# Petition — Arizona v. Manypenny

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 232

## Text

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

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Constitutional and statutory
provisions involved ....

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Reasons for granting the writ
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CITATIONS

Cases:

Bolling v. Sharpe, 347 U.S
491 e ) 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
*

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2159%3A1. Public record. Not legal advice.