U.S. v. Claiborne, 88-1656

• Decision Date: 22 March 1989
• Docket Number: No. 88-1656,88-1656
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry E. CLAIBORNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1463

870 F.2d 1463

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

No. 88-1656.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 11, 1989.

Decided March 22, 1989.

Annette R. Quintana, Las Vegas, Nev., for defendant-appellant.

Harry E. Claiborne, Las Vegas, Nev., pro se.

Daniel R. Schiess and Susan J. Park, Public Integrity Section, Criminal Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before NORRIS, NOONAN, and LEAVY, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

On December 8, 1983, a federal grand jury returned an indictment charging appellant Harry Claiborne, then a United States District Judge for the District of Nevada, with bribery, tax fraud, and making a false statement to the Judicial Ethics Committee. Chief Justice Burger designated Senior District Judge Walter Hoffman to preside over appellant's trial. Chief Justice Burger had received a certificate of necessity from Judge Browning, Chief Judge of the Ninth Circuit, pursuant to 28 U.S.C. Sec. 292(d) (1982). Judge Browning also certified to Chief Justice Burger on January 14, 1985 the need for out-of-circuit circuit judges to preside over appellant's pretrial appeals and all other appeals involving appellant, pursuant to 28 U.S.C. Sec. 291(a) (1982). Acting on that request, Chief Justice Burger designated Judges Floyd R. Gibson of the Eighth Circuit, Leonard I. Garth of the Third Circuit, and Cornelia G. Kennedy of the Sixth Circuit.

Appellant's pre-trial motion to dismiss the indictment on the ground that a federal judge cannot be prosecuted for a federal crime without first being impeached was denied by Judge Hoffman, and his ruling was affirmed on appeal by the panel of Judges Gibson, Garth, and Kennedy. United States v. Claiborne, 727 F.2d 842 (9th Cir.1984). After a first trial ended in a hung jury, the bribery charges were dismissed. Appellant was then convicted by a jury of making false statements in his tax returns for 1979 and 1980 in violation of 26 U.S.C. Sec. 7206(1) (1982).

The conviction was affirmed by a panel comprised of Judges Wilbur F. Pell, Senior Circuit Judge for the Seventh Circuit, J. Edward Lumbard, Senior Circuit Judge for the Second Circuit, and Robert H. McWilliams, Senior Circuit Judge for the Tenth Circuit. United States v. Claiborne, 765 F.2d 784 (9th Cir.1985). This panel was also designated by Chief Justice Burger pursuant to the original certificate of necessity Chief Judge Browning had issued on January 14, 1985. For reasons that are not apparent from the record, Judge Browning issued a second, seemingly superfluous, certificate of necessity after the second panel began considering appellant's post-conviction appeal.

After his conviction was affirmed by the out-of-circuit panel, appellant filed a suggestion for rehearing en banc. The suggestion was rejected by a majority of the active judges who did not recuse themselves. Unpublished Order filed December 10, 1985. This marked the first time judges of the Ninth Circuit participated in the decision-making process in appellant's criminal proceedings.

After his suggestion for rehearing en banc was rejected, appellant returned to the district court and moved to stay the execution of his sentence, arguing that imprisoning a federal judge who had not yet been impeached was unconstitutional. Judge Hoffman denied the stay, and on appeal his order was affirmed by a regular panel of Ninth Circuit judges. United States v. Claiborne, 790 F.2d 1355 (9th Cir.1986). En banc consideration of the motion to stay execution of the sentence was rejected by a majority of the non-recused active judges of our court. Id. at 1356.

Next, appellant filed a Sec. 2255 motion in district court, together with a motion to have his Sec. 2255 motion heard by someone other than Judge Hoffman. After Judge Hoffman decided that he would rule on the Sec. 2255 motion, our court rejected appellant's request that we order that a different judge hear the Sec. 2255 motion. Unpublished Order filed February 5, 1987. Judge Hoffman then ruled on appellant's Sec. 2255 motion, denying relief on all grounds. This ruling by Judge Hoffman is the subject of the present appeal.

Appellant challenges Judge Hoffman's denial of his Sec. 2255 motion on a variety of grounds. First, he claims that the designation of Judge Hoffman violated 28 U.S.C. Sec. 292(d)--the statutory provision which governs the designation of out-of-circuit district judges--because Chief Judge Browning did not poll all the district judges in the Ninth Circuit as to their availability to preside over appellant's case before certifying to Chief Justice Burger the need for an out-of-circuit district judge.

In a similar vein, appellant argues that the designations of Circuit Judges Pell, Lumbard, and McWilliams ¹ violated 28 U.S.C. Secs. 46(b) and 291(a) because Chief Judge Browning did not poll all the circuit judges of the Ninth Circuit as to their availability to hear appeals in the Claiborne case before certifying to Chief Justice Burger the need for out-of-circuit circuit judges.

Finally, appellant challenges the designations of Judge Hoffman and the out-of-circuit circuit judges on constitutional grounds. Appellant contends that principles of due process and equal protection mandate random selection of out-of-circuit judges, and that Chief Justice Burger did not select any of the judges on a random basis.

In addition, appellant argues that (1) he was denied due process during the Sec. 2255 proceedings because Judge Hoffman was biased against him; (2) the government unconstitutionally participated in a break-in of his residence in 1981 to obtain evidence against him; (3) the prosecutor knowingly permitted false information to be presented to the grand jury which returned the indictment; (4) he is entitled to a new trial because of the post-trial discovery of two witnesses whose testimony would have tended to exculpate him; and (5) he was deprived of effective assistance of counsel.

I

Before reaching the merits of appellant's challenges to the designations of the out-of-circuit judges, we must deal with the government's contention that appellant has no standing to make these challenges. The government argues that McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895), denies standing to a party to contest the authority of a judge once the judge has decided the case. We reject this argument on the authority of Glidden Company v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). In upholding the standing of a party to challenge the authority of an Article I judge to hear Article III cases, the Zdanok Court limited the "standing" bar discussed in McDowell to cases in which the judge's authority is not challenged at "the earliest practicable moment." Id. at 535, 82 S.Ct. at 1465. In so limiting McDowell, the Court in Zdanok reasoned that denying a litigant standing to challenge judicial authority makes sense only inasmuch as it reflects "an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware...." Id.

In the instant case appellant did challenge the judicial designations "at the earliest practicable moment," because he had no way of knowing the facts of the designation process until he read Judge Reinhardt's published dissent from our court's rejection of appellant's first suggestion for rehearing en banc.

On the merits, we reject appellant's challenges to the designations of the out-of-circuit judges. Appellant argues that the designation of Judge Hoffman violated Sec. 292(d) because Chief Judge Browning did not poll all the district judges in the Ninth Circuit before certifying to Chief Justice Burger the need for an out-of-circuit district judge. The language of Sec. 292(d) however, does not on its face require such a poll and we see no justification for adding such a requirement to the statute. Section 292(d) merely provides that "[t]he Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises." Thus, the statute authorizes the Chief Justice to designate out-of-circuit district court judges whenever a chief judge of a circuit certifies "a need." There is no suggestion in the statute that the chief judge does not have broad discretion to determine what constitutes "a need." Nor does appellant cite any legislative history or caselaw to support his contention that Chief Judge Browning was required by Sec. 292(d) to conduct a poll of all Ninth Circuit district judges before issuing a certificate of need. As Judge Hoffman noted below, such a requirement would indeed be onerous, given the number and geographical distribution of district judges who sit in the Ninth Circuit. Excerpt of Record (ER) at 39. We decline to read such a requirement into the statute.

We find a bit more difficult appellant's argument that the designations of the out-of-circuit circuit judges violated the federal statutory scheme governing judicial designations because Judge Browning did not poll all circuit judges in the Ninth Circuit as to their availability to preside over appeals in the Claiborne matter before seeking circuit judges outside the Ninth Circuit. The designations of these circuit judges were made pursuant to Sec. 291(a). Section 291(a) tracks the language of Sec. 292(d), and contains no requirement that the chief judge conduct a poll of all in-circuit judges. ² Appellant does, however, point to another statutory provision, 28 U.S.C. Sec. 46(b), which appellant argues supplements Sec. 291(a). Section 46(b) provides: "[i]n each...