in this case proceed thank you your honor may it please the court rules seven c provides very clearly unequivocally and unambiguously of the federal rules of criminal procedure that an indictment must be signed by an attorney for the government this case is about the integrity of the government and following their own rules rules that propel a case forward i liken this to situations where my clients when they have to propel a case for important appeals an appeal they must follow the rules if they fail to follow the world this court lacked jurisdiction this distinguishes this situation from say a defect in the citation of the record or a sort of non jurisdictional defect and in fact when i was looking through rule seven of the federal rules of criminal seizure they act the legislature anticipated that there were be times when there are defects in the indictment that do not require necessarily a dismissal and they do that in rule seventy two dollars however they do not say anything about not having the signature of an authorized and that's the i think the critical point the authority of the government was not invoked through the requirements of rule seven c and that's why it has to be guy and then he went on to rule that in any event there is absolutely no evidence that your client would have foregone your honor with respect to whether or not my client would have would have led to an indictment that was not properly authorized and with all due respect to judge judge wood who is an excellent jurist michael didn't have that opportunity because he would didn't know about the defect in the indictment i would never have a client plead guilty to a defective and dime and document and  that only came about by virtue of the fact that well after the case it was discovered that donald cabell was not an attorney not even just not an authorized attorney he wasn't even an attorney at the time due to the suspension so and a serious violation because the indictment had in fact been authorized and approved to buy another attorney a supervisor in the office and indeed the plea agreement included a signature line for that there supervising attorney albeit he did not apparently actually  and thank your honor so what we have here is the rules and the notion of what the authority of the government is now i think that position would be in fact more likely if it was an oversight in terms of the signature but the signature that you actually have on the indictment is not an authorized person and i do think it is not dissimilar to if i failed to file a notice of appeal my client even if i meant to even if he wanted me to even if it was the right thing to do in the case and it may have even been a winnable appeal if i fail to do that  you filed the notice of appeal but you just put your initials on and not your full name or you forget to sign it it's typed in but you forget to sign it well i think you would have to compare that with what seven c says with what appellate rule three says appellate will three does not require the signature of the internally in effect the court clerk and filed a notice of appeal but i find so interesting about the statute it's how imperative it is that it was just shined it must be signed by the attorney and the fact that they do consider that there can be sort of a scrivener's there it's but we're talking about authority we're talking about the government following their wolf and their own requirements that have been set by congress and congress has said that this must happen it doesn't say that it must be authorized by the government it doesn't say that it must be certified by the government it doesn't say that it needs to be adopted by the government the language of that rule is the sipek to the signature of the attorney and it's a very good and well i guess i thought you were making in your briefing maybe two different maybe a variant of this argument as well which is that if in this case the a u s a had been a actual attorney at the time had been suspended and had just failed to sign that might be a different case than a case in which the absence of a signature also is combined with the absence of an attorney so it's as if it's a blank indictment and that's a somewhat different situation than a case in which there's just a technical failure to sign that is correct your honor ok so there's two and you highlight there's two different requirements in rule seven but but i'm still stuck on what it what did we rely on to conclude that either requirement is a jurisdictional requirement as opposed to a requirement that you can breach and if you do i suppose it just gets corrected by evidentiary findings that it was not somehow satisfied otherwise because there is a fairly substantial background as you know  treating it not as a jurisdictional requirement is there anything in the commentary or lesson of history to rule seven itself that indicates that in adopting that rule it was meant to be jurisdictional you know it's interesting because when you look at the lorraine case which was cited by the government that was also used in easton that was an eight thousand and ninety case which was you know many many years but for the th and not one thousand nine hundred and forty four when the when the legislative history came about  i did a brief search of that i did not find anything that specifically said that it's jurisdictional do we know they want they adopted rules what is the reasoning in the history it just seems like if we have a background rule that you don't have that's part of why it came about and i don't like i said i myself when i st was assigned to this case was surprised at how specific that it was the one thousand nine hundred and forty four role it was after laying that there was some concern about sort of and i guess perhaps maybe it was liking it in my mind as and then this actually came about when i was preparing for this argument to this notice a notice of when you start a case that you have that there are specific requirements that you know maybe shouldn't be shouldn't be the rule and sort of a general perspective like ok so the defendant didn't file is notice of appeal on the on the th day or the he did it two days later because you know his lawyer was out of town or something like that what's the prejudice to the government you know they can still there's nothing the clock would start to run so why can't we do that but you know there are certain sort of i guess introductory or you know when the starting gun starts that that that are considered very seriously and it seems as though it's if at least a fair fair inference that this is is very important that it's because of the authority of that prosecutor to determine that attorney who was not at the time to determine that this case should go forward if that if he affirmatively decides not to sign it then it doesn't go forward he has which has a number of attorneys and it would seem to me if it were meant to be jurisdictional it would have said so because  surely here the evidence is conclusive that in fact a proper decision in all other respects was made to bring this prosecution by the united states by the supervising attorney and it's only because of this regrettable problem which apparently this signing a lawyer did realize at the time that we have this issue at all it would seem that if this if that decision had been made before the signing of the indictment or if the u attorney had signed on the indictment that was one of the one of the cases where that's in fact what happened is that i think because the u s attorney had actually signed the indictment then they defect was not jurisdictional or was not considered to be fatal here you're having post hoc a post after the fact determination whether or not the prosecution can can go forward ringback but that's basically skipping over rural seven seeing that it has to be authorized something that could be corrected it would have been in seven c two that talked about if they fail to cite it properly or there are sort of scribner's error or you know it's an oversight errors but that's not what we have here we have a signature that's required that's done by and an author writes not even an as a person who's not an an attorney and in that respect i think it does make it make it different than say if you didn't put in the attorney but because he hadn't paid bar dues or ordered the registration he was suspended and therefore he was not in good standing i think you can i'm sorry judge i didn't have that we had republican we'll give her two minutes rebuttal and we'll hear from her opponent now thank you judge attorney parsons you can please honey that's better ok if you could introduce yourself on the records or before you begin i will robert richardson for the for the united states of america and your honor i'd like to follow up on several strands that were raised here st of all in no way shape or form is this issue jurisdictional cotton the supreme court in cotton made clear that in modern day usage  mary of that is in the th circuit decision and right where the th circuit said the primary purpose served by fixing the u s attorney signature to an indictment is to indicate that he joins with the grand jury instituting a criminal procedure proceeding without his agreement no criminal proceeding could be brought on the indictment so that's really what the purpose of it is is to make sure that the it's really almost that you've got the correct party that you've got somebody you guys have standing to bring a criminal case and if you look at the cases such as the providence journal case in the supreme court you know from time to time there is sort of a loose use of the term jurisdiction but in the providence journal case basically what it was is that the  special prosecutor i think it was who was seeking to litigate before this court after before the supreme court had not received the necessary authorization of the solicitor general to do so and because he had not done so he was not really a proper party to d appear before the supreme court what do you make of see two calling out one of things listed and see one as something that cannot result in dismissal unless you so prejudice it's it does seem odd to call that out if you're reading a c one right because it would seem unnecessary to make that point i don't read too much into it your honor i'm cute here by the way not only did the district court find i'm that there was no prejudice because no that's not what i'm you know what i'm asking i'm not making that point i'm making the point that seek to specifically there see one lists a bunch of things that the indictment has to have one of which is a signature see to then signals out some of the things listed and see one says you can't dismiss unless there's prejudice but it doesn't signal out the signature a normal inference of that is well then you've dismissed without prejudice if that requirements not met what is that wrong this prosecution was initiated mr kelly had brought explained that the signature on the indictment was not of an attorney  but probably before the court perhaps he could have sought to have it dismissed on that basis mr richardson i doubt very much the government wants to draw distinctions here are between that they run it to make quite certain that you had to show prejudice as to the others but no negative inference can be drawn now as to tha if i had known about this de facto as she was in counsel at the time she's just hypothesizing what's your response to that well the initial response your honor is that she does not have a certificate of appeal ability on that issue judge wolf specifically found that that was not debatable for better or for worse that's that's what he found and he granted he granted a certificate of ability i'm sorry it's mean for example that he did it there if there were no i think the point i think the point that that does feed into the question just let's just ask you about isn't that a pretty good argument for showing presidents in other words if if he knew it the time the person whose name is there is not an authorized attorney why would you agree to the cli at that moment you say well because we now know it was actually authorized that the that wasn't known at the time so at the time there would be no reason to sort of who would sign on who would accept the indictment and so you knew there was a u s attorney who was behind it was later why would they ever do that if they knew it because you could call up jim farmer jim langer somebody to come down to the courtroom and me there and other purpose could be served in change have been ministrations with change and policy and discretionary judgments about what could  happen whether to pursue a prosecution or not it could be that one u s attorney would make a decision to prosecute whereas another u s attorney in a new administration would make a decision not to course that is not the conundrum we have here are let me just make a point this has consumed a lot of the trial time in the district court it is now on appeal this should never have happened what steps has the united states to taken to be sure that this does not happen again among other things at least once a year everybody every every jurisdiction in which we are licensed so i happen to be licensed both in new york and massachusetts so once a year i submit paperwork proving not the force but just so i understand what how do we look at the prejudice question and is that at the at the time the indictment appears you have to decide whether to plead to it at that point are we supposed to i guess i just don't quite know how to think about it so you have a situation where it's not an authorized attorney if i had known it was not enough ri attorney she says i wouldn't have signed that they would just send to the u s attorney's office you know there's nothing here for me to agree to then the u s attorney's office would have to come down and say i suppose well actually we stand behind and will now  would purse some moment after this indictment so are supposed to think about prejudice after they've been corrected are you supposed to think about prejudice from today sort of what temporally are we supposed to be imagining is  moment to valuate the prejudice i think when you evaluate it your honor is at the point where the defendant pleads guilty and even can't divorce this from whether or not this is jurisdictional because that existed as of the time you stand up in open court and freely admit that you are guilty taal it i think is one of those cases which says that doesn't necessarily mean that you know i would submit supported supported supportively found that in this case there was no prejudice and because he thought it was so clear declined to grant a certificate of appeal ability and if you look at the defendants a notice of appeal the notice of appeal is simply with respect to this one issue we did we've been talking about but not on whether or not there was prejudice so you're in other words you're saying that we don't deals with the subject matter of the court to hear cases and not with whether or not somebody violated rule rule seven i mean you can see in the brief case after case  supervisors approving what the lower level attorneys did and it was within the sole discretion of the one attorney lin as it turns out wasn't licensed what then well that's i mean i you're asking a complete hypothetical because in this case we do and we did and that's what judge will found in there is was no clear error in what he found i think perhaps that's what judge w said from what you can tell it is it still is it's still not jurisdictional if that's the way the office is that's the question well there's a sort of an outlier left out there this garcia  i would submit that that was wrongly decided but the one thing that you did not have in garcia and dr day which you do have here is any indication that anybody other than indictment in that case unfortunately it did not go up to the th circuit because the indictment ended up getting dismissed without prejudice so i some was followed up with and i mean by somebody who did virginia whichever it was and was authorized to participate but that just gets back to you or asked earlier what the reason for the rule is and as i indicated i think right  on appeal can you well i think frankly that sort of with what was going on in the providence journal case which i alluded to earlier is in that case they they called it jurisdictional but really what you well i would not challenge well what would what would be the specific challenge if you found about found out about the factual situation where just let's just say the executive secretary in the u s attorney's office  the issue was whether the you really had an appropriate party in front of the court whether the special prosecutor in that case really was the attorney for the united states given that was there actually and province or providence journal actually had to do with that contempt for seating i believe the question is whether when there is a clearly your position is it actually doesn't matter if mr farmer is behind it he shouldn't be looking at that question because it's not jurisdictional he pled game over it doesn't matter if everybody office that would have crazy indictments you hear what that guy put on and you may have a mr richardson you may have overstated the case for the government no one possible responses answer this question if is there a narrower position with respect to jurisdiction the government is advancing or not that's you you've asked us to take account of the fact that other people u s attorney's office authorized this indictment and i'm now confused as to why you think that's relevant is that relevant because it's relevant to jurisdiction or is it not relevant to jurisdiction i don't think it's relevant cases not just right and not just the th circuit but what is what the real concern is is not needed whether or not there is jurisdiction with a capital j but rather whether it be better just to follow the point your position is that once you plea it doesn't matter whether there's a proper party so that's what's troubling me and i think that's thompson well yeah yeah and that's fine and it missing the point your work is not something our your position to our court is that a reason you win is because there's evidence that other members of the u s attorney's office approved and i'm not understanding how come it that is relevant and what theory is the government saying that's relevant your pure jurisdiction argument seems to make it irrelevant your point about the plea seems to make it irrelevant so if you think it matters it would be helpful for me to know since we have to write the opinion how does it matter that there is evidence here that someone in the u s attorney's office approved this indictment because it is the u s attorney who has authority to bring criminal cases in behalf of the united plea and again here here here's where i'm trying to be helpful your honor we're the u s attorney to find out that some random person chauncey gardiner or whoever it was  the peter sellers played in that movie ends up in the grand jury and it you know reports to be an assistant u s attorney and has a grand jury return an indictment you know i don't doubt for a nd that's true of your the term the worry would be if we had a problematic u s attorney and what protection there is against that we're trying to design a rule for that not that the good faith was to have no reason to doubt that what you're saying isn't true in any case involving your office right and what i what i what i'm trying what i'm trying to suggest is i'm not here talking about an assistant u s attorney i'm talking about the u s attorney say to say i go rogue next week and go into the grand jury and neither mr lolling nor mr aver nor my supervisor the direct supervisor nor anybody else knows what i'm doing and i get an indictment returned  leveling once he finds out that i have done that is going to say well i adopt that i it's my decision i'm the authority authorized to bring cases in behalf of the united states or he's going to go into court and say this person had no authority to do this i'm filing a dismissal i mean i think that's one of the data suggests that the question is what if the defendant cleats and the defendant then comes into court and says i don't know whether anybody stands behind this would it be a legally available argument to the government to say we don't have to show you or anybody's behind it because he planned it that's what we're trying to figure out and it sounds like you say that would be a legally acceptable answer if it's not illegal except to answer why is that because it's jurisdictional right and i am sorry i'm sorry for going for it that being helpful but  by the government because in that case the aig was they who signed the indictment was acting under a proper u s attorney and who was later recuse and i think if you get down to the notion of what do we mean by  respect to pursuing something like the authority to have the court have jurisdiction when my client files a notice of appeal that responsibility should be on the government the government should have the responsibility to ensure that whoever is they are  zing has that authority and in the absence of that authority it's not just a defect in the indictment like this the seven c two issues are it's a defect in the ability of the court to hear the case because it they missed missed an element but that and they said that because he had in fact pled to it it didn't make a difference was his is what happens in c two under under seventy two so that to me resolves a lot these other cases that talk about authority because it's not it's it's it's beyond just the the the face of what charges the notice of the charges it comes down to the authority of the u s attorney the supervisor in fact approved this indictment on by house with the u s attorney's office that's authority after the fact they have to have authority at the time the indictment is signed and it's an come upon the government that if they have i'm sorry at the time the indictment was signed we learned after the fact that it had the full authority of the u s attorney's office and we're only going to know after the fact because nobody realized this problem at the time  adopted they approved afterwards but with but the signature with at the time of the indictment when when ok i understand that our thank you it's my ok thank you