UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MICHAEL P. KEARNS, in his official : DECLARATION OF DANIEL T. capacity as Clerk of the County of Erie, New: WARREN IN SUPPORT OF MOTION York : FOR INTERVENTION TO MOVE FOR : DISMISSAL OF THE COMPLAINT OR Plaintiff, ALTERNATIVELY TO BE PERMITTED we TO PARTICIPATE AS AMICUS : CURIAE ANDREW M. CUOMO, in his official capacity as Governor of the State of New ‘York, LETITIA A. JAMES, in her official capacity as Attomey General of the State of New York, and MARK J.F. SCHROEDER, in his official capacity as Commissioner of the ‘New York State Department of Motor Vehicles, Case ## 19-cv-902 Defendants. I, Daniel T. Warren, make the following declaration under penalty of perjury: 1) Tam the Movant-Intervenor in this action and I make this declaration in support of my motion for intervention to make a motion to dismiss the complaint or alternatively for leave to participate as amicus curiae and is based on my own personal knowledge except as to matters stated on information and belief and as to those matters I believe them to be true. 2) Tam a resident of the Town of West Seneca, County of Erie and State of New York. 3) Ipay New York State income taxes and State sales taxes on purchases I make in the State of New York. 4) Ipay Erie County sales taxes on purchases I make in Erie County. 5) Town an interest in a piece of real property located in the County of Erie and State of ‘New York that has an assessed value of over $1,000.00.6) Tama registered voter in the Town of West Seneca, County of Brie and State of New ‘York. 7) Attached hereto and marked as Exhibit “A” is a true copy of pages 356 - 360 of the adopted budget of Erie County, New York that demonstrates that itis anticipated that $4,416,652 million in revenue will be generated for the benefit of the taxpayers of Erie County by Plaintiff performing this function as agent of the State Defendants obtained from: nttp://www2 erie. gov /budget /sites /www2.erie. gov. budget /files/upl dfs /2019-adopted-Budget-Book-A.pdf 8) Attached hereto and marked as Exhibit “B” is my proposed motion to dismiss and opposition to Plaintiff's motion for a preliminary injunction I intend to file upon being granted intervention in this action 9) Ideclare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge, information and belief. Hy} EXECUTED: August 5, 2019 Buffalo, New York Daniel T."Warren Movant-Intervenor, Pro Se 836 Indian Church Road ‘West Seneca, New York 14224 716-265-0526Exhibit “A”COUNTY CLERK AUTO BUREAU voreRs ‘COUNTY CLERK a Se ‘DOWNTOWN EASTERN ‘AUTO BUREAU ‘AUTO BUREAU. coe BRANCH BRANCH ‘AUTO BUREAU (cHeEKTOWAGA) Northtowns Mobile Eastern Hills Auto Bureau Southtowns vans 2017 2018 2018 2019 AUTO BUREAU Actual Adopted Adjusted Adopted Personal Services 4,750,277 5,034,258 5,184233, 6,133,735 Other 783.274 843.836 918.549 11130.148 Total Appropriation 5,593,548 5,878,068 6,102,782 7,263,883 Revenue 10,640,099 10,802,000 410,802,000 411/680,535 County Share (6,106,551) (4,923,932) (4,699,218) (4,416,652) 356DESCRIPTION “The Auto Bureau receives and processes motor vehicle applications, issues vehicle registrations and driver's licenses (Including Enhanced Drivers’ Licenses), handles financial security transactions, and the enforcement ‘of sanctions imposed relating to DWI offenses in accordance with the Vehicle and Traffic Laws of New York ‘State. Additionally, boats, motorcycles, snowmobiles and trailers are registered and non-driver photo identifications are issued. Responsibilities also include the collection and monitoring of all fees related to Issuance of auto registrations and driver's licenses, and sales taxes collected on the private sale of automobiles. “The Division retains a portion of the auto registration, drivers license fees and other related fees collected in accordance with an agreement with the New York State Department of Motor Vehicles. All sales taxes collected for private vehicle sale transactions are forwarded to New York State. MISSION STATEMENT ‘The mission of the Auto Bureau is to effectively administer the laws rotated to motor vehicle sale and registration and driver licensing. The Bureau accomplishes this mission by following the law; fostering innovation in its operations; developing cooperative relationships with other public and private entities; clearly ‘communicating with the public; and treating everyone fairly and with respect. Program and Service Objectives Continue to provide professional, courteous and quality service tothe taxpayers and residents of Erie County, + Issue registrations oF renewal registrations for automobiles, boats, snowmobiles, campers, travel trallrs and commercial vehicles. + Collect, record, deposit and properly monitor vehicle registration fees, license fees and sales taxes collected + Administor State faw requiring motor vehicles registered In New York State to maintain Habllty insurance throughout the registration period. + Calculate and collect sales taxes on private automobile sale transactions. + Collect and process license plates voluntarily surrendered + Administer written exams, vision examinations and issue new or renewal drivers licenses, Enhanced Driver's Licenses and non-diver identifications. + Offer customers the opportunity to complete a voter registration application while completing any transaction involving a drive's license or non-driver identification. ‘+ Faciitate enrolment in the New York State Drinking Driver Program (ODP) for motorists recently convicted ofan alcohol or drug related diving violation. + Offer EZ-Pass Tags for sale to customers visitng Auto Bureau locations. Top Priorities for 2019 Continue to be customer-minded by maintaining a pleasant atmosphere for customers that provides quality customer service with pride, professionalism and respect forall clients this Office serves. + Improve average wait times and service times throughout the Auto Bureau, = Advocate for the NYS Legislature to enact legislation increasing revnue sharing percentage from 12.7% to 25%. ‘+ Increase public awareness on the importance of renewing registrations at local Auto Bureaus or Via "Renew Local" Green Envelopes to retain critical revenues at County level + Increase revenues by actively marketing Enhanced Drivers Licenses and Enhanced Non-Driver IDs; while looking to identify possible new revenue streams. + Continue to modemize office space and implement new technologies for a better work ‘environment and customer experience. Plan to relocate the Southtowns Auto Bureau to a larger {aclty with sufficient parking to meet increased volume of customers. + Partner with Unyts to increase organ donation enrollment in New York State. + Partner with, and participate in, community outreach programs with local non-profit agencies {focused on serving the disabled and senior citizens. 367Key Performance Indicators Total Transactions Driver's Licenses Enhanced Licenses Registrations & Othor Revenue to County Outcome Measures Saturday Transactions Mobile Unit Transactions Satelite Office Transactions ‘Average Transactions (per month) Performance Goals Renew Local Campaign Average Service Time ‘Organ Donation 358 Actual Estimated 2017 2018 578.588 587,157 128,001 148,000 21287 28,406 4255587 422,640 $0,704,425 $9,558,680 Actual Estimated 2017 2018 26,193 29,000 19429 19.500 199287 299,776 40216 48929 Estimated Goal_-——Goal 2018 2019-2020 85406 68,306 91,480 830750730 44,195 45,600 47279 Estimated 2019 595,964 152,000 26,000 428,400 $11,680,535 Estimated 2019 31,200 20,000 307,000 49,663, Goat 2021 94,692 7:90 48,9342018 Bugs Estat -Sumary of Personal Sons ‘county lah Auto Burne Don 8% ne Salary Ho: Reg, No: Etec Net Lag Adead Rema Fume Posies 1 BePUTy cue CLERK AUTO BUREAL Mot gra + sataoy satay saat 2 SECOND DEPUTY COUNTY LERK- AUTO BUREAU Pe er er) 2. SECRETARY, COUNTY CLERK + ao ms sea saree 4 RECEPTONST os 1 wae same sacs qc vet ee Puan Pantone 1 SeMoR MOTOR VEHICLE REPRESENTATIVE or 2 smses 2 sronas 2 stonss 2 sonst 2 MOTOR VEMCLE REPRESENTATIVE saga 2 raat raat 12 sats 13. OTOR VEHCLE REPRESENTATWE SPANISH SPK ee ‘oa 1S smo eT tS gM 8 HeKOHT Panine oskene 1 sauoR WOTOR VENICE CASHIER 7) os 7 sroross 7 sess 7 ersz6s 7 teas ot 7 stones 7 sigan 7 sgzes 7 tiga 1 branch wnngeRayro BURA tot gears teem aes oe ssa 2. SENOR MOTOR VEHICLE REPRESENTATIVE oy 2 sexes 2 sane 2 ze 2 mae 4 OTOR VEHICLE REPRESENTATIVE, ee ee 4 MOTOR VEHICLE REPRESENTATWE COSA os + senate santa seated tated ‘5 DELWVERY SERVICE CHALEFEUR 1 gaara srzontgrzo tar 708 Tome me Homan om nomi 28 stoma a8 siaeere 1 MOR MOTOR venice caste te 8 sie 8 iM ates 8 tas Tea 8 simom 8 sranaen 8 grater 8 ses 1 vice manacea AUTO BUREAD a ee ee 2 SENIOR MOTOR VEHICLE REPRESENTATIVE or 3 suszis 3 steam 8 steoor 3 smotz ') MOTOR VEHICLE REPRESENTATIVE os 5 gasses 2s Serate «2 tosis 28 ourstt ‘ot so sizasmee 1 snsmsza 80 shammons 80 staeaone 1 JUNIOR MOTOR VECLE caste en) 08 Smogon as enigma 28 saz7TO oat 25 smapeso as saigyTa 28 sana as ann und ener Suman Totals Fun 7 sgoonese 7 zoe 77 sazomss 77 sams Pats wig © asa > acoaoe 0 (sense Furdceta Tonle 17 syoecomme 118 susuoset 117 sgeerss7 117 saasro7 359Sipartment: Gounty Clerk ~ auto Bureaa Divisten ao epielatsve ——aajurted Department «ative taglatative ocomt Appropriations pec ‘opted Boaoee Tiequest —Recenmendaticn hanptad 500350 otber mmployee Femants ase 2,000 22,000 24,000 4000 4,000 StG000 Ottien Supptiee waa 33.988 39/306 391980 19.956 Stezo0 watncenance © Repair s.667 ase asisie aelsio else 1510200 Training And Education 2,080 2200 3,200 nash Siso0e oeslsey Charsee 1.853 16590 20/890 Pans 1530000 Other Bxpenses 2.080 8.300 1985, 8.600 43000 nenean chaeges 2 ase.m5 26.78 sales Seuine fap 6 tecandeat sgutpment uaz : 30.460 Seieze oteion bypt, Furniture « Poxtaree 331583 3.300 Solas as.s0e Spsote Sneertund Eipenae Delsey Pond ae asso 2s. 2a ae Total Appropriations sisms.se7 seemeoce eu0a7e2adenioa——7sasa.asa 7.363.009 a7 tepislative Aajunted «Department eemtive —dagielat ve dpecoune Revenues potanle ‘aopted wage Request’ Recommendation Adopeed {20500 Rent of Real Property ~ Concessions 2.576 2,000 2000 000 2000 aeaoo 360Exhibit “B”UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MICHAEL P. KEARNS, in his official : NOTICE OF MOTION FOR DISMISSAL capacity as Clerk of the County of Erie, New: OF THE COMPLAIN York Case # 19-cv-902 Plaintiff, ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, LETITIA A. JAMES, in her official capacity as Attomey General of the State of: New York, and MARK J.F. SCHROEDER, in his official capacity as Commissioner of the New York State Department of Motor : Vehicles, : Defendants. DANIEL T. WARREN, fl Interyenor-Defendant : ‘To ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that at the courthouse, 2 Niagara Square, Buffalo, New York on a date and time to be scheduled by the Court, Intervenor-Defendant Daniel T. Warren will, and hereby does, move this court for an order dismissing the Complaint with prejudice; together with such other and further relief as the Court deems just and proper. This motion is brought pursuant to FRCP 12(b)(1), 12(b)(6) and FRCP 12(b)(7) and is based ‘on the pleadings and papers on file in this action, this notice, the accompanying memorandum of law, together with whatever evidence and argument is presented at any hearing of this motion. PLEASE TAKE FURTHER NOTICE that pursuant to Local Rule 7(b)(2)(A), unless ordered by the Court, responding papers, if any, are to twenty-eight (28) days after service of the motion to file andserve responding papers, and the moving party shall have fourteen (14) days after service of the responding papers to file and serve reply papers. DATED: August 5, 2019 Buffalo, New York Daniel T. Warren Intervenor-Defendant, Pro Se 836 Indian Church Road ‘West Seneca, New York 14224 716-265-0526UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MICHAEL P. KEARNS, in his official : MEMORANDUM OF LAW OF DANIEL capacity as Clerk of the County of Erie, New : T. WARREN IN SUPPORT OF MOTION York : FOR DISMISSAL OF THE COMPLAINT : ANDIN OPPOSITION TO PLAINTIFFS Plaintiff, : MOTION FOR A PRELIMINARY INJUNCTION ANDREW M. CUOMO, in his official : capacity as Governor of the State of New; Case # 19-cv-902 York, LETITIA A. JAMES, in her official capacity as Attorney General of the State of New York, and MARK J.F. SCHROEDER, in : his official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants. DANIEL T. WARREN, Intervenor-Defendant PRELIMINARY STATEMENT Pursuant to Fed. R. Civ. P. ("FRCP") 12(b)(1), 12(6)(6), and 12(b)(7), Intervenor-Defendant Daniel T. Warren move to dismiss Plaintiffs’ Complaint in its entirety for lack of capacity to sue, lack of standing, failure to state a claim for which relief may be granted and failure to join a necessary and indispensable party. Plaintiff is an agent for the New York State Department of Motor Vehicles until the Commissioner of the Department of Motor Vehicles (VTL § 205; Complaint §{ 12-13). As a result of this the County of Erie receives approximately $4 million Dollars in annual revenue that it would not receive otherwise. Plaintiff Michael P. Kearns in his official capacity as Erie County Clerk brings this action against various State Officers in their official capacity challenging a recently enacted Assembly BillA3675-B which was signed into law by the Governor and became Chapter 37 of the Laws of New ‘York 2019 and commonly referred to as the "Green Light Law." The grounds asserted by Plaintiff is that this law “conflicts with federal immigration law. The Supremacy Clause of the United States Constitution resolves the conflict in favor of federal law, rendering the Green Light Law unconstitutional.” (Complaint {2). Additionally, Plaintiff alleges that he may potentially be subject to federal prosecution under 8 U.S.C. § 1324 and/or removed from Office by Defendant Governor Andrew Cuomo and/or Defendant NYS Attorney General Letitia James. As set forth in more detail below Plaintiff lacks the legal capacity to maintain this action, lacks standing to bring this action, fails to state a claim for which relief may be granted and failed to join a necessary and indispensable party, specifically The United States of America, Therefore, this action should be dismissed with prejudice and Plaintiff’s motion for a preliminary injunction denied. APPLICABLE STANDARD UNDER FRCP 12(8)(1) ‘A Rule 12(b)(1) motion is the proper channel for dismissal "when the district court lacks the statutory or constitutional power to adjudicate" a matter fakarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice" to establish standing. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir, 2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). However, where a defendant brings a fact-based Rule 12(b)(1) motion, "proffering evidence beyond the (complaint]," the plaintiff must respond with evidence to controvert any factual issues raised regarding subject-matter jurisdiction, See id. at 57. Necessarily, then, a district court considering a Rule 12(b)(1) motion "may consider evidence outside the pleadings." See Morrison v. Natl Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). If the evidence proffered "does not contradict plausible allegations that are themselves sufficient to show standing," a plaintiff may simply rely on theallegations in its complaint. Carter, $22 F.3d at 57. Issues raised in a Rule 12(b)(1) motion should be resolved first, since a court must confirm that it has subject-matter jurisdiction before proceeding to the merits of a claim, See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990); SEC v. Rorech, 673 F. Supp. 2d 217, 220-21 (S.D.N.Y. 2009). APPLICABLE STANDARD UNDER FRCP 12(8)(6) To survive a Rule 12(b)(6) motion to dismiss, a pleading "does not require ‘detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." See Asheroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. $44, 555 (2007). In that vein, "{a] pleading that offers ‘labels and conclusions’ or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). Rather, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim. to relief that is plausible on its face.’ " Id. (quoting Twombly, 550 U.S. at 570). That measure of plausibility requires "more than a sheer possibility that a defendant has acted unlawfully"—the pleaded facts must permit a "reasonable inference" of liability for the alleged misconduct. Id.; see also Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir, 2011) (instructing that "all reasonable inferences" are to be taken in the plaintiffs favor). Beyond the facts alleged in the complaint, a court may also consider "documents attached to the complaint as exhibits] and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). PLAINTIFF LACKS THE LEGAL CAPACITY TO MAINTAIN THIS ACTION In addressing a "capacity" claim, a Rule 12(b)(6) motion is favored, given that a court cannot, grant relief to a party lacking capacity to sue. See Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 296 (2nd Cir.1965); 5 FED. PRAC. & PROC. § 1294. "Lack of capacity" (ie. a party's right to initiate a suit on behalf of another) should not be confused with "standing" insofar as standing refers to whethera party has a "personal stake in the outcome." See generally Board of Educ. v. Illinois State Bd. of Educ., 810 F.2d 707, 709-10 n. 3 (7th Cir.1987). Every federal civil action must be prosecuted in the name of the real party in interest (FRCP 17(a)). FRCP 17(a) requires that “the action must be brought by the person entitled under the ‘governing substantive law to enforce the asserted right.” Whelan v. Abell, 953 F.2d 663, 672 (D.C. Cir. 1992), cert. Denied, 506 U.S. 906 (1992). See also United HealthCare Corp. v. American Trade Insurance Co., Ltd., 8 F.3d 563, 568-69 (6th Cir. 1996)(“this rule requires that the party who brings an action actually possess, under the substantive law, the right sought to be enforced”\(emphasis added); Boeing Airplane Co. v. Perry, 322 F.2d 589, 591 (10th Cir. 1963), cert denied, 375 U.S. 984 (1964)(“the ‘real party in interest’ is the one who, under applicable substantive law, has the legal right to bring the suit”). Pursuant to FRCP 17(b), a party’s capacity to sue or be sued is determined by the law of the state in which the court is located (FRCP 17(b); Darby v. Pasadena Police Department, 939 F2d 311, 313 (5" Cir. 1991). As such New York law must be used to determine whether Plaintiff in his official capacity is capable of maintaining an action or not. ‘New York has long followed the Federal rationale for finding that municipalities lack the capacity to bring suit to invalidate State legislation (see, City of NY v State of NY, 86 NY2d 286, 290 [1995]; County of Albany v Hooker, 204 N.Y. 1; City of New York v Village of Lawrence, 250 N.Y. 429; Robertson v Zimmermann, 268 N.Y. 52). As stated in Black Riv. Regulating Dist. v Adirondack League Club (307 N.Y. 475, appeal dismissed 351 US 922): "The courts of this State from very early times have consistently applied the Federal rule in holding that political power conferred by the Legislature confers no vested right as against the government itself. * * * The concept of the supreme power of the Legislature over its creatures has been respected and followed in many decisions." (Id., at 488.)The rationale was succinctly described in Matter of County of Cayuga v McHugh (4 N.Y.24 609): "Counties, as civil divisions of a State, had their origin in England and were formed to aid in the more convenient administration of government * * *. So itis today that counties are mere political subdivisions of the State, created by the State Legislature and possessing no more power save that deputed to them by that body." (Id., at 614.). ‘Moreover, the New York Court of Appeals has extended the doctrine of no capacity to sue by municipal corporate bodies to a wide variety of challenges based as well upon claimed violations of the State Constitution (see, Black Riv. Regulating Dist. v Adirondack League Club, supra; City of New York v Village of Lawrence, supra; County of Albany v Hooker, supra). Municipal officials and members of municipal administrative or legislative boards suffer the same lack of capacity to sue the State with the municipal corporate bodies they represent (see, Williams v Mayor, 289 US 36, supra). As it was held in Black Riv. Regulating Dist. v Adirondack League Club (307 NY, at 489, supra): "As we have pointed out, the district board has no special character different from that of the State. Its only purpose is to construct reservoirs and that, concededly, is a State purpose in the interest of public health, safety and welfare (Conservation Law, § 431), Not only as a board, but also as individuals, the plaintiffs are without power to challenge the validity of the act or the Constitution" Also, principles of dual sovereignty prevent federal courts from adjudicating this dispute. Relying on Alden v. Maine, 527 U.S. 706 (1999), and Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984), the Fourth Circuit found that "a federal court, without the imprimatur of Congress or the consent of the state, [was not allowed] to resolve a dispute between a state agency and state officials.”PLAINTIFF LACKS STANDING UNDER ARTICLE IIL Pursuant to Article III, § 2 of the United States Constitution, the jurisdiction of the federal courts is limited to “Cases” and “Controversies,” which “restricts the authority of the federal courts to resolving ‘the legal rights of litigants in actual controversies.’ ” Genesis Healthcare Corp. v. Symezyk, 133 S. Ct. 1523, 1528 (2013) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Ine., 454 U.S. 464, 471 (1982)). Thus, federal courts require that a party have a legally cognizable interest in a case’s outcome to “ensure(] that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.” Id. ‘Where there is no case or controversy, FRCP 12(b)(1) provides that a party may move to dismiss a case for lack of subject matter jurisdiction, See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it”). In order to survive a defendant’s motion to dismiss for lack of subject matter jurisdiction, a plaintiff must allege facts “that affirmatively and plausibly suggest that it has standing to sue.” Amidax Trading Grp. v.S.W.LE, SCRL, 671 F.3d 140, 145 (2d Cir. 2011). In deciding such a motion, the Court may consider materials beyond the pleadings, Makarova, 201 F.3d at 113, and must “accept as true all material factual allegations in the complaint,” Atl. Mut. Ins. Co. v. Balfour MacLaine Int’! Ltd., 968 F.2d 196, 198 (2d Cir. 1992). An individual has constitutional standing if (1) he has suffered the invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) the injury is “fairly traceable” to the challenged action of the defendant and not the result of independent action by a third party not before the court; and (3) a favorable decision would “likely” redress the injury. Lujanv. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations omitted). Prudential standing is established by showing that the interest the Plaintiff seeks to protect arguably falls within the zone of interests to be protected or regulated by the statute at issue. Association of Data Processing Serv. Orgs., Ine. v. Camp, 397 U.S. 150, 153 (1970). “The basic rationale of the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Com’n, 461 U.S. 190, 200-01 (1983) (intemal quotation marks and citation omitted). Plaintiff has not suffered, nor will he suffer, an invasion of a legally protected interest and even if one is conceivable it is not ripe. ‘The erux of Plaintiff's claim is set forth in 9 of the Complaint: Mr. Kearns has the capacity to bring his claims against Defendants ‘Cuomo, James, and Schroeder because his compliance with a New York State statute forces him to violate the proscription of the United States Constitution's Supremacy Claus against the application of state laws that conflict with federal In {36 of the Complaint Plaintiff points to 8 U.S.C. § 1324 as the Federal Law he will be forced to violate and face potential prosecution if he is compelled to comply with the Green Light Law in his official capacity as Erie County Clerk. All of the alleged injuries Plaintiff alleges in its complaint are future-oriented and speculative, and therefore insufficient to confer standing. See Lujan, 504 U.S. at 561 (injury must be “likely” as opposed to merely “speculative”). Plaintiff in his declaration in support of his motion for a preliminary injunction points to the case of United States v. Joseph, 19-CR-10141, United States District Court, District of Massachusetts. However, that case isvery distinguishable from the Plaintiff's based on the indictment in that case. In that case the State Judge and Court Officer acted in violation of State Law as well in interfering with the federal authorities as detailed in the indictment of that case (Exhibit “A” of the Declaration of Daniel T. Warren). First, there is no Federal Law identified in the complaint that prohibits the issuance of Driver's licenses to people regardless of their immigration status. Under the Green Light Law the Driver's License issued to individuals who do not present proof of U.S. Citizenship will be marked “NOT FOR FEDERAL PURPOSES” so it is in compliance with the REAL ID Act (See: 49 U.S.C. § 30301 note; Louisiana v, Lopez, 948 So. 2d 1121, 1125 (La. App. 2006) (“{I]mplicit in the REAL ID act is the federal recognition that states can legally issue driver’s licenses without a person being in a position to establish his legal presence in the United States.”). ‘Also, one cannot say that there is an overarching federal public policy that prohibits all State privileges and benefits to those who are within the United States unlawfully because even federal law provides that a State may provide public benefits to illegal aliens. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, as amended, generally bars state and local governments from providing “state and local public benefits” to unlawfully present aliens unless the state enacts legislation that “affirmatively provides” for their eligibility (8 U.S.C. § 1621). Notably I could not locate any case of any State or local government official being prosecuted under 8 U.S.C § 1324 for providing state or local benefits to illegal aliens. Second, 8 U.S.C. § 1324 is not applicable to Plaintiff in his official capacity. Because Congress did not intend the word person in that statute to include “a Federal, State, or local government entity or official” because they are governed by 8 U.S. C § 3373. 8 U.S.C. § 1373 as it applies to “State, or local government entity or official” was ruled unconstitutional as violative of the Tenth Amendment ofU.S. Constitution in United States v. State of California, 314 F.Supp.3d 1077 (2018), affirmed 18- 16496 (9th Cir. 2019) and in any event does not constitute a crime under federal law that a criminal prosecution may be based on. Even assuming that 8 U.S.C. § 1324 applies to Plaintiff in his official capacity it would be unconstitutional for the same reasons that 8 U.S.C. § 1373 was held to be unconstitutional in United States v. State of California, supra. Third, The United States Supreme Court has held that a State may not discriminate against illegal immigrants in violation of the Equal Protection Clause as applied to the States through the 14" Amendment of the U.S. Constitution in Plyler v. Doe, 457 U.S. 202 (1982). [*The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction, Instead, use of the phrase "within its jurisdiction” confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every comer of a State's territory.”] Pp. 457 U. S. 210-216. ‘Therefore, Plaintiff's continued refusal to perform his ministerial duty to issue driver's licenses to undocumented immigrants is in violation of the Equal Protection Clause of the U.S. Constitution as applied to the States through the 14" Amendment as well as Article I § 11 of the New YorkConstitution. This will subject him in his official capacity to lawsuits that the taxpayers such as Intervenor-Defendant must pay to defend. Since 1993 12 other States including the District of Columbia have allowed non-citizen residents to obtain driver's licenses: | Year En- | Effective State | acted | Summary Date California A60 2013 | This law requires the Department of Motor Ve- | 1/1/2015 | | hicles to issue driver's licenses to individuals who are ineligible for a Social Security number, | ifthe required documentation is provided. Colorado | $251 2013 This law allows individuals to qualify fora | 8/1/2014 | driver's license, instruction permit or identifi- | | cation card, despite the individual not being lawfully present or being only temporarily law- | fully present in the United States if certain con- | ditions are met, such as providing state tax re- turns. Connecticut | | Delaware | $59 | 2018 2015 valid form of identification due to the | | | ‘This law provides driver's licenses to appli- 41/2015 | cants who submit a valid foreign passport or | consular identification and proof of residency, | | regardless of legal presence in the United | States. Applicants must file to legalize as soon | | as he or she is eligible | t | This law creates the means for an undocu- 12/27/2015 | ‘mented immigrant to obtain a driving privilege card in Delaware. A driving privilege card or | permit applicant must provide the state with | | satisfactory documentary evidence and that the applicant has filed a Delaware income tax return or resided in Delaware and been claimed asa dependent by an individual who | has filed a state income tax return for the pre- | ceding two years. The card is not considered aYear En- Effective State Bill acted | Summary Date applicant's inability to prove legal presence in the US. = *| Hawaii 1007 | | This law authorizes the issuance of driver's li-_ | 1/1/2016 | censes to residents of Hawaii who cannot pro- | | vide proof of authorized presence in the United | States. Applicants must provide satisfactory proof of identity and Hawaii residency. Ilinois | $957 2012 This law allows the Secretary of State to issue a | 11/28/2013 | temporary visitor's driver's license to an indi- j vidual who has resided in Illinois for a speci- fied time but is ineligible to obtain a Social Se- | curity number, and unable to prove lawful | presence. A valid, unexpired foreign passport | | | or consular identification document from their | | country of citizenship are acceptable forms of identification. | | Maryland | 2013 This law authorizes the issuance of driver's li- | 1/1/2014 | censes to those who do not have lawful status | ora valid Social Security number. New appli- cants must provide evidence that the applicant | | | has filed two years of Maryland income tax re- | turns or proof of residency or have been | claimed as a dependent by an individual who | has filed Maryland income tax returns. The li- | censes are not valid for Federal identification | purposes. | 2003 | This lawallows the Department of Motor Vehi- | 2003 ico | | | cles to accept tax identification numbers as a | | less of immigration status. 2013 | This law creates a driver’s authorization card and allows applicants, regardless of legal sta- | tus, to provide birth certificates or passports sued by a foreign country as proof of identity. | | substitute for a Social Security number regard- | | 11/2014 |Year En- | State Bill | acted Effective Summary Date This law also prohibits the release of infor- mation relating to legal status for purposes re- lating to the enforcement of immigration laws. Utah | $227 2005 This law establishes a one-year driving privi lege card for unauthorized immigrants. Appl cants without a Social Security number must prove Utah residency for six months and pro- vide a tax identification number. The card is expressly prohibited from being used for any | Identification purposes by a governmental en- | | 3/8/2005 | tity, | ble to establish lawful presence in the United | States to be eligible for a motor vehicle opera- |e privilege card or alternate identification 1993 | This law allows drivers license applicants 7/25/1993 | without Social Security numbers to provide al- | | | ternate documentation to show proof ofresi- | | | dence in the state of Washington such as home | utility bills and tax ident | | Vermont 2013 | This law allows those Vermont residents una- | 1/1/2014 Washing- ton of | B275 Columbia 2013 This law creates a limited purpose driver's | cense, permit, or identification card for a Dis- | trict resident who has not been assigned a So- | cial Security number or cannot establish legal 5/1/2014 | —____| tf | | LL ‘There has not been any reported case that I could locate of a State or local government official being prosecuted by the United States for carrying out their official duties in relation thereto. In fact a number of Courts have held that since licensing of drivers is a traditional State function there is a presumption against federal preemption in this area (See United States v. Best, 573 F.2d 1095, 1103 (9th Cir. 1978) (“[T]here is little question that licensing of drivers constitutes an integral portion ofthose governmental services which the States ... have traditionally afforded.”); Saldana v. Lahm, No. 4:13CV3108, 2013 U.S. Dist. LEXIS 148209, at *10 (D. Neb., Oct. 11, 2013). But see Martinez v. Regents of the University of California, 241 P.3d 855 (Cal. 2010) (“The parties disagree as to whether a presumption against preemption exists. The point is unclear. In the past, the high court has indicated that a general presumption against preemption applies even in the context of immigration law. However, more recent high court authority suggests that no particular presumption applies. We need not resolve the question here because, as we explain, we find no preemption even without a presumption.”) (intemal citations omitted).). Notably, a county court in New York found, sua sponte, when dismissing the charge of unlicensed operation of a motor vehicle brought against a defendant, that the state’s restrictions upon the issuance of driver’s licenses to unlawfully present aliens violates the Equal Protection clause. See People v. Quiroga-Puma, 848 N.Y.S.2d 853 (2005). However, this decision was reversed on appeal. See 884 N.Y.S.2d 567 (2007). Plaintiff's alleged fear of being prosecuted under Federal Law for carrying out his ministerial duties as an agent of the New York State Department of Motor Vehicles does not meet the requirement that he has suffered or will suffer the invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent. Furthermore, this alleged potential prosecution would not be by any defendants that are currently before the Court in this action, but rather by The United States and would be the result of independent action by a third party not before the court and a favorable decision would not “likely” redress the alleged injury. As addressed below the absence of The United States as a defendant in this action requires dismissal under FRCP 12(b)(7) since it is a necessary and indispensable party. Plaintiff's claims that the Federal Government will deprive the State of New York of funding based on the State’s decision to implement the policy in the Green Light Law does not providePlaintiff with an injury that standing may be based. This is the only way the Federal Government can get a State to carry out its policy is through a choice as required by the Tenth Amendment of the U.S. Constitution. One must presume that the State considered this in its deliberations to enact the “Green Light Law”. ‘There are a number of principles that emerge from the Supreme Court’s Tenth Amendment, decisions (Reno v. Condon, $28 US. 141 (2000); Printz v. United States, 521 U.S. 898 (1998); New York v, United States, 505 U.S. 168 (1992); and South Carolina v. Baker, 485 U.S, 505 (1988)): 1) Where Congress has plenary power it may legislate directly to establish its policy; 2) Congress can properly displace state law as part of the doctrine of preemption; and, 3) Congress can offer a “choice” or “option” to States and their people by encouraging them to participate in a federal regulatory program as part of a cooperative effort to achieve the goal of a federal act. On the other hand: 1) Congress, may not enlarge the State legislative or gubematorial power beyond the limitations contained in the State Constitution and Bill of Rights; 2) Congress may not conscript the State, leaving it no choice or option, but to carry substantial burdens in order to further the federal act or policy; 3) Congress may not ignore that State sovereignty is not an end unto itself, but has, as one of its objectives, the protection of fundamental liberties and rights of citizens, affording citizens “double security” (as James Madison wrote in Federalist No. 51). The State is not empowered to consent or waive any of these rights or powers of the people.‘THE MATTER REMAINS UNRIPE FOR JUDICIAL REVIEW Relatedly, the absence of action by The United States against any of the other States that issue driver’s licenses regardless of immigration status to date means that this matter is not yet ripe for judicial review. See See Vullo v. OCC (“Vullo I”), No. 17 Civ. 3574, 2017 WL 6512245, at *8-10 (S.D.NY. Dec. 12, 2017). The matter is not constitutionally ripe for the same reasons Plaintiff lacks standing: “constitutional ripeness is a subset of the injury-in-fact element of Article III standing,” and therefore the Court’s “constitutional ripeness analysis here is coterminous with” the standing analysis. Id. at *8. Moreover, even where standing exists under Article III, there may still be “prudential reasons for refusing to exercise jurisdiction.” Nat'l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). Courts assess the prudential ripeness of a case based on a two-prong inquiry: “[1] the fitness of the issues for judicial decision and (2] the hardship to the parties of withholding court, consideration.”” N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 131-32 (2d Cir. 2008) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Plaintiff cannot satisfy either prong of this test. See Vullo I, 2017 WL 6512245, at *8-9. The first prong, fitness, turns on, among other things, “whether the issues sought to be adjudicated are contingent on future events or may never occur.” Grandeau, 528 F.3d 122 at 132 (2d Cir. 2008) (citation and quotation marks omitted). As explained above, all of the alleged harms Plaintiff identifies are premised on events that have not yet occurred. In fact, they have not happened in other States that permit the issuance of driver’s licenses regardless of immigration status for far longer than New York has. Lastly the Green Light Law is not going to be in effect until sometime in December 2019. The second prong, hardship, turns on “whether the challenged action creates a direct and immediate dilemma for the parties.” Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478 (2d Cir.1999). “The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.” Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003). Here, for the reasons addressed above, Plaintiff will not suffer any immediate or significant hardship if this Court were to delay review of this matter because any alleged injuries Plaintiff can identify are contingent on future actions. In the absence of conerete hardship, this matter is not yet ripe for judicial review. Plaintiff's fear of removal from office is not related to any conflict between State and Federal Law, but from a conflict between his own personal beliefs and refusal to carry out his ministerial official duties under the Green Light Law much like Kim Davis the Kentucky County Clerk who was jailed for contempt in refusing to perform her ministerial duty to issue marriage licenses to same-sex couples. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION For the reasons identified and set forth above the Complaint fails to state a cause of action and does not meet the requirements under FRCP 8, Asheroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). PLAINTIFF FAILBD TO JOIN A NECESSARY AND INDISPENSABLE PARTY In order to afford the parties complete relief and avoid conflicting obligations that a future action by The United States may result in it should be added as a party to this litigation. If this Court ultimately reaches the merits of Plaintiff’s complaint and rules that the Green Light Law does not violate federal law then Plaintiff and Defendants will potentially face future litigation on this issue by The United States ‘The Complaint should be dismissed if Plaintiff fails to add the United States as a party defendant.PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED. “A preliminary injunction is considered an ‘extraordinary’ remedy that should not be granted as a routine matter.” See Ahmad v. Long Island Univ., 18 F. Supp. 2d 245, 247 (E.D.N.Y. 1998) (quoting JSG Trading Corp. v. Tray—Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990)). The decision to grant or deny it rests in the district court’s “sound discretion.” Id. To obtain a preliminary injunction, a moving party must show: (1) likelihood of success on the merits; (2) likelihood that the moving party will suffer irreparable harm if a preliminary injunction is not granted; (3) that the balance of hardships tips in the moving party’s favor; and (4) that the public interest is not disserved by the requested relief. Salinger v. Colting, 607 F.3d 68, 80-83 (2d Cir. 2010). To demonstrate a likelihood of success on the merits sufficient to support injunctive relief, a movant “need not show that success is certain, only that the probability of prevailing is "better than fifty percent.” BigStar Entm't. Inc., v. Next Big Star, Inc., 105 F. Supp. 2D 185, 191 (S.D.N.Y. 2000) (quoting Wali v Coughlin, 754 F.2d 1015, 1025 (2d Cir 1985)). For the reasons set forth above Plaintiff does not have a likelihood of success on the merits. Also, “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality.” Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997). Lastly, for the reasons set forth above Plaintiff cannot show irreparable harm to warrant the issuance of a preliminary injunction.CONCLUSION For the foregoing reasons, Intervenor-Defendant, Daniel T. Warren, respectfully request that the Court denies Plaintiff's motion for a preliminary injunction and/or dismiss the complaint. DATED: August 5, 2019 Buffalo, New York Daniel T. Warren Movant-Intervenor, Pro Se 836 Indian Church Road West Seneca, New York 14224 716-265-0526UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK. MICHAEL P. KEARNS, in his official : DECLARATION OF DANIELT. capacity as Clerk of the County of Frie, New : WARRENIN SUPPORT OF MOTION York : FOR DISMISSAL OF THE COMPLAINT. AND IN OPPOSITION TO PLAINTIFF'S Plaintiff, : MOTION FOR A PRELIMINARY : INJUNCTION ANDREW M. CUOMO, in his official L capacity as Governor of the State of New : Case # 19-cv-902 York, LETITIA A. JAMES, in her official capacity as Attomey General of the State of: New York, and MARK J.F. SCHROEDER, in ; his official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants. DANIEL T. WARREN, Intervenor-Defendant ; I, Daniel T. Warren, make the following affirmation under penalty of perju 1) Attached hereto and marked as Exhibit “A” is a true copy of the indictment filed in United States v. Joseph, 19-CR-10141, United States District Court, District of Massachusetts. 2) I declare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge, information and belief. EXECUTED: August 5, 2019 Buffalo, New York Daniel T. Warren Movant-Intervenor, Pro Se 836 Indian Church Road West Seneca, New York 14224 716-265-0526Exhibit “A”Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 1 of 19 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS: comin, Gout /Ol'Y/ ‘Violations: UNITED STATES OF AMERICA. v Count One: Conspiracy to Obstruct Justice (8 US.C. § 1512(k) Count Two: Obstruction of Justice; Aiding and (1) SHELLEY M. RICHMOND JOSEPH and (2) WESLEY MACGREGOR, Defendants “Abetting (18 USC. § 1512(6)@); 18 US.C. §2) Count Three: Obstruction of a Federal Proceeding; Aiding and Abetting (18 USC. § 1505; 18 U.S.C. § 2) Atal] times relevant to this Indictment: Introduction 1 The United States Departrient of Hotneland Security, Immigration and Customs Enforcement (“ICE”) was the federal governmental agency charged with enforcing federal immigration law in the United States. ICE’s duties included conducting federal removal proceedings, which encompassed, among other things, identifying, apprehending, and initiating the removal process of aliens in‘the United States, who were subject to Immigration Court or other administratively issued final orders of removal.Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 2 of 19 2. The Newton District Court (“NDC” or “Courthouse”) was a District Court within ‘Middlesex County, Massachusetts, that had two courtrooms, a clerk’s office, a probation office, and a lockup facility, which was situated on the bottom level of the Courthouse. The NDC had one to two assigned District Court Judges presiding over court matters, which included certain criminal, civil, housing, juvenile, and other types of cases under Massachusetts state or local laws. 3. Defendant Shelley M. Richmond JOSEPH was appointed as a Massachusetts District Court Tudge on ot about November 6, 2017, and was thereafter assigned to preside at various District Courts in Middlesex County, including NDC, in accordance with a monthly assignment schedule. Defendant JOSEPH had presided as the Judge at NDC on several occasions prior to April 2, 2018 Prior to her appointment, defendant JOSEPH was an experienced Newton-based criminal defense attorney, who was a partner in a small law practice, and who had previously lectured at law schools and professional legal education seminars on criminal and civil practice. As a District Court Judge, defendant JOSEPH had the authority to; among other things, arraign criminal defendants, set bail, detain or release defendants, and control other courtroom proceedings. 4. Defendant Wesley MACGREGOR was a Massachusetts Trial Court Officer since 1993 and was assigned to the NDC since approximately 2016. As an NDC Court Officer, defendant MACGREGOR was authorized to take ciistody of defendants within the NDC, and had security card access to the entry and exit doors to the lower level NDC lockup facility, including the rear, sally-port exit to the lockup. 5. The defense attorney (the “Defense Attomey”) was a criminal defense lawyer who regularly represented criminal defendants at the NDC. The Defense Attorney was familiar withCase 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 3 of 19 defendant JOSEPH as a judge and defense lawyer, and with defendant MACGREGOR from frequent appearances at the NDC. 6. The alien subject (“A.S.”) was arrested on March 30, 2018 by Newton Police and charged under Massachusetts General Law-with being a fugitive from justice from Pennsylvania (the “M.G.L. Fugitive Charge” or “MGL Count 1”) and narcotics possession (the “M.G.L. Drug Charges” or “MGL Counts 2 and 3,” together with MGL, Count 1, the “M.G.L. Charges”). On April 2, 2018, A.S. was arraigned on the M.G-L. Charges in the NDC before defendant JOSEPH. AS. retained the Defense Attomey as A.S.’s lawyer for the NDC proceedings. Federal ICE Proceedings 7. Fingerprints of A.S. taken by Newton Police on March 30, 2018 and submitted to anational law enforcement database revealed that A.S. had been previously deported from the United States by federal immigration officials in 2003 and again in 2007. Federal immigration records revealed that, upon A.S.’s last removal, a federal immigration official had issued an order that prohibited AS. from entering the United States for a period of twenty years, that is, until 2027. 8. Afer leaming of A.S.’s arrest by Newton Police, on or about March 30, 2018, an ICE Immigration Officer issued a federal Immigration Detainer — Notice of Action (the “Detainer”), and a Warrant of Removal (the “Warrant”) for A.S. to Newton Police. The Detainer requested that Newton Police: (j) notify ICE prior to any release of A.S. ) relay the Detainer to any other law enforcement agency to whom Newton Police transferred A.S.; and (iii) maintain custody of AS. for up to 48 hours for ICE to take custody. The Warrant stated that A.S. was subject to removal from the United States based upon a final order by a designated official, and that anyCase 1:19-cr-10141-LTS Document Filed 04/25/19 Page 4 of 19 ‘Immigration Officer with the United States Department of Homeland Security was commanded to take custody of A.S. for removal from the United States. 9. On April 2, 2018, Newton Police transferred custody of A.S. to the NDC and forwarded the Detainer and the Warrant to the NDC Clerk’s Office, with copies of the same provided to the ‘Assistant District Attomey assigned to NDC from the Middlesex District Attomey’s Office (the “ADA”), and the NDC Probation Office (“Probation”), among other Courthouse personnel, and the Defense Attomey. 10. As part of ICE removal proceedings, on the morning of April 2, 2018, ICE dispatched an ICE Officer (the “ICE Officer”) in plainclothes to execute the Warrant and take custody of A.S. upon A.S.’s release from the NDC. At the NDC, the ICE Officer, in accordance with DHS Policy (see below), notified NDC personnel (including, among others, the Court Officers, the Clerk of Court (the “Clerk”), and the ADA), and the Defense Attomey of the ICE Officer’s identity and purpose at the Courthouse on that date. ‘Newton District Court — Custom, Practice, and Rules 11. The NDC maintained a regular court calendar during which criminal and civil case matters were heard before the NDC District Court Judge in the first-floor courtroom (the “Courtroom”). Defendants in NDC custody were held in the lockup area in the lower level of the Courthouse, and were brought upstairs by an NDC Court Officer to an enclosed glass dock in the Courtroom for their court appearances. Ifa defendant was released from custody, the normal custom and practice in NDC was for the Court Officer to release the defendant from the glass dock on the first floor and out into the Courtroom, which had one public entry/exit that led to the NDC lobby.Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 5 of 19 12. Onor about November 10, 2017, the Executive Office of the Massachusetts Trial Court issued guidance to all Massachusetts state judges, clerks, and other courthouse personnel titled, “Policy and Procedures Regarding Interactions with the Department of Homeland Security,” (DHS Policy”). ‘The DHS Policy instructed, in pertinent part, that (1) “Trial Court employees should be mindful that courthouses are public spaces that are open to all persons and that all persons entering a courthouse should be treated with respect and dignity, including individuals subject to civil immigration detainers and DHS employees;” (2) “DHS officials may enter a courthouse to perform their official duties;” and (3) that, “pursuant to an immigration detainer or ‘warrant, court officers shall permit the DHS official(s) to enter the holding cell area in order to take custody of the individual once Trial Court security personnel have finished processing that individual out ofthe court security personnes custody.” 13. Massachusetts Rules of Court, which prescribed rules for all state district courts, including NDC, provided, in pertinent part, that “[AJll courtroom proceedings, including arraignments in criminal ... cases, shall be recorded electronically ....”. The NDC had an electronic recording device in the Courtroom, which the Clerk operated to record all NDC proceedings. ‘The April 2, 2018 NDC Pro 14. On April 2, 2018, defendant JOSEPH was assigned as the District Court Judge at NDC, hearing and ruling on several criminal proceedings in the Courtroom on that date. The proceedings were electronically recorded by the Clerk, who was seated directly in front of defendant JOSEPH’s bench at the front of the Courtroom. The ADA, probation officers, court officers, including defendant MACGREGOR, defense attorneys, and other members of the public were also in attendance.Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 6 of 19 15. At approximately 9:30 a.m., the ICE Officer arrived in plainclothes at NDC. The ICE Officer announced his identity and purpose to various Courthouse personnel, including the Clerk, who informed defendant JOSEPH, The ICE Officer then remained in the public audience area of the Courtroom during the morning session. 16. Atapproximately 10:34 a.m., defendant JOSEPH assigned a court-appointed lawyer (“Bar ‘Advocate”) to A.S. and arraigned A.S. on the M.G.L. Charges, but agreed to re-call the case later that day after ordering the ADA to provide more information to the Court and the Bar Advocate as to the M.GL. Fugitive Charge. 17. Atapproximately 12:04 p.m., defendant JOSEPH re-called A.S.’s case and asked the ADA for the Commonwealth’s position as to bail or detention of A.S. on the M.G.L. Charges. The ‘ADA told defendant JOSEPH that the ADA would not seek to detain A.S. on the M.G.L. Drug Charges, but would only make a bail request for the M.G.L. Fugitive Charge. A.S.’s case was then set for a further call later that afternoon to address the M.G.L. Fugitive Charge. 18. Following the 12:04 p.m. proceeding, associates of A.S. retained the Defense Attorney to represent A.S. on the M.G.L. Charges. ‘The Defense Attomey received copies of the Detainer and ‘Warrant, and was also permitted to review other law enforcement database records that were obtained by Probation in connection with A.S.’s case. 19. Also following the 12:04 p.m. proceeding, at defendant JOSEPH’s direction, the Clerk instructed the ICE Officer to leave the Courtroom and wait outside the Courtroom, contrary to the DHS Policy. The Clerk informed the ICE Officer that, in the event of A.S.’s release, A.S. would be released out of the Courtroom into the NDC lobby. ‘The ICE Officer complied and waited in the NDC lobby on the first floor.Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 7 of 19 20. At approximately 2:48 p.m., A.S.’s case was re-called and the Defense Attomey appeared * on behalf of A.S. before defendant JOSEPH. The following proceedings were captured on the Courtroom’s court recorder: Clerk: Defendant JOSEPH: Defense Attorney: Defendant JOSEPH: Defense Attomey: Clerk: Defense Attomey: Defendant JOSEPH: Defense Attomey: Defendant JOSEPH: ADA: Defense Attomey: ADA: - Defendant JOSEPH: Defense Attorney: ‘ Unintelligible on recording. Judge, the next case will be Commonwealth versus [A.S.]. [Defense Attomey] has filed an appearance on behalf of [AS] Good afternoon. Good afternoon, YourHonor. [Defense Attomey] on behalf of[A.S.] May we approach briefly? Yes, please. ‘Thank you. Do you want to wait for your client? Or do it~ No. Sidebar. “We're just going to go sideb- [UZ]... is dismissed. So it’s my understanding that ICE is here. So there’s the fugitive — But there’s no warrant — Yes. ‘There isn’t [Ul] that we can tie this to him, Eh, I, I don’t think it’s him? ‘Okay. But ICE is convinced that this guy: I went over to ICE, they say they have a biometric match. I went through and did the research. There’s 13 FBI numbers connected to this social. So something’s bad with the [UZ]. My client denies that it’s him. ICE is going to pick him up if he walks out the front 2 Referring to A.S. not being the same person as the subject sought on the Pennsylvania warrant. 7Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 8 of 19 ADA: Defense Attorney: ADA: Defendant JOSEPH: Defense Attomey: Defendant JOSEPH: ADA: Defense Attomey: Defendant JOSEPH: Defense Attorney: ‘Defendant JOSEPH: Defense Attorney: Defendant JOSEPH: Clerk: Defendant JOSEPH: Clerk: Defense Attorney: door. But I think the best thing for us to do is to clear the fugitive issue, release him on a personal, and hope that he can avoid ICE, ... That’s the best I can do. 1 don’t thitk arguing ICE is really my... Right. -my, my... ‘The other alternative is if you need more time to figure this out - hold until tomorrow ... Yeah, but he - ‘Then it’s a different ... ‘There is a detainer attached to my paperwork. But, but, I, I feel like that’s separate and apart from what my role is. ‘There isan ICE detainer. So if he’s bailed out from Billerica when he goes back there, ICE will pick him up - ICE is gonna get him? Yeah. ‘What if we detain him — ‘Are we on the record? [Clerk], can we go off the record for a moment? ‘What's that? Are we off the record? No, we're on the record. Can we go off the record for a minute? 21. In violation of Massachusetts Rules of Court, and at the direction of defendant JOSEPH, the Courtroom recorder was tumed off for the next approximately 52 seconds. 22. At approximately 2:51 p.m., the recorder was tuned back on and the following excerpted proceedings were captured on the Courtroom recorder: 8Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 9 of 19 Clerk: Defendant JOSEPH: Defense Attorney: Defendant JOSEPH: ADA: Defendant JOSEPH: ADA: Defendant JOSEPH: ADA: Defendant JOSEPH: Defense Attomey: Defendant JOSEPH: Defense Attomey: Defendant JOSEPH: Defense Attorney: Judge, we're back on the récord on [A.S.] [Defense Attomey] on behalf of [A.S.] Good afternoon, [Defense Attomey]. Good aftemoon. After some extensive research into the various FBI numbers [U1] social security numbers, as well as obtaining photo from Pennsylvania, we don’t believe that this gentleman is the same gentleman as on the fugitive-from-justice warrant. ‘Your Honor, with the information that I have I don’t think that there is enough tying him to the Pennsylvania warrant. The great deal of other out-of-state records ~ I do believe that some of them, uh, belong to this individual. But that is not what’s at issue here. Okay. So at this point I would dismiss, um, the — ‘The fugitive? - [MGL] Count 1, - Okay. ~um, and there’s not a bail request for the [MGL] Counts 2 and 3. But I would ask that, for a pretrial conference date on those. Okay. Absolutely. That's fine. I would ask that he, uh — I believe he has some property downstairs. I’d like to speak with him downstairs with the interpreter if I may.” That’s fine. Of course. , ‘Thank you.Case 1:19-cr-10141-LTS Document1 Filed 04/25/19 Page 10 of 19 Defense Attorney: Defendant JOSEPH: Clerk: Defendant JOSEPH: Defendant MACGREGOR: Clerk: Defendant MACGREGOR: Clerk: Defense Attomey: Defendant JOSEPH: Defense Attomey: Defendant JOSEPH: All set, Mr. Clerk? Wait just a second. ‘There was a representative from, wh, ICE here in the Court ... [UI] to, to visit the lockup. ‘That’s fine. I’m not gonna allow them to come in here. But he’s been released on this. He's released, Mr. Clerk? What's that? He’s released? Heis. Yep. He is. Um, [Defense Attorney] asked if the interpreter can accompany him downstairs, um, to further interview him — Yes, please - - and I’ve allowed that to happen. [2:54 p.m] wee 23. Immediately following the proceeding, defendant MACGREGOR escorted A.S. from the Courtroom downstairs to the lockup, accompanied by the Defense Attorney and an interpreter. Once inside the lockup, defendant MACGREGOR used his security access card to open the rear sally-port exit and released A.S. out the back door at approximately 3:01 p.m. 10Case 1:19-cr-10141-LTS Document1 Filed 04/25/19 Page 11 of 19 24, — The ICE Officer, who had been instructed by the Clerk to wait for A.S. in the lobby directly outside the Courtroom, as that was where A.S. would have been released in accordance with customary NDC practice, was unaware of A.S.’s release out the rear sally-port exit, and was unable ‘0 take custody of A.S. pursuant to the Warrant. ‘The Conspiracy Object of the Conspiracy 25. It was the object of the conspiracy to corruptly attempt to obstruct, influence, and impede an official proceeding, to wit, an ICE federal removal proceeding, by preventing the ICE Officer from taking custody of A.S. at the NDC Courthouse on or about April 2, 2018. ‘Manner and Means of the Conspiracy 26. It was a part of the conspiracy that defendant MACGREGOR and the Defense Attorney agreed that defendant MACGREGOR would use his security access card to release A.S. out the rear sally-port exit in order for A.S. to evade arrest by the ICE Officer at the NDC Courthouse. 27. It was a part of the conspiracy that defendant JOSEPH and the Defense Attorney agreed to create a pretext for A.S. to be brought back downstairs to the lockup so that A.S. could be released cout the rear sally-port exit in order to evade arrest by the ICE Officer at the NDC Courthouse. Acts in Furtherance of the Conspiracy 28. In furtherance of the conspiracy and to achieve the object thereof, the defendants and their co-conspirators committed and caused to be committed one or more of the following acts in furtherance of the conspiracy: 29. Defendant JOSEPH ordered the Clerk to tum off the Courtroom recording device to conceal defendant JOSEPH’s conversation with the Defense Attorney. uiCase 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 12 of 19 30. With the recorder off, defendant JOSEPH and the Defense Attomey discussed devising a ‘way to have A.S. avoid being arrested by the ICE Officer. 31. Defendant JOSEPH ordered that the ICE Officer be’prevented from entering the downstairs Courthouse lockup area. 32, After ordering A.S.’s release, defendant JOSEPH ordered that A.S. be retumed downstairs to the lockup for the Defense Attomey to “further interview” A.S., which, in reality, was a pretext to allow A.S. to access the rear sally-port exit in order to avoid the ICE Officer. 33. Once A.S. was returned downstairs to the lockup, defendant MACGREGOR used his security access card to open the sally-port exit and release A.S. from the back door of the Courthouse, contrary to NDC custom and practice. Defendant JOSEPH’s False and Misleading Statements to other District Court Judges 34, Defendant JOSEPH made false and misleading statements regarding the April 2, 2018 incident to other district court judges inquiring about the matter, including defendant JOSEPH’s false statements to a senior district court judge during a meeting in mid-April 2018. During this meeting, when asked why the NDC Courtroom recorder was shut off during the April 2, 2018 proceeding, defendant JOSEPH falsely attributed unfamiliarity with the Courtroom recording ‘equipment as the reason the recorder was turned off. 12Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 “Page 13 of 19 Perjury 35. Beginning in or about May 2018 to in or about April 2019, a federal Grand Jury sitting in Boston, Massachusetts, conducted an investigation into possible violations of federal criminal laws, including Title 18, United States Code, Sections 1512 (c)(2) (obstruction of justice) and 1505 (obstruction of a federal proceeding), in the District of Massachusetts. The circumstances surrounding defendant MACGREGOR’s April 2, 2018 release of A.S. from the NDC sally-port exit were material to the Grand Jury’s investigation. 36. On or about July 12, 2018, defendant MACGREGOR falsely testified before the federal Grand Jury, in substance and in part, that, prior to releasing A.S. from the sally-port exit, he was unaware that ICE agents were in the Courthouse, and he was unaware there was a detainer for [AS]. Defendant MACGREGOR’s testimony before the Grand Jury included the following false material declarations: (A) Q [YJousaid you didn’t know there was an immigration detainer. I didn’t see one. Did you know there was an immigration detainer? No. [couldn't if I didn’t see it. ‘Well, someone — eer De ‘The clerk’s ~ clerk’s office didn’t have it, it wasn’t in the clerk's papers, wasn’t in ‘the arrest record, and I have not seen an ICE detainer on Mr. [ ] - whatever his name is, [A.S.]? (B) Q So, am I right that the first time you leamed that there had been ICE agents in the courthouse was after [A.S.] was gone when [Court Officer A] said to you, I heard 13Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 14 of 19 the judge tell two ICE agents to leave the courtroom? ‘A: The judge asked them to leave, yes. Q: The courtroom. And [Court Officer A] told you this after [A.S.] was gone? A: Correct. see (©) Q: And you did not hear from anyone else that day other than [Court Officer A] that ~ that there had been an ICE agent in the courthouse for [A.S.]? A: Correct. wee 4Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 15 of 19 c ONE Conspiracy to Obstruct Justice (18 US.C. §§ 15120) ‘The Grand Jury charges: 37. The Grand Jury re-alleges and incorporates by reference paragraphs 1 to 34 of this Indictment. 38. Onor about April 2, 2018, in Newton, in the District of Massachusetts, the defendants (1) SHELLEY M. RICHMOND JOSEPH and (2) WESLEY MACGREGOR, conspired with the Defense Attomey to corruptly obstruct, influence, and impede an official proceeding, namely, a federal immigration removal proceeding before the United States Department of Homeland Security. Allin violation of Title 18, United States Code, Sections 1512(k) and 1512(¢)(2). 15Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 16 of 19 COUNT TW Obstruction of Justice; Aiding and Abetting (18 USS.C. §§1512()(2) and 2) ‘The Grand Jury further charges: 39. The Grand Jury re-alleges and incorporates by reference paragraphs 1 to 34 of this Indictment. 40. Onor about April 2, 2018, in Newton, in the District of Massachusetts, the defendants (1) SHELLEY M. RICHMOND JOSEPH and (2) WESLEY MACGREGOR, did corruptly attempt to obstruct, influence, and impede an official proceeding, niamely, a federal immigration removal proceeding before the United States Department of Homeland Security: All in violation of Title 18, United States Code, Sections 1512(c)(2) and 2. 16Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 17 of 19 UNT THREE Obstruction of a Federal Proceeding; Aiding and Abetting (18 U.S.C. §§ 1505 and 2) ‘The Grand Jury further alleges: 41. The Grand Jury re-alleges and incorporates by reference paragraphs 1 to 34 of this Indictment. 42. Onor about April 2, 2018, in Newton, in the District of Massachusetts, the defendants (1) SHELLEY M. RICHMOND JOSEPH and (2) WESLEY MACGREGOR, did corruptly influence, obstruct, and impede, and endeavor to influence, obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before: a department and agency of the United States, namely, a federal immigration removal proceeding before the United States Department of Homeland Security. All in violation of Title 18, United States Code, Sections 1505 and 2. 7Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 18 of 19 COUNT FOUR as use $160) ‘The Grand Jury further charges: 43, The Grand Jury re-alleges and incorporates by reference paragraphs 1 to 33 and 35 to 36 of this Indictment. 44, — Onor about July 12, 2018, in Boston, in the District of Massachusetts, the defendant (2) WESLEY MACGREGOR, while under oath and testifying in a proceeding before a grand jury of the United States knowingly made false material declarations in response to certain questions as set forth in paragraph 36 of this indictment - : All in violation of Title 18, United States Code, Section 1623. 18Case 1:19-cr-10141-LTS Document 1 Filed 04/25/19 Page 19 of 19 ATRUE BILL xan mee- CHRISTINE WICHERS ASSISTANT UNITED STATES ATTORNEYS DISTRICT OF MASSACHUSETTS District of Massachusetts: APRIL 25, 2019 Retumed into the District Court by the Grand Jurors and filed. Atel w:2S on 4/2s/iq 19