Judge Claiborne Imprisonment Protested : 3 Appellate Court Justices Question Jailing in Dissenting Opinion

Three judges of the U.S. 9th Circuit Court of Appeals on Friday protested the imprisonment of U.S. District Judge Harry Claiborne of Las Vegas pending resolution of his allegations that his prosecution was based on evidence obtained during an illegal FBI break-in of his house.

The protest by Judges Stephen Reinhardt and Harry Pregerson of Los Angeles and Warren J. Ferguson of Santa Ana came in a dissent to a 9th Circuit decision refusing to stay Claiborne’s two-year sentence for income tax evasion until his charges--branded “preposterous” by the FBI--have been resolved.

Calling the circumstances surrounding the prosecution of Claiborne “extraordinary,” Reinhardt, writing the dissent, charged that the Nevada jurist had been singled out because he was a federal judge and denied “the kind of treatment every person in our country is entitled to receive from our judiciary.”

Claiborne, 68, the first sitting federal judge ever convicted and imprisoned for a felony, was found guilty of income tax evasion in 1984 and began serving a two-year sentence at Maxwell Air Force Base in Alabama on May 16 after unsuccessfully appealing his conviction.

Claiborne has claimed that the tax evasion charges were manufactured by federal prosecutors who wanted to drive him off the federal bench. He cited the alleged FBI “black bag job” in a request for a stay of execution of sentence last month.

His claims are based on allegations by James D. Johnson, now serving a four-year state prison term in Nevada for slot machine cheating in Nevada gambling casinos. Johnson has said through his attorney that he participated in the break-in under FBI supervision, and is willing to testify in exchange for immunity from prosecution.

The FBI has called the charge “preposterous” and Justice Department lawyers have denied that the FBI had anything to do with a break-in at Claiborne’s home. A spokesman for the Clark County district attorney’s office said Friday that an investigation into a possible break-in in 1981 or 1982 is continuing.

“Following his conviction, Judge Claiborne filed a motion in which he alleges a most flagrant violation of his fundamental constitutional rights,” Reinhardt wrote. “He claims that the FBI and other law enforcement agencies . . . covertly broke into his house and made photographs of a diary containing some of his financial records.

“This is a most unusual case in many respects,” Reinhardt continued. “Not the least is the fact that a federal judge has, over a period of years, made allegations that federal law enforcement authorities were out to destroy him, and that they were engaged in a543383917deception.”

Reinhardt added: “The judge has now submitted detailed, specific affidavits that, if true, show that his prosecution was based on one such act, a black bag job of the type that shocked the conscience of the entire nation and caused the fall of a President just a little over a decade ago.”

In dissenting from the 9th Circuit decision against staying Claiborne’s sentence, Reinhardt said the allegations of an FBI break-in were “sufficiently serious” to have required a hearing before Claiborne began serving his sentence.

In a separate dissent, newly appointed Judge Alex Kozinski of Washington, D.C., cited Claiborne’s arguments that the two-year prison sentence conflicts with constitutional provisions that a federal judge may be removed from office only by impeachment.

Claiborne has refused to resign from his lifetime post or to give up his annual salary of $78,700 while in prison. Efforts to impeach him began this week in Congress.

Times staff writer Robert Welkos contributed to this story.