United States v. 2009-09-22 | 08-90211 | IN RE COMPLAINT OF JUDICIAL MISCONDUCT | precedential |…

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
 IN RE COMPLAINT No. 08-90211
 OF JUDICIAL MISCONDUCT ORDER

Filed September 22, 2009
ORDER
KOZINSKI, Chief Judge:
A pro se prisoner has filed a misconduct complaint against
a district judge. The subject judge presided over a criminal
case in which complainant was a defendant.
Complainant alleges that the judge engaged in improper ex
parte communications with a probation officer during which
he received “confidential, attorney-client information.” Noth-
ing a probation officer learns about a criminal defendant is
subject to the attorney-client privilege or any other privilege
vis-a-vis the sentencing judge. Off-the-record communica-
tions between judges and probation officers are a normal part
of the administration of justice, and not the least improper.
See Canon 3A(4), Code of Conduct for United States Judges.
We do require judges to advise defendants of any facts con-
veyed by probation officers during off-the-record communica-
tions, if the judge plans to rely on those facts during
sentencing. United States v. Gonzales, 765 F.2d 1393 (9th Cir.
1985). But that rule doesn’t apply when a judge merely modi-
fies the terms of probation, as happened in this case. Compare
Fed. R. Crim. Pro. 32(i), with Fed. R. Crim. Pro. 32.1(c). At
that stage, effective supervision calls for free and informal
13717

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communication between judges and probation officers. This
complaint must therefore be dismissed for failure to allege
conduct prejudicial to the effective and expeditious adminis-
tration of the business of the courts. 28 U.S.C.
§ 352(b)(1)(A)(i); In re Complaint of Judicial Misconduct,
569 F.3d 1093, 1093 (9th Cir. Jud. Council 2009).
DISMISSED.
13718 IN RE COMPLAINT OF JUDICIAL MISCONDUCT

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