Noel Francisco U.S. Solicitor General Noel Francisco giving opening remarks during the Federalist Society’s Supreme Court Preview panel discussion on Sept. 21, 2018, held at The Mayflower Hotel in Washington, D.C.

A federal prosecutor overseeing criminal cases on a suspended law license does not strip a district court judge of jurisdiction over a trial, the U.S. Justice Department told the U.S. Supreme Court.

Criminal defendants do not have “‘a constitutional right to a properly licensed prosecutor,’” U.S. Solicitor General Noel Francisco, quoting a North Carolina district court judge, told the justices in the case Mendez v. United States.

Lawyers for Gilbert Mendez argue the U.S. District Court for the Northern District of Ohio and the U.S. Court of Appeals for the Sixth Circuit were wrong to deny him a certificate of appealability on his claim that his 2005 guilty plea to cocaine charges should be set aside because the law license of his federal prosecutor had been administratively suspended at the time of the indictment. U.S. District Judge Donald Nugent of the Northern District of Ohio ruled against Mendez.

The justices are scheduled Thursday to review the case during the court’s private conference.

The Mendez case is one of several challenges—and perhaps the first to reach the Supreme Court—by criminal defendants whose indictments or trials were handled by former assistant U.S. attorney David Folmar Jr. Folmar was ineligible to practice in federal court from 2003 until 2009. His license had been suspended for failure to keep current with the continuing legal education requirements of the North Carolina bar. (The state bar still says Folmar’s license is suspended.)

During those six years, Folmar was engaged in the practice of law in the Northern District of Ohio, the Eastern and Middle Districts of North Carolina and the Eastern District of Tennessee. In disciplinary action in June 2010, the North Carolina bar found that Folmar had concealed his suspension from his Justice Department supervisors and falsely held himself out to the court and public as qualified to practice law. The North Carolina bar also found Folmar was suffering from personal and family problems.

The bar noted that Folmar enjoyed a professional reputation of honesty. The bar suspended his license for five years, with the opportunity to apply after 18 months for a stay of the remaining time if he complied with a list of ongoing requirements and restrictions.

Most of the challenges stemming from Folmar’s prosecutions appear to have failed. In the Supreme Court, Mendez’s counsel, Sarah Thomas Kovoor of Ford, Gold, Kovoor & Simon in Warren, Ohio, urges the justices to answer “whether the United States’ failure to be represented by a validly licensed attorney deprives the district court of jurisdiction.”

When Folmar signed Mendez’s indictment, Kovoor said, he committed a fraud upon the court and fraudulently induced Mendez to plead guilty. She argued in her petition that the misrepresentation violated Mendez’s due process rights and that the Justice Department’s failure to inform the defense of Folmar’s status and the court’s resulting lack of jurisdiction—both exculpatory information—violated his rights under Brady v. Maryland.

“This problem is not mitigated, but indeed is only aggravated, by the Sixth Circuit’s astonishing statement that any person is ‘authorized’ to represent the United States if that person is merely ‘assigned’ to do so by officials within the Department of Justice,” Kovoor said. If left undisturbed, she adds, that ruling means, for example, “that any unlicensed paralegal or law clerk employed could be ‘assigned’ to represent the government in litigation.”

In the government’s response, Francisco said Folmar didn’t sign the Mendez indictment or the superseding indictment. They were signed by then-U.S. Attorney Gregory White, according to Francisco. Folmar, assigned to prosecute the case, did sign the plea agreement with Mendez, defense counsel and the trial judge.

“This court has long held ‘that defects in an indictment do not deprive a court of its power to adjudicate a case,’” Francisco wrote. The prosecution was authorized by a “proper representative of the government,” he said, and although unlicensed, Folmar was “assigned” by his superiors to work on the case.

Mendez was denied relief by the district court because he failed to show he was prejudiced in any way by Folmar’s suspended license during the prosecution, Francisco told the justices.

Mendez failed to raise a due process claim in the lower courts, “and neither the court of appeals or the district court addressed a claim based on the appearance of impropriety,” according to Francisco. Like that claim, his Brady claim is not properly before the high court because he never raised it below, writes the solicitor general.

Kovoor told The National Law Journal that the government’s reliance on the U.S. attorney signing the indictments “makes absolutely no sense to me.”

Even if there were a factual error in the petition, she said, Folmar was the person who investigated the case, spoke to police officers, made the decision on whether there was sufficient evidence to go forward to the grand jury ,and was the “unauthorized person” in the grand jury room.

Kovoor also said Folmar, knowing his license was suspended, would want to keep that fact hidden, which provided a questionable motive for his role in the plea negotiations.