An application by a Federal District Judge to stay federal
criminal proceedings against him is denied, since four Justices of
this Court probably would not vote to grant certiorari to review,
at this stage of the litigation, the Court of Appeals' rejection of
applicant's claims that a sitting federal judge may not be
criminally prosecuted before being removed from office by
impeachment, and that the prosecution against him was "vindictive"
or "selective."
JUSTICE REHNQUIST, Circuit Justice
Harry Eugene Claiborne, the applicant, is a sitting United
States Judge in the District Court for the District of Nevada. In
December, 1983, he was indicted for violations of 18 U.S.C. §
201(c) and 18 U.S.C. § 1343. His contentions that a sitting federal
judge may not be criminally prosecuted before being removed from
office by impeachment, and that the Government prosecuted him in
order to punish him for decisions made as a federal judge, were
rejected by the Court of Appeals for the Ninth Circuit. He requests
that I stay the criminal proceedings against him, scheduled to
commence today, in order that this Court may review these
determinations.
The first contention -- that a federal judge may not be indicted
and tried for a criminal offense until he is first impeached and
convicted by Congress -- has been rejected not only by the Court of
Appeals in this case but also by the only two other Courts of
Appeals to consider the question.
United States v.
Hastings, 681 F.2d 706 (CA5 1982);
United States v.
Isaacs, 493 F.2d 1124 (CA7 1974). This Court denied certiorari
in both
Hastings, 459 U.S. 1203 (1983), and
Isaacs, 417 U.S. 976 (1974).
Page 465 U. S. 1306
Applicant's second claim appears to be a species of "vindictive"
or "selective" prosecution, and the fact that he is a sitting
federal judge does not seem to me to remove the claim from the
principles most recently discussed in
United States v.
Hollywood Motor Car Co., 458 U. S. 263
(1982). I think the Court of Appeals was correct in concluding that
the denial of relief on this claim by the District Court was not
immediately appealable under the "collateral order" doctrine.
Applicant finally contends that, because the first of his claims
was appealable under the collateral order doctrine, the District
Court lost jurisdiction to determine other pretrial matters pending
resolution of the appeal by the Court of Appeals. The Court of
Appeals applied the dual jurisdiction approach set forth in
United States v. Dunbar, 611 F.2d 985 (CA5),
cert.
denied, 447 U.S. 926 (1980), and rejected this claim.
I do not believe that four Justices of this Court would vote to
grant certiorari to review any one of these claims at the present
stage of this litigation, and I therefore deny the application.
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