NINTH CIRCUIT PRECEDENT: Contradictory, Confusing, and in Conflict with the Constitution, Acts of Congress, and the rights of the Common People.

(presented by Michael H. Brown)

Whatever else defines a successful judicial system, one dimension of its success is its ability to deliver consistent rulings in cases that appear to be the same. Lessig,⁽¹⁾ Translating Federalism: United States v. Lopez, Supreme Court Review 125, 170-171 (1995).

By that yardstick, the Ninth Circuit Court of Appeals is an abject failure. Other circuits quite often disagree with each other. The Ninth Circuit is the only Circuit Court of Appeals that disagrees with itself.

Whereas examples of Ninth Circuit contradictory published opinions are legion (unpublished opinions in this Circuit are far worse) a few of the more glaring examples deserve exposure and discussion.

There are two ways to adjudicate a case:

Let justice be done though the heavens fall.

Lord Mansfield in Rex v. Wilkes, 4 Burrow's Reports 2527, 2562 (1768).

Or :

It is not the technical legal conception that leads to the decisions pronounced by the judge, but it is the decision which the judge intends to pronounce which lead him to the finding of the technical reasons therefor--the decisions themselves being the result of the judge's views on the social and economic questions involved in the solution of the apparently abstract constitutional problems.

Louis B. Boudin, Government by Judiciary, Volume I, page 338 (1932).

The latter procedure is routinely followed by federal judges in the Ninth Circuit, aided by contradictory case law.

Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities. Immunity does not extend, however, to actions for prospective injunctive relief.

Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986)(citations omitted).

An appellate court decision can only be overturned through an en banc hearing.

Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477, 482 (9th Cir. 1994).

Ashelman was an en banc decision. That is, according to Ninth Circuit published opinions, only another en banc decision should be able to over-rule Ashelman.

Mullis v. U. S. Bankruptcy Court, District of Nevada, 828 F.2d 1385 (9th Cir. 1987) was not an en banc hearing and was rendered the year after Ashelman. On page 1394 of Mullis the Ninth Circuit held that, "The judicial or quasi-judicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief."

As the dissenting judge in Mullis pointed out, "To extrapolate from Pulliam⁽²⁾

a rule which broadly discriminates between federal and state judges in the judicial immunity field is at best unwarranted and at worse potentially divisive to the goal of harmony in the administration of the American judicial system." Mullis at 1395.

"Extrapolate" is too polite a word. As the previous paragraph in the dissent makes clear, what actually happened was the Ninth Circuit Court of Appeals overruled the United States Supreme Court. Only the Supreme Court is supposed to have the prerogative of overruling its own decisions. See Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996).

As late as October 21, 1991 the United States Supreme Court recognized that a judge is not immune from criminal liability or from a suit for prospective injunctive relief. Mireles v. Waco, 112 S.Ct. 286, 287 note 1 (1991).

Mireles is quoted in Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996) and then overruled by the Ninth Circuit Court of Appeals on pages 1243-44 of Moore, citing Mullis, supra.

The daily application of such contradictory case law allows federal judges in the Ninth Circuit to simply overlook almost any declaratory and injunctive relief actions directed against misbehaving lower court judges, including state⁽³⁾

judges by extrapolation. I.e., federal and state judges in the Ninth Circuit are "above the law" depending upon which appellate panel they draw.

Ninth Circuit cases concerning federal criminal law are even more unprincipled.

The Federal Rules of Criminal Procedure are a comprehensive set of rules of pleading, practice, and procedure for federal criminal prosecutions. The Supreme Court has been given authority by statute to prescribe such rules and present them to the Congress for examination. The proposed rules take effect 90 days later, unless Congress, by legislation, delays their implementation and/or amends them. Once put into effect, the Federal Rules have the force of law. See 18 U.S.C. § 3771 (1982). See also Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203 (1975).

[A] district court has no authority to depart from the requirements of the Federal Rules of Criminal Procedure. United States v. McVeigh, 931 F.Supp. 753, 755 (D.Colo. 1996) quoting Carlisle v. United States, 116 S.Ct. 1460, 1461 (1996).

Judges are not empowered to formulate procedural rules not specifically contemplated by Congress or the Constitution. United States v. Simpson, 927 F.2d 1088, 1089 (9th Cir. 1991).

Which is exactly what the defendant federal judges of the Ninth Circuit have done in thousands upon thousands of federal criminal cases.

Federal Rule of Criminal Procedure 6 (f)
Finding and Return of Indictment.

An indictment may be found only upon the concurrence of 12 or more jurors. The indictment shall be returned by the grand jury to a federal magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in finding an indictment, the foreperson shall so report to a federal magistrate judge in writing forthwith.

"Nothing suggests that the grand jury would not have returned the indictment in open court . . ." United States v. McChristian, 47 F.3d 1499, 1540 (9th Cir. 1995).

28 U.S.C. § 2255.
Federal custody remedies on motion attacking sentence

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

If Federal Rule of Criminal Procedure 6(f) is a law, then, under this criteria, every single federal prisoner sentenced in every single federal district court in the Ninth Circuit for at least the last ten years is legally entitled to have his or her conviction vacated.

The Ninth Circuit Court of Appeals began the confusion years before with its statement in United States v. Al Mudarris, 695 F.2d 1182 (9th Cir. 1983):

Future cases may well face us in a different posture. The government is on notice that this court will not brook behavior that degrades the grand jury into a rubber stamp, and the testing of the prosecutor's evidence into an empty ritual.

The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge . . . .

Stirone v. United States, 361 U.S. 212, 218-19, 4 L.Ed.2d 252, 80 S.Ct. 270 (1960) (footnote omitted), quoted in United States v. Samango, supra, 607 F.2d at 884.

The many earnest and discerning questions of this grand jury manifest the vitality of this ancient institution. Prosecutors owe it respect, not condescension, manipulation, or substituted judgment.

We have no wish to hinder the sound exercise of the broad discretion prosecutors must have to execute their law enforcement duties. They enjoy great latitude in selecting evidence, witnesses, and methods of presentation for the grand jury.

But their great power carries a concomitant responsibility. When a summary procedure is combined with overbearing tactics and misleading instructions, the grand jury as a screening device at some point becomes a nullity.

Which, statistically speaking, is precisely what the grand jury has become (as the number of "No True Bills" have become so insignificant they are no longer reported⁽⁴⁾

):

				Number of Federal Grand Jury Proceedings
Fiscal Year	Number of Federal Indictments	No True Bills	Total Federal Grand Jury Proceedings	S. Calif.	Hawaii
1976	23,612	123 (0.518%)	23,735
1977	21,412	119 (0.553%)	21,531
1978	19,405	104 (0.533%)	19,509
1979	16,356	90 (0.547%)	16,446
1980	16,507	85 (0.512%)	16,592	455	66
1981	16,699	95 (0.566%)	16,794	687	39
1982	16,989	75 (0.440%)	17,064	487	40
1983	17,702	63 (0.355%)	17,765	594	102
1984	17,419	68 (0.389%)	17,487	521	156
1985	17,051	43 (0.252%)	17,094	612	97
1986	20,045	66 (0.328%)	20,111	634	128
1987	19,224	39 (0.202%)	19,263	764	92
1988	20,156	28 (0.139%)	20,184	578	73
1989	23,172	31 (0.134%)	23,203	624	99
1990	23,914	11 (0.046%)	23,925	567	93
1991	25,927	16 (0.062%)	25,943	683	119
1992			25,470	1,049	145
1993			23,757	783	84
1994			20,714	647	131
1995			22,856	600	131
1996			23,449	679	143

Justice Scalia, in delivering the opinion of a unanimous Supreme Court, has made mention of the "common-law protection" of the grand jury:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless upon a presentment or indictment of a grand jury." That does indeed confer a right not to be tried (in the pertinent sense) when there is no grand jury indictment. Undoubtedly, the common-law protections traditionally associated with the grand jury attach to the grand jury are required by this provision-- including the requisite secrecy of grand jury proceedings.

Midland Asphalt Corp. v. United States, 109 S.Ct. 1494, 1499-1500 (1989).

One of those common-law protections was having a grand jury indictment returned in open court. Why this is so critical is discussed in Renigar v. United States, 172 F. 646, 650 (4th Cir. 1909) ("It is essential to the validity of an indictment that it be presented in open court and in the presence of the grand jury.").

Other examples of Ninth Circuit confusion would be amusing if it were not for the fact that people's lives, liberty, and property are being destroyed on a daily basis because of it.

Defendant Redondo-Lemos pled guilty to an offense which carries a statutory minimum sentence of 5 years. The district court nevertheless sentenced him to 18 months, based on a finding that the Office of the United States Attorney acted arbitrarily and discriminated on the basis of gender in plea bargaining with this defendant. We must decide whether the district court may so second-guess the United States Attorney's exercise of prosecutorial discretion. We answer unequivocally: yes and no.

United States v. Gilberto, No. 90-10430 (9th Cir. 1992)

My disagreement is with Judge Kozinski's categorical conclusion that there can be no judicial enforcement of the constitutional right of due process with regard to prosecutorial charging decisions. Judge Kozinski indicates that if the prosecutor adopted an office procedure of selecting charges by the throw of a dart or a toss of the coin, such arbitrariness would violate the due process clause. He then concludes, if I read his opinion correctly, that even in such an extreme case there could be no judicial remedy because of considerations of separation of powers.

Id. (Canby, Circuit Judge, concurring).

To which every federal criminal defendant in the Ninth Circuit would concur also.

We review this case en banc to resolve a conflict in our circuit over the proper standard for determining whether an adequate showing has been made by a defendant seeking discovery in connection with a selective prosecution charge. The conflict arises from two cases filed within days of each other that adopted different approaches to this question. United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (9th Cir. 1992) held that the government could be ordered to provide discovery only upon a "prima facie showing that wrongful discrimination is probably taking place." By contrast, United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir. 1992), stated that a prima facie showing was not necessary. Instead, Bourgeois adopted a "colorable basis" test. Id. We conclude that the colorable basis standard better accommodates the competing concerns implicated by discovery in selective prosecution cases.

United States v. Lee, Nos. 93-50031, 93-50057 (9th Cir. 1995).

At least this time the Ninth Circuit did attempt to correct itself. One situation that remains uncorrected began on April 5, 1996, when a Ninth Circuit panel consisting of judges Hall, Noonan, and Shubb, rendered a decision in a case titled Hickman v. Block, 81 F.3d 98. On page 101 those three federal judges held that the Second Amendment only applied to protect the right of the states to keep and maintain armed militia. The same three Ninth Circuit judges then quoted an old U. S. Supreme Court case, United States v. Miller, 59 S.Ct. 816 (1939), to justify their decision.

The problem is that this is not what the Miller case held. That case primarily concerned the use of a sawed-off shotgun as a military weapon. Anyone who can read English can see that the Hickman decision has absolutely no foundation in the Miller case.

A paragraph from the Miller decision bears repeating:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Miller at 818.

The confusion of Ninth Circuit judges didn't end with misquoting Supreme Court precedent. What "gives the lie" to the Ninth Circuit decision in Hickman took place on April 11, 1996, in a case titled United States v. Gomez, 81 F.3d 846, on page 850, see note 7. That note holds that, "The Second Amendment embodies the right to defend oneself and one's home against physical attack."

The three judges who authored this opinion then went on to refer the reader to two excellent law journal articles, Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Alabama Law Review 103 (1987) and Sanford Levinson, The Embarrassing Second Amendment, 99 Yale Law Journal 687 (1989).

That is, the Second Amendment had one meaning on April 5, 1996 and a completely different meaning on April 11, 1996, a time span of less than a week.

It gets worse. Hickman was a normal taxpaying, law-abiding citizen. The Second Amendment didn't apply to him. It did apply to Steven Gomez, a government informer in a murder-for-hire case.

What's even worse, the three judges who decided the Gomez case were Hall, Kozinski and Hawkins. That is, Cynthia Holcomb Hall, federal appeals court judge sworn to uphold the U. S. Constitution, changed her mind about what that Constitution meant in less than a week.

The Alice-in-Wonderland quality of legal reasoning in the Ninth Circuit has been observed by other federal judges, both in the Circuit and out of it.

Alice-in-Wonderland was a world where words had no meaning, recognized by Supreme Court Justice Harlan in Welch v. United States, 90 S.Ct. 1792, 1803 (1970).

I find the Second Circuit's answer to the "Alice in Wonderland" indictment of this type of abuse of the English language and the plain meaning of words to be unpersuasive. We construe statutes, yes, but we do not redefine words, especially when the redefinition carries important policy implications with it. That is up to the people who write dictionaries or Congress--not judges. The majority opinion calls this a "liberal construction" of the key word and the statute: I respectfully see it as verbal anarchy.

Imel v. Laborers Pension Trust Fund for Northern California, 904 F.2d 1327, 1335 (9th Cir. 1990)(dissent).

Actually, the Ninth Circuit does redefine words, such as "militia," "indictment by grand jury," and others, as published opinions prove.

"[T]he task of safeguarding rights of criminal defendants ultimately rests with the experienced men and women who preside in our district courts." United States v. Balough, 820 F.2d 1485, 1491 (9th Cir. 1987).

It is black letter law that grand juries and petit juries are the bodies that are supposed to safeguard the rights of criminal defendants. It is a known fact that "safeguarding the rights of criminal defendants," constitutional or statutory, simply doesn't happen in the Ninth Circuit, as this article illustrates.

A typical comment from a non-Ninth Circuit Court:

[T]he Ninth Circuit's holding effectively obviates a portion of a statute enacted by Congress, with which result this Court respectfully does not agree. United States v. Delgado, 959 F.Supp. 1523, 1528 (S.D.Fla. 1997).

Other Circuits for the most part, follow Supreme Court precedent. The Ninth Circuit, in 1996 alone, was reversed in 28 out of 29 cases before the Supreme Court. I.e., if Supreme Court precedent must be followed, the Ninth Circuit is wrong 97% of the time. See Los Angeles Times, Tuesday, August 5, 1997.

Should a new, 12th Circuit, be split off from the existing Ninth Circuit, the last thing the new circuit should do is adopt Ninth Circuit cases as precedent, as the 11th Circuit did in 1981 when it split off from the 5th Circuit.

May I suggest that the new 12th Circuit adopt Supreme Court decisions as precedent instead?

1. ¹ Lawrence Lessig is professor of Law at the University of Chicago.

2. ² Pulliam v. Allen, 104 S.Ct. 1970 (1984)

3. ³ See Okoren v. Symington, United States Court of Appeals No. 96-15981 (9th Cir. 1996), for an example of this.

4. ⁴ From Statistical Report, United States Attorney's Office, (Fiscal Years 1976 through 1996). Note: Starting in 1992 the Statistical Report ceased to report the number of no true bills, if there were any to report.