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

(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,

(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). - 2 - 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,

(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,

(2003). See generally

, 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"). - 3 - 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,

(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,

(7th Cir.

1966); see also Little v. United States,

(8th

Cir. 1975) (ditto); United States v. Levine,

(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,

(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

- 4 - 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." - 5 - think the judge acted clearly erroneously, we must honor those

findings. See Bartolomeo,

.

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,

(4th Cir. 1946)

(citing In re Lane,

(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,

; 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,

(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,

(4th Cir.

2012) (holding that even though the AUSA "who signed the indictment

had had his bar license administratively suspended," his "errant

- 6 - 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,

, 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,

, 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,

(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

- 7 - indictment came down, she was not "a proper representative of the

government."

, *9 (quoting United States v. Providence

J. Co.,

(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

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

. So, in other words, he

lacked "authorization to appear on behalf of the United States."

And without "a proper representative of the Government," the

Court had to dismiss the petition.

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

- 8 - 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.,

(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

- 9 - "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.

- 10 -