United States v. Hilario
United States Court of Appeals for the First Circuit
July 17, 2000, Decided
[*21] SELYA, Circuit Judge. Fermin Hilario moved to dismiss an indictment brought against him, claiming that the protracted tenure of a court-appointed interim United States Attorney contravened applicable federal statutes, violated the Appointments Clause, offended the separation-of-powers principle and, in the end, rendered the indictment a nullity. The court below did not reach Hilario's constitutional claims but nonetheless granted his motion, ruling that the interim United States Attorney's extended service [**2] flouted congressional intent. The government appeals on an expedited basis. Concluding that the interim United States Attorney holds his office lawfully, we reverse.
] As a general rule, United States Attorneys are nominated by the President and, if confirmed by the Senate, serve four-year terms. See 28 U.S.C. § 541. But Congress selected a different method for interim ] appointees:
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of --
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district [**3] court for such district may appoint a United States attorney to serve until the vacancy is filled. . . .Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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218 F.3d 19 *; 2000 U.S. App. LEXIS 16978 **
UNITED STATES OF AMERICA, Appellant, v. FERMIN HILARIO, Defendant, Appellee.
Subsequent History: [**1] Certiorari Denied November 27, 2000, Reported at: 2000 U.S. LEXIS 7848.
Prior History: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.
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