U.S. v. Claiborne
| Citation | 790 F.2d 1355 |
| Decision Date | 14 May 1986 |
| Docket Number | 86-7267 and 86-8089,Nos. 86-2018,s. 86-2018 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harry E. CLAIBORNE, Defendant-Appellant. Harry E. CLAIBORNE, Petitioner, v. Warren E. BURGER, et al., Respondents. In the Matter of Harry E. CLAIBORNE, Petitioner. |
| Court | U.S. Court of Appeals — Ninth Circuit |
June 6, 1986, Amended June 19 and June 27 1986.
William Hendricks, III, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Oscar B. Goodman, Las Vegas, Nev., for defendant-appellant.
ORDER
Before FLETCHER, CANBY and BEEZER, Circuit Judges.
Petitioner Harry E. Claiborne has filed petitions for a stay of execution of his sentence directly with this Court. (Nos. 86-7267, 86-8089). He has also filed an appeal from the district court's denial of a stay of execution of his sentence. (No. 86-2018). The district court has pending petitioner's motion to vacate his conviction, filed pursuant to 28 U.S.C. Sec. 2255 (D.Nev. No. CR-R-83-57).
Having heard argument of counsel, this Court denies the stays requested directly from this court and affirms the district court's denial of stay. A stay of execution of sentence after appeals are exhausted is reserved for extraordinary cases. We conclude that Petitioner's likelihood of success, including success on his primary contention that a judge cannot be imprisoned prior to impeachment and removal, is not great. See United States v. Claiborne, 727 F.2d 842, 845-49 (9th Cir.1984); United States v. Claiborne, 765 F.2d 784, 789-90 (9th Cir.1985). Nor do the other relevant considerations constitute the extraordinary circumstances required for a stay.
Stays DENIED. District court's denial of stay AFFIRMED.
Whether a federal judge can be imprisoned prior to being impeached and convicted is a constitutional question on which no federal court has ruled. No sitting Article III judge has ever been imprisoned. Judge Claiborne raises substantial issues regarding separation of powers and the capacity of the executive branch effectively to deprive a federal judge of his office. Further, Judge Claiborne's Sec. 2255 motion filed in district court makes grave allegations of serious government misconduct that are supported by specific and detailed affidavits. This is an extraordinary case and extraordinary circumstances that justify a stay exist. I would stay execution of Judge Claiborne's sentence pending resolution of these matters.
Before FLETCHER, CANBY and BEEZER, Circuit Judges.
An active judge of this court called for an en banc vote on the order denying the stays. A majority of the nonrecused active judges of this court have voted not to overrule the order. The order denying the stays entered May 14, 1986 stands as entered.
I must once again reluctantly dissent from our failure to afford Judge Harry Claiborne the kind of treatment every person in our country is entitled to receive from our judiciary. 1 This time my dissent is from our insistence on sending Judge Claiborne off to prison before the courts have an opportunity to resolve a most serious and critical question that could result in the reversal of the conviction. Specifically, I write to express my strong disagreement with the vote of a majority of the active non-recused members of our full court to leave standing the decision of a divided motions panel denying Judge Claiborne a stay of execution of his sentence. It is important to note that twenty-two of our twenty-eight judges felt free to vote on the merits of the stay, and that once again, six of my colleagues recused themselves; however, under our rules, I am not free to reveal the division among the twenty-two non-recused active members of the court. 2
The background concerning Judge Claiborne's conviction for income tax violations is set forth in my prior dissent. See 781 F.2d 1327, 1327-30. For present purposes, suffice it to say that Judge Claiborne has contended throughout the tortuous proceedings, including numerous grand jury investigations and two trials, that he was the victim of a plot by federal law enforcement officials to discredit him personally and drive him from the bench. He claims that this campaign ultimately led to his unjustified conviction on the income tax charges.
Following his conviction, Judge Claiborne filed a motion under 28 U.S.C. Sec. 2255 (1982) in which he alleges a most flagrant violation of his fundamental constitutional rights. He claims that the FBI and other law enforcement agencies conducted a "black bag job" at his home--that government officials covertly broke into his house and made photographs of a diary containing some of his financial records--and that the prosecution was based on the results of this wholly unwarranted invasion of his privacy. Judge Claiborne filed detailed, specific affidavits in support of this charge, including one from an individual who claims to have been a participant in the burglary. The affidavits, if true, would be sufficient to raise a substantial question, at least, as to whether Judge Claiborne's conviction should be set aside.
As of the time that our motions panel and our full court were required to act, the government had only filed papers addressed to our court's jurisdiction to consider certain motions. It had not addressed the substance of Judge Claiborne's section 2255 claim or filed any affidavits in response to those filed by Judge Claiborne.
KOZINSKI, Circuit Judge, with whom Circuit Judges PREGERSON and FERGUSON join, dissenting. 1 A case such as this raises difficult and searching questions about our system of justice. On the one hand weighs the need to administer the law fairly and evenhandedly, without regard to the status or wealth of the defendant; on the other is the principle that each case is to be resolved on its merits, giving every litigant's unique claims full and fair consideration. When, for the first time in our history, a sitting federal judge is convicted of a criminal offense and sentenced to prison, the tension between these principles becomes especially difficult--even painful--for his peers, other federal judges who must strike this balance.
If Claiborne's case raised criminal law and procedure questions alone, I would find it difficult to disagree with the panel's decision denying the stay of execution of sentence. It is not clear to me that the panel erred on these points; even if it did, any such error would not merit the extraordinary step of en banc reversal of a motions panel.
But Judge Claiborne's imprisonment raises issues that are far more important, implicating the fundamental structure of our political and legal system. Judge Claiborne argues that his imprisonment conflicts with Article II, section 4 and Article III, section 1 of the Constitution, which provide that a federal judge may be removed from office only through impeachment. He suggests that imprisonment effectively deprives him of his office. This claim has not been previously addressed by this court in any of Judge Claiborne's cases 2 or by any court in any case.
If Judge Claiborne's argument proves to have merit, his incarceration would raise concerns reaching far beyond his individual plight. As a federal judge, his tenure in office, and his independence from unwarranted interference by officials of the other two branches of government, are matters of concern to every citizen. Every day that Judge Claiborne spends in jail may be an affront to our constitutional balance of powers.
It goes without saying that Judge Claiborne's argument that he is immune from imprisonment is counterintuitive. It is fundamental to our system of justice that no one is above the law and that the guilty should be punished. Yet these principles are not absolute. For example, Article I, section 6 of the Constitution gives Senators and Representatives immunity "for any Speech or Debate in either House." And, on occasion, the prejudicial effect of evidence obtained in violation of a defendant's constitutional rights is so serious that a conviction must be overturned. These results, and numerous others like them, may offend our sense of justice, but they are thought to serve a purpose higher than the exigencies of a particular case. The last two centuries of constitutional adjudication should have taught us that intuition is no substitute for legal reasoning and results that at first appear counterintuitive, perhaps even offensive, may nevertheless be compelled. It may be that when all is said and done Judge Claiborne's claim will be sustained. At this stage, in the haste inherent in the stay process, without a thorough briefing of the constitutional...
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