Audett v. United States, No. 15929.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: POPE and JERTBERG, Circuit and YANKWICH
• Citation: 265 F.2d 837
• Parties: James Henry AUDETT, Appellant, v. UNITED STATES of America, Appellee.
• Decision Date: 04 May 1959
• Docket Number: No. 15929.

265 F.2d 837 (1959)

James Henry AUDETT, Appellant,
v.
UNITED STATES of America, Appellee.

No. 15929.

United States Court of Appeals Ninth Circuit.

March 31, 1959.

Rehearing Denied May 4, 1959.

265 F.2d 838

COPYRIGHT MATERIAL OMITTED

265 F.2d 839

Schofield, Hanson, Bridgett, Marcus & Jenkins, Leslie G. MacGowan, San Francisco, Cal., for appellant

Ben Peterson, U. S. Atty., R. M. Whittier, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before POPE and JERTBERG, Circuit Judges and YANKWICH, District Judge.

YANKWICH, District Judge.

On January 25, 1956, the Grand Jury for the United States District Court in and for the District of Idaho, Central Division, presented an Indictment against the appellant, James Henry Audett, charging him in Count I with attempting to enter and entering the First National Bank of Cottonwood, Cottonwood, Idaho, the deposits of which were insured by the Federal Deposit Insurance Corporation, with intent to commit the crime of larceny, — a violation of the federal law.¹ In Count II it was charged that, on the same day, he took and carried away from the First National Bank of Cottonwood, Cottonwood, Idaho, money, property and things of value, the total value of which was $30,000, which were alleged to belong and to be in the custody, care, control, management and possession of the bank, with the intent to steal and purloin them.²

On April 2, 1956, the appellant, appearing in court with one of his counsel, Dean E. Miller, was arraigned and entered his plea of not guilty. A trial was had before a jury on April 9 and 10 of the same year. On the latter date the jury found the appellant guilty on both counts. The Court, on the same day, sentenced the appellant to the custody of the Attorney General for a period of twenty years on Count I and ten years on Count II, the sentences to run concurrently. Additional facts will appear further on in the opinion.

This is on appeal from the Judgment.

I

The Right To Counsel

The most fundamental issue raised in this case is that of improper representation by counsel in violation of the rights guaranteed by the Constitution of the United States. Both the due process clause³ and the right to counsel⁴ are invoked.

It has become axiomatic that, in the absence of intelligent waiver, the right to the assistance of counsel in criminal cases

"is an essential jurisdictional prerequisite to a federal court\'s authority to deprive an accused of his life or liberty."⁵

And prejudice will be inferred from the denial of assistance of counsel.⁶

It is argued on behalf of the appellant that there was such denial here, because he was represented at the trial by the firm of Meek and Miller, consisting of Frank E. Meek and Dean E. Miller, and that Dean E. Miller was, at the time of such representation, disqualified from practicing before the United States District Court because he was a United States Commissioner for the District of Idaho, stationed at Caldwell, Idaho.

It is insisted that the United States Commissioner is an "officer or employee"

265 F.2d 840

of the administrative Office of the United States who is forbidden by the Judicial Code to practice law.⁷ The argument is grounded upon the erroneous premise that, because Section 607 is contained in Part III of the Judicial Code which relates to "court officers and employees", the disqualification applies. But the fallacy of the argument lies in the fact that this part consists of nine chapters,⁸ in which the Administrative Office and the United States Commissioners are treated and their duties defined separately. The Chapter also includes the entire judiciary from the Supreme Court down to the Customs Court. And if the designation of "officers and employees" in the title of these chapters were sufficient to make the commissioners subject to the limitations contained in the Code against the practice of law, then the appellation would be broad enough to encompass the entire judiciary, the clerks and the marshals. Yet it is significant that whenever the Congress has intended to prohibit the practice of law by officers of the United States it has done so by specific enactment, whether the enactment relate of judges of the courts,⁹ marshals,¹⁰ or court clerks.¹¹

The fact that the Administrative Office passes on the lawful fees of the United States commissioners¹² and furnishes them with offices, equipment and supplies¹³ is not sufficient to make them "officers and employees" of the Administrative Office any more than the payment by the Administrative Office of expenses of the judges and of the cost of their books and equipment makes the judges of the various courts "officers and employees" of the Administrative Office.

The only reason for the separate inclusion of the phrases "and the lawful fees of United States Commissioners"¹⁴ and "the offices of the United States Commissioners"¹⁵ is because, with few exceptions, the commissioners receive, in lieu of compensation, the fees allowed by law. Commissioners, such as National Park Commissioners, who receive salaries fixed by the court which appoints them, are required to account for fees collected by them as "public monies".¹⁶ All commissioners are inferior officers, adjuncts of the courts, possessing and exercising limited judicial powers of their own.¹⁷ They are appointed by the courts.¹⁸ Their fees and expenses are determined by statute.¹⁹ As there is a maximum provided for the fees of each commissioner, he is required to account for them to the Clerk of the District Court in which he resides.²⁰

The only direct limitation as to the qualifications of commissioners is that which provides that a person holding a civil or military office or employment under the United States or who is employed by any justice or judge of the United States

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"shall not at the same time hold the office of United States commissioner".²¹

If we exclude the one provision relied on, the inapplicability of which has been fully demonstrated, there is no provision prohibiting commissioners from practicing law in the courts of the United States.²² That this was the intention of the Congress is also shown by an amendment which became effective on September 2, 1957, and which specifically provides for certain additional emoluments to United States Commissioners

"who are required to devote full time to the performance of the duties of the office * * * and who do not engage in the practice of law".²³

This warrants the conclusion that the Congress, by enacting this provision, recognized that commissioners not in this class, i. e., those who, like Mr. Miller in this case, are part-time commissioners receiving fees for such services as they perform and retaining them as compensation, devoting part time only to their office, are permitted to practice law in the courts of the United States. This accords with the policy obtaining in other instances, such as part-time referees in bankruptcy who are also permitted to practice law before the courts of the United States, except in bankruptcy cases, while full-time referees may not do so before any court.²⁴

Granted that one who represents a person accused of crime should exercise his duty with highest fidelity, we cannot, in the light of the preceding analysis, see how a commissioner of the United States who, in certain instances, exercises the right of a committing magistrate which may be exercised by state judicial officers "empowered to commit persons charged with offenses against the laws of the United States",²⁵ thereby disqualifies himself from acting, at the choice of a person accused of an offense against the United States, as his attorney, in the trial of a criminal case with the initiation of which he has had nothing to do. At best, the right to a preliminary examination may be waived.²⁶ The waiver does not involve the surrender of any constitutional right.²⁷ And while the hearing before a commissioner is a step in the institution of a criminal proceeding, it should not act as a Bill of Attainder against the commissioner so as to deny him the right to act as counsel for a defendant before the courts of the United States. The warning of a great Justice comes to mind:

"Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."²⁸

265 F.2d 842

II

Waiver

Because the contention here made as to the status of commissioners, if correct, would affect many part-time commissioners in this Circuit, we have discussed it with great fullness. We are led to the inevitable conclusion that there is no disqualification for a United States Commissioner to represent a person accused of crime in the trial of a criminal case before a court of the United States, in a matter with which he was not connected as a commissioner.

In the case before us there is the added fact that after the appellant employed the firm of which Mr. Dean E. Miller, the United States Commissioner, was a partner, the question of possible disqualification was fully discussed with the appellant. There is in the record a letter dated March 27, 1956, written by the senior partner of the firm which indicates that the matter had been discussed fully with the United States Attorney and, informally, with the Judge of the Court by counsel for the appellant. Appended to it was a waiver. The letter and waiver are reproduced in the margin.²⁹

The experienced trial judge, not content with the written waiver, which was filed in court on March 29, 1956, brought up the matter in open court while the jury was being selected. The following proceedings occurred:

"The Court: Before we continue to select a jury for this case, I have a

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