U.S. v. Anderson

• Decision Date: 29 July 1986
• Docket Number: No. 85-2368,85-2368
• Citation: 798 F.2d 919
• Parties: 21 Fed. R. Evid. Serv. 284 UNITED STATES of America, Plaintiff-Appellee, v. Orval W. ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 919

798 F.2d 919

21 Fed. R. Evid. Serv. 284

UNITED STATES of America, Plaintiff-Appellee, v. Orval W. ANDERSON, Defendant-Appellant.

No. 85-2368.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 1986.

Decided July 29, 1986.

Steven A. Kurowski, Merrillville, Ind., for defendant-appellant.

James B. Meyer, U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

The defendant-appellant Judge Orval W. Anderson was convicted of knowingly making a false material declaration in violation of 18 U.S.C. Sec. 1623. ¹ Judge Anderson's conviction was based upon testimony he gave in a trial in the District Court that he never disposed of criminal cases involving the charge of Driving Under the Influence of intoxicants in his chambers without the presence of prosecutors while presiding in the Lake County, Indiana, County Court system. Judge Anderson appeals. We affirm.

I.

On February 15, 1985 Judge Orval W. Anderson testified as a witness in the trial of United States of America v. John Marine and Kenneth Anderson, ² HCR 84-46 (the Marine trial), in the United States District Court for the Northern District of Indiana. The defendants in the Marine trial were charged with various federal crimes, including racketeering, mail fraud, and extortion resulting from an alleged ticket-fixing scheme operating within the Lake County court system. Nick Thiros, John Marine's defense counsel, subpoenaed Judge Orval Anderson to testify in the Marine trial as seven of the twelve cases allegedly "fixed" by the Marine defendants concerned cases pending while Orval Anderson was the presiding judge. John Marine's defense counsel subpoenaed Orval Anderson because he believed Judge Anderson would be in the best position to clarify what, if any, role John Marine played in the ticket fixing scheme. On direct examination, Judge Anderson testified in general terms concerning the operations and procedures of his court. On cross-examination the government attempted to determine what impact, if any, the defendants in the Marine trial could or might have had on cases pending in Judge Anderson's court. In the course of the government's cross-examination, the following colloquy occurred:

"Q. Did you ever dispose of a case in chambers where a prosecutor wasn't present?

A. No.

Q. Did you--

A. I assume you're talking about misdemeanors. You are not talking about traffic infractions?

Q. No, I'm talking about D.U.I.s. [Driving Under the Influence charges]

A. No, no. Always prosecutors there."

After the conclusion of the Marine trial, the government presented Judge Anderson's testimony to a federal grand jury, together with other evidence demonstrating that his testimony in the Marine trial was false. The grand jury returned a three-count indictment against Judge Orval Anderson charging him with giving false material testimony at the Marine trial and obstructing justice. Count 1, based on the testimony set forth above, charged that Orval Anderson violated 18 U.S.C. Sec. 1623 in making a false material declaration that he knew was false in that he had disposed of numerous criminal cases between January 1, 1980 and April 1983 involving the charge of Driving Under the Influence of an intoxicant ³ in the Lake County, Indiana, County Court, in his chambers without the presence of a prosecutor. Count 2 of the indictment also alleged that Orval Anderson knowingly made a false material declaration in his testimony during the Marine trial when he "did knowingly declare ... that during any hearings in misdemeanor cases he conducted in his chambers, either a court reporter was present or a tape recording of the proceeding was made during the period January 1, 1980 through April, 1983." Count 3 of the indictment charged Judge Anderson with obstructing the administration of justice in giving false and misleading testimony under oath in the Marine trial.

The government's evidence at Judge Orval Anderson's trial included, inter alia, the testimony of eight individuals arrested and charged with Driving Under the Influence of intoxicants (DUI) whose cases were disposed of by Judge Anderson in his chambers without the presence of a prosecutor. ⁴ The government also introduced the testimony of Nick Thiros (John Marine's defense counsel), the transcript of John Marine's testimony from his own trial, the transcript of Nick Thiros' closing argument in the Marine trial, the transcript of Judge Anderson's testimony at the Marine trial, and the indictment charging John Marine and Kenneth Anderson. Following a jury trial the defendant Orval Anderson was found guilty of the false material declaration charged in Count 1, but not guilty of the false material declaration and the obstruction of justice charges contained in Counts 2 and 3.

Orval Anderson appeals his conviction on Count I, raising the following issues: 1) whether the trial court erred in giving its instruction No. 23 and in refusing to give the defendant's tendered instruction No. 24; 2) whether the court erred in determining that Judge Anderson's false statements were material; and 3) whether the defendant-appellant's response to the question asked by the prosecutor was "not responsive to the question asked and [was] literally true" and thus could not be the basis of a conviction for violating Sec. 1623.

II.

A. Jury Instructions

The trial court's jury instruction No. 23 provided:

"In the operation of their courts and carrying out their judicial duties, Indiana state court judges are governed by a Code of Judicial Conduct adopted by the Indiana Supreme Court.

As applicable to this case the Code of Judicial Conduct provides in part:

A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law ... and, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

The term ex parte means without the other party. An ex parte proceeding, therefore, is any judicial proceeding at which only one party is present.

The criminal cases which are at issue in this trial were adversarial cases. That is, on one side is the prosecuting attorney on behalf of the State of Indiana, and, on the other side is the defendant charged with the particular misdemeanor.

* * *

In any action by a judge, whereby proceedings are conducted which bear on the outcome of a pending criminal case, the Code of Judicial Conduct requires the presence of both the prosecuting attorney and the defendant.

Thus, the submission of a guilty plea by a defendant, whether accepted by the judge or not, requires the presence of a prosecuting attorney."

Orval Anderson claims that instruction 23 sets forth an erroneous statement of Indiana law and misconstrues Canon III A(4) of the Indiana Code of Judicial Conduct. He argues that the State of Indiana statute does not require the presence of a prosecutor at the taking of a guilty plea in a misdemeanor case. He thus contends that the district court's instruction in effect, erroneously gave the cited Indiana Canon of Judicial Ethics the force and effect of law. Judge Anderson emphasizes that the Canon III A(4) states "a judge should accord to every person who is legally interested in a proceeding, or his lawyer, a full right to be heard ...", but fails to employ mandatory language such as the word "shall."

The rule in this circuit is that, "[i]n determining the propriety of instructions they are to be viewed as a whole, and as long as the instructions treat the issues fairly and accurately they will not be interfered with on appeal." United States v. Croft, 750 F.2d 1354, 1366 (7th Cir.1984) (quoting United States v. Ray, 683 F.2d 1116, 1127 (7th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 578, 74 L.Ed.2d 938 (1982)). Since one of the issues before this court is whether the trial court's instruction No. 23 accurately stated Indiana law, we must also look to decisions of the Indiana courts for guidance. In In re Terry, 262 Ind. 667, 323 N.E.2d 192 (1975), the Indiana Supreme Court sustained a hearing officer's findings that an Indiana judge had violated certain rules of the Code of Judicial Conduct and Ethics ⁵ and as a disciplinary measure, suspended the judge from his office of judge. In discussing the rules that govern the conduct of the judiciary, the court stated:

"Judicial ethics have been increasingly formalized during the twentieth century. This formalization is in part attributable to intensified public interest in the efficient and orderly administration of justice.... In [approving the new Judicial Article to the Indiana Constitution] the citizens of Indiana squarely placed the responsibility for disciplining judges upon this Court. Pursuant to this mandate, we adopted on March 8, 1971, the Code of Judicial Conduct and Ethics under which respondent is charged."

323 N.E.2d at 195. The court's suspension of a judge for violating rules of the Code of Judicial Conduct and Ethics clearly demonstrates that the Indiana Supreme Court considered the Code as having the force and effect of law and thus provides mandatory standards governing the conduct of judges. Further, in Jones v. State, 416 N.E.2d 880 (Ind.Ct.App.1981), the court held that the language of Canon III C(1)(a) of the Code of Judicial Conduct stating that "a judge should disqualify himself in a proceeding ... where ... he has ... personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding" "requires recusal" of a judge who has extrajudicial knowledge of disputed evidentiary facts of a case. Id. at 881 (emphasis added). Further, the language of Canon III A(4), stating the "judge should accord to every person who is legally interested in the proceeding ... [the] right to be heard ..., and, except as authorized by law, neither initiate nor...