Leary v. United States, No. 15290.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPOPE, STEPHENS, FEE, CHAMBERS, BARNES, HAMLEY, HAMLIN, and JERTBERG, Circuit
Citation268 F.2d 623
Decision Date30 June 1959
Docket NumberNo. 15290.
PartiesJohn LEARY, Appellant, v. UNITED STATES of America, Appellee.

268 F.2d 623 (1959)

John LEARY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 15290.

United States Court of Appeals Ninth Circuit.

May 18, 1959.

Dissenting Opinion June 30, 1959.


268 F.2d 624

Fay Stender and Marvin Stender, San Jose, Cal., for appellant.

Robert H. Schnacke, U. S. Atty., Lynn Gillard, John H. Riordan, Jr., Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before POPE, STEPHENS, FEE, CHAMBERS, BARNES, HAMLEY, HAMLIN, and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Appellant was sentenced to a period of six years in a federal penitentiary after conviction by a jury on an indictment charging him with knowing possession of property stolen from a vessel engaged in interstate commerce.1 No question is raised on this appeal as to the evidentiary basis of the conviction or sentence. The record before this Court is sufficient to sustain a verdict of guilty, if the proceedings in the district court were proper.

The single question raised here is the validity of the organization of the court on July 31st, 1956, the day upon which the proceedings opened. The proceedings occurred in San Francisco, within one of the courtrooms regularly used by the United States District Court for the Northern District of California, Southern Division. The regular jury venire were present.

Presiding was a duly and regularly appointed, commissioned, and sworn federal judge of the District Court of New York located within the Second Circuit. He had been duly and regularly assigned by proper authority "to hold the District Court in the Northern District of California during the period beginning August 1, 1956, and ending August 31, 1956."

This case of United States v. Leary had been originally set down on July 3, 1956 for a jury trial on July 30, 1956 by the District Judge of the United States District Court for the Northern District of California then presiding over criminal cases in the Southern Division.2 On July 30th, 1956, the Chief Judge of that same Northern District of California, then presiding over the criminal calendar, had duly and regularly continued the trial of the case before a jury to July 31st, 1956.

Reporting for his judicial duties one day early, and on July 31st, 1956, to Chief Judge Louis Goodman of the United States District Court in San Francisco, the New York District Judge, with the apparent or express consent of Judge Goodman, was assigned a courtroom in which to preside over a regular session of the Northern California District Court. On that same July 31st, 1956, the court's docket shows that case No. 34992, United States v. John Leary, was "Ord. assigned to J. ____ specifying the New York Judge by name for Jury Trial. Goodman." The trial of the charge against Leary proceeded. Twelve persons were found qualified and placed in the jury box. The customary form of oath was administered to them as to a jury panel. The judge presiding thereafter, and before the introduction of any evidence, suggested to counsel after the jury had left the room that his official designation called for him to hold court in the Northern District of California commencing August 1, 1956. He said he could get the assignment amended by a nunc pro tunc order, so as to authorize him to hold court on July 31, 1956. He said, "Officially I am supposed to start tomorrow morning, but actually we selected the jury and are starting today." He then asked defendant to waive any contention "with respect to my having started a day early" and added "that actually the trial is commenced one day

268 F.2d 625
prior to my official designation to sit in this District Court."

The attorney for defendant stated on behalf of defendant that he would waive any defects and that the procedure would redound to the advantage of defendant since he had been in custody a considerable time. The judge presiding then asked defendant if he understood, if he was agreeable, and if he waived any objection, to which the latter responded that he did. Thereafter, on that same day, an opening statement was made by the government attorney, the defense reserving its statement to the end of the case. Three witnesses were then sworn seriatim and each testified.

On August 1st and 2nd, 1956, the proceeding was continued before the same twelve persons and the same judge. The twelve persons returned a verdict of guilty. Judgment was entered thereon. A sentence of Leary to six years' imprisonment followed on August 16, 1956.

There can be no question that the United States District Court for the Northern District of California, Southern Division, was the proper court in which to try the appellant. That court, qua court, had subject matter jurisdiction of the offense charged. Whether the visiting judge was on July 31st, 1956, a proper judge to hold that trial in that court is the question crucial to this appeal.

Whatever powers and authority the New York judge had to sit in San Francisco arose out of six factors: (a) His judicial capacity; (b) the statute authorizing his assignment, 28 U.S.C. § 292 (c);3 (c) the Chief Justice's designation4 to sit in California; (d) the statute defining his powers and duties on such assignment, 28 U.S.C. § 296;5 (e)

268 F.2d 626
the assignment of the case to him by the Chief Judge of the District Court in California; and (f) whether or not he was, if not a de jure judge, a de facto judge the first day of the trial

No question is here raised as to the judge's complete authority to act in his judicial capacity within his district court in New York, and we need not consider it here, save to state the fact that he was so authorized and had been for several years.6

Nor is any question here raised that any of the statutory conditions respecting the designation and assignment were not complied with (excepting for the moment the date when the assigned duties were to commence). We must, and are entitled, to assume that the consent of the Chief Judge, or the Judicial Council, of the Second Circuit had been obtained; and that the designation and assignment had been filed with the clerks of the courts from which and to which made.7 The law requires this, and it is presumed the law was obeyed.

There likewise exists no question as to the authority of Congress generally to enact statutes authorizing assignment of a federal judge from one area to another. See, Lamar v. United States, 1916, 241 U.S. 103, 117-118, 36 S.Ct. 535, 60 L.Ed. 912; McDowell v. United States, 1895, 159 U.S. 596, 598-599, 16 S.Ct. 111, 40 L.Ed. 271.

The district courts of the United States derive their power, not from the Constitution, but from the statutory enactments of Congress: "District courts are solely the creation of statute, and the place in which a judge thereof may exercise jurisdiction is subject absolutely to the control of congress." McDowell v. United States, supra 16 S.Ct. 112.

The purposes of § 292(c) and § 296 are to aid litigants to avoid that of which defendants in criminal cases complain most loudly — delays in trial. To accomplish this, and to make the work load more even throughout the country, was the purpose behind the legislation.8 To aid in the accomplishment of that purpose, we should, where construction is necessary, liberally construe the statutes. S. E. C. v. C. M. Joiner Leasing Corp., 1943, 320 U.S. 344, 350-351, 64 S.Ct. 120, 88 L.Ed. 88; Stewart v. Kahn, 1870, 11 Wall 493, 505, 78 U.S. 493, 505, 20 L.Ed. 176; Seasongood v. Commissioner of Internal Revenue, 6 Cir., 1955, 227 F.2d 907; Adler v. Northern Hotel Co., 7 Cir., 1949, 175 F.2d 619; United States v. Public Utilities Comm., 1945, 80 U.S. App.D.C. 227, 151 F.2d 609; Binkley Mining Co. v. Wheeler, 8 Cir., 1943, 133 F.2d 863, 871.

Appellant urges that the Frad9 case is controlling, and requires reversal here. In Frad v. Kelly, supra, Judge Inch, a duly appointed District Judge of the Eastern District of New York, was regularly assigned to the Southern District of New York. On this assignment, he regularly tried Frad before a jury. Upon conviction, the judge sentenced Frad to imprisonment on one indictment and suspended imposition of sentence on two other indictments for a definite period. When Frad had served sentence on the first indictment and before the probation period expired, he petitioned Judge Inch for discharge. The United States Attorney for the Southern District stipulated that Judge Inch might hear a subsequent motion in the Southern District, and the probation officer of that District, by appearing at a hearing before Judge Inch in the Eastern District, gave implied consent. Judge Inch entered an order

268 F.2d 627
revoking probation, discharging Frad from further supervision and terminating the proceedings against him

About a year later a judge of the Southern District authorized a warrant upon a charge of violation of the terms of the probation. Frad surrendered himself to the marshal, and later a judge of the Southern District granted habeas corpus as to Frad on the theory that the discharge by Judge Inch was valid. The court of appeals reversed, holding the Inch order void. Kelly v. United States ex rel. Frad, 2 Cir., 1937, 89 F.2d 866. The United States Supreme Court affirmed the court of appeals, holding that the discharge of Frad by Judge Inch was null and void since the judge had no authority under the assignment statute "to hear a new matter even though that new matter may arise in the same case."

Thus in the Frad case, a judge who had once been a regularly designated judge in one district and had decided a case therein, attempted to decide, in another district (in which he regularly sat), a new matter arising in the same case. He purported to act on a matter in a district where such matter was not then pending. This differs from the instant case where the assigned judge proposed to act in a matter which was then properly within the court's subject matter jurisdiction.

In Frad the critical decision to terminate probation was...

To continue reading

Request your trial
7 practice notes
  • Aurelius Inv., LLC v. Puerto Rico, Nos. 18-1671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 15, 2019
    ...there is no indication but that the Board Members acted in good faith in moving to initiate such proceedings. See Leary v. United States, 268 F.2d 623, 627 (9th Cir. 1959). Moreover, the Board Members' titles to office were never in question until our resolution of this appeal.Other conside......
  • Hamilton v. Hood, No. 89 Civ. 5308 (JES).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1992
    ...valid proceedings as such. McDowell v. United States, 159 U.S. 596, 602 16 S.Ct. 111, 113, 40 L.Ed. 271 (1895); Leary v. United States, 268 F.2d 623 (9th Cir.1959); United States v. Marachowsky, 213 F.2d 235 (7th Barry v. Cooke, supra. See also People v. Butler, 92 A.D.2d 1071, 461 N.Y.S.2d......
  • Foster v. Herley, No. 15261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 10, 1964
    ...to be given to the statute. McDowell v. United States, 159 U.S. 596, 598-599, 16 S.Ct. 111, 40 L.Ed. 271; Leary v. United States, 268 F.2d 623, 626, C.A.9th; Blaski v. Hoffman, 260 F.2d 317, 320, C.A.7th, affirmed, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d We proceed upon the assumption that t......
  • United States v. Lemke, No. Crim. 42607.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 23, 1969
    ...may be predicated upon false statements made under an oath administrated by a de facto officer. In the second, Leary v. United States, 268 F.2d 623 (9th Cir. 1959) (in bank) the court allowed without serious question an attack on appeal on the credentials of a judge (although on the merits ......
  • Request a trial to view additional results
7 cases
  • Aurelius Inv., LLC v. Puerto Rico, Nos. 18-1671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 15, 2019
    ...there is no indication but that the Board Members acted in good faith in moving to initiate such proceedings. See Leary v. United States, 268 F.2d 623, 627 (9th Cir. 1959). Moreover, the Board Members' titles to office were never in question until our resolution of this appeal.Other conside......
  • Hamilton v. Hood, No. 89 Civ. 5308 (JES).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1992
    ...valid proceedings as such. McDowell v. United States, 159 U.S. 596, 602 16 S.Ct. 111, 113, 40 L.Ed. 271 (1895); Leary v. United States, 268 F.2d 623 (9th Cir.1959); United States v. Marachowsky, 213 F.2d 235 (7th Barry v. Cooke, supra. See also People v. Butler, 92 A.D.2d 1071, 461 N.Y.S.2d......
  • Foster v. Herley, No. 15261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 10, 1964
    ...to be given to the statute. McDowell v. United States, 159 U.S. 596, 598-599, 16 S.Ct. 111, 40 L.Ed. 271; Leary v. United States, 268 F.2d 623, 626, C.A.9th; Blaski v. Hoffman, 260 F.2d 317, 320, C.A.7th, affirmed, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d We proceed upon the assumption that t......
  • United States v. Lemke, No. Crim. 42607.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • December 23, 1969
    ...may be predicated upon false statements made under an oath administrated by a de facto officer. In the second, Leary v. United States, 268 F.2d 623 (9th Cir. 1959) (in bank) the court allowed without serious question an attack on appeal on the credentials of a judge (although on the merits ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT