The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2004
Charles R. Fulbruge III
Clerk
No. 04-20406
Summary Calendar
DALE A BROWN
Plaintiff - Appellant
AUGUSTINE A VERRENGIA; JAMES A VERLANDER;
VINCENT MALECHE; DAVID PROCTOR; LEONARD NEAL
JACKSON; R SCOTT SATTERWHITE; ANTHONY P HODGSON;
KENNETH SMITH; DANIEL H STINGER
Appellants
v.
UNITED STATES OF AMERICA
Defendant - Appellee
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-3279
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Before KING, Chief Judge, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
The appellants appeal from the district court’s dismissal of
their “Petition for Review,” purportedly filed under the All
Writs Act, 28 U.S.C. § 1651, for lack of subject-matter
jurisdiction. Citing “fraud on the court,” they sought to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 04-20406
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challenge criminal and civil judgments entered against them in
the 1990s.
The appellants now argue that their case was improperly
assigned to United States District Judge Lee Rosenthal. They
emphasize that they had “addressed” their petition to either
District Judge Kenneth Hoyt or to Chief Judge Norman Black, but
they do not suggest that the random assignment to Judge Rosenthal
was violative of the district court’s “General Order No. 75-2.”
“The business of a court having more than one judge shall be
divided among the judges as provided by the rules and orders of
the court.” 28 U.S.C. § 137. Inherent in this statutory
directive is the notion that a party may not have his case heard
by a judge of his choosing. See, e.g., McCuin v. Texas Power &
Light Co., 714 F.2d 1255, 1262 (5th Cir. 1983).
The appellants had the burden of proving that federal
subject-matter jurisdiction existed. Peoples Nat’l Bank v.
Office of the Comptroller of the Currency of U.S., 362 F.3d 333,
336 (5th Cir. 2004). The All Writs Act did not confer subject-
matter jurisdiction upon the appellants’ Petition for Review,
because that Act does not create an independent basis of
jurisdiction. See Renteria-Gonzalez v. INS, 322 F.3d 804, 811
(5th Cir. 2004). The appellants’ action was in the nature of an
independent action to set aside a judgment for “fraud on the
court.” See FED. R. CIV. P. 60(b) (third sentence); Fierro v.
Johnson, 197 F.3d 147, 152 (5th Cir. 1999). To establish fraud
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on the court, the petitioners were required to show an
“unconscionable scheme or plan which is designed to improperly
influence the court in its discretion.” Fierro, 197 F.3d at 154.
Generally, “only the most egregious conduct, such as the bribery
of a judge, or the fabrication of evidence by a party in which an
attorney is implicated,” will satisfy this standard. Id.
The appellants have argued that “new evidence,” in the form
of deposition testimony, proves that in the early 1990s they were
entrapped and falsely incriminated by the FBI agent in charge of
a sting operation targeting them. Although the deposition
testimony may support a finding of improper investigatory conduct
on the part of that agent, see Brown v. Nationsbank Corp., 188
F.3d 579, 583-85, 592 (5th Cir. 1999), the “new evidence” does
not reflect the “most egregious conduct” required to establish
“fraud on the court,” and it does not, contrary to the
appellants’ contentions, show that Assistant United States
Attorneys were complicit in the alleged efforts to prosecute them
falsely.
In light of the foregoing, the district court did not err in
concluding that subject-matter jurisdiction was lacking.
Accordingly, we AFFIRM the judgment of the district court.