Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1986)

No. 88-15775.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS, Jr.,***  District Judge.


Tyree, a federal prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2255 and Bivens actions. We affirm.

Tyree pleaded guilty to drug possession charges brought as the result of a wiretap. Tyree contends that the assistant United States attorney, Dance, who requested the wiretap was not authorized to do so because he was not an active member of a state bar at the time. On these facts, Tyree brought a Bivens action against Dance alleging that he violated Tyree's fourth and sixth amendment rights and an action under 28 U.S.C. § 2255 alleging that he was denied due process. The district court consolidated the actions and dismissed both under Fed. R. Civ. P. 12(b) (6) for failure to state a claim.

We review a district court's dismissal of an action under Rule 12(b) (6) de novo. Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). A pro se complaint may be dismissed without leave to amend only if it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.), cert. denied, 109 S. Ct. 561 (1988) (citation omitted).

Tyree argues that Dance was not authorized to request the wiretap because he was not a "licensed" member of a state bar at the time of the request. The record shows that Dance was admitted to the California bar in 1972; moved to Utah and was appointed an assistant United States attorney in October, 1983; was admitted to the bar of the United States District Court for the District of Utah at that time; at his own request transferred his California bar membership to inactive status on January 1, 1984, and back to active status on July 25, 1986; and was admitted to the Utah state bar in 1987. During his period of "inactive" status, Dance was not entitled to practice law in California, but he remained admitted to practice before the federal court of the Central District of Utah. [Addendum A to Appelle's Brief, Order at 2].

An application for a wiretap may be authorized by "any Assistant Attorney General," 18 U.S.C. § 2516(a), to investigate "any offense involving ... narcotic drugs...." 18 U.S.C. § 2516(1) (e). This wiretap was authorized by an assistant attorney general. Once authorized, the application itself may be made by an "investigative or law enforcement officer," 18 U.S.C. 2518(1) (a), who is defined as "any attorney authorized by law to prosecute or participate in the prosecution of such offenses." 18 U.S.C. § 2510(7) (emphasis added). Dance made the application for this wiretap.

An assistant United States attorney is authorized by statute to "prosecute all offenses against the United States." 28 U.S.C. § 547(1). However, the statute authorizing the appointment of assistant United States attorneys does not set forth the qualifications for that appointment. See 28 U.S.C. § 542(a). Tyree has produced two letters from the Department of Justice stating that "the Justice Department does not permit attorneys who are not licensed members of the bar in at least one state or the District of Columbia to practice law without supervision." These letters also show that the Department considered Dance licensed at the time of his appointment and did not rescind that appointment.

Dance remained a member of the California bar when he became voluntarily inactive. Cal.Bus. and Prof.Code Sec. 6006. Inactive members may not hold office or practice law, and need not pay dues, but they retain "such other privileges ... as the board of governors provides." Cal.Bus. and Prof.Code Secs. 6006, 6007(g). He also remained a member of the federal bar of the District of Utah throughout his period of inactive status in California. His status in California would not have determined his status as a member of the federal bar in any event, "even if the state bar membership was the predicate upon which [he] was admitted to the federal court." United States v. Hoffman, 733 F.2d 596, 599 (9th Cir. 1984).

We conclude that Dance did not lose his status as an assistant United States attorney when he voluntarily chose to become an inactive member of the California bar. Even if he were "unlicensed," Dance could still have functioned within the Department of Justice, albeit with supervision; he therefore could still have "participated in the prosecution" of Tyree's offense. 28 U.S.C. § 2510(7).

Tyree does not question the legality of the wiretap or the procedures for obtaining it on any other grounds. We agree with the district court that he has presented no set of facts upon which his claims could succeed.

The judgment of the district court is



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3


The Honorable Albert Lee Stephens, Jr., Senior, United States District Judge for the Central District of California, sitting by designation