Before CLARK, KAUFMAN and HAYS, Circuit Judges.
Dominic Allocco was tried before Judge John M. Cashin and a jury in the United States District Court for the Southern District of New York. On October 20, 1955, the jury found Allocco guilty on three counts of an indictment charging him with violation of the narcotics laws, 21 U.S.C.A. §§ 173, 174, and 18 U.S.C. § 371; and on October 31, Allocco was sentenced by Judge Cashin to 10 years imprisonment. The conviction was appealed. A panel of this Court found that the evidence of Allocco's guilt was "overwhelming" and that the jury's verdict was "throughly justified." Hence, the conviction was affirmed. U.S. v. Allocco, 234 F.2d 955, 956 (2d Cir. 1956) (per curiam), cert. denied, 352 U.S. 931, 77 S. Ct. 231, 1 L. Ed. 2d 165 (1957).
Allocco began to serve his sentence, but he continued to challenge his conviction. A description of his efforts is set forth in the opinion of the court below in the instant proceedings, but the earlier applications are not relevant to the issues presently before this Court. The current appeal stems from an order entered by Judge Richard H. Levet in the United States District Court for the Southern District of New York, which denied Allocco's motion under 28 U.S.C. § 2255 to set aside the 1955 conviction because of asserted defects not considered before. U.S. v. Allocco, 200 F.Supp. 868 (S.D.N.Y.1961).*fn1
The facts upon which the petitioner based his claim for relief in the court below are not in dispute. On July 31, 1955, the retirement of Judge Samuel H. Kaufman as United States District Judge for the Southern District of New York became effective. At that time the United States Senate was in regular session. However, the vacancy created by Judge Kaufman's retirement was not filled immediately, and it remained open when the Senate adjourned, sine die, at midnight on August 2, 1955.*fn2
On August 17, 1955, Dwight D. Eisenhower, as President of the United States, issued a recess commission to John M. Cashin, appointing him United States District Judge for the Southern District of New York. By this act, President Eisenhower filled the vacancy caused by the retirement of Judge Kaufman during the previous July. The oath of office was administered on September 15, 1955; and Judge Cashin, by virtue of his recess appointment, assumed office.
About one month later, petitioner was tried before Judge Cashin and a jury for the narcotics offenses described above. As we have already noted, the jury returned a verdict of guilty on three counts of the indictment, and Judge Cashin pronounced sentence. It is this sentence, and the conviction upon which it rests, that petitioner now challenges.
Although it is not directly relevant to the issues here considered, it should be pointed out that after the Senate reconvened in January, 1956,*fn3 Judge Cashin was duly nominated by the President, confirmed by the Senate,*fn4 and commissioned as a judge of the United States with life tenure.*fn5 On March 9, 1956, the oath of office was administered as prescribed by 28 U.S.C. § 453.
Petitioner contends that his conviction and sentence must be set aside because Judge Cashin was not constitutionally empowered to preside over the trial. His attack on the conviction does not question the ability or character of Judge Cashin, or the manner in which he presided over the trial. Rather, it is concerned with general constitutional questions concerning Presidential power to make interim judicial appointments and the authority of judges so appointed. Petitioner argues that (a) the President has no power to appoint "temporary" judges; (b) if the President can make interim appointments, the "temporary" judges may not preside over criminal trials; and that in any event, (c) the President has no power to fill vacancies in the judiciary which arise when the Senate is in session. We have considered these contentions carefully; and have scrutinized the detailed arguments made by able assigned counsel on petitioner's behalf since the issues presented have not been examined previously by a judicial tribunal in extenso. However, we believe that petitioner's arguments cannot prevail, and are persuaded that Judge Cashin was constitutionally empowered to preside over petitioner's trial.
The Government urges us at the outset not to consider the merits of petitioner's constitutional arguments because they are barred by the so-called de facto doctrine. Relying on the early case of Ex parte Ward, 173 U.S. 452, 19 S. Ct. 459, 43 L. Ed. 765 (1899), the Government maintains that petitioner cannot challenge his conviction in collateral proceedings by asserting (for the first time) that Judge Cashin's commission was involved.
"* * * [Where] a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and * * * the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus." Id., at 454, 19 S. Ct. at 460.
Moreover, the Government argues that even in 1955 petitioner could not have objected to a trial before Judge Cashin on the constitutional grounds asserted here, either in the District Court or in this Court on direct appeal from the conviction.
After we heard argument in this appeal, however, the Supreme Court had occasion to re-examine the de facto doctrine. The issue was raised in two cases (considered together) involving the power of so-called Article I judges to participate in (or render) decisions of a court created under Article III of the Constitution. In one case, Glidden Co. v. Zdanok, 82 S. Ct. 1459 (1962) the question was whether Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation in this Court, could join in our decision of an appeal. In the other case, Lurk v. U.S., decided sub nom. Glidden Co. v. Zdanok, supra, the question was whether Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by designation in the United States District Court for the District of Columbia, could preside over a criminal trial. Although the constitutional issue had not been raised in either case for determination by the judges involved,*fn6 the Supreme Court permitted private litigants to attack both judgments on the ground that they were deprived of constitutional rights because the judges were not empowered to exercise judicial authority under Article III. The Supreme Court held that the defect, if established, was "jurisdictional," and it could be raised for the first time on appeal despite the de facto doctrine. Lack of judicial authority, Justice Harlan said, "relates to basic constitutional protections designed in part for the benefit of litigants." Id., 82 S. Ct. at 1465.
It is clear from the Supreme Court's decision in Lurk that an assertion of the de facto doctrine by the Government could not prevent petitioner from raising his constitutional claims if he were pursuing a direct appeal from his conviction at this time. Moreover, having made a non-frivolous challenge to Judge Cashin's authority to exercise judicial power under Article III, it is equally clear from Lurk that petitioner would not be penalized for his failure to make the objection in the District Court.
It is true that in Lurk the Supreme Court was not concerned with the question whether the de facto doctrine would bar relief if the same or similar constitutional issues were raised for the first time in a collateral attack upon a conviction; but, we believe that the Supreme Court would not have refused to consider the claim if it had been asserted in connection with proceedings brought under 28 U.S.C. § 2255. The disruption of "sound appellate process" which might result would still be "plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers" called into play by the appeal. The opinion by Justice Harlan, which expressed the view of the court on the de ...