USA v. Redmond

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
vs.
Davis Redmond,
Defendant.
Case No: 26-mj-99 (JMB/SGE)
ORDER
This matter is before the Court on Defendant’s Motion to Strike Appearance of
Government’s Counsel (Dkt. 24), and Motion for Specific Rule 16 Discovery (Dkt. 27.)
The Government filed responses opposing both motions. (Dkts. 30, 32.) The Court held a
hearing on April 3, 2026. (Dkt. 33.) Mr. Redmond was present with his attorney, Kevin
Riach, and Special Assistant United States Attorney (“SAUSA”) John Rodrigo Arboleda
(a Judge Advocate General military lawyer (“JAG”)) represented the United States of
America (“the Government”). (Id.) The parties agreed to rely on the briefing and oral
argument submitted in a different case on the same Motion to Strike Appearance of
Government’s Counsel,1 consequently, the parties did not submit additional briefing.
Following the hearing, SAUSA Jessica Stark, also a JAG lawyer, replaced SAUSA John
Rodrigo Arboleda. (Dkt. 34.) Mr. Redmond filed an Amended Motion to Strike
Appearance clarifying that his request to strike the appearance of the Government’s
1 See Dkts. 35 (Government’s Brief), 39-1 (Amici Curiae Brief); 43 (Defendant’s Reply
Brief); 49 (Government’s Sur-Reply Brief), United States v. Johnson, 26-mj-81 (D. Minn.
2026).
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counsel now applies to SAUSA Stark. (Dkt. 35.)
After careful consideration and for the reasons stated below, Mr. Redmond’s Motion
to Strike Appearance of Government’s Counsel (Dkts. 24, 35) is DENIED, and his Motion
for Specific Rule 16 Discovery is GRANTED in part and DENIED in part (Dkt. 27).
I. Motion for Specific Rule 16 Discovery (Dkt. 27)
Mr. Redmond seeks seventeen categories of discovery, all of which are limited to
“any DHS, CBP, ICE, Border Patrol, or any other law enforcement officer or agent that
participated in any way the stop, pursuit, arrest, transportation, booking, interview of, and
any other interaction with Defendant in connection” with his charges. (Dkt. 27 at 1.) The
Government opposes, arguing that it has already complied with its Rule 16 obligations, and
to the extent it has not provided the requested discovery it is outside the scope of Rule 16
or its obligations under Brady v. Maryland, 373 U.S. 83 (1963) or Giglio v. United States,
405 U.S. 150 (1972). (Dkt. 32.)
Pursuant to Federal Rule of Criminal Procedure 16, the Court grants Mr. Redmond’s
Requests enumerated as 1, 3, 6, 12, and 13 which seek relevant information. (Dkt. 27 at 1-
3.) However, Request 6 is limited to communications during and around the time of the
incident, and Request 12 is limited to reports regarding events relevant to Mr. Redmond,
the Government need not disclose information related to any operational goals.
The Court denies Requests 4, 5, 7, 8, 9, 10, 14, 15, and 16. Requests 4, 5, 8, 14, 15,
and 16 are overly broad, and Mr. Redmond has not explained how such broad discovery
requests fall under Rule 16. Request 7 is denied because it requests information specifically
not subject to disclosure under Rule 16(a)(2). See United States v. Krauth, 769 F.2d 473,
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476 (8th Cir. 1985) (“Fed. R. Crim. P. 16(a)(2) authorizes the government to refuse
discovery of reports, memoranda or other government documents made by the attorney for
the government or other government agents in connection with the investigation or
prosecution of the case prior to trial.”). Request 10 is denied because it is duplicative of
Request 3. And Request 9 is denied because it requests information not subject to
disclosure. See United States v. Williams, No. 23-CR-236 (JWB/ECW), 2024 WL
4589865, at * 17 (D. Minn. Oct. 28, 2024) (“[D]rafts of affidavits are considered opinion
work product that are entitled to absolute protection from disclosure”) (collecting
cases), R&R adopted in part, 2024 WL 5004473 (D. Minn. Dec. 6, 2024).
The Court grants Requests 2, 11, and 17 for the agents who effectuated Mr. Redmond’s
arrest as these materials are relevant and within the scope of Brady v. Maryland, 373 U.S.
82 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny.
II. Motion to Strike Appearance of Government’s Counsel (Dkt. 24)
As mentioned above, Mr. Redmond and the Government agreed to rely on the
briefing and oral argument submitted in a different case, United States v. Johnson, 26-mj-
81, on the same Motion to Strike Appearance of Government’s Counsel. Consequently, the
Court cites to the parties’ briefing in the Johnson case, including the amici curiae brief, for
the arguments on Mr. Redmond’s Motion to Strike Appearance of Government’s Counsel.2
See Dkts. 35 (Government’s Brief), 39-1 (Amici Curiae Brief); 43 (Defendant’s Reply
2 When the Court addresses this motion below, it will simply refer to “Defendant” to
contemplate the motion filed on behalf of both Mr. Redmond and Mr. Johnson.
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Brief); 49 (Government’s Sur-Reply Brief), Dkt. 60 (Transcript),3 United States v.
Johnson, 26-mj-81 (D. Minn. 2026).
In briefing, the Defendant and amici curiae argue that the use of JAG lawyers to
prosecute civilians in cases without a military nexus violates the Posse Comitatus Act
(“PCA”) and Department of Defense regulations. (Dkts. 24, 39-1, 43.) The Government
counters that use of JAG lawyers as SAUSAs falls under statutory exceptions to the PCA.
(Dkts. 35, 49.)
I. The Posse Comitatus Act
The PCA is a criminal statute which provides:
Whoever, except in cases and under circumstances expressly authorized
by the Constitution or Act of Congress, willfully uses any part of the
Army, the Navy, the Marine Corps, the Air Force, or the Space Force as
a posse comitatus or otherwise to execute the laws shall be fined under
this title or imprisoned not more than two years, or both.
18 U.S.C. § 1385.4 “The [PCA] was enacted toward the end of the Reconstruction era after
the Civil War ‘for the purpose of limiting the direct active use of federal troops by civil
law enforcement officers to enforce the laws of this nation.’” United States v. Wooten, 377
F.3d 1134, 1139 (10th Cir. 2004) (quoting United States v. Hutchings, 127 F.3d 1255, 1257
(10th Cir.1997)). “It was intended ‘to prevent the use of the federal army to aid civil
authorities in the enforcement of civilian laws.’” Id. (quoting Nelson v. Geringer, 295 F.3d
1082, 1092 n.11 (10th Cir.2002)).
3 For ease of reference, the hearing transcript (Dkt. 60) will be cited as “Tr.” followed by
the page number associated with the citation.
4 Congress recently amended the PCA to add the Navy, the Marine Corps, and the Space
Force. See Pub. L. No. 117-81, Div. A, Title X, § 1045, 135 Stat. 1541, 1905 (2021).
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In this case, there is no dispute that exceptions to the PCA exist “in cases and under
circumstances expressly authorized by the Constitution or Act of Congress.” (See Dkt. 39-
1 at 15 (acknowledging that a court may recognize exceptions to the PCA); Dkt. 43 at 4-6
(same); Dkt. 49 at 4-5 (same).) The parties disagree, however, on whether the specific
statutes the Government relies on constitute “express” exceptions to the PCA authorizing
the use of JAG lawyers as SAUSAs. (Dkt. 39-1 at 4; Dkt. 43 at 3; Dkt. 49 at 4.)
II. Statutory Exceptions to the PCA
The Government argues that both 28 U.S.C. § 543 and 10 U.S.C. § 806(e)(1)5
authorize use of JAG lawyers as SAUSAs and thus operate as exceptions to the PCA. (Dkt.
4 at 4-5.) The Defendant and amici curiae argue that the PCA “prohibits the willful use of
any federal military personnel ‘to execute the laws’ unless ‘expressly authorized by the
Constitution or Act of Congress,” and neither of these statues create an express exception.
(Dkt. 39-1 at 6 (emphasis added) (citing 18 U.S.C. § 1385), 11-16.)
A. 28 U.S.C. § 543
In 1963, Congress passed 28 U.S.C. § 543, under which the “Attorney General
may appoint attorneys to assist United States attorneys when the public interest so
requires.” 28 U.S.C. § 543(a).6 Defendant and amici curiae concede that 28 U.S.C. § 543
5 For clarity the Court notes that both the Government and Defendant at times mistakenly
cited 10 U.S.C. § 806(d)(1) instead of 10 U.S.C. § 806(e)(1). (See Dkt. 35 at 3; Dkt. 49 at
4, 6-9; Dkt. 43 at 4, 6.)
6 This statute was amended once in 2010, but the amendment merely added authority to
prosecute “Federal offenses committed in Indian country.” See Pub. L. 111-211, Title II,
§ 213(a)(1), 124 Stat. 2258, 2268 (2010).
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provides the Attorney General a “general grant of power to appoint SAUSAs.” (Dkt. 39-1
at 11; Dkt. 43 at 3.) Amici curiae also acknowledge that SAUSAs may “conduct any kind
of legal proceeding, civil or criminal, including grand jury proceedings and proceedings
before committing magistrate judges, which United States attorneys are authorized by law
to conduct.” 28 U.S.C. § 515(a). (See Dkt. 39-1 at 11.) But both Defendant and amici curiae
argue that 28 U.S.C. § 543 is not an “express” exception to the PCA that specifically
authorizes JAG military lawyers to be appointed to serve as SAUSAs in cases that lack a
military nexus. (Dkt. 39-1 at 11-12; Dkt. 43 at 5-6.) Neither explain what they mean by
“express,” but instead argue that § 543 must be read “in light of the more specific
restrictions in 10 U.S.C. § 973(b)” and its legislative history, which together, they argue,
require a military nexus for the appointment of a JAG lawyer as a SAUSA. (Dkt. 39-1 at
12-14.) Their arguments, however, are unpersuasive for three reasons.
First, the plain language of 28 U.S.C. § 543 does not limit whom the Attorney
General may appoint as a SAUSA, and amici curiae do not identify what “specific
restrictions” exist in 10 U.S.C. § 973(b) that would somehow limit the Attorney General’s
authority pursuant to 28 U.S.C. § 543. (Dkt. 39-1 at 12.) In fact, under 10 U.S.C. § 973(b),
as amended in 1983,7 JAG lawyers are explicitly allowed to “hold or exercise the functions
of a civil office in the Government of the United States . . . when assigned or detailed to
that office or to perform those functions.” 10 U.S.C. § 973(b)(2)(B).
7 See Pub. L. No. 98-94, Title X, § 1002, 97 Stat. 614, 655 (1983).
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The parties and amici curiae do not dispute that 10 U.S.C. § 973(b)(2)(B) applies to
the JAG lawyers in this case. (Dkt. 39-1 at 13 (citing 10 U.S.C. § 973(b)(2)(B)); Dkt. 43 at
4 (same); Dkt. 49 at 5-6 (same).) Rather, both amici curiae and Defendant point the Court
to § 973(b)’s legislative history to argue that it restricts JAG lawyers to prosecuting only
cases with a military nexus and therefore limits the Attorney General’s authority under 28
U.S.C. § 543. But § 973(b)(2)(B), plainly states that an officer of the armed forces “may
hold or exercise the functions of a civil office in the Government of the United
States . . . when assigned or detailed to that office or to perform those functions.” 10 U.S.C.
§ 973(b)(2)(B). The statute does not include language requiring a military nexus, and
Defendant and amici curiae do not argue that the statutory text is ambiguous. Because the
statute is unambiguous, the Court’s inquiry ends with the text. See Frost v. Lion Brand
Yarn Co., 765 F. Supp. 3d 808, 812 (D. Minn. 2025) (explaining that the court’s “task
‘begins with the statute’s plain language,’ and when ‘the intent of Congress can be clearly
discerned from the statute's language, the judicial inquiry must end’”) (quoting Union Pac.
RR Co. v. Surface Transp. Bd., 113 F.4th 823, 833 (8th Cir. 2024)); Davis v. Michigan
Dept. of the Treasury, 489 U.S. 803, 808 n.3 (1989) (“Legislative history is irrelevant to
the interpretation of an unambiguous statute.”).
Second, the logical conclusion of Defendant and amici curiae’s argument is that 10
U.S.C. § 543 does provide an exception to the PCA and allows JAG lawyers to prosecute
civilians, but only when JAG lawyers appointed as a SAUSAs prosecute cases with a
military nexus. In other words, Defendant and amici curiae argue that “Congress has
authorized JAG officers to participate in certain criminal prosecutions” against civilians
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(Dkt. 39-1 at 11), but then also argue that the statute is not “express” enough to constitute
an exception to the PCA at all.8 See 3M Co. v. Comm'r, 154 F.4th 574, 582 (8th Cir. 2025)
(“To state the obvious, a statute cannot both be ‘silent as to the precise’ question and
unambiguously answer it at the same time.”).
Moreover, to the extent that Defendant and amici curiae imply that “expressly
authorized” as used in the PCA requires every subsequent act of Congress to contain
specific reference to the PCA to be an exception, “[t]he legislature cannot derogate from
its own authority or the authority of its successors.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 278-279 (2012) (“Hence there is no legal
effect to a statutory provision stating that any exceptions to the statute’s requirements must
be express, or must specifically refer to the statute. A later legislature’s power—or, for that
matter, the same legislature’s power—to make exceptions without specific reference, and
even to make exceptions by implication, cannot be eliminated.”) (citing 5 U.S.C. § 559 as
an example). Indeed, the Supreme Court, when interpreting the statutory language “except
as expressly authorized by Act of Congress” in the Anti-Injunction Act, 28 U.S.C. § 2283,
explained that a “federal law need not contain an express reference” to the statute “in order
to qualify under the ‘expressly authorized’ exception.” Mitchum v. Foster, 407 U.S. 225,
237 (1972). Nor did the Supreme Court find that a statute must “expressly authorize an
injunction . . . in order to qualify as an exception,” noting that several “recognized statutory
8 At the hearing, Mr. Redmond’s counsel maintained the argument that there is authority
to appoint a JAG lawyer as a SAUSA under 10 U.S.C. § 543 and 10 U.S.C. § 806(e)(1)
only if there is a military nexus. (Tr. 34-35.)
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exceptions” did not do so. Id. Defendant and amici curiae have provided no legal authority
supporting the argument that, to fall under the “expressly authorized” exception of the
PCA, Congress must, in all subsequent statutes, refer to the PCA explicitly. And the Court
declines to impose such a requirement here.
Finally, this Court is not proceeding on a blank slate. Two circuit courts of appeals
have held that 28 U.S.C. § 543(a) authorizes the Attorney General to appoint military
lawyers as SAUSAs. See United States v. Silva-Rosa, 275 F.3d 18, 21-22 (1st Cir. 2001);
United States v. Allred, 867 F.2d 856, 871 (5th Cir.1989)).
The First Circuit addressed whether a district court violated the ‘disinterested
requirement’ from Young v. United States, 481 U.S. 787, when it refused to disqualify
Navy officers appointed as SAUSAs to prosecute civilians who trespassed onto a U.S.
military installation. Silva-Rosa, 275 F.3d at 21-22. The First Circuit concluded that Young
was inapposite because Young challenged the propriety of a court-appointed prosecutor,
and 28 U.S.C. § 543(a) allows for the appointment of Navy officers as SAUSAs and
“contains no limitation on the persons whom the Attorney General may appoint.’” Id. at 22.
This Court acknowledges that the First Circuit in Silva-Rosa did not address the
PCA, and the trespass on the U.S. military installation provides a military nexus, but in
finding 28 U.S.C. § 543(a) clear, the First Circuit cautiously noted that “asking [the] Court
to dictate to the executive branch whom it can appoint to serve as its prosecutors . . . would
expand the power of judicial officials to such a degree as to trigger weighty separation of
powers concerns.” Silva-Rosa, 275 F.3d at 22.
In Allred, the Fifth Circuit also addressed a challenge to the appointment of a Navy
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officer as a SAUSA on a case with a military nexus. The Fifth Circuit specifically
explained:
[T]he [PCA] expressly provides an exception in “cases and under
circumstances expressly authorized by the Constitution or Act of
Congress.” Congress, by authorizing the appointment of Special
Assistant United States Attorneys and Assistant United States
Attorneys to assist the Attorney General, has authorized [the JAG
lawyer’s] appointment. This authorization contains no limitation on
the persons whom the Attorney General may appoint, nor does it
indicate any limitations on the duties which the appointee may
perform. Instead, section 515 indicates that the appointed attorney
may “conduct any kind of legal proceedings, civil or criminal,
including grand jury proceedings.”
867 F.2d at 871 (citing 28 U.S.C. §§ 515, 543).
Defendant and amici curiae ask this Court to ignore Allred, arguing that it is non-
binding authority and distinguishable because it involved the Attorney General’s
appointment of a JAG lawyer on a case with a military nexus. (Dkt. 43 at 5-6; Dkt. 39-1 at
15-16.) Although Allred is not binding, this Court finds its reasoning persuasive.
Congress, in passing 28 U.S.C. § 543(a), specifically granted the Attorney General
the authority to appoint SAUSAs without limitation. This therefore includes the
appointment of JAG lawyers as SAUSAs. In other words, this Act of Congress created the
exception contemplated in the PCA. That the JAG lawyers appointed as a SAUSAs in
Silva-Rosa and Allred prosecuted cases with a military nexus is immaterial to the analysis
here because the statute does not limit appointments of JAG lawyers to cases with a military
nexus.
B. 10 U.S.C. § 806(e)(1)
Defendant and amici curiae also urge the Court to ignore 10 U.S.C. § 806(e)(1) and
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Allred’s finding that this statute operates as an exception to the PCA. (See Dkt. 39-1 at 14-
15; Dkt. 43 at 4-6.) Section 806(e)(1) provides that:
A judge advocate who is assigned or detailed to perform the functions
of a civil office in the Government of the United States under section
973(b)(2)(B) of this title may perform such duties as may be requested
by the agency concerned, including representation of the United
States in civil and criminal cases.
10 U.S.C. § 806(e)(1).9
The unambiguous text of § 806(e)(1) specifically authorizes JAG lawyers to
prosecute criminal cases when assigned to an agency such as the Department of Justice
(“DOJ”), and neither Defendant nor amici curiae argue to the contrary. (See Dkt. 39-1; Dkt.
43.) Rather, they urge the Court to reject the plain language of § 806(e)(1) because it is not
an “express” exception to the PCA. (Dkt. 39-1 at 14-15; Dkt. 43 at 4-5.) Again, neither
Defendant nor amici curiae explain what they mean by “express,” expound on what
“expressly authorized” requires under the PCA, or provide legal authority for either
proposition. (Id.) Amici curiae merely state that § 806(e)(1) does not create an exception
to the PCA because it “references neither [the PCA], civilian prosecution, civilian arrests,
nor the execution of civilian laws.” (Dkt. 39-1 at 15.) This argument ignores the plain text
of § 806(e)(1), which explicitly allows JAG lawyers to “represent[] . . . the United States
in civil and criminal cases.”10 Similarly, the court in Allred held that 10 U.S.C. §
9 As discussed above, it is not disputed that 10 U.S.C. § 973(b)(2)(B) applies.
10 As discussed above in the context of 28 U.S.C. § 543(a), the Court declines to impose
the requirement that Congress must refer to the PCA explicitly in all subsequent statutes
for the statute to constitute an exception to the PCA.
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806(e)(1),11 in addition to 28 U.S.C. § 543(a), provided “authority” for the appointment of
a JAG lawyer as a SAUSA despite the PCA. 867 F.2d at 871 (citing 10 U.S.C. § 806(d)(1)).
And this court agrees.
In conclusion, the Court finds that the Attorney General’s appointment of JAG
lawyers as SAUSAs in the District of Minnesota to prosecute civilians in criminal cases is
authorized by both 28 U.S.C. § 543 and 10 U.S.C. § 806(e)(1), two Acts of Congress which
created exceptions to the PCA.12
a. Department of Defense Regulations
Defendant and amici curiae next argue that the appointment of a JAG as a SAUSA
violates binding Department of Defense regulation 32 C.F.R. § 516.4 and Army Regulation
(AR) 27-10, which both require a military nexus for the special appointment. (Dkt. 39-1 at
16; Dkt. 43 at 4-5.)13 The Government failed to address this issue in its briefing.
11 Allred cited 10 U.S.C. § 806(d)(1), which in 1989 contained the exact same language
that now exists in 10 U.S.C. § 806(e)(1). The reorganizing of headings occurred just last
year in 2025. See Pub.L. 119-60, Div. A, Title V, §§ 561(a), 562, Dec. 18, 2025, 139 Stat.
881, 881.
12 Because the Court finds that these statutes operate as an exception to the PCA, it does
not reach whether “whether the rule set out in Bissonette or some other form of guideline
should be applicable to cases brought under the [PCA].” Allred, 867 F.2d at 861.
13 In his motion, Defendant cites Department of Defense (“DOD”) Instructions. (See Dkt.
24 at 4-5 (citing Dep't of Defense Instruction 5525.07 (June 18, 2007) and Dep't of
Defense Instruction 3025.21, enclosure 3 (Feb. 27, 2013).) But neither Defendant nor amici
curiae maintained an argument involving the DOD Instructions in their post hearing
briefing. (See Dkt. 39-1; Dkt. 43.) Nor did they explain how the instructions, which are
internal DOD policy, create substantive rights. (See Dkt. 35 at 7-8 (citing United States v.
Leathers, 354 F.3d 955, 962 (8th Cir. 2004).) For these reasons, the Court does not consider
the DOD instructions in this analysis and instead focuses on the statutes passed by
Congress and the lawfully promulgated regulations.
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“Agencies must follow their own regulations.” Sarail A. v. Bondi, 803 F. Supp. 3d
775, 779 (D. Minn. 2025) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260, 268, (1954); and Webster v. Doe, 486 U.S. 592, 602 n.7 (1988)). Here, 32 C.F.R.
§ 516.4(e) states:
Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special
Attorneys. Army judge advocates and civilian attorneys, when
appointed as SAUSAs under 28 U.S.C. 543, will represent the Army's
interests in either criminal or civil matters in Federal court under the
following circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army
attorneys, at the installation level, after being duly appointed (See AR
27–10), will prosecute cases, in which the Army has an interest, in
Federal court. Army attorneys who prosecute criminal cases will not
represent the United States in civil litigation without authorization
from Chief, Litigation Division.
(2) SAUSAs for civil litigation. By assignment of TJAG and upon
the approval of the U.S. Attorney, Judge Advocates will serve within
a U.S. Attorney's office to represent the government in litigation in
which the Army or DOD has an interest. These Judge Advocates
have the same general authority and responsibility as an Assistant U.S.
Attorney.
(3) Special Attorneys assigned to DOJ. By assignment of TJAG
and with the concurrence of the appropriate DOJ official, Judge
Advocates will work as Special Attorneys for DOJ. Special Attorneys
are authorized to represent the United States in civil litigation in
which the Army or DOD has an interest.
(emphasis added). Similarly, in AR 27-10, Chapter 23, Prosecution of Criminal Offenses
in Federal Courts, subsection 23-1(a) explains,
This chapter contains policies and procedures for prosecutions in U.S.
District Court before either a district judge or a magistrate judge for
violations of Federal law committed on Army installations or
violations that involve Army interests or property.
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Subsection 23-4(a), for the appointment of attorneys as Special Assistant U.S. Attorneys
further provides:
Prosecutions in Federal court are a DOJ responsibility. SJAs or legal
advisors often find it beneficial, however, to have one or more JA or
DA Civilian attorneys appointed as SAUSA pursuant to 28 USC
543 to prosecute crimes in which the Army has an interest.
(emphasis added). The plain language of both regulations authorize JAG lawyers appointed
as SAUSAs to prosecute cases only “in which the Army has an interest.” 32 C.F.R. §
516.4(e); AR 27-10 ¶ 23-4(a).
Here, it is undisputed that the Army has no interest in the prosecution of Defendant.
(See Dkts. 35, 49.) And the Government failed to respond to Defendant’s and amici curiae’s
regulatory arguments in briefing, despite the additional opportunity to do. (Dkt. 49.)
Additionally, when the Court directly asked the Government about the regulations, the
Government opined that the regulations do not matter. (Tr. 55.) But binding regulations do
matter, and the regulations only permit JAG lawyers “to prosecute crimes in which the
Army has an interest.” AR 27-10, ¶ 23-4(a); Sarail A., 803 F. Supp. 3d at 779; Accardi,
347 U.S. at 268. Consequently, the appointment of a JAG lawyer as a SAUSA to prosecute
Mr. Redmond violates both 32 C.F.R. § 516.4 and AR 27-10.14
14To the extent the Government attempts to sidestep the regulations’ military nexus
requirement by arguing that the appointment of JAG lawyers as SAUSAs in cases without
a military nexus is an established practice, that argument is unpersuasive. (Dkt. 49 at 10-
13.) First, the Government relies on two Office of Legal Counsel memorandums, neither
of which support its contention that JAGs have historically prosecuted cases without a
military nexus as SAUSAs. See Detailing Att'ys to the Dep't of Just. to Serve as Immigr.
Judges & Special Assistant United States Att'ys, 2025 WL 3251684 (O.L.C. Oct. 23, 2025);
Detailing Att’ys to the Dep’t of Just. to Serve as Immigr. Judges & SAUSAs, 2025 WL
3251684 (O.L.C. Oct. 23, 2025). Second, the Government misconstrues the Ninth Circuit’s
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III. Requested Relief
Mr. Redmond requests the Court strike the appearance of the JAG SAUSA in this
case. (Dkt. 24 at 1; Dkt. 43 at 9.) The Government argues that there needs to be a legal
basis for granting the requested relief. (Tr. 52, 53.) Neither Defendant nor amici curiae
have provided the Court with legal authority that supports striking the appearance of a
SAUSA when the appearance violates a regulation. Finding no authority to do so, the Court
declines to grant the requested relief.
If Congress passes statutes giving the Department of Justice the authority to appoint
active military personnel as SAUSAs to prosecute civilians, that is the law. And even
though the Department of Defense regulations recognize that having military lawyers
prosecute civilians in cases that lack a military nexus would be ill-advised, these
regulations do not authorize this Court to strike the appearance of a SAUSA that the DOJ
appointed. In other words, neither the PCA nor the Department of Defense’s regulations
provide this Court with the authority to grant Mr. Redmond’s requested relief when the
Department of Defense has violated its own regulations. Mr. Redmond’s and amici curiae’s
holding in United States v. Chon, 210 F.3d 990, 995 (9th Cir. 2000). The Ninth Circuit did
not uphold the district court’s denial of a motion to remove a SAUSA “without analysis,”
as the Government contends. In fact, the Ninth Circuit did not address the issue because
the defendant did not preserve the issue for appeal. Id. at 995 (“Upon entering their
conditional pleas of guilty, Chon, Costa, and Kapule reserved the right to appeal the district
court's denial of their Motion to Suppress/Dismiss and Motion to Compel
Discovery . . . they [] waived all other issues not expressly reserved for appeal.”).
Additionally, the Chon case had a military nexus as the defendants were prosecuted for
trespassing onto Navy property to steal military equipment. Id. at 992. Thus, the briefing
in Chon that the Government cites actually supports Mr. Redmond’s argument that JAGs
have historically only been used as SAUSAs to prosecute cases with a military nexus.
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“good policy” arguments, persuasive though they may be, cannot overcome this obstacle.
This Court must apply the law. For these reasons, Mr. Redmond’s motion must be denied.
ORDER
Based on the foregoing, and on all the files, records, and proceedings, herein, it is
HEREBY ORDERED that:
1. Mr. Redmond’s Motion to Strike Appearance of Government’s Counsel (Dkts.
24, 35) is DENIED, and
2. Mr. Redmond’s Motion for Specific Rule 16 Discovery (Dkt. 27) is GRANTED
in part and DENIED in part as set forth above.
Dated: May 2, 2026 s/Shannon G. Elkins
SHANNON G. ELKINS
United States Magistrate Judge
CASE 0:26-mj-00099-JMB-SGE Doc. 37 Filed 05/02/26 Page 16 of 16