U.S. v. Claiborne

• Decision Date: 05 March 1984
• Docket Number: No. 84-1009,84-1009
• Citation: 727 F.2d 842
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry Eugene CLAIBORNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 842

727 F.2d 842

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

No. 84-1009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 24, 1984.

Decided March 5, 1984.

Steven A. Shaw, William C. Hendricks, III, Jan Nielsen, Little, Christopher G. Caldwell, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

William J. Raggio, John Squire Drendel, Reno, Nev., Oscar B. Goodman, Goodman, Terry, Stein & Quintana, Las Vegas, Nev., Terence J. Anderson, Robert S. Catz, School of Law, Univ. of Miami, Coral Gables, Fla., for defendant-appellant.

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

Before GIBSON, GARTH and KENNEDY, Circuit Judges. ^*

PER CURIAM:

This interlocutory appeal raises anew the issue whether the United States Constitution immunizes a sitting federal judge from criminal prosecution prior to his removal from office by the impeachment process. Appellant, Harry Eugene Claiborne, is a United States Judge for the District of Nevada. He was appointed to the bench in August, 1978. On December 8, 1983, a seven count indictment was returned against Claiborne. Count I of the indictment alleged that Claiborne solicited and received $30,000.00 from Joseph Conforte, a Las Vegas brothel owner, in return for being influenced in the performance of official acts--i.e., decisions regarding motions in a pending case. (18 U.S.C. Sec. 201(c)). Count II alleged that Claiborne caused an interstate telephone conversation to be made in furtherance of a scheme to defraud Conforte. (18 U.S.C. Sec. 1343). The scheme to defraud allegedly involved Claiborne's accepting $55,000.00 from Conforte in return for promising to secure the reversal of Conforte's criminal tax evasion conviction by bribing one or more judges on the Ninth Circuit Court of Appeals. ¹

Claiborne's trial is scheduled to begin on March 12, 1984. On January 3, 1984, Claiborne filed inter alia a motion to quash the indictment and to dismiss the proceedings against him, claiming the Constitution prohibits the criminal prosecution of an active federal judge before he is removed from office through the impeachment process. The district court judge ² denied the motion by an amended order dated February 8, 1984. In that order, the trial court found Claiborne's claim "frivolous" and stated that the case would proceed to trial as scheduled on March 12, 1984. The district court also indicated its intention to hear other pre-trial motions on February 21, 1984. Claiborne filed an interlocutory appeal of this order with the Ninth Circuit Court of Appeals. Characterizing the district court's order as "a final collateral order", Claiborne claims this interlocutory appeal vested exclusive jurisdiction in this court pursuant to 28 U.S.C. Sec. 1291 and divested the district court of jurisdiction to proceed. Claiborne also filed an application for writ of prohibition and mandamus, seeking to stay the trial court from proceeding until this court resolved the merits of his interlocutory appeal. By an order dated February 16, 1984, we declined to stay the district court's proceedings of February 21, 1984, without prejudice. Claiborne renewed his motion for a stay on February 17, 1984.

I. Appealability

Claiborne's motion to dismiss was based upon the separation of powers principle of the Constitution and specific constitutional provisions which purportedly immunize a federal judge from criminal prosecution until he is removed from office by the impeachment process. As the parties agree, we have jurisdiction to review Claiborne's noncertified interlocutory appeal from the district court's dismissal of this claim.

Although 28 U.S.C. Sec. 1291 limits appellate court's jurisdiction to "final decisions of the district courts", the Supreme Court has permitted departures from this rule where an interlocutory order falls into the "collateral order" exception announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Under that exception, an interlocutory order is immediately appealable if it "conclusively determines the disputed question, resolve[s] an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3083, 73 L.Ed.2d 754 (1981). In Abney v. United States, 431 U.S. 651, 659-60, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977), the Court, applying Cohen, held that an interlocutory order denying defendant's pre-trial motion to dismiss an indictment on double jeopardy grounds was immediately appealable. And in Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979), the Court held immediately reviewable a Congressman's pre-trial claim that the Speech and Debate clause immunized him from criminal prosecution. Both Abney and Helstoski, in addition to satisfying the other requirements of Cohen, involved "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." Hollywood Motor, 458 U.S. at 266, 102 S.Ct. at 3084. The defendants in those two cases raised claims based upon "the right not to be tried, which must be upheld prior to trial if it is to be enjoyed at all." United States v. MacDonald, 435 U.S. 850, 860-61, 98 S.Ct. 1547, 1552-53, 56 L.Ed.2d 18 (1978).

In United States v. Hastings, 681 F.2d 706 (11th Cir.), stay denied, --- U.S. ----, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1982), the court concluded that a claim identical to the one raised here was an appealable collateral order. The defendant there, as here, contended that, under the separation of powers principle, an active federal judge has an absolute right not to be indicted and tried in a federal court unless and until he is impeached and convicted by Congress and removed from office. The court stated:

Like the right secured by the speech or debate clause in Helstoski or the right secured by the double jeopardy clause in Abney, the right asserted by Hastings is the freedom from the obligation to endure a criminal trial which would be wholly deprived of meaning if he were forced to undergo trial before he could assert it.

(Id. at 708)

We agree with Hastings and conclude we have jurisdiction to review the merits of Claiborne's claim. See also United States v. Myers, 635 F.2d 932, 935-36 (2nd Cir.1980) (Congressman's claim of immunity from criminal prosecution under separation of powers principle held immediately appealable.)

II. Merits

Article III of the Constitution affords members of the federal judiciary substantial protections to assure their freedom from coercion or influence by the executive and legislative branches. Specifically, federal judges are appointed for life terms, subject only to removal by impeachment; they hold their offices "during good behavior"; and their compensation cannot be diminished during their continuance in office. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 15-16, 76 S.Ct. 1, 4-5, 100 L.Ed. 8 (1955). In addition to these specific constitutional safeguards, federal judges, like state judges, enjoy an absolute common law immunity from civil liability for acts committed in their official capacity. Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978).

However, in accordance with a system of checks of balances, the Framer's of the Constitution gave the legislative branch the power to deal with acts of misconduct by federal judges. Art. II, Sec. 4 provides that "all civil officers of the United States ³ shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors". The House of Representatives is given the sole power of impeachment. Art. I, Sec. 2. The Senate is given the sole power to try all impeachments. Art. I, Sec. 3. The legislative power is limited insofar as the judgment entered after a conviction on impeachment cannot go beyond removal from office and disqualification to hold future office. Art. I, Sec. 3. Also, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." Art. I, Sec. 3 cl. 7.

There is no specific constitutional provision limiting the executive branch's power to prosecute federal judges on criminal charges; nor is there any provision excepting federal judges from the executive branch's broad authority "to take care that the laws be faithfully executed." Art. II, Sec. 3. Claiborne, however, contends that the Constitution's grant to the legislative branch of the power to remove a judge for high crimes and misdemeanors and the general principles of separation of powers preclude the executive branch from prosecuting him on criminal charges unless and until he has been removed from office by impeachment.

Identical immunity claims were squarely faced and rejected in United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir.), stay denied, --- U.S. ----, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1982) and United States v. Isaacs, 493 F.2d 1124, 1141-1144 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). ⁴ Both Hastings and Isaacs held that the Constitution does not immunize a sitting federal judge from the processes of criminal law. The sentiment underlying these holdings is that: "no man in this country is so high that he is above the law .... A judge no less than any other man is subject to the processes of the criminal law". Hastings, 681 F.2d at 711; Isaacs, 493 F.2d at 1133. We wholeheartedly agree with Hastings and Isaacs and are substantially guided by them in disposing of Claiborne's arguments.

Claiborne's first argument is that specific constitutional provisions give Congress the...