MEMORANDUM OPINION
Bеfore 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 government’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 15, 2010, in protest of the armed forces’ then-current “Don’t Ask, Don’t Tell” policy. 1 The United States Park Police directed the protestors to leave the area three times, 2 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 government 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 government 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 government beсame 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 prosecu
Immediately prior to trial on the morning of August 29, 2011, the government requested that Magistrate Judge Facсiola rule on the motion in limine. Government 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 opposеd 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 government 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 government whether it wished for him to stop the proceedings to allow the government to seek mandamus; the government agreed, and Magistrate Judge Facciola stаyed the proceedings.
The government filed the instant Petition for Writ of Mandamus on September 12, 2011. The government seeks a writ of mandamus directing Magistrate Judge Facciola to 1) 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. Rеspondent 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. § 1651. That Act states:
The Supreme Court and all courts established by Act of Congress may issue allwrits necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
In 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 plaintiff.
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,
The All Writs Act, upon which petitioner relies, is most commonly invoked by a federal circuit court of appeals to issue a writ of mаndamus to a district court judge, or by the Supreme Court to issue a writ to a lower court judge.
See Allied Chemical Corp. v. Daiflon, Inc.,
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
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. It generally lacks appellate jurisdiction over other judicial bodies, and cannot exercise appellate mandamus over other courts.
See, e.g., Lewis v. Green,
Generally, a magistrate judge’s acts are subject to the full supervisory authority and cоntrol of the district court.
Cf. Raddatz,
Further complicating the matter is the occasional willingness of courts to rely on the All Writs Act to issue writs of mandamus to Article I agencies over which the court retains appellate jurisdiction.
See Cox v.
W,
Cases petitioner cites provide little guidance. In
Washington Post v. Robinson,
United States v. Ecker,
In 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
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,
1. No adequate means
Petitioner seeks essеntially 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,
Respondent counters by asserting that petitioner could have obtained review of Magistrate Judge Facciola’s decision to permit a selective or vindictive prosecution defense in this Court. However, a party may only appeal a Magistrate Judge’s order in a misdеmeanor criminal trial if it
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 alternate form of relief. The government 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 government appeal from the dismissal of an indictment or information upon motion of the
defendant, United States v. Scott,
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 alternate means of review wоuld 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. Office of the Senate Sergeant-at-Arms,
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
2. Clear and indisputable right to issuance, and clear duty to act
In addition to showing a lаck of alternative 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,
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 Israeli government. 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. In affirming the trial court, the D.C. Circuit noted that “thе 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,
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
Arm
It 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 thesе 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 12(e)’s text treats as waived Rule 12(b)(3) motions “not raised by the deadline the court sets under Rule 12(c),” Magistrate Judge Facciola’s failure to set a Rule 12(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
It 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,
In 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
III. CONCLUSION AND ORDER
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.
Notes
. The military's “Don't Ask, Don't Tell” 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't tell’ ends in quiet, personal ways,” Washington Post, September 20, 2011.
. 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.