IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________

GARY VICTOR DUBIN,

Plaintiff-Appellant/Petitioner,

vs.

MANUEL L. REAL, individually; THE INTERNAL REVENUE SERVICE; THE UNITED STATES OF AMERICA; LESLIE E. OSBORNE, JR., individually; JOHN F. PEYTON, JR., individually; CHARLES BANFE, individually; DAVID ALAN EZRA, individually; BANK OF HAWAII; JOHN CANDON, individually; WALTER A. Y. H. CHINN, as Clerk of the United States District Court for the District of Hawaii; and THE JUDICIAL COUNCIL OF THE NINTH CIRCUIT,

Defendants-Appellees/Respondents.
__________________________¬¬¬¬¬_____________________________
On Appeal From The United States District Court
For The District Of Hawaii
•••••
PETITION FOR REHEARING EN BANC
_______________________________________________________

Gary Victor Dubin
Dubin Law Offices
55 Merchant Street, Suite 3100
Honolulu, Hawaii 96813
Telephone: (808) 537-2300
Facsimile: (808) 523-7733
E-Mail: gdubin@dubinlaw.net
Appellant/Petitioner

Introductory Note:

This Petition is being respectfully submitted simultaneously (1) as a Petition For Rehearing En Banc in Case No. 15418, to the United States Court of Appeals for the Ninth Circuit, pursuant to Rule 35 and Rule 40 of the Federal Rules of Appellate Procedure, and (2) as a Petition For Congressional Review, to the Subcommittee on Crime, Terrorism and Homeland Security of the United States House of Representatives Committee on the Judiciary which has recently begun an impeachment investigation of the Honorable Manuel L. Real, pursuant to the “good Behavior” clause of Section 1 of Article III of the United States Constitution and pursuant to the right of United States citizens “to petition the Government for a redress of grievances” guaranteed by the First Amendment to the United States Constitution, as the substance of this Petition should be of equal concern to both.
I
Questions Of Exceptional National Significance
These important proceedings, representing the culmination of a thirteen-year-old struggle by this Petitioner to secure justice in Petitioner’s individual case, in reality reveal as much or more about the past conduct of the Judges of the Ninth Circuit Court of Appeals than they do about the past conduct of this one Petitioner, involving fundamental questions of exceptional national significance for the future of American democracy, which identical issues are now understandably on the priority agenda also of the Congress of the United States:
Whether the Federal Judiciary in general, and this Court of Appeals in particular, can themselves further be relied upon to regulate and to discipline federal judges for misconduct under the “good Behavior” Clause of the United States Constitution, or whether the intervention of the United States Congress is required to establish an independent Inspector General for the Judicial Branch for the purpose of conducting such investigations, or through some other means to establish similar checks-and-balances for the conduct of the Federal Judiciary, as opposed to the current, failed system of self-regulation.
II
Background
In the early 1990s, the United States Justice Department, concluding that too many attorneys were becoming delinquent in filing income tax returns, decided to wage an aggressive campaign seeking to criminally prosecute and to make a public example of one attorney in each State for failing to file.
Petitioner at the time was in the IRS offices in Honolulu being audited for earlier tax years, and became the Justice Department’s Hawaii target; Petitioner’s young son had become ill, subsequently passed away, as a result of which Petitioner was understandably unable to respond to the IRS Examiner’s requests for further tax documentation, which was when the IRS Criminal Investigation Division decided to prosecute him.
On August 13, 1993 – exactly thirteen years ago from today -- Petitioner was charged by the U.S. Attorney’s Office in Honolulu, through the filing of a criminal complaint, with three failure-to-file misdemeanors covering the tax years 1986, 1987, and 1988, although Petitioner was already in the IRS offices being audited for those very years.
The Government, consistent with its determined campaign to hang attorneys in public, immediately issued a press release to the media when Petitioner was arraigned on August 27, 1993, erroneously stating that Petitioner had been indicted by a federal grand jury for, in effect, felony tax evasion, which immediately ruined Petitioner’s law practice and his financial ability to pay for his defense -- the Government later apologizing to the District Court for its “mistake,” after having been unable to convince a grand jury to indict the Petitioner according to the Magistrate assigned to the case.
Petitioner was bench-tried in 1995 by the Honorable Manuel L. Real, visiting in the District of Hawaii at the time, who hand-picked Petitioner’s case off the criminal calendar on the eve of trial, taking the trial away from a Magistrate that Petitioner and the Government had agreed at arraignment as their trial judge, and convicted Petitioner of three willful failure-to-file misdemeanors for having allegedly had $1,497,617.30 in reportable income for the years 1986, 1987, and 1988.
Judge Real sentenced Petitioner consecutively to thirty months imprisonment, enhancing Petitioner’s sentence for having supposedly checked himself into the hospital on the eve of trial to escape Judge Real, something that apparently Judge Real was used to experiencing in his District, and fined Petitioner $125,000.00 (plus the costs of prosecution), which supposedly represented the amount of taxes the Government had lost due to Petitioner’s alleged willful failure to file -- that amount being determinative of the length of Petitioner’s sentence under the sentencing guidelines.
Petitioner spent nineteen and one-half months in federal prisons in California thereafter, lost all of his clients, lost all of his life savings, and returned to Honolulu on October 1, 1996, to a half-way house and later to home confinement, finding his house in foreclosure and all of his personal property stolen.
Throughout that ordeal, Petitioner consistently maintained his innocence, complaining that:
1. he had relied in good faith upon IRS forms and instructions, leading him to believe that he could delay filing income tax returns when he had no net income, as in the three years in question.
2. he had relied in good faith upon written advice from the IRS Fresno Office, who had earlier questioned him about his delayed filings in those years, and who informed him that as a result of business losses he had “no filing requirement,” and who “apologized for any inconvenience” caused Petitioner in questioning him about it.
3. he was admitted to the hospital on the eve of trial by a physician, yet – after trial and before sentencing – he learned for the first time from the Probation Department’s Presentencing Report that just before trial the prosecutors had secretly, behind his back, informed Judge Real, ex parte, that he supposedly had been faking his illness to avoid Judge Real, which caused Judge Real to order the Petitioner arrested and brought to trial in handcuffs in his hospital gown.
4. as a result of that ex parte communication, Judge Real scoffed at the Petitioner throughout trial, bench-trying Petitioner without his case or tax files, without access to an attorney or to his witnesses, while being locked up during trial recesses, and held overnight at a state maximum security prison.
5. at sentencing as well, Judge Real refused to allow the Petitioner to introduce his tax records into evidence, even for the purpose of mitigating the length of his sentence by disputing the Government’s claimed “tax loss.”
6. upon sentencing, Judge Real filed findings of fact that were in most respects completely false, factually contrary to the actual trial record itself.
Naively, Petitioner, trained in and with respect for the law, assumed that the Ninth Circuit Court of Appeals would free him, given Judge Real’s reputation for volatility, lack of judicial honesty, and the absolutely bizarre nature of the trial record.
III
How The Federal Judiciary Failed This Petitioner
It is no secret that the Ninth Circuit Court of Appeals has many times attempted disciplinary action against Judge Real, now 82, such as removing from him some or all of his cases, including at least one formal, failed, unpublished effort more than a decade ago, according to law clerks of the then Chief Judge Procter Hug, Jr., and a more recent, publicized, failed attempt in Canter (Case No. 03-89037), now being understandably investigated by the House Judiciary Committee.
But it is Petitioner’s case which finally and definitively fully demonstrates the frankly disgraceful failure of the Ninth Circuit Court of Appeals to enforce judicial discipline in the Ninth Circuit against abusive judges, such as Judge Real, who display traits of affability at their Brethren’s level, yet who, in sharp contrast practice unchecked tyranny and unbridled dishonesty in their courtroom.
A. Petitioner’s 1995 Direct Appeal
Petitioner’s first, direct appeal in Case No. 95-10040, was decided on December 22, 1995, delivered to Petitioner at a Christmas prison mail call, after the entry of an unpublished Memorandum opinion written by Judge Poole just before he took senior status -- Petitioner’s three-judge panel consisting additionally of Judge B. Fletcher and Judge O’Scannlain, which affirmed Petitioner’s convictions (77 F.3d 490, 1995 WL 764141), concluding as apologists for Judge Real that “Dubin obstructed justice by checking himself into a hospital on the eve of trial,” and finding “Dubin’s remaining contentions are utterly meritless and warrant no discussion.”
The contents of Judge Poole’s Memorandum, however, bears little resemblance or fidelity to either the underlying facts or the applicable law, which is readily evident to anyone who reads that document and compares it to the actual trial transcripts.
For instance, in one part of Judge Poole’s Memorandum, confronted with the fact that there was evidence in the record Petitioner relied upon explicit IRS written advice, Judge Poole states that Judge Real “apparently weighed this evidence,” when in fact the record shows the very opposite, that Judge Real ignored that evidence entirely, stating instead that Petitioner was “enough of a lawyer that knows there’s no estoppel against the government by reason of what some employees might do or don’t do, okay,” when the issue was not estoppel, but good faith belief, a distinction emphasized, for instance, by the United States Supreme Court in the last failure-to-file case before it, Cheek v. United States, 498 U.S. 192, 199 (1991):

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term “willfully” as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. In United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), the Court recognized that:

“Congress did not intend that a person, by reason of a bona fide misunderstanding as **610 to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct.” Id., at 396, 54 S.Ct., at 226.

It was well known to the Ninth Circuit Bar at that time that Judge Poole, unquestionably one of the brightest and most well liked federal judges in his time, was unfortunately suffering from severe age infirmities.
While Petitioner was first incarcerated at Boron Federal Prison Camp awaiting a decision on his direct appeal, he was surprisingly contacted by Judge Poole’s office manager, who Petitioner had not previously known, warning Petitioner that he should complain to then Chief Judge Wallace since Judge Poole had been assigned to write the opinion in his case as, according to her, he was in an advanced stage of senility, and she had had lunch recently with then Chief Judge Wallace, who had informed her that everyone knew that they would have to initiate proceedings against Judge Poole unless he took senior status by the end of the year – which he did, right after filing the affirmance in Petitioner’s direct appeal, another example of the Ninth Circuit’s failure at self-regulation.
Petitioner found himself in the uncomfortable position of being forced to protect his reputation and his livelihood by questioning the mental acuity of Judge Poole once his Memorandum was entered, which undoubtedly did not endear him to other Members of the Ninth Circuit Bench preferring to protect their “judicial independence,” even at the expense, it seems, of the due process rights of criminal defendants – which represents yet another aspect of what the House Judiciary Committee should be investigating.
B. Petitioner’s 1997 Collateral Appeal
Immediately upon returning to Honolulu following his incarceration, Petitioner was contacted by a Hawaii attorney living on the Mainland, the person Judge Real claims in his Finding No. 11 supposedly gave Petitioner his files “the morning of trial,” who provided a sworn Declaration to Petitioner that Judge Real’s finding was utterly false, that he never gave Petitioner those files; whereupon Petitioner filed a motion for a new trial, which was heard by Judge Real over Petitioner’s objection, and Judge Real of course refused to listen to that new evidence which incriminated him.
Petitioner then appealed Judge Real’s decision, and the Ninth Circuit Court of Appeals on December 10, 1997, in Case No. 97-10161, by unpublished, unsigned Memorandum, matter-of-factly affirmed Judge Real – the panel consisting of Judges Browning, Pregerson, and Hawkins, refusing to believe Petitioner’s new evidence, especially that Petitioner was tried without his case or tax files, even though those facts are plainly evident throughout the trial transcripts, finding instead that Judge Real did not abuse his discretion in passing upon his own conduct! (133 F.3d 929, 1998 WL 4734), yet another aspect of what the House Judiciary Committee should be investigating.
C. Petitioner’s 2000 Sanctions Appeal
Upon returning to Honolulu and resuming his law practice, Petitioner, a controversial consumer rights attorney specializing in lender liability, who therefore has hardly endeared himself to banking institutions, next in a civil case found himself unfairly subjected to an extraordinarily high $116,862.32 Rule 11 sanction by Honolulu District Judge, David Ezra, who Petitioner had once sued for malpractice for a client, and who Petitioner had been told by Judge Poole’s office manager had interfered in Petitioner’s 1995 direct appeal of his criminal conviction.
Nevertheless, Judge Ezra refused to disqualify himself from the case, yet another aspect of what the House Judiciary Committee should be investigating.
In issuing Rule 11 sanctions, Judge Ezra over and over again castigated Petitioner on the record for always portraying himself “as a victim” -- obviously referring to and judging Petitioner prejudicially as a result of his criminal convictions for having supposedly failed to file federal income tax returns as well as for claimed conduct allegedly having occurred in other cases outside his courtroom outside his jurisdiction for which he admittedly had no personal knowledge.
The sanctions were appealed to the Ninth Circuit Court of Appeals in Case No. 00-15202 (consolidated with Case No. 00-15157), and were affirmed, once again in an unpublished Memorandum, which completely misconstrued the actual record below, ignoring, for instance, among other exculpatory facts, that Petitioner’s clients during the “safe harbor” period had agreed to a dismissal without prejudice as to all Defendants, but Petitioner’s clients refused to agree to a dismissal with prejudice, thereby tying Petitioner’s hands.
Petitioner’s panel, consisting of Judge O’Scannlain once again (who served on Petitioner’s 1995 direct appeal of his criminal convictions, supra, yet who nevertheless refused to recuse himself), and Judges Thompson and Berzon, matter-of-factly affirmed the $116,862.32 sanction award, whose reasoning was completely contradictory to the actual record of the case.
D. Petitioner’s 2003 Judicial Misconduct Complaint
Next, Petitioner complained to a law school classmate of his, a Member of the United States Senate, who suggested that Petitioner file a judicial misconduct complaint against Judges Real and Ezra, since he and his colleagues, concerned about misconduct in the Judicial Branch, had recently passed amended legislation intended to make federal judges more accountable (Section 351, et seq. of Title 28).
On July 13, 2003, Petitioner therefore thanked his friend and filed a detailed, Section 351 judicial misconduct complaint against Judges Real and Ezra, accompanied by more than 5,000 pages of documentation, with the names of hundreds of witnesses, which Chief Judge Schroeder, without explanation, assigned for decision instead to Judge Pregerson, a colleague of Judge Real in the Central District of California and who sat on the panel denying Petitioner’s 1997 collateral appeal, supra (Case No. 03-89100).
Judge Pregerson rejected Petitioner’s Section 351 complaint on two grounds, that Petitioner had supposedly failed to identify any witnesses and since his complaint arose out of a case before those same judges he therefore had to dismiss the complaint supposedly pursuant to Rule 4(c) of the Rules of the Judicial Council of the Ninth Circuit.
Whereupon, Petitioner appealed to the Ninth Circuit Judicial Council pursuant to Section 352(c), on the basis that Petitioner had not only supplied the names of hundreds of witnesses to Judge Pregerson, but that Section 352(b), as he had been advised by one United States Senator passing that very legislation, had changed the standard of review from “shall” dismiss to “may” dismiss where a complaint relates to the merits of a case.
Nevertheless, on April 8, 2004, the Ninth Circuit Judicial Council, consisting of Circuit Judges Kozinski, Kleinfeld, and W. Fletcher, and District Judges Patel, Coughenour, Levi, and Shanstrom -- Circuit Judges Alarcon and Tashima, and District Judge Ezra not participating (Judge Ezra meanwhile, unknown to Petitioner, sitting at the same time in judgment on Judge Real in another misconduct case, in Canter, Case No. 03-89037) -- found “no basis for overturning the order of dismissal . . . for the reasons stated by Judge Pregerson, and based upon the controlling authority cited in support thereof.”
Yet, the panel, demonstrating still more inconsistency and questionable objectivity, thereafter belatedly entered an order amending the language of Rule 4(c) to “may” dismiss to conform to the 2002 revised requirements of Section 352(b), supra, from which bewildering ruling, Petitioner, due to Section 352(c), was prevented from further appealing, yet another aspect of what the House Judiciary Committee should be investigating.
E. Petitioner’s 2003 Fraud-On-The-Court Complaint
Meanwhile, despite the refusal of the Ninth Circuit to seriously consider Petitioner’s appeals, four events occurred which, in effect, collectively have informally cleared Petitioner of any wrongdoing, notwithstanding Judge Real and unfortunately remedial action by the Ninth Circuit Court of Appeals.
First, after a three-year investigation by the Hawaii disciplinary authorities, Petitioner was found to have been railroaded by Judge Real, and became probably the first attorney in American history to be found not worthy of any professional discipline whatsoever after three federal failure-to-file convictions.
Second, Petitioner, also a Member of the California Bar, whose State Supreme Court has mandated an automatic three-year suspension in such cases, after a four-year investigation had his discipline nevertheless converted by a similarly sympathetic settlement judge of the California State Bar Court into a bare minimum public reprimand, which when published in that State’s Bar Journal read more like a criticism of the IRS than of Petitioner’s conduct.
Third, the physician who, according to Petitioner’s prosecutors, had told them that Petitioner had checked himself into the hospital, had been faking his illness, and was being discharged from the hospital, which information they then relayed ex parte to and was secretly accepted by Judge Real just prior to the start of his 1994 trial, gave Petitioner a sworn Declaration stating that he told the prosecutors no such thing, that Petitioner did not and could not check himself into the hospital, and that the prosecutors attempted to intimidate and frighten him into saying otherwise.
Fourth, after an extensive tax audit of the three years in question by the IRS Seattle District Office following Petitioner’s return from prison, which audit was first refused by the District Office and then granted to Petitioner as a result of the intervention of Members of Hawaii’s Congressional Delegation, the IRS subsequently apologized to Petitioner, concluding that for those three years, rather than owing the IRS anything, Petitioner -- as he had continually argued and would have proven had he been allowed by Judge Real to have his tax files at his trial and at his sentencing – actually had no income during any of those years as a result of business losses and was actually owed approximately $100,000, including interest, by the Government due to carrybacks to prior years when income taxes had been paid by him.
Consequently, the IRS paid Petitioner a refund for those three years during which, contrary to his sentence of 30 months which was based, according to Judge Real, on a tax loss to the Government of supposedly hundreds of thousands of dollars under the sentencing guidelines, there was no tax loss.
However, when Petitioner petitioned the IRS Seattle District Appeals Office, seeking reimbursement in the form of a requested tax credit against income tax liabilities for subsequent years, for the $125,000.00 “tax loss” fine levied against him by Judge Real, his reimbursement request was denied, the IRS concluding that it had no “jurisdiction” to be able to return the money since “the penalty went to the court and not to IRS,” and that that would “have to be done by the court, presumably through an appeal. You will have to contact the court system and pursue adjustment, refund or relief there” (See Rule 28(j) letter, dated June 5, 2006, a part of the record in this Appeal).
F. Petitioner’s 2004 Fraud-On-The-Court Appeal
Having been incarcerated while various statutes of limitations expired, and due to the delay before the IRS District Office audit was allowed and concluded, and since any attempt to reopen Petitioner’s criminal case would only have resulted in further waste of time, being heard by Judge Real, and since the Ninth Circuit entered any order instructing the Clerk to file no more papers in Petitioner’s 1995 direct appeal, preventing Petitioner from seeking to recall the mandate, and because no appeal was allowed from a Section 352 denial, Petitioner decided, as his only remaining option short of petitioning Congress for relief, was to file a new, independent action for fraud on the Court committed by Judges Real and Ezra and by his prosecutors, seeking affirmative relief based on whether the Due Process Clause of the Fifth Amendment to the United States Constitution, the “good Behavior” Clause of Article III, Section 1 of the United States Constitution, and Sections 144 and 455 of Title 28 of the United States Code were superior to or subservient to judge-made doctrines of judicial immunity, pursuant the decision of the United States Supreme Court in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), recognizing the inherent power of federal courts to grant relief against fraud upon the Court, especially when committed by officers of the Court, as explained by Justice Black in circumstances where there has been a deliberate fabrication of evidence, as here:
[T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that the preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

Petitioner’s fraud-on-the-court complaint was filed below on February 10, 2003 (Tab 1), as was Petitioner’s motion to set aside his convictions, for reimbursement, and for sanctions on November 11, 2003 (Tab 2).
The entire local District Court bench recused itself, and Chief Judge Schroeder without explanation appointed Judge Aspen from the Northern District of Illinois to preside over the new action, who was presumed at the time by Petitioner to have no local ties, Petitioner only recently learning that his wife apparently is a graduate of Punahou School in Honolulu -- not the kind of completely, on-paper, uninvolved independent jurist Petitioner had been hoping for.
Judge Aspen proceeded to dismiss Petitioner’s case before any discovery was allowed, on the basis of judicial immunity, as did in part Petitioner’s merits panel on June 16, 2006 (Tab 3), consisting once again of Judge Pregerson, who sat on the panel that denied Petitioner’s 1997 collateral appeal and who rejected Petitioner’s judicial misconduct complaint, together with Judge B. Fletcher, who sat on the panel that denied Petitioner’s 1995 direct appeal, and Judge Hall.
The stated basis for the panel’s decision was that since “Dubin appeals the district court’s dismissal of his action for ‘fraud upon the court’ under Rule 60(b) of the Federal Rules of Civil Procedure . . . [w]e agree with our sister circuits that an action under Rule 60(b) . . . cannot be used to collaterally attack a criminal conviction.”
The fundamental flaw in the panel’s reasoning is that Petitioner’s Complaint and Appeal are not based on Rule 60(b), not even once mentioning Rule 60(b), but upon the inherent power of federal courts to grant relief for fraud on the Court pursuant to Hazel-Atlas, supra, and inherent judicial power.
Not even judges, let alone prosecutors, have judicial immunity from criminal conduct such as obstruction of justice and falsification of evidence, Ex parte Virginia, 100 U.S. 339 (1880); Braatelien v. United States, 147 F.2d 88 (8th Cir. 1945); McFarland v. State, 109 N.W.2d 397 (Neb. 1961).
Or, are federal courts supposedly powerless to discipline judges or lesser officials, no matter their fraud upon the Court.
IV
Conclusion
Every wrong is supposed to have a remedy.
That should be true in Petitioner’s circumstances.
This Appeal merits consideration by the Ninth Circuit en banc or by the House Judiciary Committee.
And, if the panel’s decision is not withdrawn, at the very least the entire Court should reopen Petitioner’s prior appeals, notwithstanding the Clerk having been ordered to accept no more filings therein, and recall the mandates in order to afford deserved relief.
For, as stated at the beginning of this Petition, what happened to this Petitioner reveals as much or more about the past conduct of the Judges of the Ninth Circuit Court of Appeals than it does about the past conduct of Petitioner.
Unlike most of the many known victims of the abuses of Judges Real and Ezra, it is likely that few have had Petitioner’s training and Petitioner’s luck sufficient to professionally, financially, and emotionally survive both gentlemen, in order to wind up now before this entire Court, after thirteen long and painful years of such prolonged perseverance.
DATED: Honolulu, Hawaii; August 13, 2006.
Respectfully submitted,
______________________
GARY VICTOR DUBIN
Petitioner