Petition — Arizona v. Manypenny
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2 a IT SRE NSLS ERENT ea,
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
STATE OF ARIZONA, PETITIONER
Ve
WILLIAM DALE MANYPENNY, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
STEPHEN D. NEELY
PIMA COUNTY ATTORNEY
DANIEL JESSE SMITH
Deputy County Attorney
900 Pima County Courts Building !
lll West Congress Street
Tucson, Arizona 85701
Attorneys for Petitioner
des - .
INDEX
rama ROMs. bdo os 6 es
hog te. a ee
Questions presented .....
Constitutional and statutory
provisions involved ....
BERCUe 6 +s Oe Se
Reasons for granting the writ
RS 8A eo ke we a
POOTMOCES « © © te be ee ee
nee Ws. 0 4. A. We ee
DCIS e's!) co 6) Bho eas
a RR Oa
NE is > 6, 0 & Che Oech
A Wes. ok ee Kk a ees
CITATIONS
Cases:
Bolling v. Sharpe, 347 U.S
491 e <a — aa eo —_ 7 o * a
Carter v. Tennessee, 18
a
F.2d 8 0. ° ° o ° - ° °
39a
4la
58a
60a
30
22,23,24
Cases--continued Page
Kessler v. Department of ;
Public Safety, 369 U.S. 153... 27
Marshall v. United States, 414
ee a Coe eG 5 8 lk le lo 390
Martenay v. United States, 216
Dee he eis = ~« 6 » « « «. €§
Maryland v. Soper, 270 U.S. 9... 44
Miller v. Kentucky, 40 F.2d
mere i co. s 6 « 5 24e23,24
National League of Cities v.
Usery, 426 U.S. 833. ..... .25,31
Patterson v. New York, 432 U.S.
eT a 6 6 6s 5 6 6 « « 27
Rowlette v. United States, 392
Dh aie says = » » « « 329323
State of Tennessee v. Davis,
Dr a's le 6 6 6 « « 22723,24
United States v. Allison, 555
EE. 6 6 6 6 66 © 0 e 39
United States v. Burroughs, 537
SR RS 39
United States v. Cahalane, 560
i Me ae 6 6 ee wk le 39
United States v. Calloway, 562
Dh ie £okr se 6 5 6 © © « « 39
United States v. Cravero, 530
ee 6 ae es 5 fo 39
United States v. DeGarces, 518
EG @ © © © ¢ + ¢ © w ¢ e 39
United States v. Donahue, 539
ER ECM GAS a 6 4 5 5 5 39
United States v. Dreitzler, 577
Te (6) eR | 6 lf le lt 39
United States v. Helstostki,
61 L.Ed.2d 12, 91 S.Ct.
, Opinion issued June 18,
oe eo eee ss » « « « 18,19,21
II
Cases--continued Page
United States v. Johnson, 487
F.2d 1318, cert. denied, 419
Coe ee ae a ae eee ee, a op eese
United States v. Martin Linen
Supply Company, 430 U.S. 564. . 39
United States v. Rojas, 554
ce a a See a 39
United States v. Rosenson, 291
gi ey J ee oe a ee 45
United States v. Scott, 437 U.S.
Se ve ak ee ae ek Oe eee 39
United States v. Sisson, 399
Mae As sw se eS 6a! +m eo eee
United States v. Smith, 331 U.S. .
SERS ae ea ae Yee Pe
United States v. Weinstein, 452
A oe se al ee ee ee ae ee 45
United States v. Wilson, 420 U.S.
SORES 6 ee Se ee oe « 2
Younger v. Harris, 401 U.S.
oT. sk we 4. 66 6 ee Se & «eee weeses
Constitution, statutes and rules:
United States Constitution:
Pitt Ameneweese. « « 2 is Shs 30
Teun Aes 8 8 oe ce we ee 4
Double Jeopardy Clause . .. .12,15
Due Process Clause ....e«.-s« 30
LS U.8,6.. 3732's so « e 3 Bee Re aes
20,21,23,24,29, 31,43
ae UsBchs 2A al 6: és. & ae eee 3
S60 UiGits BOP eee bee eee
Iil
Constitution, statutes and
rules--continued Page
20 U.S.C. 1442(a) (1). .« « « « «$730, 31
Arizona Revised Statute § 13-249
ee re eee ee gk gg et es 10
Federal Rule of Criminal
Proeecure 29(C) . . « « « «4,6,11,32
33,34,36,37
Federal Rule of Criminal
Peoueaune S36 « & eo
Federal Rule of Criminal
Wem SOs 2 a 6 ew «ow SEOs ii
- 10,34,36
Miscellaneous:
Advisory Committee Note to
Federal Rule of Criminal
Procedure 54(B)(1)..... 22,24,40
Rules of the Supreme Court
BR | Saag ee a cae oo a oe 18
Declaration of Independence .. .28,42
IV
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
STATE OF ARIZONA, PETITIONER
Ve
WILLIAM DALE MANYPENNY, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
The Pima County Attorney, on behalf
of the State of Arizona, petitions for a
Writ of Certiorari to review the judgment
of the United States Court of Appeals for
the Ninth Circuit in this case.
OPINIONS BELOW
The majority and dissenting
Opinions of the Court of Appeals, (Appendix
A infra 3a-38a) (as amended by the order
of the Ninth Circuit on August 13, 1979,
Appendix D infra at 58a-59a) are reported
at 60 F.2d at. [The original per
curiam opinion of the Court of Appeals,
(Appendix B infra at 39a-40a) issued July 31,
1978, was withdrawn by the Court of Appeals
on July 9, 1979, when the Court of Appeals
granted the Petitioner-State's petition for
rehearing, and the instant majority and
dissenting opinions were substituted. ]
The order of the district court is reported
at 445 F.Supp. 1123 (D. Ariz. 1977) (Appendix
C infra at 4la-57a).
JURISDICTION
The judgment of the Court of Appeals
(Appendix A infra at la-2a) was entered on
July 9, 1979. The State's petition for
rehearing and suggestion for rehearing en
banc was denied on September 10, 1979
(Appendix E infra at 60a-6la). The time
for filing this petition was extended ten
days until October 20, 1979 by order of
Justice Rehnquist on October 2, 1979.
The jurisdiction of this Court is invoked
under 28 U.S.C 1254(1).
QUESTIONS PRESENTED
1. Whether a state is stripped of
all appellate rights that exist under
federal law (18 U.S.C. 3731 and 28 U.S.C.
1291) and applicable state law, when a
state criminal prosecution is removed by
the defendant to federal court pursuant
to 28 U.S.C. 1442(a) (1).
2. Whether a federal district court
has jurisdiction to enter a judgment of
acquittal on its own motion eleven months
after the jury has returned a guilty
verdict, and beyond the seven-day period
provided for in Federal Rule of Criminal
Procedure 29(c).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Tenth Amendment to the United States
Constitution provides:
"The powers not delegated to
the United States by the
Constitution, nor prohibited
by it to the states, are
reserved to the states respect-
ively, or to the people."
18 U.S.C. 3731 provides in part:
"In a criminal case an appeal
by the United States shall lie
to a court of appeals from a
decision, judgment, or order
of a district court dismissing
an indictment or information
as to any one or more counts,
except that no appeal shall lie
where the double jeopardy clause
of the United States Constitution
prohibits further prosecution.
* * *
The provisions of this section
shall be liberally construed
to effectuate its purpose."
28 U.S.C. 1291 provides:
"The courts of appeals shall
have jurisdiction of appeals
from all final decisions of the
district courts of the United
States, the United States
District Court for the District
of Guam, and the District Court
of the Virgin Islands, except
where a direct review may be
had in the Supreme Court."
28 U.S.C. 1442(a) (1) provides:
"(a) A civil action or criminal
prosecution commenced in a State
court against any of the follow-
ing persons may be removed by
them to the district court of
‘a the United States for the district
and division embracing the
place wherein it is pending:
(1) Any officer of the United
States or any agency thereof,
Or person acting under him, for
any act under color of such
office or on account of any
right, title or authority
claimed under any Act of Congress
for the apprehension or punish-
ment of criminals or the collec-
tion of the revenue."
Federal Rule of Criminal Procedure 29(c)
provides:
"(c) Motion after Discharge of
Jury. If the jury returns a
verdict of guilty or is dis-
charged without having returned
a verdict, a motion for judgment
of acquittal may be made or
renewed within 7 days after the
jury is discharged or within
such further time as the court
may fix during the 7-day period.
If a verdict of guilty is return-
ed the court may on such motion
set aside the verdict and enter
judgment of acquittal. It shall
not be necessary to the making
of such a motion that a similar
motion has been made prior to
the submission of the case to
the jury."
STATEMENT
1. On March 15, 1976 at 9:00 p.m.
Respondent MANYPENNY was on duty as a United
States Border Patrol agent (Tr.* 146, 155,
281). Respondent MANYPENNY, along with Border
Patrol Agent Hjelle, were suppose to stop
and take into custody illegal aliens enter-
ing the United States through a well-known
illegal alien route, Sweetwater Pass
located within Pima County, Arizona (Tr.
44, 243). Three Mexican males were heading
north, seeking work. They had nothing
with them but food and clothing (Tr. 15, 23,
294). One of the three aliens, victim
Elfego Mendoza, when confronted by Agent
Hjeile, turned and ran south along the
path back towards the Mexican border (Tr.
*Tr. refers to reporter's transcript of
Respondent's trial.
273, 284). When victim Mendoza was ap-
proximately 150 feet south and below where
Respondent MANYPENNY was positioned, (Tr.
259) Respondent MANYPENNY fired his shot-
gun three separate times (Tr. 61, 170, 176,
178). Three twelve-gauge shotgun shells
were found within eight inches of one
another (Tr. 61-62).
Two of the three shotgun shells
contained birdshot, the third shell
contained double ought buckshot (Tr. 66).
At least one of the two shells containing
birdshot hit the victim in the buttocks,
causing multiple wounds (Tr. 105-106).
One of the pellets from the double ought
buckshot shell hit the victim in the back
of his neck, (Tr. 55) severing his spinal
cord (Tr. 59), turning him into a quadra-
plegic (Tr. 85, 86).
Respondent MANYPENNY at first
claimed his victim had not been shot, but
had instead "Slipped and fallen" (Tr. 22,
38-39). Later that night, Respondent
MANYPENNY suggested that the two other
Mexican aliens, who were potential witnesses
against him, be deported (Tr. 41).
Two weeks later, Respondent
MANYPENNY, with his attorney present, had
a conversation with two Pima County Arizona
prosecutors, concerning the events surround-
ing the shooting. At this time Respondent
MANYPENNY gave three different versions of
why he shot the victim (Tr. 112-120).
At trial, Respondent took the
stand and testified that he fired the first
shot into the air (Tr. 170); the second
shot went off because the gun "misfired"
while he was reloading (Tr. 176); the third
shot also went off by "accident" (Tr. 178).
Ting
Respondent MANYPENNY testified that he
knew it was only a misdemeanor to enter
the United States illegally (Tr. 123); and
that he knew he was not allowed to shoot a
misdemeanor offender (Tr. 274, 311).
2. Respondent MANYPENNY was charged
by the State of Arizona with Assault With
A Deadly Weapon in violation of A.R.S.
§ 13-249(A) and (B). On Respondent
MANYPENNY'S motion, the case was removed
to federal court for trial pursuant to
28 U.S.C. § 1442(a) (1). After a trial, on
November 6, 1976, the jury returned a
verdict of guilty as charged. Respondent
MANYPENNY then moved for arrest of judgment,
or in the alternative, for a new trial
pursuant to Federal Rules of Criminal
Procedure 33 and 34. The federal district
court granted the Respondent's motion for
arrest of judgment. The Petitioner-State
10
then moved for reconsideration of this
ruling. The federal district court granted
the State's motion for reconsideration of
its ruling, but took no further action for
almost one year. On September 8, 1977,
Respondent MANYPENNY moved for a hearing to
determine the status of the Petitioner-
State's pending motion. This hearing was
held on September 26, 1977. ‘Two days later,
the district court reversed its previous
Order arresting judgment. The district
court, Sua sponte, decided to construe
Respondent MANYPENNY'S Rule 34 motion for
arrest of judgment as a Rule 29(c) motion
for judgment of acquittal, despite the fact
that Respondent MANYPENNY had never filed a
Rule 29(c) motion. The district court then
granted its own motion for judgment of acquit-
tal, and held Respondent MANYPENNY not guilty.
Arizona v. Manypenny, 445 F.Supp. 1123 (D.
Ariz. 1977) (Appendix C infra at 4la-57a).
ll
3. The Petitioner-State then filed
a timely notice of appeal pursuant to 18
U.S.C. 3731. The Court of Appeals for the
Ninth Circuit originally issued a per curiam
opinion (Appendix B infra at 39a-40a) on
July 31, 1978, dismissing the Petitioner-
State's appeal on double jeopardy grounds
despite the fact that the double jeopardy
issue had never been briefed by the parties
nor mentioned at oral argument. The per
curiam »pinion read:
"We assume arguendo that the
State of Arizona, in its criminal
prosecution which was removed
to the federal court, has the
same right of appeal under 18
U.S.C. § 3731 as is conferred
on the United States ina
federal prosecution. On the
facts of this case, however,
a judgment of acquittal was
entered, and that judgment
is final and unreviewable.
Sanabria v. United States,
U.S. , 46 U.S.L.W.
4646 (June 14, 1978). Accord-
ingly, the appeal is dismissed."
(Ibid. infra at 39a-40a.)
12
The Petitioner-State then filed a
timely petition for rehearing and suggestion
for rehearing en banc pointing out to the
Court of Appeals that its opinion was in
direct conflict with a series of recent
United States Supreme Court decisions, and
was also in direct conflict with two prior
decisions by the Ninth Circuit itself, and
also in conflict with every prior decision
on this issue by the other Circuits. ?
4. On July 9, 1979, the Court of
Appeals granted the Petitioner-State's
petition for rehearing, withdrew its prior
opinion and substituted the instant
majority and dissenting opinions (Appendix
A infra at la-38a). The majority, per
Judge Choy, acknowledged that:
"We share the concerns expressed
by Judge Kennedy in his dissent
that the policy of § 3731, which
is designed to 'prevent erroneous
trial court rulings from thwarting
AZ
lawful prosecutions,' is equally
applicable to state prosecutions
and federal prosecutions, and
that not allowing state appeals
in cases removed to the federal
courts under § 1442(a) (1) has
a substantial effect on the
delicate balance of our federal
system." (Ibid. infra at 8a.)
Nonetheless, the majority concluded that:
", . . Only Congress can author-
ize an appeal by a state ina
§ 1442(a) (1) criminal prosecution.
Thus far, Congress has not seen
fit to do so. Therefore, we hold
that we are without jurisdiction
to entertain this appeal.
APPEAL DISMISSED." (Ibid. infra
at lla.)
The majority did not reach or discuss the
merits of the Petitioner-State's appeal.
Judge Kennedy, in his dissent
found that:
"There are two possible sources
of jurisdiction, 18 U.S.C. § 3731
and 28 U.S.C. § 1291." (Ibid.
infra at 15a.)
Judge Kennedy's dissent first examined the
jurisdictionai issue at length and found:
14
"I conclude not only that there
is jurisdiction, but that the
judgment ought to be reversed."
(Ibid. infra at 24a.)
Judge Kennedy then considered possible double
jeopardy problems posed by the Petitioner-
State's appeal and concluded there was no
double jeopardy barrier to this appeal (ibid
infra at 24a-30a). Turning to the merits of
the district court's ruling, Judge Kennedy
rejected the Petitioner-State's contention
that the district court was without jurisdic-
tion to sua sponte enter a judgment of
acquittal eleven months after the jury
returned a guilty verdict. Judge Kennedy's
dissent noted that:
"At least two circuits have
held that unless a timely motion
is filed, the judge lacks
jurisdiction to enter a judgment
of acquittal. United States v.
Johnson, 487 F.2d 1318, 1321
(5th Cir.), cert. denied, 419
U.S. 825 (1974); Rowlette v.
United States, 392 F.2d 437,
439 (10th Cir. 1968). See also
United States v. Homer, 411
F.Supp. 972, 975 (W.D. Pa.),
aff'd on other grounds, 545 F.2d
15
864 (3rd Cir. 1976), cert. denied,
431 U.S. 954 (1977). The defendant
did file motions for arrest of
judgment and for a new trial with-
in the time limits prescribed by
rules 29(c) and 34. The court
having retained jurisdiction over
the case, I think it had discre-
tion to consider entry of a judg-
ment of acquittal on its own
motion, where it was convinced
there had been a fundamental
error in its instructions, Fed.
| a >) ae Pe
I conclude further, however, that
the trial court misused its discre-
tion in granting a judgment of
acquittal." (Ibid. infra at
30a-3la.)
Judge Kennedy's dissent then discussed the
merits of the Petitioner-State's appeal
and concluded his dissent by stating:
5.
Appeals,
request,
"I would hold that this court
has jurisdiction and reverse
and remand." (Ibid. infra at
34a.)
On August 13, 1979, the Court of
acting upon the Petitioner-State's
issued an order amending the
16
dissenting opinion to correct a factual
error (Appendix D infra at 58a-59a). The
opinion of the Court of Appeals (Appendix A
infra at la-38a) is reproduced in this
petition for certiorari as amended by
the Court's order of August 13, 1979.
6. The Petitioner-State filed a
timely petition for rehearing and suggestion
for rehearing en banc, which was denied on
September 10, 1979, necessitating the
instant petition for a writ of certiorari
(Appendix E infra at 60a-6la).
7. On October 2, 1979, Justice
Rehnquist, acting on Petitioner's motion,
extended the time for filing this petition
a period of ten (10) days until October 20,
1979.
17
REASONS FOR GRANTING THE WRIT
The instant case presents this
Court with an opportunity to resolve two
questions that fit squarely within the
criteria set forth by this Court's Rule
19.1(b) as guidelines governing this Court's
exercise of it certiorari jurisdiction.
i.
The majority's interpretation of
of 18 U.S.C. 3731 is in conflict with this
Court's decisions in United States v. Wilson,
420 U.S. 332, 43 L.Ed.2d 232, 95 S.Ct.
1013 (1975); and United States v. Helstostki,
U.S. , 61 L.Ed.2d 12, 91 S.Ct.
(June 18, 1979). In Wilson, this
Court referring to 18 U.S.C. 3731, wrote:
"While the language of the new
Act is not dispositive, the
legislative history makes it
clear that Congress intended
to remove all statutory barriers
18
. to Government appeals and to
allow appeals whenever the
Constitution would permit."
420 U.S. at 337. (Emphasis added.)
This Court reaffirmed the inter-
pretation of 18 U.S.C. 3731 just this year
in United States v. Helstostki, supra.
Footnote 6 reads in relevant part:
"In United States v. Wilson,
420 U.S. 322, 337, 43 L.Ed.2da
232, 95 S.Ct. 1013 (1975), we
concluded that the purpose of
the section was 'to remove all
statutory barriers to Government
appeals and to allow appeals
whenever the Constitution would
permit. See also United States
v. Scott, 437 U.S. 82, 84-84,
57 L.Ed.2d 65, 98 S.Ct. 2187
(1978); HR Conf Rep No. 91-1768,
p 21, reprinted in 1970 U.S.
Cong Code & Admin News 5842,
5848; S Rep No. 91-1296, pp 2-3
(1970); 116 Cong Rec 35659
(1970) (remarks of Sen. Hruska).
There are no constitutional
barriers to this appeal and we
conclude that the appeal was
authorized by § 3731." 61 L.Ed.2d
at 22. (Emphasis added.)
Despite the fact that 18 U.S.C. 3731 includes
a specific provision reading:
19
"The provisions of this section
shall be liberally construed to
effectuate its purposes."
the majority felt that the use of the term
"United States" in 18 U.S.C. 3731 precluded
an appeal by a state under the authority
of 18 U.S.C. 3731 (Appendix A infra at
7a). This Court's opinion in Wilson
does not use the term "United States"; the
opinion continually uses the term "Govern-
ment" when referring to the prosecution. 2
The majority's interpretation of
the legislative intent behind 18 U.S.C.
3731 is also inconsistent with this Court's
decision in United States v. Sisson, 399
U.S. 267, 26 L.Ed.2d 608, 90 S.Ct. 2117
(1970). In Sisson, this Court discussed
the concerns of Congress that led to the
enactment of the predecessor of the current
version of 18 U.S.C. 3731:
20
"Their primary purpose was perhaps
best expressed by Attorney General
Miller in his 1892 report: 'As
the law now stands... it is in
the power of a single district
judge, by quashing an indictment,
to defeat any criminal prosecu-
tion instituted by the Government.'"
399 U.S. at 293. (Emphasis added.)
The instant case, as the dissenting
Opinion of Judge Kennedy points out (Appendix
A infra at 17a-18a, 3la) is a case where a
valid criminal prosecution, instituted by
the government, has been effectively and
erroneously blocked by a single district
judge. If this Court meant in Sisson,
that the concern of Congress was that
prosecutions by the United States Govern-
ment were subject to defeat by a single
federal district judge; and if this Court
meant in Wilson and Helstostki that the
latest amendment to 18 U.S.C. 3731 meant
that Congress intended to allow appeals
only by the United States Government
21
“whenever the Constitution would permit",
then this case provides an excellent
opportunity to clear up these ambiguities.
The majority opinion also conflicts
with this Court's decision in State of
Tennessee v. Davis, 100 U.S. 257, 25 L.Ed.
648 (1879) (at 271-272) and two Sixth
Circuit cases, Carter v. Tennessee, 18 F.2d
850 (6th Cir. 1927); and Miller v. Kentucky,
40 F.2d 820 (6th Cir. 1930). These cases
all held that in removal prosecutions, the
federal district court is suppose to apply
the "substantive" law of the state and
federal "procedural" law. The Advisory
Committee Note to Federal Rule of Criminal
Procedure 54(B) (1) states this in no uncer-
tain terms.3 The right to appeal is either
a "substantive" or "procedural" right; (this
is discussed at length in Footnote number 1
22
of Justice Kennedy's dissent, Appendix A
infra at 35a-37a) if this Court deems such
right to be "substantive", then Arizona
law authorizes this appeal as Judge
Kennedy points out (Appendix A infra at
2la, 23a). If this Court deems such right
to be “procedural” then Tennessee v. Davis,
supra; Carter v. Tennessee, supra; and
Miller v. Kentucky, supra, (all cited in
the Advisory Committee Note) clearly stand
for the proposition that in a removal
prosecution the state government stands
in the shoes of the United States Govern-
ment for procedural purposes, and has
all the procedural rights of the United
States Government, including the right
to appeal pursuant to 18 U.S.C. 3731.
Irrespective of whether the right to appeal
is deemed substantive or procedural, the
result reached by the majority is in conflict
with Tennessee v. Davis, Carter and Miller.
This case presents an opportunity to
review the continuing validity of the
principles announced in Tennessee v. Davis
in the context of prosecutorial appellate
rights, and to resolve the apparent con-
flict between the Sixth and Ninth Circuits
on this issue. It also provides an
opportunity for the Court to determine
whether the Advisory Committee Note to
Rule 54(B) (1) is correct or mistaken.
Assuming arguendo that this Court
agrees with the majority's restrictive
interpretation of 18 U.S.C. 3731, this
case also presents, again as an issue of
first impression, the question of whether
a state may appeal in a removal prosecution
pursuant to 28 U.S.C. 1291. 28 U.S.c. 1291
reads in relevant part:
24
—T
"The courts of appeals shall have
jurisdiction of appeals from all
final decisions of the district
courts of the United States. .."
Judge Kennedy's dissent (Appendix
A infra at 18a-22a) found that 28 U.S.C.
1291 provided an alternative basis of
jurisdiction for the Court of Appeals to
hear the State's appeal.
The majority's ruling that a state
is without any appellate rights in a removal
prosecution conflicts in principle with
many of this Court's recent decisions con-
cerning federalism and the Tenth Amendment.
In National League of Cities v.
Usery, 426 U.S. 833, 49 L.Ed.2d 245, 96
S.Ct. 2465 (1976), this Court, per Justice
Rehnquist stated:
"{5]) This Court has never doubted
that there are limits upon the
power of Congress to override
state sovereignty, even when
exercising its otherwise plenary
powers to tax or to regulate
commerce which are conferred
25
by Art I of the Constitution.
In Wirtz, for example, the Court
took care to assure the appellants
that it had ‘ample power to pre-
vent... "the utter destruction
of the State as a sovereign pol-
itical entity,"' which they feared.
392 U.S. at 196, 20 L.Ed.2d 1020,
88 S.Ct. 2017.
* * *
In Fry, supra, the Court recogniz-
ed that an express declaration of
this limitation is found in the
Tenth Amendment:
‘While the Tenth Amendment has
been characterized as a "truism,"
Stating merely that "all is re-
tained which has not been sur-
rendered," United States v. Darby,
312 U.S. 100, 124, [85 L.Ed.
609, Gi S.Ct. 451, 132 A.L.R.
1430] (1941), it is not without
Significance. The Amendment
expressly declares the constitu-
tional policy that Congress may
not exercise power in a fashion
that impairs the States' integrity
or their ability to function effec-
tively in a federal system.' 421
U.S., at 547 n 7, 44 L.Ed.2d 363,
35 $.Ct. 1792.
* * *
We have repeatedly recognized
that there are attributes of
26
sovereignty attaching to every
state government which may not
be impaired by Congress, not
because Congress may lack an
affirmative grant of legislative
authority to reach the matter,
but because the Constitution
prohibits it from exercising
the authority in that manner."
426 U.S. at 842-845.
In Kessler v. Department of Public
Safety, 369 U.S. 153, 7 L.Ed.2d 641, 82 S.Ct.
.
807 (1962), this Court wrote:
"Yet the statute was upheld. Why?
Because the 'police power' of a
State, especially when exerted for
the protection of life and limb,
is aS pervasive as any of the
reserved powers of the States
and should be respected unless
there is a clear collision with
a national law which has the
right of way under the Supremacy
Clause of Article 6." 369 U.S.
at iva.
See also, Patterson v. New York, 432 U.S.
197, 53 L.Ed.2d 281, 97 S.Ct. 2319 (1978)
at 201-202.
In Younger v. Harris, 40l U.S. 37,
27 L.Ed.2d 669, 91 S.Ct. 746 (1971), this
Court stated:
27
out:
"Since the beginning of this
country's history Congress has,
subject to a few exceptions,
manifested a desire to permit
state courts to try state cases
free from interference by federal
courts." 401 U.S. at 43.4
As Justice Kennedy's dissent points
"My concern with the majority's
approach is that as well as pro-
ducing an anomalous result, it
creates serious and difficult
problems of federalism. In effect
the majority opinion holds that
through removal, a state cannot
only be deprived of jurisdiction
to try a case in its own courts,
it can also be completely deprived
of any right to appeal that
would have existed under state
law." (Appendix A infra at
16a-17a.)
The result reached by the majority
is inconsistent with federalism and the
intent of the founding fathers as manifested
both in the Constitution and the Declaration
of Independence. 5
Wholly apart from the question of
federalism, the majority opinion has inad-
28
ce oe
vertently created a potentially grave
problem for the orderly administration
of justice in the federal courts; the
right of the United States Government to
appeal pursuant to 18 U.S.C. 3731 cannot
Survive the majority's interpretation of
the Congressional intent behind its passage.
The majority wrote:
"In conclusion, only Congress
can authorize an appeal by a
state in a § 1442(a)(1) criminal
prosecution. Thus far Congress
has not seen fit to do so. There-
fore, we hold that we are without
jurisdiction to entertain this
appeal." (Appendix A infra at
lla.)
The majority has ruled that Congress
created two distinct classes of criminal
defendants in federal court: (1) the ordinary
federal defendant, who is subject to an
appeal by the prosecution pursuant to 18
U.S.C. 3731 to challenge erroneous rulings
in favor of the defendant by the district
29
court; and (2) federal employees entitled
to removal under 28 U.S.C. 1442(a)(1) who
now constitute a special "privileged class",
free to enjoy the benefits of errors com-
mitted in their favor by the federal district
court without any possibility of review.
Congress cannot set up such a statutory
scheme consistent with the Equal Protection
guarantee that is embodied in the Due Process
Clause of the Fifth Amendment. Bolling v.
Sharpe, 347 U.S. 491, 98 L.Ed.2d 884, 74
S.Ct. 693 (1954); C.F. Marshall v. United
States, 414 U.S. 417, 38 L.Ed.2d 618, 94
S.Ct. 700 (1974).
Unless someone can think up a
"rational basis" for allowing criminals
who are employed by the Federal Government
these special privileges, the Equal Protec-
tion rights of the ordinary federal defendant
are violated every time the United States
30
Government files an appeal under 18 U.S.C.
3731.
The majority's ruling also calls
into question the continuing constitution-
ality of the removal statute itself (28
U.S.C. 1442(a)(1)) for the reasons set
forth by this Court in National League of
Cities v. Usery, supra; and Younger v.
Harris, supra.
This case allows the Court an
opportunity to forestall these issues from
arising in the lower courts by either
reversing the majority, or taking the case
as an opportunity to explain why the
majority's ruling does not violate the
Equal Protection rights of the ordinary
federal defendant who has been subjected
to a successful government appeal under
18 U.S.C. 3731.
“Se
Il.
The second question presented for
review, (whether a federal district judge
has jurisdiction to enter a judgment of
acquittal on his own motion beyond the
seven-day limit called for in Federal Rule
of Criminal Procedure 29(c)) presents this
Court with an opportunity to resolve an
apparent conflict® between the Ninth Circuit
and the position taken by both the Fifth
Circuit in United States v. Johnson, 487
F.2d 1318, cert. denied, 419 U.S. 825 (1974)
and the Tenth Circuit in Rowlette v. United
States, 392 F.2d 437 (1968). The apparent
position (see Footnote 6 infra at 43)
of the Ninth Circuit on this issue also
conflicts in principle with this Court's
decision in United States v. Smith, 331
U.S. 469, 67 S.Ct. 1330, 91 L.Ed.2d 1610
(1947).
32
Federal Rule of Criminal Procedure
29(c) reads in relevant part:
"(c) Motion after discharge of
Jury. If the jury returns a
verdict of guilty or is discharg-
ed without having returned a
verdict, a motion for judgment
of acquittal may be made or
renewed within 7 days after
the jury is discharged or
within such further time as
the court may fix during the
7-day period."
The Fifth Circuit in Johnson, supra,
and the Tenth Circuit in Rowlette, supra,
have both held that a trial court is without
jurisdiction to consider a Rule 29(c) motion
unless it is timely filed within the seven-
day period. As Judge Kennedy noted in his
dissent, no such motion was ever filed by
Respondent MANYPENNY (Appendix A infra at
30a). |
In United States v. Smith, Supra,
this Court ruled that the government was
entitled to have its writ of mandamus granted
33
to require the vacation of an order by a
federal district judge granting the defend-
ant a new trial pursuant to Federal Rule
of Criminal Procedure 33. The new trial
was granted on the Court's own motion
beyond the five-day limit for such motions
allowed by Rule 33 at that time. (Rule 33
has subsequently been amended to provide
for the same seven-day limit that exists
in Rule 29(c).) This Court stated per
Justice Jackson:
"Briefly, Judge Smith thought
and intervenor argues that the
rule prevents a defendant from
asking the court to grant a new
trial after the times specified,
but that it permits the judge
to order retrial without request
and at any time. The result, in
view of annulment of the term
limitation, would be that the
power of the trial court to grant
new trials on its own motions
lingers on indefinitely. There
are several reasons why this
construction of the Rules is
not acceptable.
* * *
34
We think that expiration of the
time within which relief can
openly be asked of the judge,
terminates the time within which
it can properly be granted on
the court's own initative.
* * *
But the extension of that time
indefinitely is no insurance of
justice. On the contrary, as
time passes, the peculiar ability
which the trial judge has to
pass on the fairness of the
trial is dissipated as the incidents
and nuances of the trial leave
his mind to give way to immediate
business. It is in the interest
of justice that a decision on the
propriety of a trial be reached
as soon after it has ended as is
possible, and that decision be
not deferred until the trial's
story has taken on the uncertain-
ty and dimness of things long past."
331 U.S. at 473-476. (Emphasis |
added. )
If this Court reads the Smith case
as applying to all the "Rules", then the
decision of the Ninth Circuit is in direct
conflict with Smith. If this Court views
the Smith case as controlling authority
35
only as to Rule 33, then this case provides
an excellent opportunity for the Court to
decide if the Smith Rule should apply to
Rule 29(c) also. In the instant case,
- the trial court, eleven months after the
trial, without the benefit of any tran-
scripts, sua sponte entered a judgment of
acquittal. The comparison of the reasons
advanced by the district court for its
action (Appendix C infra at 52a-57a) and
the actual trial transcript reveals that the
fears expressed by this Court in the Smith
case ("uncertainty and dimness of things
long past") have indeed come to pass in the
instant case. As Judge Kennedy pointed out
in his dissent:
"I conclude further, however,
that the trial court misused its
discretion in granting judgment
of acquittal. The court's ruling
was based on the premise that the
evidence was insufficient to over-
come a defense of immunity under
36
Clifton v. Cox, Supra. The
defense of immunity was not
raised or argued at all at trial.
The defendant had the burden of
raising immunity as an affirmative
defense but did not do that."
(Appendix A infra at 30a-3la.)
The proper time limitation for
granting judgments of acquittal pursuant to
Rule 29(c) is an important question affect-
ing the day to day operation of the federal
courts and this Court should resolve this
issue.
37
CONCLUSION
The Petition for a Writ of Certiorari
should be granted.
Respectfully submitted this E. acy
day of October, 1979.
STEPHEN D. NEELY
PIMA COUNTY ATTORNEY
Danuel raw AAG
Daniel Jesse Smith
Deputy County Attorney
38
FOOTNOTES
1/ The July 31, 1978 per curiam opinion
of the Ninth Circuit was in direct conflict
with this Court's decisions in the following
cases: United States v. Wilson, 420 U.S.
332, 43 L.Ed.2d 232, 95 S.Ct. 1013 (1975);
United States v. Martin Linen Supply Company,
430 U.S. 5604, 51 L.Ed.2d 642, 97 S.Ct. 1349
(1977); United States v. Scott, 437 U.S. 82,
57 L.Ed.2d 65, 98 S.Ct. 2187, reh. denied,
58 L.Ed.2d 197, 99 S.Ct. 226 (1978) footnote
7. The July 31, 1978 opinion was also
in direct conflict with two prior Ninth
Circuit Opinions: United States v. Rojas,
554 F.2d 938 (1977); and United States v.
Dreitzler, 577 F.2d 539 (June 23, i978).
The opinion was also in conflict with every
other Circuit that had passed on the issue:
United States v. De Garces, 518 F.2d 1156
(2nd Cir. 1975); United States v. Cahalane,
560 F.2d 601 (3rd Cir. 1977); United States
v. Burroughs, 537 F.2d 1156 (4th Cir. 1976);
United States v. Cravero, 530 F.2d 666 (5th
Cir. 1976); United States v. Allison, 555
F.2d 1385 (7th Cir. 1977); United States
v. Donahue, 539 F.2d 1131 (8th Cir. 1976);
United States v. Calloway, 562 F.2d 615
(LOth Cir. 1977).
2/ The majority opinion per Justice
Marshall refers to the prosecution as the
"Government" thirty-nine times in his
majority opinion;.and only uses the term
"United States" one time, (420 U.S. at 338)
to refer to the prosecution. The dissent
‘uses the term "Government" six times and
never uses the term "United States" except
in citing the names of previous cases.
39
—
3/
The Advisory Committee note to
Federal Rule of Criminal Procedure 54B(1)
reads in
4/
Younger:
relevant part:
"In such cases the Federal court
applies the substantive law of
the State, but follows Federal
procedure; State of Tennessee v.
Davis, 100 U.S. 257, 25 L.Ed.
648; Carter v. Tennessee, 18
F.2d 850, C.C.A.6th; Miller v.
Kentucky, 40 F.2d 820 C.C.A.6th.
See, also, State of Maryland v.
Soper, 46 S.Ct. 185, 270 U.S.
9, 70 L.Ed. 449. The rule is,
therefore, a restatement of
existing law, except that it
does not affect whatever power
the State prosecutor may have
as to dismissal.
This Court went on to state in
"This underlying reason for
restraining courts of equity
from interferring with criminal
prosecutions is reinforced by
an even more vital consideration,
the notion of 'comity,' that is,
a proper respect for state
functions, a recognition of
the fact that the entire country
is made up of a Union of separate
state governments, and a con-
tinuance of the belief that the
National Government will fare best
if the States and their institu-
tions are left free to perform
their separate functions in their
40
separate ways. This, perhaps
for lack of a better and clearer
way to describe it, is referred
to by many as ‘Our Federalism,'
and one familiar with the profound
debates that ushered our Federal
Constitution into existence is
bound to respect those who remain
loyal to the ideals and dreams
of ‘Our Federalism.' The concept
does not mean blind deference to
"States' Rights' any more than
it means centralization of con-
trol over every important issue
in our National Government and
its courts. The Framers rejected
both these courses. What the
concept does represent is a
system in which there is sen-
sitivity to the legitimate
interests of both State and
National Governments, and in
which the National Government,
anxious through it may be to
vindicate and protect federal
rights and federal interests,
always endeavors to do so in
ways that will not unduly inter-
fere with the legitimate activities
of the States. It should never
be forgotten that this slogan,
‘Our Federalism,' born in the
early struggling days of our
Union of States, occupies a
highly important place in our
Nation's history and its future."
401 U.S. at 44-45.
41
5/ Indeed, one of the enumerated
grievances listed in the Declaration of
Independence was a situation remarkably
Similar to the instant case. The Declaration
reads in relevant part:
"The history of the Present
King of Great Britain is a
history of repeated injuries
and usurpations, all having in
direct object the establishment
of an absolute Tyranny over
these states:"
The Declaration then goes on to list a
series of enumerated grievances, among them:
". .« « For Protecting them, by a
Mock trial, from punishment for
any murders which they should
commit on the inhabitants of
these states. .."
In the instant case, the same
Federal District Court that erroneously
granted Respondent's motion in arrest of
judgment (Appendix C infra at 43a, 57a)
and then sua sponte entered a judgment of
acquittal eleven months after the guilty
verdict, made the following comment prior
to the trial in the instant case. (This
was at the hearing on a motion brought
by the Respondent-Defendant prior to
trial to force the United State's Attorney's
Office to defend him in the instant case.
The United States Attorney opposed the
motion, which was denied.)
42
"THE COURT
* * *
Now, just what do you think that
this sort of conduct by the
Department of Justice in failing
to come to the aid of a Border
Patrol agent is going to do to
the morale of your law enforce-
ment agents?" Transcript of
August 30, 1976, page 9.
Respondent MANYPENNY has yet to
spend one day in jail for twice shooting
Elfego Mendoza in the back, crippling him
for life, as Mendoza ran south, unarmed,
towards the Mexican border. On this record,
the instant case presents a classic example
of what this Court said Congress was
concerned with when it enacted 18 U.S.C.
3731 and its predecessors. (See United
States v. Sisson, Supra.) For all intents
and purposes, the people of the State of
Arizona have received little more than the
"mock" trial listed as one of the enumerated
grievances in the Declaration of Independence.
To say the majority opinion would cause
some consternation among the founding fathers
is probably an understatement.
6/ The majority opinion does not men-
tion this issue although it was properly
raised by the Petitioner-State before the
Ninth Circuit as Judge Kennedy noted in his
dissent (Appendix A infra at 30a). The
dissent discussed this issue and reject-
ed the position of the Fifth and Tenth
43
Circuits. The majority opinion has im-
plicitly rejected the position taken by
the other Circuits when it dismissed the
State's appeal outright, rather than con-
struing it as a Petition For Mandamus
pursuant to 28 U.S.C. 1651. Assuming
arguendo that the State has no right to
appeal in a removal prosecution, if the
district court was without jurisdiction to
enter the judgment of acquittal, then the
Court of Appeals, and this Court both have
jurisdiction by way of mandamum (28 U.S.C.
1651) to order the district court to
reinstate the verdict.
In Maryland v. Soper, 46 S.Ct.
185, 270 U.S. 9, 70 L.Ed. 449 (1925), this
Court reviewed Maryland's challenge to the
granting of a removal petition by a Federal
District Court. This Court per Chief
Justice Taft, granted the State's Petition
For Mandamus. In discussing the use of
this extraordinary remedy, the Chief Justice
wrote:
"Virginia v. Rives, 100 U.S. 313,
Virginia v. Paul, 148 U.S. 107,
and Kentucky v. Powers, 201 U.S. 1,
were cases in which criminal
prosecutions by a State, removed
to a federal court under asserted
compliance with federal statutes,
were ordered remanded by writ
of mandamus.
* * *
44
The writ in those cases was
justified by the Court because
of the gross abuse of discretion
of the lower court, its clear
lack of jurisdiction, and the
absence of any other remedy.
Ex parte Harding, 219 U.S. 363,
at p. 373.
* * *
In respect of the removal statute
prosecutions, there should be a
more liberal use of mandamus than
in removal of civil cases. 220
U.S. at 28.
See also, United States v. Weinstein, 452
F.2d 704 (2nd Cir. 1971).
The Petitioner-State did not formal-
ly request mandamus relief from the Court of
Appeals; it being the position of the State
below and in this Court that the State has
a right to an appeal. The Petitioner-State,
as Justice Kennedy noted supra, did raise
and brief this issue, alleging that the
District Court was wholly without jurisdic-
tion to even enter a judgment of acquittal.
It is the substance and not the label of
pleadings that are controlling. See United
States v. Rosenson, 291 F.Supp. 867 (E.D.
Louisiana 1968); and Martenay v. United
States, 216 F.2d 760 (10th Cir. 1954). By
failing to order the verdict reinstated,
the majority has effectively created a
conflict with the other Circuits on this
issue.
45
“a<
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF AREZONA,
Plaintiff-Appellant, No. 77-3453
vs. ORDER
WILLIAM DALE MANYPENNY,
)
)
)
)
)
)
Defendant-Appellee. )
)
)
Filed: July 9, 1979, Emil E. Melfi, Jr.
Clerk, U.S. Court of Appeals
Before: CHOY and KENNEDY, Circuit Judges,
and HALL,* District Judge
The petition of the State of Arizona
for a rehearing of this appeal is granted;
and the original per curiam opinion of the
court entered herein on July 3l, 1978 is
withdrawn and there is substituted in its
place the attached opinion and dissenting
opinion.
*The Honorable Peirson M. Hall, Senior United
States District Judge for the Central District
of California, sitting by designation.
la
The State's suggestion for
rehearing en banc is rejected, all active
members of the court having been advised
of the petition for rehearing and suggestion
for rehearing en banc and no member of the
court having indicated a desire for rehear-
ing en banc.
2a
bo,
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ARIZONA,
Plaintiff-Appellant, No. 77-3453
vs. OPINION
WILLIAM DALE MANYPENNY,
Defendant~-Appellee.
ee eee ee ee ee ee ee 8 Se ee”
Appeal from the United States
District Court for the District
of Arizona
Before: CHOY and KENNEDY, Circuit Judges,
and HALL,* District Judge
CHOY, Circuit Judge:
The State of Arizona brought this
criminal prosecution against Manypenny, a
border patrolman of the United States
Immigration and Naturalization Service.
*The Honorable Peirson M. Hall, Senior United
States District Judge for the Central District
of California, sitting by designation.
3a
The State charged Manypenny with assault
with a deadly weapon in violation of
Arizona law. Ariz. Rev. Stat. § 13-249(A)
& (B). On Manypenny's motion, the case
was removed to federal court. See 28 U.S.C.
§ 1442(a) (1) .2/
After trial, the jury returned a
verdict of guilty. Manypenny then moved
for arrest of judgment or, alternatively,
for a new trial. See Fed.R.Crim.P. 33,
34. The court granted the Rule 34 motion
for arrest of judgment. Thereafter, the
State moved for reconsideration of the
grant of the Rule 34 motion. The court
granted the motion for reconsideration,
but no action was taken for a year.
On September 8, 1977, Manypenny
moved for a hearing to determine the status
of the State's pending motion. The hear-
ing was held on September 26. Two days
4a
later, the district court reversed its
previous order arresting judgment. The
court construed Manypenny's Rule 34 motion
to be a motion for judgment of acquittal
under Fed.R.Crim.P. 29(c), granted the
motion for acquittal, set aside the jury's
verdict and held Mannypenny not guilty.
Arizona v. Manypenny, 445 F.Supp. 1123 (D.
Ariz. 1977) .2/
The State appeals from these
rulings. We find that we are without
jurisdiction to satertain such an appeal.
We therefore dismiss the appeal.
It is well-settled that the
prosecution has no right to appeal an
adverse decision absent some statutory
authorization. See United States v.
Martin Linen Supply Co., 430 U.S. 564,
568 (1977); United States v. Wilson, 420
U.S. 332, 336 (1975); United States v.
5a
Sanges, 144 U.S. 310,. 312, 318-23 (1892) .3/
The State contends that it may appeal the
judgment in this case under 18 U.S.C. §
3731, the Criminal Appeals Act.
Section 3731 provides in part:
"In a criminal case an appeal
by the United States shall lie
to a court of appeals from a
decision, judgment, or order ©
of a district court dismissing
an indictment or information
as to any one or more counts,
except that no appeal shall lie
where the double jeopardy clause
of the United States Constitution
prohibits further prosecution.
The provisions of this section
shall be liberally construed to
effectuate its purposes."
(Emphasis added.)
While the Supreme Court has stated
that § 3731 was “intended to remove all
statutory barriers to Government appeals
and to allow appeals whenever the Constitu-
tion would permit," United States v. Martin
6a
Linen Supply Co., 430 U.S. at 568, quoting
United States v. Wilson, 420 U.S. at 337,
it is manifest that § 3731 is limited by
its own terms to appeals by the United
States as a prosecuting entity. The statute
authorizes "an appeal by the United States,"
not an appeal by a state or by "any of the
United States." As we have previously
stated, "'[t]he language of a statute is
the best and most reliable index of its
meaning, and where the language is clear
and unequivocal it is determinative of its
construction.'" Smith v. Califano, No.
77-1296 (9th Cir. Mar. 8, 1979), slip op.
at 709, quoting, Monte Vista Lodge v.
Guardian Life Insurance Co., 384 F.2d 126,
128 (9th Cir. 1967), cert. denied, 390 U.S.
950 (1968).
We note that no court has ever
interpreted § 3731 as providing for appeals
7a
by a state in a § 1442(a) (1) prosecution.
Moreover, the legislative history of this
provision and its predecessors make it
clear that Congress was only concerned
with appeals by the federal Government. 4/
We share the concerns expressed
by Judge Kennedy in his dissent that the
policy of § 3731, which is designed to
"prevent erroneous trial court rulings
from thwarting lawful prosecutions," is
equally applicable to state prosecutions
and federal prosecutions, and that not
allowing state appeals in cases removed
to the federal courts under § 1442(a) (1)
has a substantial effect on the delicate
balance of our federal system. However,
we cannot rewrite § 3731 for Congress. As
the Supreme Court has warned:
"A statute "is not an empty
vessel into which this Court
is free to pour a vintage that
8a
Mr,
we think better suits present
day tastes." United States v.
Sisson, 399 U.S. 267, 297 (1970).
Considerations of this kind are
for Congress, not the courts."
National Broiler Marketing Association v.
United States, 46 U.S.L.W. 4620, 4623 (U.S.
June 12, 1978), quoted in Smith v. Califano,
Slip op. at 712.
Neither can we look to state law
as providing Arizona with a right to appeal
in this case. A case before the federal
courts under § 1442(a) (1) is one within
the judicial power of the United States,
for it arises under federal law. See
Tennessee v. Davis, 100 U.S. 257, 262-65
(1879). In a case arising under federal
law, federal law, rather than state law,
controls. See D'Oench, Dune & Co. v. FDIC,
315 U.S. 446, 456 (1942); Deitrick v.
Greaney, 309 U.S. 190, 200-01 (1940); Board
of County Commissioners v. United States,
9a
”
g
308 U.S. 353, 349-53 (1939); United States
v. Crain, 589 F.2d 996, 998 (9th Cir. 1979).
While in certain cases the federal
courts may adopt state law as federal law,
see Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 457 (1957); D'Oench, Duhme
& Co. v. FDIC, 315 U.S. at 468-72 (Jackson,
J., concurring); Board of Commissioners
v. United States, 308 U.S. at 349-52;
United States v. Crain, 589 F.2d at 999-
1000, adoption of state law in this case
does nak aid the State's case. As previous-
ly noted, the prosecution may appeal only
where authorized to do so by statute.
See United States v. Martin Linen Supply
Co., 430 U.S. at 568; United States v.
Wilson, 430 U.S. at 336; United States v.
Sanges, 144 U.S. at 312, 318-23. Adoption
of state law as the federal rule would not
meet this requirement of statutory author-
10a
ization, for such a federal rule would be a
"common law" rule, even if based upon a
state statute. See United States v. Crain,
589 F.2d at 998-1000; United States v. Best,
573 F.2d 1095, 1101 (9th Cir. 1978).
In conclusion, only Congress can
authorize an appeal by a state ina § 1442
(a) (1) criminal prosecution. Thus far,
Congress has not seen fit to do so. There-
fore, we hold that we are without jurisdic-
tion to entertain this appeal.
APPEAL DISMISSED.
lla
FOOTNOTES
1. [reference on page 1]
28 U.S.C. § 1442(a) (1) provides
A civil action or criminal
prosecution commenced in a state court
against any of the following persons may
be removed by them to the district court
of the United States for the district and
division embracing the place wherein it is
pending.
(1) Any officer of the United
States or any agency thereof,
or any person acting under
him, for any act under color
of such office or on account
of any right, title or author-
ity claimed under any Act of
Congress for the apprehension
Or punishment of criminals
or the collection of revenue.
2. [reference on page 2]
The court stated that its reason
for ordering Manypenny's acquittal was that
he was entitled to immunity under the
principle announced In re Neagle, 135 U.S.
1 (1890). See Clifton v. Cox, 549 F.2d
722 (9th Cir. 1977). The immunity defense
had not been raised at trial. However,
the district court concluded that it had
erred in failing to sua sponte instruct
the jury on such a defense.
l2a
ce [reference on page 2]
In his dissent, Judge Kennedy
suggests that tnis court may have jurisdic-
tion over the State's appeal under 28 U.S.C.
§ 1291, the final judgement rule. We
disagree.
The Supreme Court has twice held
that general appeals provisions are not
sufficiently explicit to overcome the
common-law rule that the State may not
appeal an adverse decision in a criminal
case. United States v. Wilson, 420 U.S.
332, 336 (1975); United States v. Sanges,
144 U.S. 310, 318, 322-23 (1892). A
statute expressly giving the State a
right to appeal in a criminal case is
required. Section 1291 is not such a
statute. Neither does § 1291 allow us
to refer to state law to determine whether
or not the State has a right of appeal.
See discussion of state law infra.
4. [reference on page 3]
Nowhere in the legislative history
of the various criminal appeals acts does
it appear that Congress addressed or even
considered appeals by the State in state
prosecutions before the federal courts
under § 1442. See S. Rep. No. 1296, 91st
Cong., 2d Sess. (1970) H.R. Rep. No. 1768,
9lst Cong., 2d Sess. (1970) 41 Cong. Rec.
2190-97 (Feb. 4, 1907), 2744-63 (Feb. 12,
1907). The reports and debate on the issue
of such acts indicate that Congress was
concerned only with the right of the federal
l3a
Government to appeal in criminal cases.
See S. Rep. No. 1296 at 2, 5, 9-11, 18
H.R. Rep. No. 1768 at 21 41 Cong. Rec.
at 2190 (remarks of Sen. Hale) (remarks of
Sen. Bacon) (concerned with lower court
determinations that acts of Congress un-
constitutional), 2760 (remarks of Sen.
Spooner) (the United States should have
the same right to appeal in federal criminal
cases as many of the states do in their
own courts).
l4a
—
Re: STATE OF ARIZONA v. WILLIAM DALE
MANYPENNY, No. 77-3453
KENNEDY, Circuit Judge, dissenting:
I respectfully dissent from the
majority's conclusion that we are without
jurisdiction to entertain this appeal.
There are two possible sources
of jurisdiction, 18 U.S.C. § 3731 and
28 U.S.C. § 1291. With respect to § 3731,
the majority concludes that the section
must be confined to the United States.
This is a reasonable position and it
certainly has textual validity. But
while a court cannot ignore the language
of the statute, the Supreme Court has
warned against "the dangers of an approach
to statutory construction which confines
itself to the bare words of a statute ..
for 'literalness may be a Strangle meaning
. 15a
Lynch v. Overholser, 369 U.S. 705, 710
(1962) (quoting Utah Junk Co. v. Porter,
328 U.S. 39, 44 (1946)). It is true that
no court has ever interpreted section 3731
as providing for appeals by a state; on
the other hand we find no holding to the
contrary. This is apparently, a case of
first impression. The legislative history
reveals that Congress simply never con-
sidered the question before us. I conclude
that Congress did not intend a state to
be completely prohibited from appealing
in a removed criminal prosecution. My
concern with the majority's approach is
that as well as producing an anomalous
result, it creates serious and difficult
problems of federalisn. In effect the
majority opinion holds that through re-
moval, a state cannot only be deprived
of jurisdiction to try a case in its own
l6a
courts, it can also be completely deprived
of any right to appeal that would have
existed under state law.
The original Criminal Appeals
Act, 34 Stat. 1246, was the subject of
extended congressional debate. See United
States v. Sisson, 399 U.S. 267, 293-96
(1970). Upon its enactment, government
appeals were limited to a narrow category
of cases. The Act was amended in 1971
to permit all appeals that can be main-
tained consistently with the Constitution,
and thus the amendment "remove[d] all
statutory barriers to Government appeals."
United States v. Wilson, 420 U.S. 332, 337
(1975). The new Act contains a provision
that it shall be liberally construed.
18 U.S.C. § 3731. The statutory scheme
‘is designed to prevent erroneous trial
court rulings from thwarting lawful
17a
- |
prosecutions. That policy applies with
equal force to appeals in those cases
in which the state is the prosecuting
entity under the removal statute. In
view of the sensitive nature of state-
federal relations in section 1442 (a) (1)
removal cases, I do not believe that
Congress intended to deprive states of
any right to appeal.
Even if one agrees with the
majority's interpretation of section 3731,
there remains another possible source of
jurisdiction, that is, the general grant
of appellate jurisdiction under 28 U.S.C.
§ 1291. In United States v. Sanges, 144
U.S. 310 (1892), the Supreme Court held
that the United States cannot appeal in
a criminal case without express congres-
sional authorization. The Court surveyed
both English and American state precedent
18a
and concluded that the settled practice
was that the state could not appeal
criminal cases except in accordance with
express statutes. The Court then concluded:
"In none of the provisions of
this act, defining the appellate
jurisdiction, either of this
court, or of the Circuit Court
of Appeals, is there any indica-
tion of an intention to confer
upon the United States the
right to bring up a criminal
case of any grade after judgment
below in favor of the defendant.
It. is impossible to presume an
intention on the part of Congress
to make so serious and far-reach-
ing an innovation in the criminal
jurisprudence of the United States."
Id. at 323.
While Sanges is instructive, neither
it nor any other case has held that there
must be express congressional authorization
in order for a state to appeal in federal
court.
The rule in English and American
law which requires statutory authorization
19a
before the prosecution can appeal is rooted
in the concern that a sovereign not be
given the uncontrolled right to prolong
criminal proceedings against those subject
to its jurisdiction. See id. at 315-16.
Except for this concern, there is nothing
peculiar to a criminal judgment that
prevents its being appealed under a
general grant of appellate jurisdiction,
and this is true regardless of the identity
of the prevailing party at trial. By
enactment of 18 U.S.C. § 3731 the Government
of the United States has determined that
its interests are well served by criminal
appeals, and that the rights of itn citizens
are given adequate protection by the double
jeopardy clause. Given the purposes of the
rule requiring special authority for
criminal appeals, it was neither appropriate
nor necessary for Congress to speak to the
20a
authority of prosecutors who represent
a separate state as the sovereign initiat-
ing criminal charges. That question is
solely the prerogative of the State of
Arizona, and the State allows appeals in
cases such as the one before us. The
State's authorization should suffice to
permit this appeal under the general
appellate jurisdiction granted by 28 U.S.C.
§ 1291.
Construing section 1291 as giving
us jurisdiction to hear an appeal by a
state where such appeals are explicitly
provided for by state law is not incon-
Sistent with the purpose of allowing
removal in cases where federal officers
are involved. The federal policies at
stake -- to provide a fair trial for
government officers, free from local bias
-- are not furthered by altering the
2la
instances in which appellate review may be
secured by the state. Further, following
the state rule would violate no other
federal policies. For example, the work-
load of the federal courts, the integrity
of the federal forum, the difficulty of
complying with state rules, are not involved
here.
If one views the right to appeal
as substantive, it is completely consist-
ent with the general scheme in removal
actions to look to state law.4+ As the
Notes of the Advisory Committee state,
in section 1441(a) (1) removal cases, "the
Federal Courts apply the substantive law
of the State, but follow Federal procedure."
Notes of the Advisory Committee on Rules,
Fed. R. Crim. P- 54(b) (1).
Having proposed two alternative
bases of jurisdiction, I realize that
22a
under some circumstances, specifically
where the state has not provided for appeals
by the state, it will make a difference
which theory is relied on. In this case,
however, I need not decide between the
theories because I conclude that Arizona
does provide for appeals by the state.
In State ex rel. Dawson v. Superior
Court, 112 Ariz. 123, 538 P.2d 397 (1975),
the Supreme Court of Arizona granted
appellate review, by certiorari, see Ariz.
Rev. Stat. § 12-2001, of a trial court order
setting aside a jury verdict of guilty,
followed by entry of a judgment of acquit-
tal.
After once remanding to the trial
court, the Arizona Court of Appeals
reviewed the case on the merits and again
confirmed the state's authority to seek
review of a trial court's entry of judgment
of acquittal. State v. Allen, 27 Ariz.App.
23a
377, P.2a £76 (1976). I conclude, there-
fore, that even if state law were to be
controlling, it would not bar Arizona's
appeal in this case.
Because the majority reaches a
contrary conclusion on this first issue,
it has not explored the other problem
raised by this case. However, having
examined the case, I conclude not only
that there is jurisdiction, but that the
judgment ought to be reversed.
I turn first to a consideration
of whether an appellate ruling favorable
to the state would put the defendant twice
in jeopardy as a matter of federal law,
thus barring the appeal.*
I think the
argument must be resolved sielest the
defendant based on a previous decision
of this court and more recent decisions
of the Supreme Court of the United States.
24a
The entry of a judgment of acquittal, after
the jury has returned a verdict of guilty,
may be set aside on review without offend-
ing the principle against placing a defend-
ant twice in jeopardy because the jury
verdict can be reinstated, obviating the
need for a second trial. In this case
there was also a motion for new trial
that was not denied or otherwise ruled
upon by the trial court. It should be
deemed pending upon remand. If granted,
there would be bert proceedings, but
only because the defendant has asked for
them. This outcome similarly does not
violate the double jeopardy clause. The
reasons for these conclusions follow.
Our circuit has squarely held
that where a jury has returned a verdict
and the trial judge subsequently grants
a motion for acquittal under rule 29(c),
25a
the prosecution may appeal the judgment,
and the jury verdict can be reinstated
without violating the double jeopardy
clause. United States v. Rojas, 554 F.2d
938 (9th Cir. 1977). The Rojas case was
decided before a series of Supreme Court
cases, United States v. Scott, 46 U.S.L.W.
4653 (June 14, 1978); Sanabria v. United
States, 46 U.S.L.W. 4646 (June 14, 1978);
Burks v. United States, 46 U.S.L.W. 4632
(June 14, 1978), and it must be decided,
therefore, whether those cases overruled
Rojas. I conclude they did not.
In United States v. Scott, the
court addressed in footnote 7 the problem
we face. Referring to its earlier decision
in United States v. Jenkins, 420 U.S. 358
(1975), the Court stated:
"In Jenkins we had assumed that
a judgment of acquittal could be
appealed where no retrial would
be needed on remand:
"When this principle is applied
to the situation where the jury
returns a verdict of guilt but
the trial court thereafter enters
a judgment of acquittal an appeal
is permitted. In that situation
a conclusion by an appellate
court that the judgment of acquit-
tal was improper does not require
a criminal defendant to submit
to a second trial; the error can
be corrected on remand by the
entry of a judgment on the verdict.'
430 U.S. at 365. Despite the
Court's heavy emphasis on the
finality of an acquittal in Martin
Linen and Sanabria v. United States,
- « « neither decision explicitly
repudiates this assumption."
46 U.S.L.W. at 4655, n.7 (citation omitted).
This ‘analysis is consistent with the result
our court reached in Rojas.
The defendant focuses on language
in Sanabria, emphasizing the differences
between acquittals and dismissals of the
indictment. The reference to acquittals
in the Sanabria case, however, is directed
to the instance in which a defendant
necessarily must be tried again, by reason
27a
of the errors assigned on the prosecution's
appeal, because there is no verdict to
reinstate. Those considerations are in-
apposite to the instant case, where there
has been a jury verdict which can be
reinstated if the prosecution's arguments
are accepted. The footnote quoted above
from Scott is controlling, as is our Rojas
decision. :
Our reversal of the trial court's
judgment of acquittal would result in
reinstatement of the guilty verdict,
subject to the defendant's motion for new
trial. The defendant originally moved in
the alternative for an order arresting
judgment for a new trial. Since the
district court granted the motion to
arrest judgment, the motion for a new trial
became moot. If the trial court's judgment
were reversed, that motion would no longer .
28a
be moot and should be passed on by the
district court. Thus, a second trial might
be appropriate in this case. If so, however,
it would not be ordered as a result of
the errors assigned by the prosecution's
appeal or as a result of our reversing
the judgment of acquittal. The only cause
for new trial, if one were granted, would
be the defendant's motion for new trial.
Where the new trial is granted at the
request of the defendant, and there has
been no bad faith conduct by the judge
or prosecutor, there is no double jeopardy
bar. United States v. Dinitz, 424 U.S.
600, 611 (1976). Here the defendant might
still pursue the motion for a new trial,
based, apparently, on his desire to raise
the Clifton defense. That might be a
proper request, but since it would be at
29a
his instance double jeopardy concerns are
not implicated.
I turn now to the merits of the
district court's ruling. As an initial
matter, the State argues that the judge
lacked jurisdiction to enter a judgment
of acquittal because, contrary to the
requirements of rule 29(c), the defendant
failed to file a proper motion within
seven days of the verdict. At least two
circuits have held that unless a timely
motion is filed, the judge lacks jurisdic-
tion to enter a judgment of acquittal.
United States v. Johnson, 487 F.2d 1318,
1321 (5th Cir.), cert. denied, 419 U.S.
825 (1974); Rowlette v. United States, 392
F.2d 437, 439 (10th Cir. 1968). See also
United States v. Homer, 411 F. Supp. 972,
975 (W.D. Pas.), aff'd on other grounds,
545 F.2d 864 (3rd Cir. 1976), cert. denied,
30a
431 U.S. 954 (1977). The defendant did.
file motions for arrest of judgment and
for a new trial within the time limits
prescribed by rules 29(c) and 34. The
court having retained jurisdiction over
the case, I think it had discretion to
consider entry of a judgment of acquittal
on its own motion, where it was convinced
there had been a fundamental error in its
instructions, Fed. R. Crim. P. 2.
I conclude further, however, that
the trial court misused its discretion in
granting judgment of acquittal. The court's
ruling was based on the premise that the
evidence was insufficient to overcome a
defense of immunity under Clifton v. Cox,
supra. The defense of immunity was not
raised or argued at all at trial. The
defendant had the burden of raising immunity
as an affirmative defense but did not do
3la
that. Given the confused state of the
evidence, which we discuss further below,
this may have been a deliberate trial
strategy. In these circumstances the
Government cannot be faulted for failing
to prove that grounds for immunity were
not present. It makes no sense to apply a
test of insufficiency of the evidence to
a defense not raised at trial and pertain-
ing to a subject that the Government did
not have the duty to open. At most, the
defendant is entitled to a new trial so
that he may have the advantage of the
Clifton case in preparing his defense.
Moreover, I think the evidence
introduced at the first trial may have
permitted a reasonable inference that. the
defendant was not executing his duties in
good faith, and therefore that the judgment
of acquittal was improper. The defendant's
32a
theory was that his gun twice went off by
accident and coincidentally hit the victim
at a distance of 120 feet. The victim was
hit in the back by multiple pellets from
at least two shells. Three twelve-gauge
shotgun shells were found within eight
inches of one another to the right of the
trail. All three of them had the smell of
fresh powder on them. The defendant had
no explanation for the shells being so
close together. He testified that the
accidental shots were fired about fifteen
feet apart. In addition, he originally
denied that the victim had been shot. Later
he told different versions of what happened,
at one point stating that he meant to shoot
in front of the victim, and other times
stating that he shot the man intentionally
because he was uncertain whether his
partner was safe. Finally, the defendant
33a
testified that when a suspected illegal
alien runs back towards the border, as
the victim was doing, it is normal
procedure to let him go. He gave no
explanation why that practice was not
followed in this case.
On remand, the district court
would have the defendant's motion for a
new trial before it. I express no opinion
on the propriety of granting this motion
as it rests largely with the trial court's
discretion. I do note that Clifton did
not create a new defense. The immunity
defense for federal officers has been in
existence since In re Neagle, 135 U.S. 1
(1890); Clifton reaffirmed the existence
of federal officer immunity.
I would hold that this court has
jurisdiction and reverse and remand.
34a
POOTNOTES
1/ The analysis of whether the right
to appeal is substantive or procedural is
not governed, in a strict sense, by the
principles of Erie Railroad v. Thompkins,
304 U.S. 64 (1938), and its progeny, see,
e.g., Hanna v. Plumer, 380 U.S. 460 (1965),
for this case is not in federal court because
of diversity jurisdiction. The instant case
concerns the actions of an officer in his
federal capacity and by the removal statute,
28 U.S.C. § 1442(a) (1), Congress has made
the implicit declaration that such suits
are ones arising under the laws of the
United States. Osborn v. United States,
22 U.S. (9 Wheat.) 738 (1824); Tennessee
v. Davis, 100 U.S. 257 (1880). There is
no Rules of Decision Act, 28 U.S.C. § 1652,
or Rules Enabling Act, 28 U.S.C. § 2072,
which governs the choice of law analysis
in such actions. Cf. Notes of Advisory
Committee on Rules, Fed. R. Crim. P. 54
(b) (1) (in section 1441(a) (1) removal cases,
“the Federal Court applies the substantive
law of the State, but follows Federal
procedure"). The Erie line of cases,
however, would be useful by analogy, for
if we were to say the right in question
is a substantive one and conclude further
that Congress has by statute prescribed a
federal standard which overrides the state
rule on a point which has no bearing upon
federal interests in the case, (interests
such as the defense of immunity and provid-
ing a neutral forum for the trial of federal
officers), then we would be exercising
federal jurisdiction in a sensitive, perhaps
new, dimension. Accordingly, I think the
35a
=
Erie line of cases, adopting a general
distinction between substantive and proced-
ural rights, would help resolve a choice
of law question as to the right of appeal
in this case.
The Government's right to appeal
in a criminal case could be characterized
as substantive, since a particular jurisdic-
tion may afford to the defendant greater
protection against multiple trials than
is required by the minimum dictates of the
fifth amendment double jeopardy clause.
See the debates on the first Criminal
Appeals Act, discussed in United States v.
Sisson, 339 U.S. 267, 293-96 (1970). On
the other hand, it cannot be doubted that
Congress has an interest in assigning the
responsibility for ruling on questions of
law between federal trial and appellate
courts, courts which operate under different
constraints than do those of a state, and
such concerns seem to be procedural in
nature. In making the substantive-procedural
determination, we would think that balancing
the importance of the state and federal
policies implicated would be a significant
factor in the inquiry. Cf. Ely, The
Irrepressible Myth of Erie, 87 Harv. L. Rev.
693, 717 n.130 (1974); Redish and Phillips,
Erie and the Rules of Decision Act: In
Search of the Appropriate Dilemma, 91 Harv.
L. Rev. 356 (1977) (disagreeing on whether
balancing the importance of state and
federal policies is appropriate in decid-
ing whether state or federal law should be
followed in diversity cases).
What are the state policies
supporting its determination of when the
36a
|
state may appeal? Finality and repose
are the principal purposes as well, I
Suppose, as a desire to correct the more
serious errors in the lower court proceed-
ings. These considerations also support
state decisions regarding statute of
limitations and res judicata questions.
Both of these issues, in the Erie context,
have been held matters of state law.
Moreover, Arizona and New Mexico
cases have held the-right to appeal to be
a substantive question. State v. Birming-
ham, 96 Ariz. 109, 392 P.2d 774, 776 (1964);
In re Maricopa County, Juvenile Action No.
JS-834, 26 Ariz.App. 485, 549 P.2d 580,
583-84 (1976). See Durand v. New Mexico
Comm'n on Alcoholism, 89 N.M. 434, 553
P.2d 715, 715 (Ct.App. 1976).
Of course, some parts of state
appeals statutes might be framed so that
compliance by the federal court with all
their provisions would be impossible (e.g.,
specifying which district or which inter-
mediate court of appeals is the proper
forum for hearing the appeal). For these
questions, federal law and procedure would
control. But as to the basic question
whether the state can secure appellate
review, state law can be accomodated by
the federal system.
2/ It is quite possible that Arizona
courts would permit the state to appeal in
this case under Ariz. Rev. Stat. § 13-4032
(5), which permits the state to appeal from
"{a]n order made after the judgment affect-
ing the substantial rights of the state."
See Ariz. R. Crim. P. 24.2; Rules of the
37a
>
*
Supreme Court of Ariz. 22(c) (3); State
v. Birmingham, 96 Ariz. 109, 392 P.2d 775
(1964) (“order" and "judgment" are
synonymous as used in the civil appeals
statute, Ariz. Rev. Stat. § 12-2101);
State v. Allen, 557 P.2d at 182-83.
Even if no right of appeal existed under
§ 13-4032, however, appellate review is
appropriate under the certiorari statute.
3/ Arizona courts have held that
although the certiorari statute speaks
of review to determine whether the lower
court lacked jurisdiction, the statute
also permits rewiew to determine whether
a lower court abused its discretion. See,
e.g., State ex rel. Dawson v. Superior
Court, 112 Ariz. 123, 538 P.2d 397, (1975);
State ex rel. Ronan v. Superior Court,
95 Ariz. 319, 390 P.2d 109 (1964) ("A
writ of certiorari may be used to review
abuse of discretion."); Jones v. Lopez
Plascencia, 10 Ariz.App. 253, 458 P.2d
120 (Ct. App. 1969).
4/ If this appeal is viewed as fall-
ing under § 3731 then the question of
double jeopardy is jurisdictional because
that section provides that "no appeal
shall lie where the double jeopardy clause
of the United States Constitution prohibits
further prosecution." If jurisdiction
is found by virtue of § 1291 then the
double jeopardy issue still must be reached,
though technically the presence of double
jeopardy is a constitutional bar to a
second trial, not a jurisdictional defect
in this appeal.
38a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ARIZONA,
Plaintiff-Appellant, No. 77-3453
vs. OPINION
WILLIAM DALE MANYPENNY,
Defendant-Appellee.
mee ee ee ee ee ee ee ee ee ee”
Appeal from the United States
District Court for the District
of Arizona
Filed: July 31, 1978, Emil E. Melfi, Jr.
Clerk, U.S. Court of Appeals
Before: CHOY and KENNEDY, Circuit Judges,
and HALL,* District Judge.
PER CURIAM:
We assume arguendo that the State .
of Arizona, in its criminal prosecution
which was removed to the federal court,
*The Honorable Peirson M. Hall, Senior United
States District Judge for the Central District
of California, sitting by designation.
39a
has the same right of appeal under 18
U.S.C. § 3731 as is conferred on the United
States in a federal prosecution. On
the facts of this case, however, a judg-
ment of acquittal was entered, and that
judgment is final and unreviewable.
Sanabria v. United States, U.S. .
46 U.S.L.W. 4646 (June 14, 1978). Accord-
ingly, the appeal is dismissed.
40a
~
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
THE STATE OF ARIZONA,
Plaintiff, No. CR-76-377-
TUC-WCF
vs.
WILLIAM DALE MANYPENNY, ORDER
Defendant.
eee ee ee ee ee ee eee ee
Filed: September 28, 1977, 2:02 P.M.,
W. J. Furstenau, Clerk, U.S.
District Court for the District
of Arizona
While acting as a Border Patrol
Officer the defendant, William Dale Manypenny,
shot and injured a fleeing alien. The
event occurred on the Organ Pipe National
Monument in Pima County, Arizona, not far
from the Mexican border, or perhaps on the
Papago Indian Reservation which is also
in Pima County. Manypenny was indicted
4la
in the Pima County Superior Céurt for
assault with a deadly weapon or instrument,
a violation of A.R.S. Section 13-249A
and B. The case was removed to this Court
pucsuant to Title 28, United States Code,
Section 1442(a) (1). The defendant was tried
and the jury returned a verdict of guilty.
When defendant moved for new trial and
for arrest of judgment, the Pima County
Attorney failed to respond and the motion
to arrest judgment was granted. The
County Attorney immediately moved for
reconsideration and this Court granted
the motion.
The motion for arrest of judgment
contended that the State of Arizona, and
therefore this Court on removal, had no
criminal jurisdiction over the land within
either the Organ Pipe National Monument
42a
5
or the Pagago Indian Reservation. Defendant
also contended that the area of immigration
is preempted by the United States and that
his prosecution is an attempt at regula-
tion of immigration, and, therefore, void.
He argued further that the federal criminal
laws must be applied to his acts instead
of Arizona laws, Title 18, United States
Code, Section 13 and that his acts as a
federal officer are not within the jurisdic-
tion of the State.
The Court finds on reconsideration
that Arizona has criminal jurisdiction
over both the Organ Pipe National Monument
and the Papago Indian Reservation, that
the Arizona statute is not void as applied
to the area of immigration and that the
Arizona criminal statute can be used as
to events occurring on said lands. However,
43a
the Court also finds that officers acting
under color of federal law have a perfect
defense to state criminal prosecutions
when their actions are honestly and
reasonably believed to be necessary and
proper in carrying out their federal
duties and that such defense is here
established.
Jurisdiction over the place of
occurrence will be discussed first. The
general rule is that a state has complete
jurisdiction over the land within its
exterior boundaries. United States Y.
McBratney, 104 U.S. 621 (1881); People v.
Martin, 326 U.S. 496, 66 S.Ct. 307 (1946).
There are three exceptions. The first is
provided by Article I, Section 8, Clause 17
of the Constitution of the United States.
The United States has exclusive jurisdiction
44a
Over land "purchased" by the United States
"by the Consent of the Legislature of the
State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals,
Dock-Yards, and other needful Buildings".
Since the land here in question was not
~"“purchased" and is not far one of the
specified purposes, the first exception
is admitted by defendant not to apply.
Fort Leavenworth R. Co. V. Lowe, 114 U.S.
525, 5 S.Ct. 995 (1885). Some examples
of such land in Arizona are provided by
A.R.S. Sections 26-251 through 253 (land
for military purposes) and Sections 37-61ll
through 613 (land for penal purposes).
A second exception is recognized
when a state affirms the United States’
retention of exclusive jurisdiction at the
time it is admitted into the Union. Defend-
ant strongly urges the argument that Arizona
45a
'*
has so affirmed in Section 20 of its
Enabling Act, 36 Stat. 557, 1A.R.S.,
p. 81 and Article XX, Paragraph Fourth of
Arizona's Constitution, 1 A.R.S. P. 181:
"Fourth. The people inhabiting
this State do agree and declare
that they forever disclaim all
right and title to the unap-
propriated and ungranted public
lands lying within the boundaries
thereof and to all lands lying
within said boundaries owned
or held by any Indian or Indian
tribes, the right or title to
which shall have been acquired
through or from the United States
or any prior sovereignty, and
that, until the title of such
Indian or Indian tribes shall
have been extinguished, the
same shall be, and remain,
subject to the disposition
and under the absolute jurisdic-
tion and control of the Congress
of the United States." |
Draper v. United States, 164 U.S.
240, 17 S.Ct. 107 (1896), interpreted a
clause from the Enabling Act of Montana
which is very similar to Arizona's Enabling
Act and which appears indistinguishable
46a
i
for the purposes of this case. The holding
of the case was that the United States
had no jurisdiction over a non-Indian
who murdered a non-Indian on an Indian
reservation and that Montana did have
jurisdiction. The reasoning of the case
was that the "absolute jurisdiction"
language of the Act was intended only
to preserve the complete control of the
United States over the title to Indian
lands owned by Indians outside of reserva-
tions. The United States had an interest
in preventing the State of Montana from
frustrating federal limitations on the
|
| alienability of Indian lands.
Organized Village of Kake v. Egan,
369 U.S. 60, 82 S.Ct. 562 held that the
disclaimer of "right and title" in a Similar
clause by Alaska was a disclaimer of
propriety rather than governmental interest.
47a
rt held further that "absolute" means
undimiiished, not exclusive.
These cases show that Arizona did
not disclaim governmental interests over
any land within its external boundaries
by this clause in its Constitution. Even
a military reservation comes under the
jurisdiction of the state on statehood
when there is no express savings clause
to prevent it. Fort Leavenworth R. Co.
v. Lowe, Supra. For an example of such
an express savings clause, see, the Act
admitting the State of Wyoming into the
Union, 26 Stat. 222 and Title 16, United
States Code, Section 24 (Yellowstone
National Park).
The third exception is the cession
of jurisdiction to the United States by an
individual state after statehood. Collins
v. Yosemite Park and Curry Co., 304 U.S.
48a
518, 58 S.Ct. 1009 (1938). Yosemite
National Park came under the qualified
jurisdiction of the United States by this
‘imate ke 1919. Many National Parks and
National Monuments are now under the "sole
and exclusive" jurisdiction of the United
States. Eg., Title 16, United States Code,
Sections 95, 117, 124, 157 and many others.
No such cession of jurisdiction was ever
made by Arizona until 1976 after the events
in this case. See 1964 U.S. Code Cong. &
Ad. News 3923 recognizing the facts as they
then stood; and A.R.S. Section 37-620,
Laws 1976, Ch. 54, Section 1 which cedes
concurrent rather than exclusive jurisdic-
tion to the United States over the Organ
Pipe Cactus National Monument and other
parks, monuments, forest and dams.
Since Arizona does have Finns ies
tion over the land in question, its power
49a
to prosecute an Immigration Officer acting
under color of his federal duty must be
examined. Further, Since the Arizona
criminal law concerning assault with a
deadly weapon is not a direct attempt
to regulate immigration and since it
expresses legitimate State concerns,
the preemption doctrine does not prevent
the applicability of this law unless it
is an unreasonable burden on the implement-
ation of federal immigration policy. Cé£.,
Southern Pac. Co. v. State of Arizona, 325
U.S. 761, 65 S.Ct. 1515 (1945). This is
apparently the exact intent of Congress.
Title 8, United States Code, Section 1358
provides for local jurisdiction within
immigration stations to enforce state
criminal laws. The reasonableness of the
burden in this situation appears to this
Court to involve many of the same consider-
50a
ations as the official duty doctrine
protecting federal officers as set out
In re Neagle, 135 U.S. 1, 10 S.Ct. 658
(1890); and Clifton v. Cox, 549 F.2d
722 (9th Cir. 1977). Therefore, these
two matters will be discussed together
later herein.
People v. Martin, supra, suf-
ficiently answers defendant's contention
that only the federal criminal statutes
can be applied to him even by the State.
When there is concurrent jurisdiction,
the State may use its own criminal
statutes to prosecute.
Clifton v. Cox, supra, thoroughly
reviews the history and the present status
of the doctrine set out in the landmark
case of In re Neagle, Supra. It is not
necessary for this Court to repeat the
reasoning from Clifton; it is sufficient
5la
to summarize the holding:
If a person is authorized to do an
act by the law of the United States and if
he does no more than what is necessary and
proper for him to do, he is innocent of any
crime against the laws of any state. This
is true if the acts are within the outer
perimeter of his line of duty, taking into
account that the concept of duty encompasses
the sound exercise of discretionary authority.
Further, veri ‘when an act is not actually
authorized, errors of judgment in what one
conceives to be his legal duty will not,
alone, serve to create criminal xesponsibil-~
ity of a federal officer. An officer's acts
are not necessary and proper only if the
official employs means which he cannot
honestly consider reasonable in discharging
his duties Or otherwise acts out of malice
Or with some criminal intent. The finder
52a
of fact may find that the actions were not
reasonable under all of the circumstances;
however, when the evidence shows that the
officer honestly believed them to be reason-
able, he must be found innocent.
ka Sead ten by this doctrine,
Arizona's criminal law against assault with
a deadly weapon cannot be said to be an
unreasonable burden on the implementation
of federal immigration policies. Congress
has provided two procedural devices in
addition to this judge-shaped doctrine
which protect federal officers and federal
policies. They are the habeas corpus
provision, Title 28, United States Code,
Section 2241l(c) (2), used in Clifton, and
the removal statute, Title 28, United States
Code, Section 1442(a) (1), used in the
present case. These three limitations
are all the protection that the federal
53a
immigration policy requires. State
criminal law may constitutionally be applied
in this case; thus, this Court has jurisdic-
tion.
Prodecurally, it is unclear if
the determination as to whether defendant
Manypenny was carrying out federal duties
in performing the act should be decided
as a question of law by the Court or
should be decided by a jury as a question
of fact. United States ex rel. Drury v.
Lewis, 200 U.S. 1,.26 S.Ct. 229 (1906),
seems to hold that it is a question of fact
for the jury, but Clifton says:
"The issue of petitioner's
scope of authority presents
a question of law which we
find was properly resolved
by the district court."
_Id., 547 F.2d at 726.
In either event, this Court commit-
ted fundamental error; the issue was not
54a
properly resolved by the Court at the time
of trial. The Court should have considered
this principle of law and thus granted
defendant's motion for verdict of acquittal
or failing that should have submitted the
matter to the jury on altogether different
instructions which embodied this federal
law on the matter of the officer's reason-
able belief.
Again, in either event, it now
appears that the procedurally correct
method of rectifying the error after trial
was not to arrest judgment pursuant to
Title 28, United States Code, Federal Rules
of Criminal Procedure, Rule 34, but to
grant a judgment of acquittal pursuant to
Rule 29(c) or a new trial pursuant to Rule
33. On reconsideration, the Court must
reverse its arrest of judgment and proceed
with matters as they now stand.
55a
In order to secure simplicity in
procedure, fairness in administration and
the just determination of this proceeding,
this Court will .consider the motion for
arrest of judgment as a motion under Rule
29(c) for judgment of acquittal. Federal
Rules of Criminal Procedure, Rule 2; cf.,
United States v. Baker, 432 F.2d 994 (10th
Cir. 1970).
The test for such a motion is
whether, viewing the evidence in light
favorable to the government, there is
relevant evidence from which the jury
could reasonably find that the defendant
was guilty beyond a reasonable doubt.
United States v. Rojas, 554 F.2d 938 (9th
Cir. 1977), Applying the standards set out
in Clifton v. Cox, supra, and considering
further the standard in Rojas, the Court
56a
~
finds that a reasonable jury could not
conclude defendant's guilt beyond a
reasonable doubt. The motion for judgment
of acquittal shall be granted.
IT IS ORDERED that the Order of
this Court entered November 30, 1976, is
visited, the motion for arrest of judgment
heretofore granted is reconsidered and
denied.
IT IS FURTHER ORDERED that consider-
ing the motion for arrest of judgment as
a motion for judgment of acquittal, the
motion is granted, the verdict rendered
herein is set aside; defendant William
Dale Manypenny, is ADJUDGED not guilty.
| IT IS FURTHER ORDERED that the
Clerk of this Court forthwith mail a copy
of this Order to all counsel of record
herein.
DATED this 27th day of September,
1977.
57a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT |
STATE OF ARIZONA,
Plaintiff-Appellant, No. 77-3453
vs. ORDER
WILLIAM DALE MANYPENNY,
Defendant~Appellee.
eee eee ee ee ee ee ee
Filed: .August 13, 1979, Emil E. Melfi, Jr.
Clerk, U.S. Court of Appeals
Before: CHOY and KENNEDY, Circuit Judges,
and HALL,* District Judge.
The dissenting opinion is amended
as follows:
(1) At page 9, line 6 delete
"at least once."
(2) At page 9, lines 7-8 after
the words, "The victim was hit," delete
*The Honorable Peirson M. Hall, Senior United
States District Judge for the Central District
of California, sitting by designation.
58a
| /
"by not less than two pellets" and insert
"in the back by multiple pellets from at
least two shells."
59a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ARIZONA,
Plaintiff-Appellant, No. 77-3453
vs. ORDER
WILLIAM DALE MANYPENNY,
Defendant-Appellee.
ee ee eee ee ee eee ee ee ee”
Filed: September 10, 1979, Emil E. Melfi,
Jr., Clerk, U.S. Court of Appeals
Before: CHOY and KENNEDY, Circuit Judges,
and HALL,* District Judge.
The panel as constituted in the
above case has voted to deny the second
petition for rehearing and to reject the
suggestion for rehearing en banc. The full
court has been advised of the suggestion
for rehearing en banc and no judge of the
*The Honorabie Peirson M. Hall, Senior United
States District Judge for the Central District
of California, sitting by designation.
60a
court has voted to grant rehearing en banc.
F.R.App.P. 35(b). The petition for rehear-
ing is denied and the suggestion for
rehearing en banc is rejected.
Appellant's Second Petition for
Rehearing and Suggestion for Rehearing
En Banc is ordered filed.
6la
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.