U.S. v. Hastings

• Decision Date: 12 July 1982
• Docket Number: 82-5715,Nos. 82-5262,s. 82-5262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Honorable Alcee L. HASTINGS, Defendant-Appellant. In re The Honorable Alcee L. HASTINGS, United States District Judge In and For The SOUTHERN DISTRICT OF FLORIDA, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 706

681 F.2d 706

65 A.L.R.Fed. 810

UNITED STATES of America, Plaintiff-Appellee, v. Honorable Alcee L. HASTINGS, Defendant-Appellant.

In re The Honorable Alcee L. HASTINGS, United States

District Judge In and For The SOUTHERN DISTRICT OF

FLORIDA, Petitioner.

Nos. 82-5262, 82-5715.

United States Court of Appeals, Eleventh Circuit.

July 12, 1982.

Terence J. Anderson, University of Miami, School of Law, Coral Gables, Fla., Robert S. Catz, Cleveland-Marshall College of Law, Cleveland State Univ., Cleveland, Ohio, for defendant-appellant.

Robert Richter, Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Petition for Writs of Mandamus and Prohibition.

Before VANCE and ANDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

VANCE, Circuit Judge:

In this case we are asked to decide whether an active federal judge can be subject to federal criminal prosecution for acts involving the exercise of his judicial authority. Appellant and petitioner in this case, Alcee L. Hastings, has served as a federal judge for the United States District Court for the Southern District of Florida since 1979. ¹ On December 29, 1981 the federal grand jury in the southern district of Florida returned a four-count indictment against Hastings and William A. Borders, Jr. The indictment alleges that Hastings and Borders, an attorney from Washington, D. C., solicited and accepted a bribe from an undercover agent who was posing as a criminal defendant in a case that had been before Judge Hastings. The bribe was allegedly given in return for Hastings' agreement to reduce that defendant's prison sentence and to revoke an order that the defendant forfeit certain property. Hastings is charged in two counts of the indictment with conspiracy and obstruction of justice. ²

The trial of Hastings and his codefendant, Borders, was scheduled to commence on March 22, 1982. On February 1, 1982, however, Hastings moved to quash the indictment. He argued that a federal district court does not have jurisdiction over the criminal prosecution of an active federal judge before he is removed from office through the impeachment process. The trial judge denied the motion on February 17, 1982. ³

Hastings filed an interlocutory appeal of the district court's order with this court. In order to ensure that the court of appeals had jurisdiction to hear the issues raised in the interlocutory appeal, Hastings also filed an application for writs of mandamus and prohibition with this court on June 17, 1982. We have consolidated the appeal and the application in this case. For reasons that appear below, we conclude that this court has jurisdiction to hear the interlocutory appeal and we therefore deny the application for writs without further discussion. See Helstoski v. Meanor, 442 U.S. 500, 506, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979); United States v. Denson, 603 F.2d 1143, 1147 n.2 (5th Cir. 1979) (en banc); National Equipment Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784, 786 (2d Cir. 1963). We also conclude that the district court properly denied Hastings' motion to quash the indictment.

I. Jurisdiction of the Court of Appeals

As an initial matter, the government challenges our jurisdiction to hear this interlocutory appeal. Courts will hear a noncertified interlocutory appeal only if the subject of the appeal is a collateral matter that could not be reviewed effectively on appeal from final judgment. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court has held that an interlocutory appeal from the denial of a motion to quash an indictment comes within the Cohen exception to the final judgment rule only when the right asserted by the criminal defendant would be irreparably lost if he were forced to undergo trial. E.g., Helstoski v. Meanor, 442 U.S. at 506-08, 99 S.Ct. at 2448-49 (interlocutory appeal on speech or debate clause grounds permissible); Abney v. United States, 431 U.S. 651, 660-62, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977) (interlocutory appeal on double jeopardy grounds permissible); see United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978) (interlocutory appeal on speedy trial grounds not allowed); United States v. Gregory, 656 F.2d 1132, 1134-35 (5th Cir. 1981) (interlocutory appeal on vindictive prosecution grounds not allowed).

In this case, appellant contends that as an active federal judge he has an absolute right not to be tried in a federal court unless and until he is impeached and convicted by Congress. 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. See United States v. Brizendine, 659 F.2d 215, 219 (D.C.Cir.1981).

The government seeks to distinguish Abney and Helstoski on the ground that the rights asserted in those cases were based upon specific provisions in the Constitution while the right asserted by Hastings is based upon general principles of separation of powers. The government argues, in effect, that unless the right asserted by the criminal defendant is one that has a positive and well established basis in the law, the court of appeals should not exercise jurisdiction over the interlocutory appeal.

We do not accept the government's argument. Even though this appeal involves rights not heretofore recognized in our jurisprudence, the assertion of those rights involves significant issues of interbranch comity and separation of powers, the resolution of which is at least the subject of fair debate. See United States v. Myers, 635 F.2d 932, 935-36 (2d Cir.) (congressman may challenge prosecution on separation of powers grounds on interlocutory appeal), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980). ⁴ These issues have yet to be resolved definitively by the Supreme Court or by this circuit. Cf. Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038, 1042 (11th Cir. 1982) (claim based upon federal law is not frivolous where, inter alia, no controlling authority negates the claim).

For these reasons, we believe it is both necessary and appropriate for this court to consider the existence of Hastings' asserted right to be free from prosecution before that assertion is rendered meaningless by the impending trial. ⁵

II. The Motion to Quash the Indictment

Appellant's motion to quash the indictment rests upon two contentions: first, that Congress has the exclusive primary jurisdiction to try and punish a federal judge for high crimes and misdemeanors through the impeachment process; ⁶ and second, that the principle of separation of powers prohibits the executive branch from seeking to prosecute an active federal judge for acts committed in his official capacity.

This Republic is fortunate that in its long history the federal courts have had only one previous occasion to address the constitutional problems posed by the criminal prosecution of a federal judge. ⁷ On that occasion, the United States Court of Appeals for the Seventh Circuit decided that contentions similar to those made by appellant here were without merit. United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). We are persuaded that Isaacs contains the correct statement of the law.

Appellant's first contention is based upon the literal language of article I, § 3, cl. 7 of the Constitution:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law.

According to appellant, this clause creates a constitutionally mandated sequence for the prosecution of a federal judge: first, Congress must act to remove him from office, and only then can the article III courts subject him to "trial, judgment and punishment, according to law."

We find no merit in appellant's argument. Rather, we agree with the seventh circuit that this portion of section 3 was intended "to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy." United States v. Isaacs, 493 F.2d at 1142. ⁸ Read in this light, section 3 represents an attempt by the framers to anticipate and respond to questions that might arise regarding the procedural rights of the accused during the impeachment process. Like article III, § 2, cl. 3 which provides that the right to trial by jury does not extend to impeachment proceedings, ⁹ section 3 serves to clarify the rights of civil officers accused of high crimes and misdemeanors, not to limit the jurisdiction of article III courts. ¹⁰

Appellant's second argument relies upon the principle of separation of powers. He contends that the courts would be subject to intolerable pressure from the executive if executive officers were allowed to prosecute active federal judges for acts involving the exercise of their judicial power. ¹¹

Appellant is of course correct that the independence of the judiciary from external pressures is a highly valued element of our constitutional system. United States v. Will, 449 U.S. 200, 217-18, 101 S.Ct. 471, 482, 66 L.Ed.2d 392 (1980). That independence is already protected by specific provisions in the Constitution. ¹² See, e.g., art. I § 6, cl. 2 (incompatibility clause); ¹³ art. III, § 1 (life tenure clause) ¹⁴ (compensation clause). ¹⁵ Additionally, judges enjoy the same protection as do all citizens from vindictive prosecution by officers of...