FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50063
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00442-
PA-2
MAYEL PEREZ-VALENCIA, AKA
Santos Irizarry Castillo, AKA
Miguel Martinez, AKA Miguel OPINION
Angel Martinez-Marquez, AKA
Miguelito, AKA Mayel Valencia
Perez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
February 4, 2013
Limited Remand
July 16, 2013
Pasadena, California
Filed March 3, 2014
Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Trott
2 UNITED STATES V. PEREZ-VALENCIA
SUMMARY*
Criminal Law
The panel affirmed the district court following remand
wherein the panel had asked the district court to examine and
to determine the precise nature of San Bernardino County
District Attorney Michael Ramos’s delegation of authority in
his absence to Assistant District Attorney Dennis Christy,
who, as designee of Ramos, applied for and obtained a state
wiretap.
The record developed by the district court on remand left
the panel with no doubt that in Ramos’s absence, Christy was
“running the office,” satisfying the panel’s concern that the
delegation might have been only for wiretap applications.
The panel also found it noteworthy that the narrow powers
Ramos retained were not delegated to anyone else.
With the benefit of a complete record, the panel found it
appropriate to qualify its use in its first opinion of the word
“all.” In the new opinion, the panel used that word to refer to
the routine standard daily functions of a prosecutor’s office,
which does not include administrative matters involving
budgets, personnel, or even the unique penalty decision in a
capital case.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PEREZ-VALENCIA 3
COUNSEL
Carlton F. Gunn, Kaye, McLane, Bednarski & Litt, LLP,
Pasadena, California, for Defendant-Appellant.
Jennie L. Wang, Assistant United States Attorney, United
States Department of Justice, Violent and Organized Crime
Section, Los Angeles, California, for Plaintiff-Appellee.
OPINION
TROTT, Circuit Judge:
I
After we heard oral argument in this case, we remanded
it to the district court for further proceedings. United States
v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013).
Specifically, we asked the district court to examine and to
determine the precise nature of District Attorney Michael
Ramos’s delegation of authority in his absence to Assistant
District Attorney Christy. We were principally concerned
that Christy might have been acting with only the limited
authority to apply for a wiretap order. We were also
concerned that the three persons on Ramos’s delegation list
might each have simultaneously had the power to apply for
wiretaps in Ramos’s absence. We no longer have these
reservations. Thus, we affirm.
4 UNITED STATES V. PEREZ-VALENCIA
II
After conducting a plenary hearing as we requested, the
district court memorialized its findings of fact and
conclusions of law.1 United States v. Perez-Valencia, No. CR
11-442 PA, 2013 WL 6385264 (C.D. Cal. Dec. 6, 2013). The
following is a quotation from those findings of fact.
1. On March 30, 2010, government authorities obtained
a state wiretap from a San Bernardino County Superior Court
Judge. The state wiretap was obtained by application of San
Bernardino County Assistant District Attorney (“ADA”)
Dennis Christy, who declared under penalty of perjury that
“Michael Ramos is the District Attorney of San Bernardino
County, and I am the person designated to act in his absence
pursuant to Penal Code section 629.50(a).” The state court
judge signed the order authorizing the March 30, 2010,
wiretap, finding that “Dennis Christy, Assistant District
Attorney, who is the designee of Michael Ramos, District
Attorney for the County of San Bernardino, State of
California, made application to this Court requesting
authorization to intercept [wire and electronic
communications].” The state court found that “The Assistant
District Attorney, who is the designee of the District Attorney
of San Bernardino County, State of California, is the
applicant for this interception.”
2. At all relevant times, the elected district attorney of
San Bernardino County was Michael A. Ramos (“DA
Ramos”).
1
We thank our district court colleague for his prompt and thorough
attention to our request.
UNITED STATES V. PEREZ-VALENCIA 5
3. Beginning in mid-2003 through the relevant time
period, during the absence of DA Ramos, it was the practice
of the San Bernardino County District Attorney’s Office
(“SBCDA”), to delegate the duties of the District Attorney to
the Assistant District Attorney (“ADA”) for Criminal
Operations, Dennis Christy. Specifically, ADA Christy would
become the acting District Attorney in DA Ramos’ absence.
In the event that DA Ramos and ADA Christy were both
absent, the ADA for Administration, James B. Hackleman,
would assume the duties of acting DA. In the event that DA
Ramos, ADA Christy and Hackleman were all absent, the
Chief Deputy District Attorney for the Central Division,
Clark Hansen, III, would assume the duties of acting DA.
4. On July 1, 2009, DA Ramos executed an internal
office memorandum (the “Designation Memorandum”)
codifying this policy and practice. The Designation
Memorandum designated three individuals to act in his
absence, in the following order of succession: first, ADA
Christy; second, Mr. Hackleman; and third, Mr. Hansen.
These three individuals were to assume the position of acting
DA in successive order, that is ADA Christy was to assume
the duties of acting DA in DA Ramos’ absence; ADA
Hackleman was to assume the duties of the acting DA only in
the absence of both DA Ramos and ADA Christy; and Mr.
Hansen was to assume the duties of the acting DA only in the
absence of DA Ramos, ADAs Christy and Hackleman. At no
time was more than one person at the SBCDA office
authorized to be the acting DA in DA Ramos’ absence.
5. The purpose of the delegation of power was to
provide a clear and linear chain of command within the office
which could be accessed to provide guidance and policy
making decisions to members of law enforcement and deputy
6 UNITED STATES V. PEREZ-VALENCIA
district attorneys working within the office during the absence
of the DA. Although the Designation Memorandum
referenced California Penal Code § 629.50(a), the acting
DA’s authority to act in DA Ramos’ absence was not limited
to only applying for wiretap orders. The reference to . . .
[s]ection 629.50(a) was to establish a written record of
compliance with California state wiretap law.2
7. ADA Christy’s job description specifies that his duties
include, but are not limited to “act for the District Attorney
during absences” and to “make interim policy and procedural
decisions in the absence of the District Attorney.”
8. Except for certain non-exigent policy and procedural
decisions, the acting DA assumes all the powers, duties, and
responsibilities of the District Attorney. During the absence
of the DA, he or she is fully empowered to act as the DA for
any matters that might arise in the day to day operations of
the office, including, but not limited to, making an
application for a wiretap. There are certain policy and
procedural decisions that can await the return of the DA that
are not delegated by DA Ramos and are not made by the
acting DA. Those decisions, which include whether to seek
the death penalty in a capital case and personnel decisions in
which an employee is to be terminated, are not of an exigent
nature and are personally made by DA Ramos upon his return
to the office. The SBCDA’s process of determining whether
to seek the death penalty is made by a committee comprised
of DA Ramos and five assistant district attorneys and chief
deputy district attorneys over a prolonged period of time.
2
Paragraph six has been combined with paragraph five for the reader’s
convenience.
UNITED STATES V. PEREZ-VALENCIA 7
Death penalty committee meetings are schedule for when the
DA is available.
9. DA Ramos was absent from the SBCDA office on
March 29, 30 and 31, 2010, because he was in the hospital
attending to his wife, who had undergone surgery for a
serious health condition. While in the hospital, DA Ramos
was not in communication with anyone from the office on
March 29 and 30, 2010, during work hours. During that time,
DA Ramos could not have exercised any of the duties of the
district attorney due to his absence. On March 31, DA
Ramos was involved in transitioning his wife from the
hospital to their home and could not communicate with
anyone from the office during business hours. DA Ramos
does not recall communicating with anyone from the office
on that day, but if he did speak to anyone from the office, it
would have been after he and his wife returned home.
Accordingly, DA Ramos was absent from and unavailable to
the SBCDA office for the entire period of March 29, 2010,
through March 31, 2010.
10. While DA Ramos was absent and unavailable on
March 29, 30, and 31, 2010, ADA Christy was the acting DA
of San Bernardino County. As acting DA, ADA Christy
assumed all the delegable powers, duties and responsibilities
of the District Attorney during that period. Neither ADAs
Hackleman or Hansen assumed the duties of the acting DA
during that time.
11. On March 30, 2010, ADA Christy, while performing
the duties of the acting DA during DA Ramos’ absence from
the office, authorized the wiretap application at issue in
defendant Mayel Perez-Valencia’s Motion to Suppress. In
the wiretap application, ADA Christy invoked the language
8 UNITED STATES V. PEREZ-VALENCIA
of the Designation Memorandum and expressly stated that he
was making the application as “the District Attorney
Designee” and that “Michael Ramos is the District Attorney
of San Bernardino County, and I am the person designated to
act in his absence pursuant to California Penal Code section
629.50(a).”
12. DA Ramos’ testimony concerning the delegation of
power in the SBCDA office in the event of his absence was
credible and consistent with the evidence before the Court.
13. Accordingly, the Court finds that on March 30, 2010,
no one other than ADA Christy was authorized to apply for
wiretaps pursuant to Section 629.50(a). Nor was any other
person authorized to exercise any of the responsibilities and
duties of the District Attorney during DA Ramos’ absence.
The Court therefore finds that at that time, ADA Christy had
all the powers of an acting district attorney.
14. The Court additionally concludes that ADA Christy
was duly acting as “the” “principal prosecuting attorney” of
San Bernardino County for all purposes within the meaning
of 18 U.S.C. § 2516(2) and California Penal Code section
629.50 when he authorized the wiretap application at issue in
this case.
III
The record developed by Judge Anderson leaves no doubt
that in Ramos’s absence, Christy was “running the office.”
No one else was authorized to do so. This finding satisfies
our concern that the delegation might have been only for
wiretap applications. It was not. Christy was functioning as
the principal prosecuting attorney for all regular decisions the
UNITED STATES V. PEREZ-VALENCIA 9
office made, without exception. The circumscribed areas of
authority retained by Ramos were in and of themselves
exceptions to the daily normative activities of a district
attorney’s office. We also find it noteworthy that the narrow
powers Ramos retained were not delegated to anyone else.
Now that we have the benefit of a complete record, we
find it appropriate to qualify our use in our first opinion of the
word “all.” We now use that word to refer to the routine
standard daily functions of a prosecutor’s office, which does
not include administrative matters involving budgets,
personnel, or even the unique penalty decision in a capital
case. As explained by Ramos, such a decision is made by a
committee over a prolonged period of time. Such committee
meetings are simply not scheduled in Ramos’s absence.
AFFIRMED.