D.C. No. CV-96-02079-LKK, CR-94-00390-LKK
Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain and Ferdinand F. Fernandez, Circuit Judges.
The opinion of the court was delivered by: Fernandez, Circuit Judge
Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Chief District Judge Emeritus, Presiding
November 4, 1998--San Francisco, California
Opinion by Judge Fernandez
Anthony Navarro pled guilty to possession of cocaine and methamphetamine with intent to distribute, and was sentenced accordingly. See 18 U.S.C. S 841. Thereafter, he commenced this action under 28 U.S.C. S 2255 in which he requested that the district court set aside the judgment and dismiss the indictment. He asserted that Dale E. Kitching, the Special Assistant United States Attorney (SAUSA), who handled proceedings against him, could not act in that capacity because he was barred by the Intergovernmental Personnel Act, 5 U.S.C. S 3372 (the IPA). The district court agreed, vacated the judgment, and dismissed the indictment.*fn1 The government appealed and we reverse.
Navarro, admittedly, engaged in the possession of cocaine and methamphetamine in the County of Sacramento, California. During the period relevant to this case, Kitching, a Deputy District Attorney in that county, was involved in the investigation and arrest of Navarro for those offenses. Kitching had worked for many years as a SAUSA; he contacted Nancy L. Simpson, Chief of the Narcotics and Violent Crime Section of the United States Attorney's Office for the Eastern District of California, and suggested federal prosecution of Navarro. Simpson agreed that the case met the standards for narcotics prosecutions used by her office. Acting as a SAUSA, and with Simpson's agreement, Kitching prepared a complaint, which was filed by the United States Attorney's Office. Simpson and Kitching were listed in the complaint as the prosecuting attorneys, but Kitching made the sole appearance before the grand jury at which the indictment was obtained. Kitching then conducted negotiations leading to a guilty plea in exchange for the government's promise not to oppose a two-level reduction in the sentencing guideline range for acceptance of responsibility and to recommend a sentence at the low end of the range. Simpson approved of that plea agreement.
After Navarro pled guilty, was sentenced, appealed, and lost, he commenced this action in which he claimed, among other things, that because Kitching had first become a SAUSA as early as June of 1985, he had clearly exceeded the maximum term of four years provided by the IPA and, therefore, his purported representation of the United States during the course of this prosecution -- 1994-1995 -- was incurably void. As a result, Navarro argued, the district court had no jurisdiction over the prosecution. The district court ...