not actively licensed to practice law in March of 2013, at the time of the grand jury proceedings. [Id.]
The Government, on the other hand, argues that Ms. Parks effectively transferred her Virginia bar membership from inactive, or associate status, to active status on February 1, 2013, which is the same day she became an inactive member of the California bar. [Doc. No. 32, Govt.'s Opp. at 3.] To support its argument, the Government cites a letter from Gale Cartwright ("Ms. Cartwright"), Director of Member Compliance for the Virginia State Bar states that Ms. Parks's active membership was effective on February 1, 2013. [Doc. No. 32-2, Ex. B, May 29 Letter from Cartwright; Doc. No. 32, Govt.'s Opp. at 3.] This letter is dated May 29, 2013, and specifically states: "Pursuant to your [Ms. Parks's] request, your active membership was effective on February 1, 2013."
At oral argument, the Government, through Assistant U.S. Attorney Todd Robinson ("Mr. Robinson"), presented a muddled and contradictory time line regarding Ms. Parks's knowledge of her bar status in Virginia. When confronted with documents obtained by subpoena from the Virginia State Bar, Mr. Robinson stated that this was the first time he had seen them.
From the documents obtained by subpoena from the Virginia State bar, submitted by Defendants as Exhibit A to their supplemental brief [Doc. No. 40-1, Ex. A] the Court constructs the following time line of events regarding Ms. Parks's bar status. On January 23, 2013, Ms. Parks wrote a letter to the Virginia State Bar asking to change her status from associate to active, and requesting that the change take place on or before February 1, 2013. [Doc. No. 40-1, Ex. A, Jan. 23 Letter from Parks at 3.] In the letter, Ms. Parks wrote that she enclosed proof of her CLE requirements and a check for $137.50. [Id.]
On January 29, 2013, the Virginia State Bar sent Ms. Parks a form letter stating that she had to complete 4 CLE hours "before eligibility to change to Active membership." [Doc. No. 40-1, Ex. A, Jan. 29 Letter from Cartwright at 27.] In other words, this letter stated that Ms. Parks was not yet an active member of the Virginia State Bar. The letter also acknowledged receipt of a certification of attendance for CLE credit but stated that the course was not approved for credit in Virginia. [Id. at 28.] The letter informed Ms. Parks that she would have to complete an Application for CLE Course Approval in order to receive credit for the course, and that the processing would take four to six weeks. [Id.]
On April 17, 2013, the Virginia State Bar sent Ms. Parks a subsequent letter, which stated that as of the date of this letter, Ms. Parks still had not completed the CLE requirements to become active, and that she was still listed as an associate member, who "cannot practice Virginia law." [Doc. No. 40-1, Ex. A, Apr. 17 Letter from Cartwright at 31 (emphasis in original).] This letter demonstrates that Ms. Parks was not an active member of the Virginia State Bar as of April 17, 2013.
On May 10, 2013, the Virginia State Bar sent a letter to Ms. Parks verifying her change in membership status. The letter stated: "Pursuant to your request, your active membership was effective on May 7, 2013. " [Doc. No. 40-1, Ex. A, May 10 Letter from VA State Bar at 35 (emphasis added).]
On May 21, 2013, defense counsel for both Defendants sent Ms. Parks a letter indicating that it had come to their attention that Ms. Parks may not have been actively licensed to practice law at the time the indictment was filed against Defendants. [Doc. No. 25-2, Ex. B, May 21 Letter from Kimpel and Sullivan at 6.] The letter informed Ms. Parks that Defendants intended to file a motion to dismiss the indictment on this basis. The letter also stated that Defendants had "no wish to file this motion" if Ms. Parks was in fact an active member of a state bar, and asked Ms. Parks inform defense counsel know if she was. [Id.] Ms. Holly Sullivan, counsel for Defendant Gonzalez then emailed Ms. Parks stating that she called the Virginia State Bar herself, who informed her that Ms. Parks changed her status from active to inactive on May 7, 2013. [Doc. No. 25-2, Ex. D, May 21 Email from Sullivan at 10.]
Also on May 21, 2013, Ms. Maria Marcucilli, a licensed private investigator, called Ms. Cartwright on May 21, 2013. Ms. Cartwright stated that Ms. Parks called the membership department to request a review of her file. [Doc. No. 27-1, Marcucilli Decl. ¶ 10.] Ms. Cartwright subsequently sent a letter to Ms. Parks on May 21 which stated: "After a review of your record I find that you [sic] license should have been changed on 2/19/2013. You previously submitted certifications of attendance for courses that were not pre-approved however the applications were received on 2/19/2013 and our practice is to immediately process applications when we have certifications in hand to meet the requirements for status change requests. You [sic] effective date of active status in Virginia is 2/19/13." [Doc. No. 40-1, Ex. A, May 21 Email from Cartwright.]
On May 24, 2013, Ms. Parks responded to defense counsel's May 21 letter and stated that she converted her status from an inactive member to an to an active member "well-before [sic] the indictment was returned... on March 19, ...