U.S. v. Claiborne

• Decision Date: 08 July 1985
• Docket Number: No. 84-1294,84-1294
• Citation: 765 F.2d 784
• Parties: -6264, 85-2 USTC P 9821, 18 Fed. R. Evid. Serv. 1131 UNITED STATES of America, Plaintiff-Appellee, v. Harry E. CLAIBORNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 784

765 F.2d 784

56 A.F.T.R.2d 85-6264, 85-2 USTC P 9821,

18 Fed. R. Evid. Serv. 1131

UNITED STATES of America, Plaintiff-Appellee, v. Harry E. CLAIBORNE, Defendant-Appellant.

No. 84-1294.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 26, 1985.

Decided July 8, 1985.

Steven A. Shaw, Jan Nielsen Little, Public Integrity Section, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Oscar B. Goodman, Goodman, Terry, Stein & Quintana, Las Vegas, Nev., J. Richard Johnston, Oakland, Cal., William Raggio, Reno, Nev., for defendant-appellant.

Appeal from the United States District Court for the District of Nevada.

Before PELL, LUMBARD, and McWILLIAMS, Senior Circuit Judges. ^*

PELL, Senior Circuit Judge.

A jury sitting in Reno, Nevada, convicted defendant Harry E. Claiborne on two counts charging that defendant willfully underreported his taxable income on his 1979 and 1980 tax returns. 26 U.S.C. Sec. 7206(1) (1967). The jury acquitted defendant of one count charging that he submitted a false statement to the Judicial Ethics Committee. 18 U.S.C. Sec. 1001 (1976). The district court sentenced defendant to a term of two years imprisonment plus a $5,000 fine on each tax count. Defendant appeals from the judgment of conviction on the two income tax counts.

I. THE FACTS

Defendant, who continues to hold office as a United States district judge, became a district judge for the District of Nevada on September 1, 1978. Prior to that time, defendant was engaged in a lucrative private practice in Las Vegas, Nevada, and had had an income of six figures annually. Upon entering the judiciary, defendant's annual salary was $58,000. In a 1980 letter requesting payment of legal fees he had earned before becoming a judge, defendant stated that he was in desperate financial straits. Approximately two years later, a federal grand jury in Portland, Oregon, began investigating allegations that defendant had accepted bribes from a Joseph Conforte in the performance of his official duties. Two subsequent grand juries, one again in Portland, Oregon, and one in Reno, Nevada, investigated these charges as well as allegations that defendant had understated his income in his 1979 and 1980 tax returns and had filed a false financial statement with the Judicial Ethics Committee. The term of the first Portland grand jury expired and the second grand jury there was not asked to return an indictment. The Reno grand jury, however, returned a seven count indictment against defendant, containing four charges relating to defendant's alleged bribery activities with Joseph Conforte, the two tax counts, and one count charging that defendant falsely reported his finances to the Judicial Ethics Committee.

Joseph Conforte appeared as a witness before the indicting grand jury. In exchange for Conforte's testimony, and his agreement to cooperate fully in further investigations of defendant and in his prosecution, the Government agreed to recommend a substantial reduction in sentences that Conforte had previously received for tax evasion. Subsequently, a federal judge ordered reduction of Conforte's sentences.

Defendant moved to dismiss the indictment returned against him on various grounds, all of which the district court rejected. The case then proceeded to trial. The district court ultimately declared a mistrial after the jury reported that it was hopelessly deadlocked.

At this point, the Government voluntarily moved to dismiss the four Conforte bribery counts, stating in part: "The attorneys further believe that in the first trial of this case the presentation of evidence on Counts One, Two, Three and Four may have distracted the jury in its consideration of Counts Five, Six, and Seven and contributed to its inability to reach a verdict on those counts." Record at 204. Defendant then renewed all previous pretrial motions relating to the remaining three counts, all of which the district court denied, in some instances after a hearing. The case subsequently proceeded to trial for a second time, on the two tax counts and the count relating to the Judicial Ethics Committee. As we have noted, the jury convicted defendant on the two tax counts, but acquitted him on the count relating to the Ethics Committee. ¹ Defendant challenges his conviction on a number of grounds, which we shall discuss in turn.

II. DEFENDANT'S CONTENTIONS

A. Judicial Immunity from Prosecution

Defendant's first contention deserves minimal attention from this court. Defendant contends that Articles I and III of the United States Constitution, as well as the doctrine of separation of powers, prohibit the prosecution of a federal judge without prior impeachment by Congress. The parties concede that no impeachment proceedings have been brought against defendant. Defendant filed a pretrial motion covering these contentions, which the district court denied. This Court upheld the district court's denial of defendant's motion. United States v. Claiborne, 727 F.2d 842 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 113, 83 L.Ed.2d 56.

In upholding the denial of defendant's motion, this court relied on two cases which dismissed similar claims. United States v. Claiborne, 727 F.2d at 845, citing United States v. Hastings, 681 F.2d 706 (11th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir.1974) (per curiam), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146. These cases squarely held that the Constitution does not immunize a federal judge from criminal prosecution prior to impeachment. United States v. Hastings, 681 F.2d at 710-11; United States v. Isaacs, 493 F.2d at 1144. In view of the reasoning in Hastings and Isaacs, and in view of our previous opinion, in this case, squarely deciding this issue adversely to defendant, we see no reason to re-examine the question here.

We remark, in addition, that defendant's suggestion that the protections guaranteed by the Constitution to criminal defendants are inadequate to protect a federal district judge appears disingenuous from our review of the record, which appears to us to reflect that defendant was afforded a fair trial fully consistent with the protection of his constitutional rights.

B. Intrusions into the Grand Jury's Independence

Defendant's second contention, in which he seeks dismissal of his indictment, subsumes numerous challenges relating to the manner in which the prosecution obtained the indictment. These challenges, unlike defendant's first contention, merit some discussion from this court.

1. The Conforte testimony and its effect on the grand jury

Defendant contends that the prosecution knowingly presented the perjurious testimony of Joseph Conforte to the indicting grand jury, and that this testimony unconstitutionally biased the grand jury against him. Defendant maintains that the prosecution intentionally failed, in examining Conforte, to require Conforte to specify the exact dates on which incidents culminating in the alleged acts of bribery occurred, because the prosecution allegedly knew that the acts did not take place. Defendant additionally maintains that the prosecution amended its request for notice of defendant's intent to rely on an alibi defense three times before trial, each time changing the dates on which the alleged acts of bribery took place, because Conforte kept changing the details of his story. These acts, defendant asserts, amounted to the knowing presentation of perjured testimony, or at least an invitation to Conforte to perjure himself before the grand jury. Defendant asserts that Conforte's perjurious testimony irreparably biased the grand jury against him, in violation of the Due Process Clause of the Fifth Amendment. Alternatively, defendant asserts that the prosecution's behavior in obtaining and presenting the Conforte testimony justifies a dismissal of defendant's indictment in the exercise of this court's supervisory power.

We begin our analysis by examining the Fifth Amendment's grand jury guarantee in federal felony trials. That guarantee ensures that, except in certain military cases, "[n]o person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. CONST. amend. V. Federal courts agree that the framers of the Bill of Rights included the grand jury guarantee in the Fifth Amendment to protect wrongfully accused defendants against mistaken and vindictive prosecutions. See United States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct. 764, 772-773, 35 L.Ed.2d 67 (1973); Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE (1980). Federal courts also agree, however, that the grand jury serves important investigative functions in addition to serving as a shield against unwarranted prosecution. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). As the Supreme Court observed in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (citations omitted):

It is a grand inquest, a body of powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime....

Id. at 688, 92 S.Ct. at 2660.

When the grand jury is performing its investigatory function into a general problem area ... society's interest is best served by a thorough and extensive investigation. A grand jury investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed. Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. It is only after the grand jury has examined the...