Petitioners Brief — Arizona v. Manypenny

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IN THE SUPREME COURT OF THE ‘UNTTED STATBS 8h |

OCTOBER TERM, 1979

‘a No. 79-621

STATE OF ARIZONA, PETITIONER

Vv.

WILLIAM DALE MANYPENNY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE STATE OF ARIZONA

STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

DANIEL JESSE SMITH

Chief beputy Appellate Division

Pima County Attorney

900 Pima County Courts Building

111 West Congress Street

Tucson, Arizona 85701

Attorney for Petitioner

seer:

—-s - -

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-621

STATE OF ARIZONA, PETITIONER

WILLIAM DALE MANYPENNY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE STATE OF ARIZONA

STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

DANIEL JESSE SMITH

Chief Deputy Appellate Division

Pima County Attorney

900 Pima County Courts Building

111 West Congress Street

Tucson, Arizona 85701

Attorney for Petitioner

INDEX

Page

ee eee a 1

Seg ES a er a a 2

Oueetsene® Preeentead . <« « « « 6 2 e 3

Constitutional and Statutory

PEOvVa@sGme ERVGLVOG 4 2 6s oe te ew es 3

BUGGING. «6 6 s 6 6's te te te eee 8 7

Summary of Argument

Le . . _ * > os 7 . °° . . . 7 . Zi

a . 7 7. a . . . . * > 7 7 . o 29

gS ES a er ee ee ee ee a ee ee 32

A STATE GOVERNMENT IS NOT

REDUCED TO SECOND CLASS STATUS

AND STRIPPED OF ITS RIGHT TO

APPEAL WHEN A STATE CRIMINAL

PROSECUTION IS REMOVED TO

FEDERAL DISTRICT COURT ... . 32

A. FEDERAL COURTS MUST APPLY

THE SUBSTANTIVE LAW OF THE

STATE AND FEDERAL PROCEDURE

IN A REMOVAL PROSECUTION;

IRRESPECTIVE OF WHETHER THE

GOVERNMENT'S RIGHT TO APPEAL

IS DEEMED SUBSTANTIVE OR

PROCEDURAL, THE STATE OF

ARIZONA HAS A RIGHT TO APPEAL

ZN THIS CASE .. «+ 2 « « 32

Page

CONGRESS DID NOT INTEND

TO PRECLUDE APPEALS BY

STATE GOVERNMENTS IN

REMOVAL CASES WHEN IT

ENACTED 18 U.S.C. 3731. .. 37

28 U.S.C. 1291 PROVIDES

FOR REVIEW OF "ALL FINAL

DECISIONS OF THE DISTRICT

COURTS OF THE UNITED

STATES. . ."; IT PROVIDES A

SECOND JURISDICTIONAL BASIS

FOR THIS APPEAL ..... - 29

FEDERALISM CONSIDERATIONS AND

THE TENTH AMENDMENT IMPELS THIS

COURT TO CONSTRUE 18 U.S.C.

3731 OR 28 U.S.C. 1291 AS

ALLOWING THE STATE THE RIGHT

TO APPEAL; OTHERWISE 28 U.S.C.

1442(a) (1) AND 18 U.S.C. 3731

ARE VULNERABLE TO

CONSTITUTIONAL ATTACK... . 59

28 U.S.C. 1651 PROVIDES THE

COURT OF APPEALS WITH

JURISDICTION TO CONSIDER

PETITIONER'S CONTENTION

THAT THE DISTRICT COURT

WAS WITHOUT JURISDICTION

TO SUA SPONTE ENTER A

JUDGMENT OF ACQUITTAL

ELEVEN MONTHS AFTER THE

JURY FOUND RESPONDENT GUILTY 73

Argument II . . . . oa . . . . . .

THE DISTRICT COURT HAD NO

JURISDICTION TO SUA SPONTE

ORDER A JUDGMENT OF ACQUITTAL

ELEVEN MONTHS AFTER A JURY

CONVICTED RESPONDENT ... .

COnP LER isk ae" ee ee eee

History of "The Act For The Impartial

Administration of Justice". ...

iii

Page

CITATIONS

Cases Page

Aptheker v. Secretary of State,

ne Mii. « 6 © © «© © € 8 © 6 61

Benton v. Maryland,

in Cis £«£ « £ & 6» © © «© e-« 53

Bell v. Hood,

ns es «6 « 6 © © @ & 6 * 22, 36

Bivens v. Six Unknown Named Agents

Of Federal Bureau of Narcotics,

ne ees 6 6+ « * © © 6 @ © « 36

Blanchette v. Connecticut General

Insurance Corporation,

ns Ein a 6 8 ee tll ls 43

Bolling v. Sharpe,

DE [Ee 6 «6 » © © © « « ¢ 6 70

Brandenburg v. Ohio,

re ee ee ee ee 67

Burks v. United States,

TN a ee ee 91

Carlson v. Green,

U.S. (Slip Opinion

pees ean 26, 1960). . « + © e 36

Carter v. Tennessee,

i Ce < o es. 2 « 6 «6 6 6 33

Colorado v. Symes,

i acon £6 gp 6 ee el She: 22

Cases:

Ex Parte Royall,

ee OS pC } ee ee ee ee

Griffin v. Illinois,

yee ae ee kk ee ee SA oe: Ke

Hill v. United States,

eee ee ge!) ee ecm

Huffman v. Pursue Ltd.,

yo Si | Seen

Jackson v. Virginia,

See 6 Re ee ee ee ee

Page

56, 63

Kessler v. Department of Public Safety,

wee Vee Louse ss s 0 oe © 8 8

Kokaszka v. Belford,

as MG EL a a ws ae ee se

La Buy v. Howes Leather Company,

S96 Upes Bees ke eee 8 8 ef

Lewis v. United States,

U.S. (No. 78-1595, Opinion

issued Feb. 27, 1980)

Marbury v. Madison,

b eee, Bee oe Oo Re ww: ease

Martenay v. United States,

ae 64a tek 6 ey oo cd ee eX

Marshall v. United States,

414 els 417. e a - ° ° - se . e .

Cases Page

Maryland v. Soper,

fae A) 240 Uses Ds 6 « © «0 & 28, 76

Miller v. Commonwealth of Kentucky,

SS 8) rear e a ee 33

Morton v. Mancari,

417 me me 535 . e : * 7. . * * > 43

NAACP v. Alabama,

. 7. oS Se | | ee See ee ee ee 66

National League of Cities v. Usery,

> 2: ie |) 2 | a

NLRB v. Catholic Bishop of Chicago,

;, B.S +. > Serres 59

O'Donoghue v. United States,

Sa) ere ee ee ee 49

Osborne v. United States,

ce Pee Ss ee A ee le es 92

Patterson v. New York,

en Same BP! 6 be 0 6 eo 6 ee 62

Peyton v. Rowe,

ee Gala Des 6S © + 608 0 02 37

Philbrook v. Glodgett,

421 Ucwe 707 . 7 7 . ° ° ° - o ° 38

Preiser v. Rodriguez,

3 Se ee ee ee ee ee eee 56

Cases

Rowlette v. United States,

Dna GUE s sb 6 &« & 6 &@ © © ©

Samuels v. Mackell,

401 <= - 66. 7. > * > *- > * _ * >

Scarponi v. United States,

te S 8 ree eee

State ex rel Hyder v. Superior Court,

ee ees . . oe os es ee «

State v. Lee,

Ena eo 6 s/w «ee «6 «

State of North Carolina v. Carr,

i eee ar ae

Stewart v. Kahn,

De re 2s ie = » « & 6 « «

Tcherepnin v. Knight,

ee. Welle OA ¢ es 6 ee eh ew ee

Tennessee v. Davis,

DE te ee te Ul!

United States v. Anderson,

i 2 os +.) SS res ere

United States v. Apfelbaum,

U.S. (No. 78-972, Opinion

issued March 5, 1980)

vil

P-ge

passim

Cases

United States v. Beran

546 F.2d 1316, cert.denied 430

ee en ewe ees Se kl

United States v. Carlson,

423 F.2d 431, cert.denied 400

6 Fee See eee ae

United States Civil Service

Commission v. The National

Association of Letter Carriers,

Bae ase Gee 6 ee es ee

United States v. Cohen,

445 F.Supp. 843, cert.denied

ge PT See ee ear

United States v. Denson,

| > ot 2O ° gb oT » FRR ae eee

United States v. Forrest,

S26 Foes LLSe- «+ 6 « 4

United States v. Gibbons,

Sar Pema. O20. sie «t's « 6

United States v. Granger,

8 2 . ee er eae ee

United States v. Hamilton,

Sa eee eed. w. 4.4 6 ie € *

United States v. Helstostki,

MER Oe RS Seen gi

United States v. Homer,

411 F.Supp. 972, cert.denied

oan Ses. See « es eo a le es

viii

Page

19,

28,

Cases Page

United States v. Johnson,

ee ae eee) ss kbs 8 le ae ee } 79

United States v. Kane,

San Rss. Bate 6 6 ee Sle 8 ee 79

United States v. Kimbell Foods, Inc.,

-( #£S, Se o } rere reer a are 43

United States v. Laurelli,

aa? Sees 20% se ee ke Fe ee 80

United States v. Rivers,

206 Fees TORs & 2 ow 8 8 tte ee 85

United States v. Rosenson,

ape wees BOle sw ew te ee ee ee 76

United States v. Sanges,

S08 Cees SAO se eo ee ee ee wl we a Bee

United States v. Sisson,

Be Sa . > Serr ee ee ee eee

United States v. Smith,

an es ee a se eS ee) ee we Oe ee ee ee

86, 87,

88, 93

United States v. Vuitch,

ER AI Pee Sm oe eg i te 59

United States v. Wade,

467 F.2d 1226, cert.denied, 410

ah, See a. ate a eS ea ee ewe 92

Cases Page

United States v. Weinstein,

G52 Fede fOG6 2 0 @ Oa es) eee 77

United States v. Wilson,

420 U.S. 334+ © © «© 6+ «2 & @ * &. ee eee

United States v. Wunderlich,

342 U.S. 98 (dissenting opinion

of Justice Douglas) . 50

Will v. United States,

SUS Use FE ss 4 18s SYS ee 29, 74

75, 7

Willingham v. Morgan,

395 UsSy 808s 0 i 0s oe eee 58, 65,

67, 68

Younger v. Harris,

401 U.S. 37s « «6 we © «oe eee 62, 63

UNITED STATES CONSTITUTION, STATUTES AND RULES:

Supremacy Clause. « « «s © « #-s * s 65

Double Jeopardy Clause. ...... 15, 17

Pirst Amendment . .«« « « s ss = -s 67

Pitth Amendment ..<« +s « » © * « sate

Ténth Amencgeent . . 0 + 6 + =e passim

STATUTES AND RULES (continued) Page

M[/aMelss Atake 6 © © © eo ew we ew ew es passim

Daas BAOhe «§ © © © © 8 © © 6 passim

Me mameGs A44Z2(A) (1). « «© «© «© © 2 passim

Mulemates £254(4) (1). «© « © «© © « © ae at

Mo Mamete L257. 2. « © © © 0 8 8 8 57

28 U.S.C. 1651. .« «© «© « «© «© «© © © De Shy 36,

TS, 3

Meo Mle@eGs 2241. . «© « © © © © © oe 30, 92

me ee S~C. 2254. «© © 0 0 te we ew tw 56

Rules of Criminal Procedure:

Rube 29(A). « «© «© «© © © © © © © 89

PIECE Hs 5 6’ 0 © 0 © © © © © « « passim

Rule 33 . «© « « © « © © © © © © «© « 13, 30,

77, 80

Rule 34 . . «© «© «© «© © © «© «© © © « « boa Bs

30, 80

Rule 38 . . « « « © © «© © © © © © « 90

Rule 54(B)(1) .~. « «© « «© « © «© « « « Shy See

36, 42

RULES (continued) Page

Advisory Committee Note To

RUL@. SAUBPCAR SC 6 hee ee 33

ARIZONA CONSTITUTION STATUTES AND RULES

Arizona Constitution, Article 6,

S 5, @6 GORENG. « « « slew ws 6 34

Arizona Constitution, Article 6,

. 12, O80 OpeneeG ¢ «4 es & & ee 50

Arizona Constitution, Article 6,

§ 27 — — e . * - 7 _ > _ o . a 7 . 50

Arizona Constitution, Article 6,

OE he ae wee ae a ee es 50

Arizona Constitution, Article 8,

part he § i . _ _ . oa _ . . - = o 49

Arizona Constitution, Article 8,

Part as § | o . o 7. _ . 7 a * 7 . 50

Arizona Revised Statutes:

§13-249(A) and (B) (Criminal Code

in effect prior to October 1, 1978) 13

Rule 3 of the Rules of Procedure

ror Gpoecaei AGEAONEs. «§ & «kh sw ss) Gy 3

Rule 10.2, Arizona Rules of

Criminal Pregegure «~ is. 3% « « & « 50

xX1li

MISCELLANEOUS Page

Act For The Impartial Administration

of Justice, 14 Geo. III, Ch. 39 . .44, 95-96

Criminal Appeals Act of 1907. ... 23, 41,

Declaration of Independence .... 24, 44

Criminal Appellate Procedure -

Conflict of Laws - State Right To

Appeal In Criminal Case Removed To

Federal Court, B.Y.U.L. Rev. 1979,

a) Ne eee 2k er es OE ee a eee a 53

Note, Limited Right of Appeal For

The State, 14 Hous.L.Rev. 735 (1977) 54

Friedenwald, The Declaration of

Independence, An Interpretation And

An Analysis, DA CAPO Press, New York

ee ae oa ee a se ae ee. 45-46

Stout, The Perfect Crisis, The

Beginning Of The Revolutionary War,

New York University Press, New

CR) BAe a 6 es. es te ae ee @ 45,

Orwell, Animal Farm, Harcourt,

Brace and Jovanovich, New York 1946 71

New York Times, January 14, 1980,

Violence Often Unchecked,

Pervades U. S. Border Qo.) ee 48

‘

Xiii

MISCELLANEOUS (continued) Page

Deuteronomy 17 § 8-13 .....e«.e -« 72

er era ae 6 oe 6 @ 6 ee « 72

er ow Oe BOP an 8 6 ee ee 6 72

Xiv

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-621

STATE OF ARIZONA, PETITIONER

WILLIAM DALE MANYPENNY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE STATE OF ARIZONA

OPINIONS BELOW

The majority and dissenting opinions

of the Court of Appeals (Pet.App. 3a-38a) are

reported at 608 F.2d 1197. The decision of

the District Court (*Pet.App. 4la-57a) is

reported at 445 F.Supp. 1123.

*Pet.App. refers to the appendix in the Petition

for Certiorari.

JURISDICTION

The judgment of the Court of Appeals

(Pet.App. la-2a) was entered on July 9,

1979. A Petition For Rehearing And Sugges-

tion For Rehearing En Banc was denied on

September 10, 1979 (Pet.App. 60a-6la).

The time for filing the Petition For A

Writ Of Certiorari was extended ten days

until October 20, 1979 by order of Justice

Rehnquist on October 2, 1979. The Petition

For A Writ Of Certiorari was filed on

October 13, 1979. On January 7, 1980,

this Court invited the Solicitor General

to file a brief expressing the views of

the United States. In March, 1980, the

Solicitor General filed its brief. The

Petition For A Writ Of Certiorari was

granted on April 14, 1980. The jurisdiction

of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

I. Whether a state is stripped of

all appellate rights when a state criminal

prosecution is removed to Federal Court pursuant

to 28 U.S.C. 1442(a) (1).

II. 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 purposes."

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

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."

28 U.S.C. 1651 provides in relevant part:

"B69... - WELCS.

(a) The Supreme Court and all

courts established by Act of Con-

gress may issue all writs neces-

Sary or appropriate in aid of

their respective jurisdictions

and agreeable to the usages and

principles of law."

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."

Rule 3 of the Rules of Procedure For

Special Actions (Volume 17a of Arizona

Revised Statutes) reads:

"Rule 3. Questions Raised

The only questions that may be

raised in a special action are:

(a) Whether the defendant has

failed to exercise discretion

which he has a duty to exercise;

or to perform a duty required by

law as to which he has no discre-

tion; or

(b) Whether the defendant has

proceeded or is threatening to

proceed without or in excess of

jurisdiction or legal authority;

arbitrary and capricious or an

abuse of discretion."

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 undocumented aliens

entering the United States through a well-

known undocumented alien route, Sweetwater

Pass, located within Pima County, Arizona

(Tr. 44, 243). Neither agent was in

uniform (Tr. 16, 249). Three Mexican

males were heading north on foot, 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 Hjelle, turned |

and ran south along the path back towards

*Tr. refers to reporter's transcript of

Respondent's trial.

the Mexican border (Tr. 273, 284). When

victim Mendoza was approximately 150 feet

south and below where Respondent MANYPENNY

was positioned, (Tr. 259) Respondent

MANYPENNY fired his pump action twelve-

gauge shotgun three separate times (Tr. 6l,

170, 176, 178). Three twelve-gauge shotgun

shells were found within eight inches of

one another (Tr. 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). The moon was almost

full at that time and Respondent MANYPENNY

could see the victim (Tr. 153, 254-5, 272).

Border Partol Agent Hjelle and

the two other aliens approached the victim

to see what the shots were about. Respond-

ent refused their request to shine a light

on the victim. Respondent assured them

that the victim had not been shot, but

had slipped and fallen (Tr. 22). Respond-

ent took the victim to the hospital and

told the attending physician he had found

the victim in that condition. After x-rays

revealed the true cause of the victim's

condition, Pima County Deputy Sheriff Keele

went to the hospital to investigate that

same night. Respondent told Keele, in

the presence of the doctor, that he had

found the victim in that condition and

Surmised that the victim must have slipped

and fallen (Tr. 35-39). Deputy Keele was

a good friend of the Respondent, and after

they walked out of the hospital, Deputy

Keele again asked Respondent what had

occurred. Respondent repeated his story

that he had found the victim in that con-

dition (Tr. 39,41). Respondent then

suggested to Deputy Keele that the two

other aliens, who were potential witnesses

against him, be deported. Deputy Keele

rejected this suggestion (Tr. 40-41).

Keele requested Respondent ioccumenes mae

to his office, where Respondent at first

stuck with his original story of finding

the victim already injured. After further

conversation, Respondent admitted to firing

one shot at a rock, and guessed that one

of the double ought buckshot hit the victim

as a result of a ricochet. Respondent was

specifically questioned by Deputy Keele on

this point, and insisted he only shot once

(Tr 42). This conversation was prior to

any crime scene investigation (Tr. 43).

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

what had occurred (Tr. 112-120).

At trial, Respondent took the stand

and testified that he fired the first shot

into the air as a warning shot (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 according to

Respondent (Tr. 178). Respondent testified

that the three shots discharged while he was

in three different places along the trail in

pursuit of the victim (Tr. 175-177, 257-

259). Respondent testified that "I did not

intentionally point and fire that shotgun at

anyone that night" (Tr. 241). Respondent

had “no idea" as to why all three shells

were found within eight inches of one

another in a location different from where

Respondent claimed the various shots went

off (Tr. 268). 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). Respondent admitted

that the general procedure he and other

Border Patrolmen follow when an alien eludes

capture and runs south toward Mexico, is to

let the alien go. Respondent further

testified that "we never attempt to use

force taking anybody into custody" (Tr. 273-

274)

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 (filed July 20, 1976),

the case was removed to Federal Court for

trial pursuant to 28 U.S.C. § 1442(a) (1).

After a trial held on November 4 and 5,

1976, the jury returned a verdict of guilty

as charged on November 6, 1976. Respondent

MANYPENNY then timely 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 on November 30, 1976,

24 days after the verdict. The Petitioner

then moved for reconsideration of this

ruling. The Federal District Court granted

the Petitioner's motion for reconsideration

of its ruling on December 6, 1976, 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'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 Judgnient 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 Acquittal, and held

Respondent MANYPENNY not guilty. Arizona

v. Manypenny, 445 F.Supp. 1123 (D. Ariz.

1977) (Pet.App. at 4la-57a).

3. The Petitioner 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

on July 31, 1978, dismissing the Petitioner's

appeal on double jeopardy grounds (Pet.

App. 39a-40a).

The Petitioner then filed a timely

Petition For Rehearing And Suggestion For

Rehearing En Banc.

4. On July 9, 1979, the Court of

Appeals granted the Petitioner's Petition

For Rehearing, withdrew its prior opinion

and substituted the instant majority and

dissenting opinions (Pet.App. 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

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." (Pet.App. 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." (Pet.App.

at -iia.-)

The majority did not reach or discuss the

merits of the Petitioner'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." (Pet.App.

at 15a.)

Judge Kennedy's dissent first examined the

jurisdictional issue at length and found

that both 16 U.S.C. 3731 and 28 U.8.C.

1291 could serve as a jurisdictional basis

for the Petitioner's appeal (Pet.App. 15a-

23a).

Judge Kennedy then considered

possible double jeopardy problems posed

by the Petitioner's appeal and concluded

there was no double jeopardy barrier to

this appeal (Pet.App. 24a-30a). Turning

to the merits of the District Court's ruling,

Judge:Kennedy rejected the Petitioner's

contention that the District Court was

without jurisdiction 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

(Sth 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

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.

mm. Cream. FP. &s

I conclude further, however, that

the trial court misused its discre-

tion in granting a judgment of

acquittal." (Pet.App. 30a-3la)

Judge Kennedy's dissent then discussed the

merits of the Petitioner's appeal and con-

cluded his dissent by stating:

"I would hold that this court

has jurisdiction and reverse

and remand." (Pet.App. at 34a)

5. On August 13, 1979, the Court of

Appeals, acting upon the Petitioner's re-

quest, issued an order amending the dissent-

ing opinion to correct a factual error

(Pet.App. 58a-59a). The opinion of the

Court of Appeals (Pet.App. la-38a) was

reproduced in the Petition For Certiorari

as amended by the Court's order of August 13,

1979.

6. The Petitioner filed a timely

Petition For Rehearing And Suggestion For

Rehearing En Banc, which was denied on

September 10, 1979 (Pet.App. 50a-6la).

7. On October 2, 1979, Justice

Rehnquist, acting on Petitioner's motion,

extended the time for filing this petition

a period of ten days until October 20, 1979.

8. Petitioner filed its Petition For

Writ Of Certiorari on October 13, 1979.

9. On January 7, 1980, this Court

entered an order inviting the Solicitor

General of the United States to file a

brief expressing the views of the United

States.

10. In March, 1980, the Solicitor

General filed an Amicus Brief for the

United States. It was the opinion of the

Solicitor General that certiorari should be

granted, and that the judgment of the

Ninth Circuit should be reversed (Amicus

Brief, p. 10). The Solicitor General was

of the opinion that both 18 U.S.C. 3731

and 28 U.S.C. 1291 gave the Court of Appeals

jurisdiction to consider the Petitioner's

appeal. The Solicitor General did not

address the second issue presented for

review by Petitioner (Amicus Brief, p. l,

footnote l).

11. On April 14, 1980, the Petition

For a Writ of Certiorari was granted by

this Court.

20 ;

SUMMARY OF ARGUMENT

The first question presented by this

case is whether a State government is reduced

to second class status and stripped of its

right to appeal when a State criminal prosecu-

tion is removed to federal court pursuant to

28 U.S.C. 1442(A) (1).

A. In Tennessee v. Davis, 100 U.S.

257 (1880) the Court ruled that in removal

prosecutions, federal courts are to apply

state substantive law and federal procedural

law. This Court-made rule is codified in

Rule 54(B)(1) of the Federal Rules of Criminal

Procedure. In Colorado v. Symes, 286 U.S.

510 (1932) this court stated that the right

of the states "to make and enforce their own

laws is equal to the right of the federal

government" and that the removal stature

"is to be construed with highest regard

for such equality." 286 U.S. at 518.

Irrespective of whether the right of the

government to appeal in a criminal case

is deemed substantive or procedural, the

Petitioner has the right to an appeal

Since Arizona law allows appellate review

in the circumstances of the instant case.

The majority in the Ninth Circuit

ruled they were without jurisdiction to

consider this appeal because Congress has

never explicitly authorized appeals by

states in removal prosecutions. In so

ruling, the majority overlooked the rule

set forth in Bell v. Hood, 327 U.S. 678

(1946) that where legal rights have tbe

invaded "Federal Courts may use any available

remedy to make good the wrong done."

327 U.S. at 684.

B. 18 U.S.C. 3731 which authorizes

appeals by the "United States" in criminal

cases, provided the Court of Appeals with a

jurisdictional basis for this appeal. 18 U.S.C.

3731 contains a provision which reads: "The

provisions of this section shall be liberally

construed to ettectiite tks purposes." The

original Criminal Appeals Act was passed to

prevent a single federal district judge from

having the unreviewable power to defeat any

criminal prosecution instituted by the govern-

ment. United States v. Sisson, 399 U.S. 267,

293 (1970). In enacting the current version of

18 U.S.C. 3731, this court stated that:

"Congress intended to remove all statutory

barriers to government appeals and to allow

appeals whenever the Constitution would permit."

United States v. Wilson, 420 U.S. 332, 337

(1975).

Congress did not need to consider the

application of 18 U.S.C. 3731 to removal cases

Since Tennessee v. Davis was the law of the

land long before 18 U.S.C. 3731 or its pre-

decessor was enacted. Congress' failure to

specifically consider this issue cannot be

construed as indicating an intent on the part

of Congress to reduce the states to the second

class status they enjoyed as colonies prior to

the American Revolution. The Removal Bill passed

by Great Britain in 1774 constituted one of the

enumerated grievances that made up the

Declaration of Independence.

C. 28 U.S.C. 1291 which provides for

review of “all final decisions" of the United

States District Court provides a second

jurisdictional basis for this appeal.

In United States v. Sanges, 144 U.S.

310 (1890) this Court merely held that the

"United States" may not appeal a ruling

°%

in favor of a defendant until Congress passed

a statute that expressly gave the United

States Government the right to appeal ina

criminal case. Sanges was not a removal case,

and the Sanges decision never had any application

to the right of state governments to appeal in

criminal cases.

The rationale behind the Sanges rule

was that appeals by the sovereign in criminal

cases were historically disfavored. This

1892 rationale no longer exists since the

Federal Government, the State of Arizona, and

the overwhelming majority of the 50 states

currently allow appeals by the government

in criminal cases. Current congressional

policy also favors allowing state governments

the use of the federal appellate courts to appeal

decisions in favor of state criminal defendants.

D. This Court's long standing policy

that statutes should be construed so as to save

them from constitutional attack requires this

Court to construe 18 U.S.C. 3731 or 28 U.S.C.

1291 as allowing for appeals by state

governments in removal prosecutions.

If this Court does not construe either

statute as permitting appeals by state

governments in removal prosecutions, the Removal

Statute will be subject to attack on Tenth

Amendment grounds. National League of Cities v.

Usery, 426 U.S. 833 (1976). Allowing a federal

district court unreviewable powers to block any

state prosecution involving a federal officer

represents a serious encroachment on state

‘sovereignty and violates many of this Court's

teachings on federalism. The Majority decision

makes the Removal Statute subject to attack on

"overbreadth" grounds since this overly broad

windfall benefit to federal officers does not

further any of the purposes the Removal Statute

was designed to serve.

18 U.S.C. 3731 will also be vulnerable

to constitutional attack on Fifth Amendment

equal protection grounds. The majority

construed 18 U.S.C. 3731 as setting up two

distinct classes of defendants in Federal

District Court: (1) The run-of-the-mill

federal defendant who is subject to a prosecu-

tion appeal challenging rulings in his favor;

and (2) The removal defendant, federal officers

who now constitute a special privileged class,

free to enjoy the unreviewable benefits of

errors committed in their favor by the District

Court. There is no rational basis for such a

distinction, and the equal protection rights of

the non-privileged federal defendant are

violated each om the Federal Government files

an appeal pursuant to 18 U.S.C. 3731.)

E. The Mandamus Statute 28 U.S.C. 1651

provided the Court of Appeals and provides this

Court with jurisdiction to consider Petitioner's

contention that the District Coats was wholly

without jurisdiction to sua sponte enter a

judgment of acquittal eleven months after the

jury returned a guilty verdict.

In United States v. Denson, 603 F.2d

1143 (1979) the En Banc Fifth Circuit held that

when “mandamus is sought from an appellate court

to confine a trial court to a lawful exercise of

its prescribed authority, the court should issue

the writ almost as a matter of course." 603 F.2d

at 1145. This Court statea in Maryland v. Soper,

(No. 1) 270 U.S. 9 (1925) that: "There should

a more liberal use of mandamus" in removed

state criminal prosecutions. 270 U.S. at 29.

For the reasons discussed in Argument II,

infra, the entry of the judgment of acquittal

by the District Court was a nullity since the

District Court was without jurisdiction to have

entered such an order. Since the District

Court "overreached its judicial power

to deny the government the rightful fruits

of a valid conviction" Will v. United States,

389 U.S. 90, 97-98 (1967) the Ninth Circuit

should have issued a Writ of Mandamus

ordering the District Court to reinstate

the guilty verdict.

| il.

The second question before this Court

is whether a Federal District Court has

jurisdiction to sua sponte enter a judgment

of acquittal beyond the 7-day time limit

provided for in Federal Rule of Criminal

Procedure 29(C).

The lower federal courts have

consistently held that unless a motion is

filed, or an extension of time is granted

within the 7-day limit, the District Court

loses its jurisdiction to consider such a

motion. Respondent filed timely post-trial

motions seeking a new trial pursuant to Federal

Rule of Criminal Procedure 33 and a timely

motion in arrest of judgment pursuant to

Federal Rule of Criminal Procedure 34. Neither

motion attacked the sufficiency of evidence

in the government's case, which is the sole

ground for granting a judgment of acquittal.

Therefore, neither post-trial motion could

be fairly construed as a motion for judgment

of acquittal.

In United States v. Smith, 33l U.S.

469 (1947) this Court held that the similar

time limitation for Rule 33 Motions was

jurisdictional. Petitioner submits that there

is no rationale for ignoring the time limitation

set forth in Rule 29(C), since the identical

sufficiency of the evidence claim can be

litigated on direct appeal or in a collateral

attack pursuant to 28 U.S.C. 2241. When the

District Court is reviewing a jury's guilty

verdict pursuant to Rule 29(C), the District

Court sits as a reviewing court, not as the

finder of the fact. The standard of review to

be applied by the District Court and a Federal

Appeals Court in this situation is identical,

so a defendant suffers no legally cognizable

detriment by having an appeals court pass on his

sufficiency of the evidence claim.

ARGUMENT

A STATE GOVERNMENT IS NOT REDUCED

TO SECOND CLASS STATUS AND STRIPPED

OF ITS RIGHT TO APPEAL WHEN A |

STATE CRIMINAL PROSECUTION IS

REMOVED TO FEDERAL DISTRICT COURT

A. FEDERAL COURTS MUST APPLY

THE SUBSTANTIVE LAW OF THE

STATE AND FEDERAL PROCEDURE

IN A REMOVAL PROSECUTION;

IRRESPECTIVE OF WHETHER THE

GOVERNMENT'S RIGHT TO APPEAL

IS DEEMED SUBSTANTIVE OR

PROCEDURAL, THE STATE OF

ARIZONA HAS A RIGHT TO APPEAL

IN THIS CASE

In Tennessee v. Davis, 100 U.S. 257

(1880), the State of Tennessee challenged the

validity of the removal statute then in effect

on the grounds, inter alia, that Congress had

failed to specify any mode of procedure for

the trial of removal cases. This Court

acknowledged that Congress had neglected to

prescribe any procedure, yet dismissed these

"imaginary difficuitie:s and incongruities"

as “unreal" and held the "mode of trial is

sufficiently obvious." This Court went on

to establish the rule that when state criminal

prosecutions are removed to Federal Court,

the Federal Court is to apply state sub-

stantive law and federal procedural law.

100 U.S. at 271-272. See also, Carter v.

Tennessee, 18 F.2d 850; and Miller v. Common-

wealth of Kentucky, 40 F.2d 820. The

Advisory Committee Note to Federal Rule of

Criminal Procedure 54(b)(1) (which governs

removal proceedings) states this Rule in no

uncertain terms. 1

1/ The Advisory Committee Note to

Rule 54(b) (1) reads in 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 v.

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."

If this Court deems such right to

be substantive, 2 then Arizona law unquestion-

ably authorizes appellate review in this

type of case.°?

2/ Whether the right to appeal is

deemed a substantive or procedural right

is irrelevant to the proper resolution of

this case from the standpoint of the instant

Petitioner, since Arizona law provides for

appellate review in the circumstances of the

instant case. Therefore, Petitioner has

not briefed this issue and expresses no

position on it. See, Brief For The United

States As Amicus Curiae (p. 9-10). If this

Court is interested in resolving this issue,

Judge Kennedy's dissent discusses it at

length in his Footnote One (Pet.App. 35a-37a).

3f See, State ex rel. Hyder v. Superior

Court, Ariz. , 606 P.2d 411 re-

produced on pp. 4-8 of the Supplement To

Petition For Writ Of Certiorari, filed

March 3, 1980 and cases cited in Judge

Kennedy's dissenting opinion (Pet.App.

2la-24a and 38a). See also, Rule 3 of

Rules of Procedure for Special Actions,

Volume 17A of Arizona Revised Statutes,

reproduced at p. Supra) and Article VI,

Section 5 of the Arizona Constitution, as

amended, Volume I of Arizona Revised Statutes.

If this Court deems such right to

be procedural, then Tennessee v. Davis

and its progeny mandate that in a removal

prosecution the state government has all the

procedural rights of the United States

Government, including the same right to

appeal pursuant to 18 U.S.C. 3731.

See, Colorado v. Symes, 286 U.S. 510 at 518

(1932) quoted in Argument D, infra, pg. 69.

The majority in the Ninth Circuit

ruled that they were without jurisdiction

to entertain this appeal because Congress

has never explicitly authorized such an

appeal (Pet.App. lla). In so ruling, they

not only ignored the rule set out in

Tennessee v. Davis, supra, but also ignored

the well settled rule that “where legal

rights have been invaded and a federal

statute provides for a general right to

sue for such invasion, Federal Courts

may use any available remedy to make good

the wrong done." Bell v. Hood, 327 U.S.

678 (1946) at 684. See also, Bivens v.

Six Unknown Named Agents Of Federal Bureau

Of Narcotics, 403 U.S. 388 (1971) at 392;

and Carlson v. Green, U.S. (1980).

Petitioner's Tenth Amendment Rights have

been invaded here, (discussed in part D

infra) and this Court may imply a remedy

under the Constitution as it did in

Bivens and Carlson.

Three federal statutes give the Ninth

Circuit jurisdiction to hear the instant

appeal: 18 U.S.C. 3731; 28 U.S.C. 1291; and

28 U.S.C. 1651. Petitioner submits that even

if Tennessee v. Davis, Colorado v. Symes,

and Rule 54(b)(1) did not exist, any one of

these statutes standing alone is sufficient

to authorize this appeal. (discussed infra).

B. CONGRESS DID NOT INTEND TO

PRECLUDE APPEALS BY STATE

GOVERNMENTS IN REMOVAL CASES

WHEN IT ENACTED 18 U.S.C. 3731

The majority's ruling, that the

use of the term "United States" in 18 U.S.C.

3731 precludes use of this statute as a

jurisdictional basis for the instant appeal,

ignores the very language of 18 U.S.C. 3731

itself that states: "(E) The provisions of

this section shall be liberally construed

to effectuate its purposes."

This Court has repeatedly held that

a remedial statute should be construed

broadly to effectuate its purposes.

Tcherepnin v. Knight, 389 U.S. 332 at

336 (1967); Peyton v. Rowe, 391 U.S. 54

at 65 (1968).

This Court stated long ago in

Stewart v. Kahn, 78 U.S. 493 (1870) that:

"A case may be within the meaning

of a statute and not within its

letter, and within its letter and

not within its meaning. The

intention of the law-maker con-

stitutes the law. The statute

is a remedial one and should be

construed liberally to carry

out the wise and salutary purposes

of its enactment." 78 U.S. at 504.

The principles set forth in Stewart v. Kahn

have not been eroded in the intervening

years. Kokaszka v. Belford, 417 U.S. 642

at 650 (1974); Philbrook v. Glodgett, 421

U.S. 707 at 713-714 :(1975).

This Court has already interpreted

the legislative intent behind both 18

U.S.C. 3731 and its predecessor. In United

States v. Sisson, 399 U.S. 267 (1970),

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. This Court stated:

"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.)

‘In construing the current version

of 18 U.S.C. 3731, this Court stated in

United States v. Wilson, 420 U.S. 332 (1975):

"While the language of the new

Act is not dispositive, the

legislative history makes it

clear that Congress intended

to remove all statutory barriers

to Government appeals and to

allow appeals whenever the

Constitution would permit."

420 U.S. at 337. (Emphasis added)

4/ 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.

Petitioner submits that this Court, perhaps

more than any other institution in the entire

world, is aware of the importance of the

careful and precise use of language. If

this Court used the words "United States"

and "Government" interchangeably, then in

the complete absence of anything in the

Congressional record to suggest that Congress

intended to restrict the rights of states

to appeal in removal prosecutions, it is

tenuous at best to read the term "United

States" as manifesting an intent on the

Accord, see, United States v. Helstostki,

61 L.Ed.2d 12 (1979) footnote 6 found at

61 L.Ed.2d at 22. As the Solicitor General

pointed out in his Amicus Brief:

"Congress gave no specific consider-

ation to the right of appeal of a

state prosecuting in federal court,

although the frequent references in

the legislative history to 'Govern-

ment’ appeals suggest that Congress

would have treated the states just

as the United States, if Congress

had felt that state appeals would

be barred unless authorized in

Section 3731. See, e.g., S.Rep.

No. 1296, 9lst Cong., 2d Sess. 2

(1970)." Amicus Brief p. 8-9.

Indeed, even the majority in the

Ninth Circuit conceded that their decision

frustrated the clear Congressional intent

behind 18 U.S.C. 3731: "We share the

part of Congress to preclude a state from

exercising the substantive or procedural

right to appeal provided for in Tennessee

v. Davis. This is especially true in

light of the "liberally construed to

effectuate its purposes" language found

in the statute itself.

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 proseuctions, '

is equally applicable to state prosecu-

tions and federal prosecutions. . ." (Pet.

App. 8a).

That Congress did not specifically

consider the application of 18 U.S.C. 3731

to the states is not surprising in light of

the relative rarity of removal prosecutions

and the fact that Tennessee v. Davis was

the law of the land long before 18 U.S.C.

3731 or its predecessor was enacted into

law.> Congress could not have anticipated

5/ Tennessee v. Davis was decided

in 1880; the predecessor to the current

version of 18 U.S.C. 3731, The Criminal

Appeals Act Of 1907, was as its title

indicates, passed in 1907. See United

States v. Sisson, supra, 399 U.S. at

293-296.

that the Ninth Circuit would misinterpret

Tennessee v. Davis and Rule 54(b)(1) in

its ruling on this issue in 1979, when

Congress amended 18 U.S.C. 3731 in 1971.

Petitioner submits that this issue was

settled back in 1880, and the failure of

Congress to specifically address an issue

in 1971 that did not need addressing,

cannot fairly be interpreted as meaning

that Congress intended to deny a state

the right to appeal in a removal prosecu-

tion.

Moreover, even if this Court is

of the view that this issue is not controlled

by Tennessee v. Davis, and was in fact left

open by Congressional oversight, this Court

has held that in fashioning federal prin-

ciples to govern areas left open by Congress,

the function of this Court is to effectuate

Congressional policy. United States v.

Kimbell Foods Inc., 440 U.S. 715 at 727

(1979). This Court has also stated that

when a statute is ambiguous, construction

should go in the direction of constitutional

policy. Blanchette v. Connecticut General

Insurance Corporation, 419 U.S. 102 at 134

(1974). For the reasons discussed in

part D infra, constitutional policy favors

allowing this appeal. Respondent may

argue in his brief, in an attempt to

avoid the plain import of Tennessee v.

Davis, that when Congress passed 18 U.S.C.

3731, its use of the term “United States"

represented a repeal by implication of

the Court made rule in Tennessee v. Davis.

Such argument is not well taken. It isa

cardinal rule of statutory construction

that repeals by implication are not favored.

Morton v. Mancari, 417 U.S. 535 at 545-550

(1974). As already noted, there is nothing

that indicates that Congress intended this

result.

Furthermore, Petitioner submits

that in seeking to determine Congressional

intent, American history should be taken

into consideration.

An enumerated grievance listed in

the Declaration of Independence as being

one of the "repeated injuries and usurpations,

all have in direct object the establishment

of absolute Tyranny over these states" was:

"For protecting them, by a mock Trial,

from punishment for any Murders which they

should commit on the Inhabitants of these

States." This was a reference to the law

known as the "Act for the Impartial Admin-

istration of Justice" which passed Parliament

on May 26, 1774 (14 Geo. III C. 39). This

Act was in fact a "removal statute" which

passed Parliament as part of British re-

taliation for the Boston Tea Party. This

Bill, called the “Murder Bill" in America,

was among the most decried of the so-called

"Intolerable Acts". When the Bill was

first introduced to Parliment by Lord North,

Colonel Issac Barre, the member of Parliament

whose impassioned speech against the Stamp

Act had provided the American radicals

with the name "Sons of Liberty" charged

that Lord North was proposing nothing more

than a license for the army to kill

Americans. ©

6/ Authority - N. Stout, The Perfect

Crisis, The Beginning Of The Revolutionary

War, New York University Press, New York,

1976, p. 22-48

Friedenwald, in his work, The

Declaration of Independence, An Interpreta-

tion And An Analysis, DA CAPO Press, New

York, 1974, wrote in regard to this provision

of the Declaration:

"This was one of the acts repeat-

edly decried in the state papers of

the earlier Congress, and moved

Jefferson to denounce those who

would submit to the enforcement

of its provisions as ‘cowards who

would suffer a countryman to be torn

In the instant case, the same United

States District Court that has so far suc-

from the bowels of their society,

in order tc be thus offered a

sacrifice to parliamentary tyranny,'

meriting 'that everlasting infamy

now fixed on the authors of the

act!:' The act had been passed

to provide for such contingencies

as had arisen after the ‘Boston

Massacre' --the trial of persons

accused of murder while in the

discharge of their official duties.

By its terms those in His Majesty's

service, military as well as civil,

accused of murder committed while

executing the laws of the realm

in Massachusetts, might obtain a

change of venue to some other

province, or to Great Britian,

‘if it shall appear, to the satis-

faction of the .. . governor,

- « - that an indifferent trial

cannot be had within the said

province.' Provision was made

also for the transportation of

witnesses as well, and most

grievous of all, the accused might

be admitted to bail upon the

order of the governor, it mattered

not how flagrant the crime charged

against him. As there was little

likelihood that a British official,

military or civil, would be

brought to trial in England for

committing the crime of executing

cessfully blocked this prosecution and kept

Respondent MANYPENNY from as yet spending

a single day in jail, expressed on the

record his concern that this state prosecu-

tion might hurt morale among federal law

7 The instant case

enforcement agents.

represents a reversion to the state of

affairs the Founding Fathers thought they

had eliminated after they won the Revolu-

tionary War and enacted the Tenth Amendment. 8

the law in America, this was

regarded as a unwarrantable

invasion of colonial rights."

The history surrounding the "Murder

Bill" is discussed at length on pages 95-96,

infra.

UF See transcript of August 30, 1976

page 9 reproduced in Petition For Cert.,

footnote 5 at pages 42-43.

. 8/ The United States Government apparent-

ly has failed to take effective measures to

The instant case is also a classic example

of what this Court said Congress was con-

cerned with when it passed the predecessor

to 18 U.S.C. 3731. See United States v.

Sisson, supra.

In the absence of any evidence,

this Court should not assume that the elected

representatives of the people who make up

the Congress intended to reduce the very states

they represented to the status of the colonies

on the eve of the American Revolution, by

allowing inehected® federal judges to have

the unreviewable power to defeat any state

prosecution involving a federal officer.

contol violence by members of its Border

Patrol, which is a division of the United

States Department of Justice. See "Violence,

Often Unchecked, Pervades U.S. Border

Patrol." New York Times, January 14, 1980.

9/ Indeed, another serious bone of

contention between the colonists and England

C.. 28 U.S.C. 1291 PROVIDES FOR

REVIEW OF "ALL FINAL DECISIONS

OF THE DISTRICT COURTS OF THE

UNITED STATES . . ."; IT PROVIDES

A SECOND JURISDICTIONAL BASIS

FOR THIS APPEAL

Assuming arguendo that this Court

agrees with the majority's literal inter-

pretation of 18 U.S.C. 3731, then this

was that Colonial judges were no longer

subject to influence or control by the

Colonists since “He has made Judges

dependent on his Will alone, for the

‘tenure of their offices and the amount

and payment of their salaries." Declara-

tion of Independence, supra. The Founding

Fathers sought to eliminate the danger of

the judiciary being unduly influenced

by the other branches of government by

providing in Article III, Section I of

our Constitution that federal judges

shall serve for life and cannot have

their salaries reduced during their tenure

in office. See, O'Donoghue v. United States,

289 U.S. 516 at 53k. 26 U.S.C. 227, and

18 U.S.C. 3731 are unequivocal expressions

of Congressional intent that the independence

granted the federal judiciary is not a

grant of independence to any one judge

to be a power unto himself, answerable

to no one and free to ignore both the law

and his own lack of jurisdiction.

In Arizona by contrast, judges are

subject to recall by voters (Arizona Con-

stitution, Article VIII, Part 1, Section l);

Court should aiso read 28 U.S.C. 1291 literal-

ly. 28 U.S.C. 1291 reads in relevant part:

"The courts of appeals shall have

jurisdiction of appeals from all

final decisions of the district

courts of the United States. .."

they may also be removed by impeachment

(Arizona Constitution, Article VIII, Part

2, Section 1). Judges have to face the

electorate every four years (Article VI,

Section 12 of the Arizona Constitution,

as amended) when the electorate votes as

to whether the judge shall remain in office

(Article VI, Section 38, as amended of the

Arizona Constitution). Judges may not

comment on the evidence at a trial in

Arizona (Article VI, Section 27, as amended

of the Arizona Constitution). Moreover,

the prosecution as well as the defense may

preclude a judge from hearing a case simply

by filing an affidavit; no cause need be

given (Arizona Rule of Criminal Procedure

10.2 found in Volume 17, Arizona Revised

Statutes). All the foregoing serve, along

with full appellate review, to restrain a

judge from granting a judgment of acquittal

in Arizona where the evidence does not

justify it. None of the foregoing "political"

restraints exist in the Federal system.

Therefore, Petitioner submits that even if

Arizona law did not provide for appellate

review in these circumstances, Arizona and

any. other state government in a removal

prosecution should be accorded the same

right to appeai that Congress felt the

United States Government needed.

Judge Kennedy's dissent (Pet.App.

18a-22a) found that 28 U.S.C. 1291 provided

an alternative jurisdictional basis for the

Court of Appeals to hear the state's appeal.

The majority in the Court of Appeals held

this language inapplicable to this case,

stating: "A statute expressly giving the

state a right to appeal in a criminal case

is required." (Pet.App. 13a, footnote 3)

(Emphasis in original)

The majority based its decision on

United States v. Sanges, 144 U.S. 310 (1892).

The Sanges Court, after surveying the

law in various jurisdictions in the United

States and at Common Law, concluded that

since appeals in criminal cases by the

government were historically disfavored,

this Court would not permit the "United

States" to appeal an order in favor of a

defendant until such appeal was expressly

authorized by Congress:

"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."

144 U.S. at 323 (Emphasis added)

Congressional efforts to pass such a

statute began immediately after the Sanges

decision was promulgated, culminating in

the passage of The Criminal Appeals Act Of

1907. See, United States v. Sisson, supra,

399 U.S. at 293-6. And, as noted in United

States v. Wilson, supra, the current version

of 18 U.S.C. 3731 allows appeals by the

government whenever the Constitution will

permit them.

The Sanges Rule applied only to

prosecutions by the United States Govern-

ment. 1°

Allowing a state government the

right to appeal in a removal prosecution

would be neither a “serious" nor a "far-

reaching innovation in the criminal

jurisprudence of the United States".

It would be completely consistent with

contemporary jurisprudence in the Federal

Court system, Arizona's Court system,

and the courts of the overwhelming

10/ Each state has been free to adopt

or reject this rule. It is not clear

whether all states even adopted the rule.

See, State v. Lee, 64 Conn. 265, 30, A.

1110 (1894). Indeed, it was not until

1969 in Benton v. Maryland, 395 U.S. 784,

that the Court even held that the Fifth

Amendment's double jeopardy prohibition

applied to the states through the Fourteenth

Amendment. See, Criminal Appellate Proced-

ure - Conflict of Laws - State Right to

Appeal in Criminal Case Removed to Federal

Court, B.Y.U.L. Rev. 1979, p. 1006, footnote

33 at 1011. The above cited law review

article discusses the instant case and is

highly critical of the majority opinion.

majority of the 50 states.11 petitioner

submits that the majority decision, which

relegates a state government to the

status of a mendicant in a removal prosecu-

tion, is in fact a serious and far-reaching

innovation which should not be presumed

absent an express declaration of Congressional

intent.

Moreover, in Sanges, the United

States was seeking to invoke the court's

jurisdiction under:

11/ Today only Texas, Georgia, and

Nevada have no right of appeal in criminal

cases from an adverse judgment; conversely,

three states, Connecticut, Vermont, and

Wisconsin, have a right of appeal equal

to defendant's. Between these extremes

are jurisdictions which recognize by statute

the State's right of appeal from pretrial

motions and on questions of law.

Note, Limited Right of Appeal for the State,

14 Hous.L.Rev. 735, 737 (1977).

- - ethat provision of the

Judiciary Act of 1891, by which

‘appeals or writs of error may

be taken from the District Courts

or from the existing Circuit

Courts direct to the Supreme

Court’ ‘in any case that involves

the construction or application

of the Constitution of the United

States.' Act of March 3, 1891, c.

Si7,: & 32 26 Stat. 827, $36.”

144 U.S. at

By contrast the language of 28 U.S.C.

1291 "all final decisions" is non-technical and

far broader.

"It is a well-established principle

of statutory construction that

absent clear evidence of a contrary

legislative intention, a statute

should be interpreted according

to its plain language." United

States v. Apfelbaum, No. 78-972,

Opinion issued March 5, 1980.

See also, Lewis v. United States,

No. 78-1595, Opinion issued

February 27, 1980.

Nothing in the legislative history

indicates any intention on the part of Congress

to forbid a state from using the unequivocal

language of 28 U.S.C. 1291 to exercise its right

of appeal in a removed criminal prosecution.12

12/ The Solicitor General pointed out in

his Amicus Brief (footnote 6 on p. 5) that

states have regularly been using the broad

language of 28 U.S.C. 1291 as the jurisdic-

tional basis for obtaining review in the

Federal Court of Appeals from adverse

decisions by Federal District Courts in

cases arising under 28 U.S.C. 2254. 28

U.S.C. 2254 provides for Habeas Corpus

relief for persons in state custody "only

on the grounds that he is in custody in

violation of the constitution or laws or

treaties of the United States." A state

prisoner may not even seek such relief

until he or she has exhausted all remedies

open to them under state law. This doctrine

was first announced in Ex Parte Royall, 117

U.S. 241 (1886) and codified in 1948 in 28

U.S.C. 2254 (c). It was explained by this

Court in Preiser v. Rodriguez, 41ll U.S.

475 (1973):

"The rule of exhaustion in federal

habeaus corpus actions is rooted

in considerations of federal-state

comity. That principle was defined

in Younger v. Harris, 401 U.S.

37, 44 27 L.Ed.2d 669, 91 S.Ct.

Congressional policy is not adverse to

allowing state governments the right to appeal

decisions favorable to criminal defendants in

Federal Courts. State governments are authorized

by statute to petition this Court for review

of decisions in favor of state criminal

defendants by the highest court of their own

state (28 U.S.C. 1257); and may petition this

Court for review where a Federal Appeals Court

has rendered a decision in favor of a state

criminal defendant (28 U.S.C. 1254 (1)).

Petitioner is in full agreement with

the Solicitor General when he stated:

746 (1971), as ‘a proper respect

[Oz Stace ftunctions;*. . .*

411 U.S. at 491.

Why the Sanges Rule is offended by an

appeal in this case pursuant to 28 U.S.C. 1291,

where Respondent has yet to spend one day in

jail, but is not offended by a state govern-

ment appeal from a Federal District Court

ruling in favor of a defendant who has already

spent years in prison while exhausting his

remedies in state court, is not discussed by

the majority.

Morgan,

stated:

"If the meaning of ‘United States'

in Sanges is stretched to include

individual states, however, then

‘United States' in Section 3731

should be given the same construc-

tion, and Section 3731 should be

held to authorize the appeal here."

(Amicus Brief, p. 9, supra)

In a Similar vein, in Willingham v.

395 U.S. 402 (1969), this Court

", . « Congress has decided that

federal officers, and indeed the

Federal Government itself, require

the protection of a federal forum.

This policy should not be frustrated

by a narrow, grudging interpretation

of-§ 1442(a)(1)." 395 U.S. at 407.

Petitioner submits the Congressional policy

behind 18 U.S.C. 3731 and 28 U.S.C. 1291

should not be frustrated by a narrow grudg-

ing interpretation of its operation within

the removal context.

D. FEDERALISM CONSIDERATIONS

AND THE TENTH AMENDMENT IMPELS

THIS COURT TO CONSTRUE 18 U.S.C.

3731 OR 28 U.S.C. 1291 AS ALLOWING

THE STATE THE RIGHT TO APPEAL;

OTHERWISE 28 U.S.C. 1442(a) (1)

AND 18 U.S.C. 3731 ARE VULNERABLE

TO CONSTITUTIONAL ATTACK

In Marbury v. Madison, 1 Cranch 137

(1803), this Court ruled that ". ..a law

repugnant to the Constitution is void."

In N.L.R.B. v. Catholic Bishop of

Chicago, 99 S.Ct. 1313 (1979), Chief Justice

Burger wrote:

"In a number of cases the Court

has heeded the essence of Chief

Justice Marshall's admonition

in The Charming Betsy, 2 Cranch

(6 U.8«}° GOs. 2L6- 2 tccbGs 206

(1804), by holding that an Act

of Congress ought not be con-

strued to violate the Constitu-

tion if any other possible

construction remains available."

$9’ S.t.. af Laas.

See also, United States Civil Service Com-

mission v. National Association of Letter

Carriers, 413 U.S. 548 at 571 (1973); and

United States v. Vuitch, 402 U.S. 62, 70

(1971).

Petitioner contends that if the

removal statute is allowed to operate in

a manner that gives Federal District Judges

unreviewable discretion’? to block any

state criminal prosecution involving

federal officers, then the removal statute

is unconstitutional as repugnant to the

Tenth Amendment and Federalism. As will

be discussed infra, the constitutionality

of 18 U.S.C. 3731 would also be subject

to constitutional attack on Fifth Amendment

Equal Protection grounds if the majority

13/ "Absolute discretion is a ruthless

master. It is more destructive of

freedom than any of man's other

inventions." Douglas, J. dissenting

in United States v. Wunderlich,

342 U.S. 98, i011 (1951).

opinion's construction of 18 U.S.C. 3731

is not reversed.**

The Tenth Amendment reads in its

entirety:

"The powers not delegated to the

United States by the Constitution,

nor prohibited by it to the states,

are reserved to the states re-

spectively, or to the people."

14/ This Court has stated:

""fajlthough this Court will often

strain to construe legislation so

as to save it against constitu-

tional attack, it must not and

will not carry this to the point

of perverting the purpose of a

statute .. .' or judicially

rewriting it. Scales v. United

States, supra, 367 U.S. at 211."

Quoted in Aptheker v. Secretary

of State, 3/8 U.S. 500 at 515

(1964).

For the reasons already set forth

in Arguments B and C, Supra, one could

hardly characterize the construction of

16 UsS.C.. 373% OF: 20: 0.8.0. 1291 "as

providing for appellate review in the

instant case, as "perverting the purpose

of a statute."

i |

Safety,

In Kessler v. Department of Public

369 U.S. 153 (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 172.

See also, Patterson v. New York, 432 U.S.

197 at 201-202 (1978).

In Younger v. Harris, 401 U.S. 37,

this Court stated:

"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.

See also, Samuels v. Mackell, 401 U.S. 66

(1971); and Huffman v. Pursue, Ltd., 420 U.S.

592, 600 (1975).15

That Congress should have manifested

this desire should come as no surprise in

light of the history set forth in footnote

6, supra.

In National League of Cities v.

Usery, 426 U.S. 833 (1976), this Court

ruled that state sovereignty and Federalism

1S/ In Younger v. Harris, and in cases

arising under 28 U.S.C. 2254, the Federal

Courts have to balance the fact that a

person may be subject to prosecution or

be in custody in violation of an explicit

federal constitutional right, versus ti:

possible interference with a state criminal

prosecution. Nonetheless, this Court in

Younger v. Harris, and Congress by codifying

the rule in Ex Parte Royall, supra have both

decided that the balance must tip towards

respect for state sovereignty. In the

instant case, in sharp contrast, there is

nothing to counterbalance the state's

Tenth Amendment rights. There is simply

no constitutional or statutory right to

enjoy blatant judicial errors committed

in one's behalf, free from review. Therefore,

the scales must tip in favor of state's

rights on this issue.

considerations precluded Congress from

applying minimum wage legislation to

state governments:

"(5] This Court: has never doubted

that there are limits upon the

power of Congress to override

state sovereignty. . . In Wirtz,

for example, the Court took care

to assure the appellants that it

had ‘ample power to prevent...

"the utter destruction of the

State as a sovereign political

entity,"' which they feared.

392 U.S. at 196, 20 L.Ed.2d 1020,

C8 8.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, 61 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.2da 363,

95 S.Ct. 1792.

* * *

We have repeatedly recognized

that there are attributes of

sovereignty attaching to every

state government which may not

be impaired by Congress, not

because Congress may lack an

affirmative grant of legislature

authority to reach the matter,

but because the Constitution

prohibits it from exercising

the authority in that manner."

426 U.S. at 842-845.

Petitioner is not asserting that 28

U.S.C. 1442(a) (1) is unconstitutional per se.

This Court's prior decisions traced the

history of the removal statute and recogniz-

ed its importance in effectuating the

mandate of the Supremacy Clause. Willingham

v. Morgan, supra, 395 U.S. at 405-406.

Petitioner does contend that if, as the

majority held, Congress did not intend to allow

the states the right to appeal in a removal

prosecution, then 28 U.S.C. 1442(a) (1)

becomes unconstitutional as applied, be-

cause of "overbreadth" problems. 16

16/ In N.A.A.C.P. v. Alabama, 377 U.S.

288 (1964), this Court stated:

"This Court has repeatedly held

that a governmental purpose to

control or prevent activities

constitutionally subject to

state regulation may not be

achieved by means which sweep

unnecessarily broadly and there-

by invade the area of protected

freedoms. See id., at 463-464.

', . . [T]he power to regulate

must be so exercised as not, in

attaining a permissible end,

unduly to infringe the protected

freedom.' Cantwell v. Connecticut,

310 U.S. 296, 304, 84 L ed 1213,

1218 60 S.Ct. 900, 128 ALR 1352.

‘., . . [E]ven though the govern-

mental purpose be legitimate

and substantial, that purpose

cannot be pursued by means that

broadly stifle fundamental per-

sonal liberties when the end

can be more narrowly achieved.'

Shelton v. Tucker, 364 US 479,

466, 5 &'6@ 2d 234; 237, 82

S ct 267." 377 U.8. at. 307-

308.

Petitioner's counsel is aware that

the “overbreadth" doctrine has traditional-

ly been applied by this Court when the

freedom encroached upon by a statute was

protected by the First Amendment. Petitioner

submits there is no analytical reason why

the same approach should not be applied

when the protected freedom encroached upon

is the Tenth Amendment freedom of the states

to enforce state criminal statutes to protect

the life and limb of their residents.?/

This Court recognized ". . . the more

compelling state interest in conducting

criminal trials in the state courts" in

Willingham v. Morgan, supra, 395 U.S. at

409, footnote 4.

17/ The protection of life and limb is

even more important in our Constitutional

scheme than is the protection of free speech.

When speech is "directed to inciting or

producing imminent lawless action and is

likely to incite or produce such action"

speech may be restricted by a state.

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

The purposes the removal statute

are suppose to serve are in no way furthered

by according removal defendants the special

privilege of having judicial errors com-

mitted in their favor insulated from

review. That is an overly-broad windfall

benefit that seriously encroaches on state

sovereignty. The removal statute was

designed to effectuate the supremacy of the

Federal Government by protecting persons

acting under color of federal law from

state prosecutions for acts performed within

the proper scope of their federal authority;

Tennessee v. Davis, supra; Colorado v. Symes,

286 U.S. 510 at 517 (1932). It also serves

to provide a forum for a defense based on

official immunity, free from local bias.

Willingham v. Morgan, 395 U.S. 402 at 407

(1969). fhe statute should not operate to

stack the deck against the state government

and in favor of the removal defendant.

As this Court stated in Colorado v.

Symes, Supra:

"And it is axiomatic that the

right of the States consistently

with the Constitution and laws of

the United States, to make and

enforce their own laws is equal

to the right of the federal

government to exert exclusive

and supreme power in the field

that by virtue of the Constitu-

tion belongs to it. The removal

statute under consideration is

to be construed with highest

regard for such equality. Federal

officers and employees are not,

merely because they are such,

granted immunity from prosecution

in state courts for crimes against

state law." (Emphasis added)

286 J.S. at 518. See also,

State of North Carolina v. Carr,

386 F.2d 129 at 131 (1967).

The removal statute as construed by

the majority has the same defect as statutes

subject to attack on First Amendment over-

breadth grounds.

18 U.S.C. 3731 will also be vulner-

able to future constitutional attack on

Fifth Amendment Equal Protection grounds

if the majority decision is not reversed.

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 Court; and (2) federal employees

entitled to removal under 28 U.S.C. 1442

(a) (1) who now constitute a special privil-

eged class. 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, (1954);

c.f£., Marshall v. United States, 414 U.S.

417 (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 defend-

antl8 are violated every time the United

States Government files an appeal under

18 U.S.C. 3731. Even if some ingenious

Justice Department attorney can ascribe

some rational basis for sustaining this

distinction, this Court should not sustain

the majority's Orwellian corruption of one

of our oldest and most basic legal

principles.1l9

18/ The instant Petitioner obviously

lacks standing to bring such an attack on

18 U.S.C. 3731. Numerous inmates in

federal prisons and future federal defendants

do and will have standing to make such an

attack.

19/ In George Orwell's Animal Farm,

Harcourt, Brace and Jovanovich, New York,

1946, the Seventh Commandment "All Animals

Are Equal" (p. 33) is ultimately altered by

the new ruling class to read: "All Animals

Therefore, in order to forestall a

potential constitutional attack on these two

important statutes, the Court should construe

18 U.S.C. 3731 or 28 U.S.C. 1291 as allowing

a state to appeal in a removal prosecution.

Are Equal But Some Are More Equal Than

Others" (p. 123). The concept.of equal

justice under law, inscribed over the

entrance to this Court, dates back at

least to the time of Moses. See,

Exodus 12 § 49 and Numbers 15 § 15-16.

(Parenthetically, Mosaic law

also provided for appeals to higher

courts. See, Deuteronomy 17 § 8-13).

Petitioner submits that when

this Court is trying to ascertain the

Congressional intent behind 18 U.S.C.

3731, the Court should not assume that

Congress intended to violate this most

basic precept of Western law.

E. 28 U.S.C. 1651 PROVIDES

THE COURT OF APPEALS WITH

JURISDICTION TO CONSIDER

PETITIONER'S CONTENTION THAT

THE DISTRICT COURT WAS WITHOUT

JURISDICTION TO SUA SPONTE

ENTER A JUDGMENT OF ACQUITTAL

ELEVEN MONTHS AFTER THE JURY

FOUND RESPONDENT GUILTY

Judge Kennedy, in his dissent noted:

"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 require-

ments 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." (Citations omitted)

Pet.App. at 30a.

This issue is discussed fully in part II

of this brief.

°*

°%

The majority opinion never discussed

this contention of the Petitioner since

they found they were "without jurisdiction

to entertain this appeal" (Pet. App. at lla).

The Petitioner did not formally request

the Court of Appeals to issue a Writ of

Mandamus, it being the position of the

Petitioner in this Court and in the Court

of Appeals that the Petitioner has the right

to a full appeal, }9*challenging the merits

19a/ Petitioner concedes that the weight

of authority is that Mandamus does not lie

as a substitute for an appeal, and that

Mandamus would not be the proper procedural

device for challenging the merits, as opposed

to the jurisdiction of the District Court's

order acquitting Respondent. Will v. United

States, 389 U.S. 90 at 96-97 (1967). The

Will Court went on to say, however:

"This is not to say that mandamus

may never be used to review proced-

ural orders in criminal cases. It

has been invoked successfully where

the action of the trial court

totally deprived the Government

of its right to initiate a

prosecution. Ex parte United

of the District Court's order granting the

Judgment Of Acquittal, as well as challeng-

ing the District Court's jurisdiction to

even enter such order.

The Court of Appeals, and this

Court have jurisdiction to consider the

issue discussed in part II infra by con-

struing the Petitioner's appeal as a Petition

for a Writ of Mandamus pursuant to 28

U.S.C. 1651. It is the substance, and

not the label of pleadings that are con-

trolling. Hill v. United States, 368 U.S.

424 at 430 (1962); Martenay v. United States,

States, 287 U.S. 241 (1932), and

where the Court overreached its

judicial power to deny the Government

the rightful fruits of a valid con-

viction, Ex parte United States,

242 U.S. 27 916). (Emphasis

added) 389 U.S. at 97-98.

‘YY

216 F.2d 760 at 762 (1954); Scarponi v. United

States, 313 F.2d 950 at 952 (1963); United

States v. Rosenson, 291 F.Supp. 867 at 869

(1.968).

In United States v. Denson, 603 F.2d

1143 (1979), the En Banc Fifth Circuit held

that:

", . ». we hold that when the writ

of mandamus is sought from an

appellate court to confine a trial

court to a lawful exercise of its

prescribed authority, the court

should issue the writ almost as a

matter of course." 603 F.2d at

1145.20

In Maryland v. Soper, (No. 1) 270

U.S. 9 (1925), this Court stated:

20/ United States v. Denson, discusses

and reviews at length many of this Court's

prior decisions in respect to the use of

Mandamus in arriving at its holding.

"In respect of the removal of

state prosecutions, there should

be a more liberal use of mandamus

than in a removal of civil cases. ..

270 U.S. at 29.

See also, United States v. Smith, 33] U.S.

469 (1947) where this Court issued a Writ

of Mandamus to vacate a trial court's un-

timely grant of a new trial when the trial

court had no jurisdiction to do so under

Rule 33; United States v. Weinstein, 452

F.2d 704 (1971).

Petitioner submits that even if

this Court agrees with the majority that

a state government has no right to appeal

in a removal prosecution, for the reasons

set forth in part II of this brief, the

District Court had no lawful authority to

enter the Judgment Of Acquittal and “over-

reached its judicial power to deny the

Government the rightful fruits of a valid

conviction." Will v. United States, supra.

Therefore, even if the Petitioner

is held to have no right to a formal appeal,

the Court of Appeals should have, and this

Court should now exercise its Mandamus

jurisdiction and its duty to supervise the

actions of the lower court by setting aside

the Judgment Of Acquittal and ordering the

District Court to reinstate the verdict.

La Buy v. Howes Leather Company, 352 U.S.

259 at 259-260 (1957).

Il.

THE DISTRICT COURT HAD NO JURISDIC-

TION TO SUA SPONTE ORDER A JUDGMENT

OF ACQUITTAL ELEVEN MONTHS AFTER A

JURY CONVICTED RESPONDENT

Rule 29(c) of the Federal Rules of

Criminal Procedure allows a defendant to

make a Judgment Of Acquittal motion within

seven days after the jury is discharged or

within such further time as the Court may

fix during the seven day period. Every

lower Federal Court that has considered

this issue has held that unless a timely

motion is filed or extension of time is

granted within the seven day limit, the

District Court loses jurisdiction to consider

such motion. 22

22/ United States v. Johnson, 487 F.2d

1316 at 1321 (5th Cir.), cert. denied, 419

U.S. 825 (1974); Rowlette v. United States,

392 F.2d 437 at 439 (10th Cir. 1968); United

States v. Beran, 546 F.2d 1316 (10th Cir.

1976), cert. denied, 430 U.S. 916; United

States v. Homer, 411 F.Supp. 972 at 975,

In the instant case, Respondent

was convicted by a jury on November 6, 1976.

Respondent did file a timely Motion For A

New Trial pursuant to Rule 33 and a timely

Motion For Arrest Of Judgment pursuant to

Rule 34. Respondent moved for a Judgment

Of Acquittal after the close of the state's

case (Tr. 132-3); and after the close of

all the evidence (Tr. 348). Both motions

were denied at that time by the District

Court (Tr. 133 and minute entry of November 5,

1976, document 19 of the record on appeal).

Respondent never filed a Motion For Judgment

Of Acquittal pursuant to Rule 29(c) after

the guilty verdict was returned, and never

requested an extension of time to file such

motion. Neither of Respondent's post-trial

motions alleged insufficiency of the

affirmed on other grounds, 545 F.2d 864

(3rd Cir. 1976), cert. denied, 431 U.S.

954 (1977); United States v. Laurelli,

187 F.Supp. 30; United States v. Kane,

319 F.Supp. 527.

evidence as a ground for granting said

motion.

The District Court granted Respond-

ent's Motion For Arrest Of Judgment on

November 30, 1976, 24 days after the jury's

verdict. 24 On December 6, 1976, the

23/ Respondent's new trial motion filed

November 15, 1976, was based on the alleged

failure of the prosecution to disclose a

statement of Respondent's that was used

against him at trial and also on the ground

that the Court should not have instructed

the jury that a loaded gun is a deadly

weapon as a matter of law. Respondent's

Motion For Arrest Of Judgment was also

filed November 15, 1976 and was based

on Respondent's theory that the State of

Arizona lacked jurisdiction to prosecute

him in the first instance. This was discus-

sed at length in the’District Court's

opinion (Pet.App. at 4la-50a). Both of

Respondent's motions are reproduced in the

Appendix at pages 5 through 16.

24/ Thus Respondent's failure to file

a timely Rule 29(c) motion cannot be ascribed

to Respondent's detrimental reliance on the

District Court having obviated the need for

such motion by granting the Respondent's

Motion For Arrest Of Judgment.

District Court granted the Petitioner's

Motion For Reconsideration of its ruling

Arresting Judgment. Nothing further happened

on the case until Repondent filed a Motion

For A Status Hearing, which was held on

September 26, 1977. It is noteworthy that

the record of this Status Hearing does not

reflect any mention by either Respondent's

counsel or by the District Court that a

Judgment Of Acquittal was requested by

Respondent, or even within the Court's

contemplation at this time. In fact, the

Court stated: "I don't feel there is any

need for additional briefing. . ." (Tran-

script of September 26, p. page 4). No

transcripts of Respondent's trial were in

existence at this time. The District Court's

decision was based on the District Court's

eleven month old and completely erroneous

recollection of what had occurred at trial.*>

25/ As Judge Kennedy, the only Judge

who reached the merits of the Petitioner

The District Court, under the er-

roneous belief it had failed to properly

appeal noted in his dissent:

"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 that.

In these circumstances the govern-

ment cannot be faulted for failing

to prove that grounds for immunity

were not present. It makes no

sense to apply a test of insuf-

ficiency of the evidence to a

defense not raised at trial and

pertaining to a subject that the

Government did not have the duty

to open." (Pet.App. 3la-32a)

Judge Kennedy went on to point out that

even if Respondent had formally raised the

defense of immunity at trial, the incriminat-

ing evidence introduced by the State at

trial was sufficient to overcome such

defense, and that the Judgment Of Acquittal

was improper in any event (Pet.App. 32a-

34a). Indeed, the District Court's ruling

on this issue takes on a truely Kafkaesque

quality when one reads the following statement

by Respondent's counsel (Mr. Whitney) the day

instruct the jury on the immunity defense

that was never presented, attempted to justify

the untimely sua sponte entry of the Judgment

prior to trial. This was in response to the

prosecutor's (Mr. Lingeman) request that

potential jurors be voir dired as to their

feeling about a possible immunity defense:

"MR. WHITNEY: If it please the

Court, I would like, while we're

here and Mr. Lingeman is here,

Mr. Lingeman has indicated to me

that he will ask the jury concern-

ing the question of whether or not

they feel one apprehending a mis-

demeanant has the right, as an

officer, to commit an assault.

Our position in this trial, Your

Honor, is that no assault was

intended, and we will not intend

to use that as a defense. Our

position will be that there was in

fact an accident and we will offer

testimony to that effect. (Tran-

script of Motion To Dismiss, ;

November 3, 1976, p. 18)

Respondent never requested a jury instruc-

tion on any type of immunity defense.

(Document 16 of the record on appeal,

Respondent-Defendant MANYPENNY'S Requested

Jury Instruction, filed November 3, 1976;

and see Trial Transcript p. 346.

Of Acquittal by stating: ". . . this Court

will consider the motion for arrest of

judgment as a motion under Rule 29(c) for

judgment of acquittal." (Pet.App. 56a)

The sole ground for granting a

Judgment Of Acquittal is the insufficiency

of the Government's case. United States v.

Cohen, 445 F.Supp. 843, affirmed, 594 F.2d

855, cert. denied, 99 S.Ct. 2169. An

error in instructing the jury is nota

ground for granting a Judgment Of Acquittal.

United States v. Rivers, 406 F.Supp. 709,

affirmed at 544 F.2d 513.

As noted in Argument E, supra on

issue I, it is the substance and not the

form of the pleadings that are controlling.

If Respondent's timely Motion For Arrest

Of Judgment or Respondent's timely new

trial motion had attacked the sufficiency

of the evidence presented in the State's

case, the District Court could have

properly construed those motions as a

Rule 29(c) motion and would have had

jurisdiction *o have granted said motion.

United States v. Forrest, 434 F.Supp. 1131,

affirmed, 573 F.2d 1302; United States

Vv. Gibbons, 437 F.Supp. 650, affirmed,

588 F.2d 824; United States v. Beran,

supra, 546 F.2d 1316. As already noted,

the sufficiency of the evidence of the

State's case was not attacked or alleged

in either post trial motion.

In United States v. Smith, supra,

331 U.S. 469 (1947), the defendant had

filed a timely motion for new trial pursuant

26/ The granting of said motion would

still have been error on this record as

Judge Kennedy noted. The substantive

merits, or lack thereof of the District

Court's order are not before this Court

and will not be argued by Petitioner.

to Rule 33. The District Court denied the

defendant's motion and after the defendant's

conviction was affirmed by an Appeals Court,

the Federal District Court sua sponte ordered

a new trial. This Court held the time

limit set forth in the Rules was jurisdic-

tional, and granted the Government's

Petition For Writ Of Mandamus to vacate

the new trial order.*/

27/ 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 indefinately. There

are several reasons why this

construction of the Rules is

not acceptable.

Assuming arguendo this Court views

the reference to the Rules in Smith as dicta

* * *

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 initiative.

* * *

But the extension of that time

indefinately 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)

Smith is distinguishable from the instant

case in that the defendant in the Smith

case already had his conviction affirmed

rather than holding as to Rule 29(c) motions,

Petitioner submits the Smith Rule should be

extended to Rule 29(c) motions.

Rule 29(a) mandates that the

court enter a Judgment Of Acquittal on

by an Appeals Court prior to the entry of

the new trial order. In the instant case,

jurisdiction had not shifted to the Court

of Appeals at the time the District Court

entered the untimely Judgment Of Acquittal.

That factor was considered and discussed

by the Court in reaching its decision in

Smith. Nonetheless, Petitioner submits

that the reasoning advanced in the quoted

portion of the Smith case is equally

applicable to the instant case.

28/ Rule 29(a) which controls Motions

For Judgments Of Acquittal prior to submis-

sion of the case to the jury, reads in

relevant part:

"The court on motion of a defendant

or of its own motion shall order the

entry of judgment of acquittal of

one or more offenses charged in the

indictment or information after

the evidence on either side is

closed if the evidence is insuf-

ficient to sustain a conviction of

such offense or offenses."

(Emphasis added)

its own motion or on motion of a defendant

if the evidence is insufficient to sustain

a conviction. If the rule is followed and

properly applied, there is no need to allow

a District Court the power to enter a

Judgment Of Acquittal months down the line.

In the rare case where a Court believes it

has made a mistake in failing to grant the

Judgment Of Acquittal, and the seven days

time limit has expired, the District Court

can do justice by granting the defendant

a stay of imprisonment pending appeal

pursuant to Rule 38 of the Federal Rules

By contrast, Rule 29(c) which controls

Judgment Of Acquittal Motions made after

submission of the case to the jury, does

not use mandatory language and does not

speak to the Court's power to enter such

motion sua sponte as does Rule 29(a):

"If a verdict of guilty is

rendered the court may on such

motion set aside the verdict

and enter judgment of acquittal."

(Emphasis added)

of Criminal Procedure. if the reviewing

court, after reading the transcripts, agrees

that the evidence was insufficient as a

matter of law, tnen the Appellate Court

can reverse the defendant's conviction

and direct that a Judgment Of Acquittal

be entered. 2? When, as here, the

District Court is reviewing a jury's

verdict, the District Court sits as a

reviewing court, not as the finder of fact.

The standard of review to be applied by

the Federal District Court and Federal

Appeals Court is identical when the jury

is the fact-finder. Burks v. United States,

437 U.S. 1 at 16-17 (1978); Jackson v.

29/ If a reviewing court determines

that the evidence introduced at trial was

insufficient, the proper remedy is the

entry of a Judgment Of Acquittal and not

a remand for a new trial. The double jeopardy

clause precludes a new trial when reversal

is predicated on insufficient evidence.

Burks v. United States, 437 U.S. 1 (1978).

Virginia, 61 L.Ed. 560 at 573 (1979); United

States v. Anderson, 532 F.2d 1218 at 1223

(1976). Therefore, a defendant is not

subjected to a more stringent standard

of review if an Appeals Court passes on

his sufficiency of the evidence claim. 39

Furthermore, assuming that the defendant

did not timely file an appeal or failed

to raise the issue of sufficiency of

evidence on appeal, a federal prisoner

could still obtain the same relief by

filing a Petition For Writ Of Habeas

Corpus pursuant to 28 U.S.C. 2241.

30/ This is in sharp contrast to the

Rule 33 Motion before the Court in the

Smith case. The scope of appellate review

from the denial of a new trial motion is

narrow. The denial of a motion for a

new trial will not be reversed on appeal

absent an abuse of discretion by the

District Court. United States v. Hamilton,

559 F.2d 1370; United States v. Granger, 504

F.2d 585; Osborne v. United States, 351 F.2d

111; United States v. Carlson, 423 F.2d 431,

cert.denied, 400 847; United States v. Wade,

467 F.2d 1226, cert.denied, 410 U.S. 933.

Therefore, by adopting the holding

of the Fifth and Tenth Circuits on this

issue, the Court would not bar anyone,

including the instant Respondent, from

obtaining appropriate relief. The Court

will assure that in the future "the uncertain-

ty and dimness of things long past" (Smith,

supra, 331 U.S. at 276) do not result in

erroneous rulings. Rule 29(c) does not allow,

and should not allow, a court to review

the sufficiency of the evidence in a trial

that took place eleven months previous,

without the benefit of a set of transcripts. +

31/ "The palest ink is a more reliable

record than the best memory." - Oriental

proverb. Transcripts are necessary to

adequate appellate review. See, Griffin

v. Illinois, 351 U.S. 12 (1956). As noted

Supra, the same District Court that entered

this Judgment Of Acquittal sua sponte

denied two motions for Judgment Of Acquittal

during trial when the evidence was fresh

in his mind.

CONCLUSION

The judgment of the Court of Appeals

should be reversed and the guilty verdict

should be reinstated.

Respectfully submitted this 13“taay

of May, 1980.

STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

By Vani Lene pH

DANIEL JESSE SMITH

Chief Deputy Pima County Attorney

Appellate Division

HISTORY OF "THE ACT FOR THE

IMPARTIAL ADMINISTRATION OF JUSTICE"

British anger at the Boston Tea

Party resulted in a series of acts being

introduced into Parliament by the British

Cabinet. On March 14, 1774, Lord North

introduced the first of these, the Boston

Port Bill, which passed Commons March 24,

1774 and Lords March 30, 1774 and was signed

into law on March 31 by King George, III,

closing the Port of Boston.

The Port Act was followed rapidly

by the Massachusetts Government Act,

designed to "take the executive power

from the hands of the democratic part of

Government", according to Lord North,

because there was "too much democracy in

Massachusetts". On the same day that Lord

North presented the Government Act, he

moved, in a voice that "trembled and falter-

ed at every word", for permission to bring

in a "Bill for the Impartial Administration

of Justice" in Massachusetts. 14 Geo. III

Ch. 39 (1774).

The Bill introduced into Parliament

was, like the Quartering Act introduced the

same day, the result of the appointment of

General Thomas Gage as governor of Mas-

sachusetts. Gage was of the opinion that

it was hard for British soldiers to get

justice from Massachusetts juries and

magistrates. Although he could cite no

precedent, and despite the fact that all

the British troops tried for their part

in the Boston Massacre were acquitted by

a Boston jury, Gage contended that soldiers

doing their duty in suppressing a riot

would be in very great danger of being

charged with a capitol crime and hanged by

a Massachusetts court. Lord North responded

to this contention with the "Bill for the

Impartial Administration of Justice".

Introduction of this Bill into the same

Parliament which had passed, without, division

the Port Act, touched off instant and

vehement debate,

When Lord North finally brought in

the Justice Bill, there was a bare quorum

in Parliament. John Sawbridge accused

Lord North of a cowardly attempt to enslave

America by sneaking the Bill before a thin

House. Nonetheless, the Bill went through

its reading and overwhelmingly passed

Commons on May 6, 1774. The Bill passed

the House of Lords with little more

difficulty May 18, although eight persons

signed a protest against it. It was signed

into law along with the Government Act.

The "murder act" quickly became one

of the most decried of the "intolerable

acts" by which the British government

attempted to suppress the growing revolu-

tionary sentiment in America. Along

with the Quartering Act and the Government

Act, the Justice Act was denounced repeated-

ly in the tracts and broadsides of the

period, and was bitterly criticized in

the Declaration and Resolves issued by

the Virginia Convention and Declaration

and Resolves of both the First and Second

Continental Congress.

Authority - N. Stout, The Perfect Crisis,

The Beginning Of The Revolutionary War,

New York University Press, New York, 1976,

P. 22-48

a jong

juepuodsa.,

rend Court, U. &,

FICDED

79-621 || AUS4 1980

__MICHAEL RODAK. sR, CLI

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-621

STATE OF ARIZONA, PETITIONER

Vv.

WILLIAM DALE MANYPENNY, RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR WILLIAM DALE MANYPENNY

JAMES D. WHITNEY

AUBREY R. WILLIAMS

655 N. Alvernon, Suite 219

Tucson, Arizona 85711

Attorneys for Respondent

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-621

STATE OF ARIZONA, PETITIONER

WILLIAM DALE MANYPENNY, RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR WILLIAM DALE MANYPENNY

JAMES D. WHITNEY

AUBREY R. WILLIAMS

655 N. Alvernon, Suite 219

Tucson, Arizona 85711

Attorneys for Respondent

INDEX

Sane | 4 kG es ee ee

Summary of Argument

Argument 7 1.1 « 6 6 © we 6 ee

THE STATE OF ARIZONA HAS NO

RIGHT OF REVIEW UNDER 18

USC 1291 OR THE EXTRAORDINARY

WRITS, FEDERAL OR STATE .. .

A. §1291 OF 28 USC HAS

CONSISTENTLY BEEN HELD

TO BE INAPPLICABLE TO

FINAL CRIMINAL JUDGMENT

AND DECISIONS .... « « «

B. THE TENTH AMENDMENT DOES

NOT FURNISH THE STATE OF

ARIZONA A LEGITIMATE

MEANS OF ATTACKING 18

Gly Beees .s + &.6 8 e © *

C. THE STATE OF ARIZONA

CANNOT EMPLOY THE EQUAL

PROTECTION CLAUSE OF THE

FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

TO ATTACK 18 USC 3731...

APGUMONS 2hs « « @ 0 + @ 6 © ©

THE QUESTION OF FEDERAL

SUPREMACY WAS CORRECTLY

RAISED BY THE RESPONDENT IN

MOTIONS TO DISMISS AND MOTIONS

FOR JUDGMENT OF ACQUITTAL . .

Page

A. WHERE A JURISDICTIONAL

DEFECT IS NOT APPARENT

ON THE RECORD, A MOTION

FOR JUDGMENT OF ACQUITTAL

IS THE PROPER METHOD OF

TESTING THE JURISDICTIONAL

DEFECT, NOT A MOTION IN ARREST

OF JUDGMENT. THE COURT WILL

LOOK TO FORM NOT SUBSTANCE .. 59

CONCLUSION. « «© se sees 8s © & 8 64

CITATIONS

Cases Page

Alabama State Federation of

Labor v. McAdory,

32 US 0 Y . ° * . . . ° os

Allen v. Board of Elections,

yee ee ee ceeeele ¢ « «6s Se eee

American Iron and Steel Institute

v. E.P.A.,

peu f.a8 wee {(CA3-1977). 2. «x ss

Best v. United States,

573 F.2d 1095 (CA9-1978) ...... 15

Brown v. Cain,

596 F.Supp. 56 (D.C. Pa. - 1944) 57,

Cardinale v. Louisiana,

wee Ue SS?f {hveris 0 3 + we eRe

Carroll v. United States,

aoe UB 399 (i998). « « « 34y BM, 3S,

40, 41, 42,

43, 44

Case v. Bowles,

US SOS) 6 & t+ Mos ee a eee

Charles C. Steward Machine Co.

v. Davis,

Den We Pee ASOT 6 kk ee ee

Clifton v. Cox,

549 F.2d 722 (CA9-1977). . . 55, 56

Colorado v. Symes, |

286 US 510 hT539) . Oe ee ei, a

iii

Cases Page

DiBella v. U.S.,

369 US 121 (1962)

“

WwW

36,

Ex Parte Fahey,

eee we Bee CERel) « se 6 6 ee cw By BR

Fernandez v. Wiener,

326 US 340 (1945) . .. . « « - « 48

Fisher v. Baker,

nee ee ee Cee) «6s 6 ae wt Be

Fleming v. Rhodes,

ee ae Bee. eee) 6 0 6 ss wee te

Fry v. United States,

San Oe wee Caprese « « wo 0 6 S47, OS

Government of Virgin Islands

v. Hamilton,

475 F.2d 529 (CA3-1973) ... 6, 15,

Harris v. Nelson,

ee ee |»

Hazel-Atlas Co. v. Hartford Co.,

> Mh Bb Be ol! | ) enero

In re Grand Jury Empanelled

pet aaey oof 1978,

Fs CA -~1979) ° ° e © + 43

In re Turpentine and Rasin Factors,

F. [Wns 6 se ee 12

Kappens Co. v. Continental

Casualty Co.,

F. > (CRGeR96E) « 2 2 oe eo 2

Cases

Ludington Lumber Co. v. Metro-

politan National Bank,

Page

55 F.2d 169 (CA7-1931) ..... 28

Maryland v. Soper (No. 1),

Bre Ue FD CAPER es ks

merysand v. Wirtz,

US 8 8) e e . . ° °

Massachusetts v. Mellon,

US 477/ (1923) ° ° co . . e

Oklahoma v. United States

Civil Service Commission,

cam We Be? Gh0OTEs « « « «

Rivera v. Government of Virgin

Islands,

375 F.2d 988 (CA3-1967)...

Rogers v. Loether,

467 F.2d 1120(CA7-1972). “-s

Rosenthal v. New York,

Bee Ge abe (heaelé « 0c ts te

Schlanger v. Seamans,

Gea Ue SOF [197k 5 6 st te

South Carolina v. Katzezbach,

oes We Ben LENO s ew « wt de

Sper v. Florida,

Bre We wee SOeOSls « 6 ee

State v. Fayle,

114 Ariz. 219, 560 P.2d 113

emer a hk). ks eee a

Cases

State v. Gasonette,

95 Ariz. 234, 388 P.2da 139

(1972) - 7 € 7 - 7 . . . 7

State v. Lopez,

560 P.2d 113,

144 oe - . € a - - a. _ . .

State v. Manypenny,

608 F.2d Ley CA9-1979) .

State v. Whitney,

108 Atiz- 377~ 496 P.2d

me GeOeD 6 os ee ee ‘

Tennessee v. Davis,

100 US 257 (1879). = . e .

Umbriaco v. United States,

258 F.2d 625 (CA9-1958). .

United States v. Beck,

F. CA3-1973). .

United States v. Burroughs,

289 US 159 (I933).....

United States v. Darb .

312 US 100 ee

United States v. Daniel,

6 Wheat (US) 54 Beans «

United States ex rel Drury v.

Lewis,

200 US 1 (1906). .....

Page

Cases

United States v. Green,

350 US 415 (1955) .....

United States v. Hines,

419 F.2d 173 (CA10-1970). .

United States v. _Jaramillo,

510 F.2d 808 (CA9-1975)..

United States v. Jenkins,

40 US 358 (13575) . « « « «

United States v. Martin Linen

ee OO.

US (1977) e of = - *

United States v. Nardolillo,

252 F.2d 744 (CAl1-1958)..

United States v. Sanford,

San Um 28 ta0sels 6s tt

United States v. Sanges,

ane Oe eee taunts se te

United States v. Sisson,

Soe We BOF LAPTUT ss 6 et

United States v. Basen

420 US 332 (1975) °

Vermont v. Brinegar,

» 2k, 30

379 F.Supp. 606 (D. Vt. 1974) . . 47

Virginia v. Paul,

148 US 107 (1893) eee at es ae

vii

Cases Page

Will v. United States,

See US Be RAeetie & 3s ee fo 26y SF

Willingham v. Morgan,

Soo UN SOS VAPOFI xe 6 te ee ee

viii

Statutes, Constitutional Page

Provisions and Rules

United States:

Art. 3, §h6 « » es @ 2 3

Fifth Amendment .....e+«-.e«.+ 6

Tenth Amendment .. + -«.«.«-« 6, 7

18 USC 43. « +6» © $16) oe

1S UBC S921. + «eo « « ee oe eee

aS USC 3731 «+ « 6 6 #6 ee ee ee

28 USC 1291 -« « « « © 3G Bae ee

43, 44, 65

28 USC 1442. . & ot

28 usc 1480. . . +s ee

38 USC 1651 . 4... ik cee

28 USC 2254 . . «4-0 opel

28 uae 2255 |... 3 aoe

Rule 29, FROEP.~« « + « ¢ « = Oe

State of Arizona:

A.R.S. §13-1711 e he . . * 7 * . 17

A.R.S. §13-1712 o, @/ 2 8 oe Se pe

STATEMENT

Although the Petitioner would persuade

this Court that the principal question is legal

and deals with the Petitioner's right of

appeal under U.S.C. 3731, the Petitioner's

Brief on the merits contains five pages of

argument reciting facts favorable only to the

Petitioner. Petitioner's Brief, 7-12. The

recitation of the facts also conflict with

the Petitioner's stance that there were two

Separate motions, one a Motion in Arrest of

Judgment and the other raised sua sponte, A

Judgment of Acquittal void because of wtime-

liness. Petitioner's Brief, 29 et seq.

So that this Court will understand that

the Respondent too, has a cause to be stated

and the essence of the Motion in Arrest of

Judgment was, in fact, a Motion for Judgment

of Acquittal.

The other side of the coin is:

1. The Respondent had been stationed for

almost 6 years at the time of the trial.

R. 154-155

2. He was on duty with a probationer,

one Hjelle, who had not been following orders

and who had been unable to follow orders and

had taken action without authorization or

without proper reason.

R. 155-159

3. That Respondent had gone with Hjelle

at the specific request of his superior,

Wilbur E. Kenney, because of Hjelle's

inability to follow directions, Respondent had

been specifically requested to take Mr. Hjelle

on that assignment and his main duty would be

to protect the trainee (Hjelle) and himself.

R, 304-305

4. Prior to the incident in question,

Hjelle had lost contact with the Respondent

and had wandered into camp with three aliens

rather than coordinating with the Respondent

to prevent any danger to himself.

R. 158-159

5. In the apprehension of the aliens out

of which this incident arose, Hjelle was.

stationed in a position to block the aliens

but heard only Spanish words for "stop" and

the English words for "cut" and "Bill"

(Manypenny's first name).

R. 169-170

6. When these words were spoken

Manypenny believed Hjelle had been "jumped"

and was in trouble.

R. 170

7. At this time, Respondent fired his

shotgun into the air attempting to divert the

illegal's attention.

RB. if0

8. Prior to this occasion Manypenny had

seen and heard of many incidents of aliens

carrying knives and guns and of a person being

murdered by an alien.

R. 162-166

9. In fact, knives seized from aliens

by the Respondent were introduced into evi-

dence.

R. 237-239

10. The Respondent further testified

that of the approximately 5600 aliens he had

apprehended, one-third or more carried some

sort of knife or weapon.

R. 238

11. Respondent did not at anytime state

that he was trying to kill or injure anyone

but rather to apprehend them.

R. 241

12. Mr. Hjelle further testified that

he did yell and did state the words as

Manypenny had indicated.

R. 285

SUMMARY OF ARGUMENT

1. The State of Arizona has no right

of appeal and therefore cannot be stripped

of its rights in the federal judiciary

system. The right of appeal is a matter

of express federal statutory scatountive

and has not been provided by Congress.

United States v. Hines, 419 F.2d 173

(CA10-1970). The cases are clear that in

the absence of this authority a right

may not be created by the recitation of

legislative history that was intended to

liberalize federal appellate practice.

State v. Manypenny, 608 F.2d 1197 (CA9-

1979).

No right exists for appellate relief

in the state of origin of this case and a

premium should not be placed upon the

right of a federal officer to exercise

his rights under the removal statute.

Arizona Revised Statutes, §13-1712. Nor is

there any remedy under mandamus, since

such right is reserved for lack of juris-

diction or clear abuse of discretion and

is not the equivalent of an appellate

review of error.. Ex Parte Fahey, 322 US

258 (1947).

The Courts have held by the weight of

authority that the provisions of 28 USC

§1291 do not encompass a right of appeal

in criminal cases. U.S. v. Sanges, 144

US 310 (1892). The absence of the right

of express appeal under federal statutes

cannot be remedied by the expansive lan-

guage Of 1291 and in the absence of an

express, criminal right of appeal, the

party is without remedy. Government of

Virgin Islands v. Hamilton, 475 F.2d 529

(CA3-1973).

The Fifth and Tenth Amendment argu-

ments are ruses on the part of the Peti-

tioner. The Fifth Amendment is not avail-

able to a party who stands to gain or lose

nothing by a violation thereof; this should

not accept an argument in which the pro-

ponent has no standing. Fleming v. Rhodes

331 US 100 (1947). The Tenth Amendment to

the United States Constitution is not avai

able to invade the right of the federal

judiciary to control its own system. Case

v. Bowles, 327 US 92 (1946).

2. The Court having ruled upon motio:

in arrest of judgment in 1976 and having

retained jurisdiction for purposes of con-

sideration at behest of the state, retainec

jurisdiction for a further ruling, U.8. 7;

Smith, 331 US 469 (1947). If, however, the

District Court lost jurisdiction of subject

matter of this case, the subject matter was

lost for all purposes including the

court's order setting aside the arrest of

judgment. This order in arrest of judg-

ment still stands and the Court should

dismiss the entire appeal as being untimely

under the provisions of 18 USC §373l. The

writ of mandamus is unavailable, since the

Court had jurisdiction and acted well withi

its discretion. See Argument l, supra.

THE STATE OF ARIZONA HAS NO

RIGHT OF REVIEW UNDER 18 U.S.C.

1291 OR THE EXTRAORDINARY WRITS,

FEDERAL OR STATE.

The state throughout these proceedings

has adamantly expressed its right to appeal

under the provisions of 18 U.S.C. 3731. Its

Notice of Appeal so states and this position

is reiterated in the briefs and pleadings

proceeding and its brief on the merits.

Notice of Appeal, CR. 163. The Appellant's

Reply Brief filed in the Ninth Circuit con-

tended that it was an "erroneous contention"

that the state could not avail itself of the

provisions of 18 U.S.C. 3731, because although

the statute spoke only of the "United States",

this is not what Congress intended. Appel-

lant's Reply Brief, 14 et seq.

The Petition for Certiorari take a

similar stance, as did a Oppositive Motion to

Limit Issues, Pet. 18 et seq. The Oppositive

to Motion to Limit Issues states:

Petitioner's position throughout

this litigation has been and

remains that the Petitioner has

a right y a full-fledged appeal

oe Bae Be

The federal statute provides that the

"United States" shall have a right to appeal.

18 U.S.C. 3731. The Courts have held that this

provision is the only statutory right of

appeal to the United States:

Indeed, the United States is

denied a right of appeal in

criminal cases absent express

Statutory sanction. There is

no express authorization in

28 U.S.C. 1291 and the

government's only statutory

created right of appeal in

criminal cases is given by

18 U.S.C. 3731. United States

v. Hines, 419 F. 2d 173, 174

(CA. 10-1970).

The statute (18 U.S.C. 3731) does not

mention the "several states" or the

territories or possessions. In dealing with

the failure of Congress to confer a right upon

the states, the Ninth Circuit, Choy, J, stated:

...it is manifest that Section 3731 is

limited by its own terms to appeals by

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

when the language is clear and

unequivocal it is determinative

of its construction.'” State v.

Manypenny, 608 F. 2d 1197, 1199

The "United States" as defined is an

entity separate and apart from the separate

states:

The term "United States" may be

used in any one of several senses,

either as the name of a sovereign

occupying the position analogous

to that of other sovereigns in

the family of nations, or as

designating the territory over

which the sovereignty of the

United States extends, or as the

collective name of the states which

are united by and under the United

States. 77 Am. Jur. 2d, United

States. 2.

The definition of "state", conversely

in the criminal context almost miformly

includes the following:

The term "state" includes the

District of Columbia, the

Commonwealth of Puerto Rico,

and the possessions of the

United States (not including

the Canal Zone). 18 U.S.C.

921(a) (2).

and in the removal statute:

For purposes of this Chapter

(1) the term "State Court" includes

the Superior Court of the District

of Columbia.

(2) the term "state" includes the

District of Columbia. 28 U.S.C.

1450.

In the absence of any authority that the

State of Arizona can fit within the definition

of "United States" for purposes of 18 U.S.C.

3731, the Petitioner state relies heavily upon

the legislative history of Section 3731 and

the intent in the act that the same be liber-

ally construed to justify the implanting of

a new purpose in the statute that exists only

in Counsel's mind. State's Brief, 37 et seq.

It is a fundamental precept of statutory

construction that legislative history will not

be employed when:

The courts may not read into a

remedial statute something that

is not within the manifest

intention of the lawmaking body.

A liberal construction of a

remedial statute does not authorize

the court to place such judicial

construction upon the language

used to effectuate its own

conception of right, rather than

the legislative intent, or to

depart from the plain and obvious

meaning of the language used, or

to give a forced or unnatural

construction thereto. 73 Am. Jur.

2d Statutes, 280.

Judge Choy, in refusing to create a

right of appeal by judicial legislation as

would the prosecution, stated:

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...the reports and debates on

the issue of such acts indicate

that Congress was concerned only

with the right of the federal

government to appeal in criminal

cases. State v. Manypenny, 608 F.

2d 1197, IIS9(I979), Peeteete 4,

That the lack of an appeal may be unjust

is probable, but to create from theory a non-

existent statutory right is anarchy.

This Court has held that the removal and

trial of federal officers is a matter of

federal concern. Tennessee v. Davis, 100 U.S.

257, 25 L. Ed. 648(1879). The protection of

the integrity of the general government re-

quires that federal substantive law pertains.

Id. To permit otherwise, Tennessee v. Davis

holds would be be to invite an unfriendly

state legislative to destroy the federal

government in that area. Id. 25 L. Ed. 648,

651:

The removal of cases arising under

those laws, from State into Federal

Courts, is, therefore, no invasion

of state domain. On the contrary,

a denial of the right of the General

Government to remove them, to take

charge of and try any case arising

under the Constitution or laws of

the United States, is a denial of

the conceded sovereignty of that

government over a subject expressly

committed to it.

If the state statute were to provide for

an appeal from a judgment of conviction, which

it does not, this remedy would be of no avail

Since the federal judicial system does not

recognize any prosecutorial appeal except by

the United States.

The Ninth Circuit held in this action,

State v. Manypenny, supra, that the right of

appeal is not determined by the existence of

a remedy in the state court, since the

creation of rights in the sphere of federal

interests is a federal perrogative. Id. 1200.

In Best v. United States, 573 F. 2d 1095

(CA. 9-1978), written by Judge Choy, the Court

held that the fashioning of substantive rights

in the federal judiciary was the right of

Congress and state statutory remedies could

not be incorporated into the federal system as

in civil cases. Id. 1101.

An analogus situation arose in Government

of Virgin Islands v. Hamilton, 475 F. 2d 529

(CA.3-1973). Before discussing the case it

should be noted again that for purposes of

the federal judiciary, the Virgin Islands are

considered a state with all the privileges and

disabilities of that position:

The territorial courts are not

recognized under the judicial

clause of the Constitution, but

are legislative courts, and the

fact that the judges of the

Supreme Court of a territory are

appointed by the President does

not make the courts they are

authorized to hold courts of the

United States. 72 Am. Jur. 2d,

States, Territories, and

Dependencies, §159.

In Hamilton, supra, the conviction of a

criminal defendant was reversed by the District

Court under a specific federal statute pro-

viding for appeals from the Virgin Islands

Municipal Court. Id. 530. No provision

existed under federal law permitting further

appeal. Id. Although the government attempt-

ed to appeal under 28 U.S.C. 1291, as in the

present case, the Court held that in the

absence of specific federal authority for

appeal, the federal system would not

countenance a criminal appeal:

The existence of appellate juris-

diction in a specific federal court

over a given type of case is dependent

upon authority expressly conferred by

statute. Id.

Nowhere has the Petitioner cited any

specific federal statute and in its absence,

the Petitioner has no right of appeal.

The Arizona Statutes contain no provisions

for appealing from a judgment of acquittal.

The statutory bases contained in Arizona Re-

vised Statutes (A.R.S.) Sections 13-1711 and

13-1712. The contents of these statutes are:

The state, or any party to a pro-

secution by indictment or informa-

tion, may appeal to the Court of

appeals as prescribed by law and

in the manner provided by the rules

of criminal procedure, except

criminal actions involving crimes

which a sentence of death or life

imprisonment has actually been

imposed may only be appealed to

the Supreme Court. A.R.S 13-1711.

A.R.S. 13-1712 limits the state's right of

appeal. An appeal may be taken by the state

from:

1. An order quashing an indictment

or information or count thereof.

2. An order granting a new trial.

3. An order arresting judgment.

4. A ruling on a question of law

adverse to the state when the

defendant was convicted and appeals

from the judgment.

5. An order made after judgment

affecting the substantial rights of

the state.

6. The sentence on the grounds that

it is illegal.

7. An order granting a motion to

supress the use of evidence.

None of the provisions of A.R.S. 12-1712

provides the State in this cause with an

appeal right.

In the absence of such a statutory right,

the Arizona Courts have held, as have the

federal courts, that no right of appeal ex-

ists. State v. Fayle, 114 Ariz. 219, 560 P.

2d 113, (1976). State v. Fayle, supra, is a

brief opinion, in essence, adopts the position

of State v. Lopez, infra.

State of Arizona v. Lopez, infra, the

Court held that an appeal from an order dis-

missing the prosecution of an action would not

lie. 560 P. 2d 113, 144. The Court in re-

viewing the dismissa] distinguished between the

quashing of indictment for legal insufficiency

(A.R.S. 13-1712(1)) and the dismissal of a

prosecution; the first testing the "basic

legal sufficiency" and the latter involving a

"violation of speedy trial time limits or for

lack of prosecution."" Id. 114-115 (Emphasis

is the Court's). There being no right of

appeal by statute, the appeal would not lie.

Id. State v. Gasonette, 95 Ariz. 234, 388, P.

aa; i398, €1972).

The right of an appeal in criminal

cases was unknown to the common law

..elt is purely statutory and does

not exist in absence of statute...

There is no provision either in

Arizona's Constitution, by statute

or criminal rule which permits an

appeal to the Superior Court or

to this Court from a denial of a

Motion to Dismiss a Criminal Com-

plaint. State v. Whitney, 496 P. 2d.

138-139.

Therefore, in the absence of State

Statutory or constitutional authority or

criminal rule, the State would have no

authority to appeal if a judgment of acquittal

had been entered and the case had remained in

State Court.

The State obtains no greater right of

appeal by reason of the Defendant's removal;

if no statutory right exists under State law,

none is acquired by removal:

Removal gives the federal court only

derivative jurisdiction. This is no

better than that possessed by the

state court in which the action was

commenced. Thus, 1£ jurisdiction is

lacking in the state court in the

first instance, it is not brought

into being by the removal, even

though the Federal Court to which

the suit was removed would have had

jurisdiction had the action origi-

nated there. Kappens Co. v. Con-

tinenal Casualty Co., 337 F. 2d 499,

501-502, (CA. 8-1964).

Thus, the Court of Appeals cannot obtain

jurisdiction over an appeal barred under State

law, even if the Court would have had juris-

diction of a similiar appeal brought in the

name of the United States under 18 U.S.C.

Section 3731.

The state would further premise its right

to review on the federal extraordinary writ of

mandamus.

This Court should not denominate as

"mandamus'' what has been considered an appeal

for the past three and one half years, and was

raised for the first time as mandamus in the

Petition for Certiorari. Id. 45. If the

matter can only be resolved under the mandamus

statute (28 U.S.C. 1651), the Court should

return the matter to the Ninth Circuit to

determine if mandamus would lie. Such has been

the practice of this Court when faced with

matters unresolved by the lower courts.

United States v. Sanford, 429 U.S. 14(1976);

Cardinale v. Louisiana, 394 U.S. 437(1969).

The writ of mandamus is not the equiva-

lent of the automatic right of review as the

state would have us believe; the First Circuit

in reviewing the right has held:

...we; as does the First Circuit.

regard the Writ as extraordinary,

reserved for rare cases of compelling

need and decline, where others might

not...its issuance, where on the

record presented the matter under

scrutiny is or may be use, non-use

or mis-use of discretionary power,

In re Turpentine & Rasin Factors,

2738 F. 2d 458, 459, (CA.1-1956)

Citations omitted).

Granted that the First Circuit admitted

that other circuits might not be so strict,

yet, this Court has held that the writ should

issue only in extraordinary and unusual cir-

cumstances, not in lieu of an appeal or to

review errors of judgment below:

Mandamus, prohibition and injunction

against judges are drastic and extra-

ordinary remedies. We do not doubt

power in a proper case to issue such

writs. But they have the unfortunate

consequences of making the judge a

litigant, obliged to obtain personal

counsel or to leave his defense to

one of the litigants before him.

These remedies should be resorted

to only where appeal is clearly an

inadequate remedy. We are un-

phe to to utilize them as sub-

stitutions for appeal. As extra-

ordinary remedies, they are reserved

for really extraordinary causes.

Ex varte Fahey, 332 U.S. 258, 259-260

(1947); Virginia v. Paul, 148 U.S. 107

(1893). |

Chief Justice Taft in 1925 decided the

case of Maryland v. Soper (No. 1), 270 U.S. 9

(1925). Not surprisingly at that time, the

case involved revenue agents who held their

commission from the Commissioner of Internal

Revenue. Id. 27. Although the issue turned

upon the question of whether the parties

arrested were revenue agents within the mean-

ing of the then removal seatute (Section 33 of

the Judicial Code), the Court in considering

the efficacy of a mandamus proceeding found:

The state by its petition for

mandamus becomes a suitor at the

bar of this Court to challenge the

legality of the inferior court's

action. Conceding the validity of

the exceptional use of the national

supremacy in a proper use, it seeks

this writ to test its propriety here.

Except by the issue of mandamus, it

is without an opportunity to invoke

the decision of this Court upon the

issue it would raise. The order of

the United States District Judge in

refusing to remand is not open to

review on a writ of error and a

judgment of acquittal in that court

is final. Id. 29-30

The clear implication is that in 1924,

the date of the decision, the Chief Justice of

this Court recognized the lack of appellate

review in the states in a criminal prosecution.

Also, at the time, there was an appellate

statute which provided limited appellate rights

to the federal prosecution. United States v.

Wilson, 420 U.S. 332, 336-337, 43 L. Ed. 2d

232(1975). This holding by the Chief Justice

is certainly recognition of the state's

inability to appeal.

Maryland v. Soper (No. 1), supra, is

certainly not authority for the proposition

that any case invoking a removal should have

ready access to mandamus. The concern of

Justice Taft, as is apparent from the lang-

uage above, was not to grant review by means

of mandamus of every alleged defect in a pro-

ceeding removed from the state court but to

make all assurances that the case was properly

removed in the first instance. Id. 30.

Because the case could not be reviewed by

appeal, the Court felt that mandamus should be

made more liberal to test the jurisdiction of

the Court in the removal proceedings. There

in no indication in the decision that a re-

view of the basis for an entry of judgment of

acquittal would negative traditional standards

of mandamus,

The theory for mandamus appears to be

that the Court had no right to enter a judg-

ment sua sponte for acquittal, and even if the

Court had the ability to enter the judgment,

it lost the right through lapse of time.

State's Brief, 73 et seq.

The Petitioner does not dispute the

fact that it sought reconsideration of the

order granting the Motion in Arrest of Judg-

ment (in the opinion of the Respondent a Motion

for Judgment of Acquittal, supra). CR. 137.

There was therefore a proper order issued in

less than a month, had not the Petitioner

sought and received additional consideration.

CR. 148-150.

Petitioner cites United States v. Smith,

331 U.S. 469(1947) in support of the proposi-

tion that time in post-verdict motions is

jurisdictional. One striking difference

exists in that Smith reviewed and reconsidered

the case on its own initive. Id. 471. In

the present case, the Petitioner aggressively

moved the Court for rehearing and now objects

because the Court retained jurisdiction and

vacated its former order. CR. 148 and CR.149.

One of the holdings of the Smith decision

was that a motion made by Defendant for new

trial, if made during the then five day time

interval, may be considered indefinitely for

the purpose of mature reflection:

The trial judge is given power by.

the Rules to entertain motions for

new trial within five days after

_- |

verdict and may extend that time

for so long as he thinks necessary

for proper consideration of the trial.

Id. 475-476. (Emphasis Added)

A reconsideration of a case by the Court

and its ability to set aside or recall a judg-

ment has been recognized by this Court even in

appellate circumstances. Hazel-Atlas Co. v.

Hartford Co., 322 U.S. 238,244, 64 S.Ct. 997,

88 L. Ed. 1250(1940). See also American Iron

and Steel Institute v. E.P.A., 560 F. 2d 589

(CA.3-1977). Petitioner's only complaint would

seem to be that a reconsideration and setting

aside of a judgment, even when requested by the

state, is proper only in those cases where the

new order or judgment is in its favor.

However, to hold that any action taken on

September 28th, 1977 was a nullity is to invite

risks, since in the absence of jurisdiction to

set aside the order granting the motion in

arrest of judgment, the previous order grant-

ing the order in arrest of judgment still

exists and the appeal period has expired. On

the order in arrest of judgment, the Court

should dismiss the appeal as untimely.

Ludington Lumber Co. v. Metropolitan National

Bank, 55 F. 2d 169 (CA. 7-1931). Although

' Ludington is a civil case, the principal that

a motion must be ruled upon or jurisdiction

retained by proper order would appear to be

the only analogy to Petitioner's claim of no

jurisdiction. If we accept Petitioner's logic

the failure to act in a timely manner deprived

the District Court of its right to enter a

judgment of acquittal in 1977 and the state is

deprived of its right to appeal for untimeli-

ness. If the Court has no jurisdiction to

enter a judgment of acquittal because of

untimeliness, it certainly has no right to set

aside its prior order granting an arrest of

judgment.

If the judge's actions were untimely and/or

without jurisdiction as to the consideration of

the motion for arrest of judgment as a motion

for judgment of acquittal, the vacating of the

order in arrest of judgment must also be un-

timely, since the plain import of the order was

to permit the entertaining and granting of a

motion for judgment of acquittal. The state

cannot dissect the opinion to its own benefit,

selecting the order for purposes of negativing

the order in arrest of judgment and denying

to the Court the ability to rule on the judg-

ment of acquittal:

All parts of an order must be read

together, and the order considered

as a whole; and, when a court is

called on to choose between a con-

struction which gives significance

to all clauses of an order and

another which makes one of the

clauses meaningless, the former is

preferred. 60 C.J.S., Motions and

Orders, 64, p. 110.

This Court should not denominate as a

mandamus what has been considered an appeal

for almost three years. There are compelling

reasons for such a limitation in this Court.

The only issue before this Court is: Was the

Court of Appeals correct in holding that the

state has no right of appeal. If this Court

should rule that there is a right of appeal,

the matter should be remanded to the Court of

Appeals for consideration on its merits. This

Court has always demonstrated the utmost

deference to its lower appellate courts or the

courts of the state in not deciding issues

unresolved by a lower court. United States v.

Sanford, 429 U.S. 14, 50 L. Ed. 2d. 17(1976);

Cardinale v. Louisiana, 394 U.S. 437, 22 L. Ed.

398(1969).

If this Court finds that there are no

appellate rights, it may remand the case to the

Court of Appeals with specific instructions to

consider if the substantive and procedural

requirements of an extraordinary writ are

present. Both parties may brief the issue of

extraordinary relief and permit the whole

court, not just Judge Kennedy alone, to decide

the issues of review under this proceeding.

The Ninth Circuit is capable of determing

these issues and judicial restraint and

courtesy dictates that the Court of Appeals

be allowed to do so.

I (A)

§1291 OF 28 USC HAS

CONSISTENTLY BEEN HELD TO

BE INAPPLICABLE TO FINAL

CRIMINAL JUDGMENT AND

DECISIONS

The Solicitor General's brief states

(p. 4) there is ". . . no doubt that the

language of 28 USC 1291 authorizes the

appeal taken in this case." On the con-

trary, the weight of opinion appears to

be that §1291 does not furnish the state

of Arizona, or any other capacity, a

vehicle for appeal in a criminal case.

In U.S. v. Sanges, 144 US 310 (1892)

this Court reviewed at length case law

from various jurisdictions and concluded

". »« - it is settled by an overwhelming

weight of American authority, that the

State has no right to sue out a writ of

error upon a judgment in favor of the

defendant in a criminal case, except

under and in accordance with express

statutes, whether that judgment was

rendered upon a verdict of acquittal, or

upon the determination by the court of

a question of law." Sanges, supra, 312.

This Court in Sanges also concluded that,

generally speaking, English common law

would only tolerate a writ of error or

new trial in favor of a defendant, not

the sovereign. Finding no express author-

ization in the Judiciary Act of 1891 for

an appeal by the United States, this Court

cautioned that it was"... impossible to

pressure an intention on the part of Con-

gress to make so serious and far-reaching

an innovat.on in the criminal jurispru-

dence of the United States." Sanges,

supra, 323.

The Petitioner's brief, like that of

the Solicitor General's, seems to indicate

that Sanges is an anachronism, a histor-

ical curiosity, a unique and short-lived

aberration. This is Simply not the case.

This common law aversion to appeals by

the prosecution in criminal cases has been

frequently mentioned in the years subse-

quent to Sanges. In U.S. v. Burroughs,

289 US 159 (1933) this Court reaffirmed

that "In the absence of express statutory

authority, no appeal may be taken on be-

half of the United States in any criminal

case." Burroughs, supra, 161. The Court

cited Sanges as authority.

In Carroll v. U.S., 354 US 394 (1956)

an appeal by the United States from ad-

verse rulings as to pretrial suppression

motions, this Court noted that ". . . in

the federal jurisprudence, at least,

appeals by the Government in criminal

cases are something unusual, exceptional,

not favored. The history shows resistance

of the Court to the opening of an appel-

late route for the Government until it

was plainly provided by the Congress ..."

Carroll, supra, 400. Morever, in DiBella

v. U.S., 369 US 121 (1962) also an appeal

by the United States from adverse rulings

On suppression motions, this Court, citing

both Sanges and Carroll, specifically men-

tioned ". . . the historic policy ...

that denies the Government the right of

appeal in criminal cases save as expressly

authorized by statute." DiBella, supra,

130. Analysis of the proposition that

§i291 provides the state of Arizona a

vehicle for appeal in the instant case

should begin, therefore, with recognition

of the axiom that absent specific statu-

tory authorization, no Governmental en-

tity is entitled to a right of appeal.

A brief examination of §1291 reveals

that it does not expressly authorize an

appeal, even by the United States, in a

criminal case. This Court has acknow-

ledged that fact. "No such expression

appears in 28 US §1291, and the Govern-

ment's only right of appeal, given by the

Criminal Appeals Act of 1907, 34 Stat 1246,

now 18 USC §3731, is confined to narrowly

defined situations . . ." DiBella v. U.S.,

369 US 121, 139 (1962). "Government

appeal in the federal courts has thus been

limited by Congress to narrow categories

of orders terminating the prosecution,

see 18 USC §3731, and the Criminal Appeals

Act is strictly construed against the

Government's right of appeal, Carroll v.

U.S., . . ." Will v. U.S., 389 US 90,

at 96-97 (1967). Repeatedly, §3731 has

been recognized as the express statutory

authorization for such an appeal, without

mention of §1291, and despite the fact

this latter statute and its precursors

have been long extant. U.S. v. Wilson,

Supra. U.S. v. Jenkins, 420 US 358 (1975).

U.S. v. Sisson, supra. U.S. v. Martin Linen

Supply Co., supra. U.S. v. Beck, 438

F2d 203 (CA3 - 1973), cert. den. 414 US

anse 40978). U8. ¥: Jaramillo, 510 F2da

808 (CA9 - 1975),

In U.S. v. Hines, 419 F2d 173

(10th Cir 1969), the United States'

attempt to bottom an appeal upon §1291

was expressly rejected. Understandably

enough, the court cited DiBella, supra,

as authority, and noted that ". . . the

Government's only statutorily created

right of appeal in criminal cases is

given by 18 USCA §3731." Hines, supra,

ae eg

The Ninth Circuit in Umbriaco v.

U.S., 258 F2d 625, at 626 (CA9 = 1958)

unequivocally held "The grant to the

Government of the right of appeal is ex-

Clusively contained in 18 USCA §3731."

The court rejected §1291 as an alternate

basis for the United States' appeal.

This Court's decisions in DiBella

and Will, supra, in conjunction with the

9th Circuit's Umbriaco opinion, supra,

were relied upon by the 3d Circuit in

Government of the Virgin Islands v.

Hamilton, 475 F2d 529 (3d Cir 1973). In

Virgin Islands the court also rejected

§1291 as an appellate vehicle for the

United States in criminal cases, con-

Cluding that provision ". . . does not

provide the statutes authority which the

decisions require." Virgin Islands, supra,

at 335i.

What is even more interesting in

Virgin Islands v. Hamilton, supra, is the

close parallel between that case and the

instant case.

In Hamilton a defendant was convicted

of three criminal charges, appealed to

the district court of the Virgin Islands,

where the convictions were overturned

for insufficiency of the evidence. Id.

530. An appeal was attempted to the

United States Court of Appeals for the

3d Circuit. Id. 529. The court held

that 28 USC §1291 was no more available

to a proceeding in the nature of a state

action for a criminal appeal in federal

court than to a federal criminal appeal

in the absence of express federal author-

ity under 18 USC §3731. Id. 531.

The Virgin Islands do not receive all

the benefits of the federal judicial sys-

tem and are not considered the "United

States" for judicial procedures, including

appeal. Rivera v. Government of Virgin

Islands, 375 F2d 988, 991 (CA3 - 1967) but

are considered "states" for judicial

appellate purposes., In Rivera the court

denied the contention that a failure to

indict Rivera by grand jury was a depri-

vation of his fifth amendment right, the

lthe federal statutes traditionally

have treated the possessions and terri-

tories as states for federal purposes,

their definition being ". . . the several

States, the District of Columbia, Puerto

Rico, the Virgin Islands and Guam." 18 usc

§43.

court held:

In this respect the traditional

procedure in the Virgin Islands

is in accord with the modern

trend to move in the direction

of abolishing the grand jury as

cumbersome and outmoded. Move-

ment in that direction was made

possible by the ruling by the

Supreme Court in Hurtado v.

People of State of California

(citation omitted) that due pro-

cess Of law required of the states

by Fourteenth Amendment was not

meant to include the institution

and procedure of a grand jury in

any case. Id. 991. (Emphasis

added)

Thus, Rivera's right in the federal

court unless expanded by federal statute

are the same as the states. Id. Read

together with Hamilton, it is thus evident

that state appellate rights to appeal

cannot be supported by 28 USC §1291 but

must be derived from express federal

statute.

As the Solicitor General's brief

(p. 5) points out, Carroll, supra, does

suggest that §1291 may, in some cases,

provide a basis for appeal. However,

the court described these instances as

"very few", and only where they touched

upon matters ". . . found to possess

sufficient independence from the main

course of the prosecution to warrant

treatment as plenary orders..."

Carroll, supra, at 403. As examples,

the court noted orders relating to the

amount of bail, motions for the return of

seized property and motions to suppress

made prior to indictment, in a different

district or after dismissal. These in-

stances deal with matters collateral

to a criminal prosecution which are inde-

pendent and seperable from the main plan

of prosecution. U.S. v. Nardolillo,

252 F2d 744 (CAl - 1958). In the case of

motions aimed at evidence of property,

"Only if the motion is soley for return

of property and is in no way tied to a

criminal prosecution in esse against the

movant can the proceedings be regarded as

independent." DiBella, supra, at 131-132.

In Carroll the court specifically rejected

the notion that a motion made by an accused

after indictment and in the district of

trial could fall within the ambit of "in-

dependent" orders appealable pursuant to

§1291. Carroll, supra, at 404.

The Solicitor General's brief (foot-

note 6, p. 5) asserts that §1291 does not

restrict its application to civil cases,

pointing out that the prosecution may

appeal from adverse decisions under 28

USC §§2254, 2255. Contrary to the

Solicitor General's assertion, habeas

corpus proceedings are not "criminal in

nature." Habeas corpus proceedings are

technically "civil" in nature. Fisher v.

Baker, 203 US 174 (1906); Schlanger v.

Seamans, 401 US 487 (1971). Of course,

this Court has also pointed out that, more

properly, habeas corpus proceedings should

be viewed as unique. Harris v. Nelson,

394 US 286 (1969). It is simply in-

correct, however, to describe them as

"criminal",

Even more misleading is the Solicitor

General's assertion that grand jury pro-

ceedings are appealable under §1291, cit-

ing In re Grand Jury Empanelled February

14, 1978, 597 F2d 851 (3d Cir 1979).

(footnote 6, p. 5). In that case, the

3d Circuit relied upon §1291 as the basis

for an appeal only if grand jury pro-

ceedings were not construed to be

"criminal proceedings" within the ambit

of §3731. Indeed, the court stated

". « »« we have no doubt that a grand jury

proceeding is a ‘criminal proceeding'

+ « »” Grand Jury, supra, at 857. And

as already noted, this Court in Carroll

specifically emphasized the necessity

for independence from the mainstream of

a criminal prosecution before its excep-

tion allowing government appeal pursuant

to §1291 will be triggered. The Solicitor

General has chosen rather curious author-

ity for the proposition that §1291 is not

restricted to civil cases.

As stated by this Court in Carroll,

". « » it is the function of the Congress

to decide whether to initiate a departure

from the historical pattern of restricted

appellate jurisdiction in criminal cases."

Clearly, Congress did not choose §1291 as

a point of departure.

I(B)

THE TENTH AMENDMENT DOES NOT FURNISH

THE STATE OF ARIZONA A LEGITIMATE

MEANS OF ATTACKING 18 U.S.C. 1291.

The Tenth Amendment to the United States

Constitution states that:

The powers not delegated to the

United States by the Constitution,

nor prohibited by it to the states,

are reserved to the states respec-

tively, or to the people.

In United States v. Darby, 312 U.S. 100,

124(1940), this Court concluded that the

Tenth Amendment is "...but a truism that all

is retained which has not been surrendered,"

and that "...nothing in the history of its

adoption...suggest(s) that it was more than

declaratory of the relationship between the

national and state governments as it had been

established by the Constitution before the

amendment or that its purpose was other than

to allay fears that the new national govern-

ment might seek to exercise powers not granted,

and that the states might not be able to exer-

cise fully their reserved powers."

This Court also concluded that the federal

government has the authority "...to resort to

all means for the exercise of a granted power

as are appropriate and plainly adapted to the

permitted end." United States v. Darby, supra,

124.

The Tenth Amendment is a curious weapon

by which to assail the Congressionally-erected

framework of the federal criminal judicial

system. It is particularly inappropriate in

the instant case, since the "wrong" complained

of is the inability of the state to pursue an

appeal, As discussed elsewhere in this brief

(Section I, supra), the right of the state or

federal government to appeal is an extraordi-

nary right, one the common law viewed with

disfavor or prohibited. Id.

Such an attitude by the common law made the

existence of such right not a matter of custom

or usage but a reluctant previlege granted only

by statute.

Thus, a statutory right requires a specific

statutory authorization which, for whatever

reason, Congress has not granted the states in

18 U.S.C. 3731. This case hardly presents an

instance which has "...the effect of coercing,

destroying or impairing the autonomy of the

states." State of Vermont v. Brinegar, 379 F.

Supp. 606, 616 (D. Vt. 1974). Charles C.

Steward Machine Company v. Davis, 301 U.S. 548

(1937). State of Oklahoma v. United States

Civil Service Commission, 330 U.S. 127(1947).

Nor is it an exercise of Congressional power

"...in a fashion that impairs the States'

integrity or their ability to function effec-

tively in a federal system."" Fry v. United

States, 421 U.S. 542, 547 n. 7. (1974).

Interestingly enough, this Court in Fry, cited

by the State in support of its argument re-

garding the Tenth Amendment, Petitioner's brief,

pp. 64-65, concluded that wage restriction

regulations were "...no such drastic invasion

of state sovereignty." Fry, 547 n. F.

Moreover, the Tenth Amendment cannot be

viewed as restricting Congressional activity

within a sphere of power delegated to the

Federal government. Case v. Bowles, 327 U.S.

92(1946). Fernandez v. Wiener, 326 U.S.

340(1945). Maryland v. Wirtz, 392 U.S.

183(1968). Congress clearly has the power to

“ordain and establish" the inferior Federal

Courts, Art. 3, 1, UNITED STATES CONSTITUTION,

and to regulate the procedures of those courts.

Allen v. Board of Elections, 393 U.S. 544

(1969). South Carolina v. Katzezbach, 383

U.S. 301(1966). Granted, this power to pre-

scribe procedures employed by the Federal

courts is limited by the Constitution. Rogers

v. Loether, 467 F. 2d 1110(7th Cir. 1972),

Aff'd 415 U.S. 189(1974). In the instant case,

the removal statute, 28 U.S.C. 1442(a)(1),

“was designed to effectuate the supremacy of

the Federal Government by protecting persons

acting under color of Federal law for State

prosecutions for acts performed within the

proper scope of their Federal authority...It

also serves to provide a Forum for a defense

based on official immunity, free from local

bias." Petitioner's Brief, p. 68.

Tennessee v. Davis, 100 U.S. 257(1880).

Colorado v. Symes, 286 U.S. 510(1932).

Willingham v. Morgan, 395 U.S. 402(1969).

The State of Arizona, in any event, does not

contend the statute is unconstitutional per

se, Petitioner's Brief, p. 65, but merely

unconstitutional as affected by 18 U.S.C.

3731. However, Federal legislation does not

contravene the Tenth Amendment merely because

it impacts upon a matter concurrently within

the interest of the State. Sperry v. Florida,

373 U.S. 379(1963). As suggested, Congress

certainly has the right to prescribe pro-

cedure within the Federal courts, to include

a designation of who may appeal. The Tenth

Amendment cannot, therefore, rectify or remedy

Congress' Failure to grant the State a right of

appeal within the Federal judicial system.

The Tenth Amendment, as the State of

Arizona has attempted to apply it in the in-

stant case, is the proverbial square peg in

the round hole. Such a use is simply incom-

patible with the history and interpretation

of the Tenth Amendment.

I(C)

THE STATE OF ARIZONA

CANNOT EMPLOY THE EQUAL

PROTECTION CLAUSE OF THE

FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

TO ATTACK 18 USC 3731

While "ordinary federal defendant(s)"

(Petitioner's Brief, pp. 70-71) all over

the nation are no doubt gratified that the

State of Arizona has championed their cause,

the State clearly lacks standing to raise

an equal protection challenge to 18 USC

§3731. Fleming v. Rhodes, 331 US 100 (1947)

Alabama State Federation of Labor v. McAdory

325 US 450 (1945). Rosenthal v. New York,

226 US 260 (1912). Massachusetts v. Mellon,

262 US 477 (1923).

Indeed, the state has readily conceded

this point. Petitioner's Brief, 71, n. 18.

This Court should not predicate a decision

upon the anticipation of future constitu-

tional challenges by a group not presently

in existence which may never press this equa

protection argument. There are enough 1

issues to be determined by this court without

the necessity of dredging up hypotheticals.

As this Court has stated, in a similar vein,

"...we decline to be drawn into an abstract

discussion of the numerous complex issues that

might arise...They are almost impossible and

most unnecessary to resolve in advance of

particular facts, stated claims, and identi-

fied plaintiffs and defendants."" Maryland v.

Wirtz, 392 U.S. 183, 200(1968).

THE QUESTION OF FEDERAL

SUPREMACY WAS CORRECTLY

RAISED BY THE RESPONDENT IN

MOTIONS TO DISMISS AND MOTIONS

FOR JUDGMENT OF ACQUITTAL

Both the majority and the dissent

have emphasized the fact that immunity

was not raised as a defense in the dis-

trict court. State v. Manypenny, supra,

1199 and 1205.

Apparently, Judge Kennedy to execute

the coup de main of this case suggests

that the Respondent should have presented

an immunity defense as a factu question

for the jury:

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 US 1, 10 S.ct. 658, 34

%L.Ct. 35 (18690). Id. 1205.

Even the most cursory inspection of

Neagle reveals that the case arose under

a writ of habeas corpus to release Neagle

from the custody of the county sheriff not

under any trial on the merits: Id. 135

US 1. The decision was based upon the

right of the United States to protect

its officers from the state intrusive

action while in the performance of offi-

cial federal duties. Id. 75. Nowhere

is it suggested that there should be any

trial of the whole issue of guilt or

innocence, any instructions to the jury

or any formal announcement of any defense

of immunity. Id. The question was con-

sidered to be one of law for the court,

not fact for the jury, and asserted that

the determination of the right to release

was a matter of federal interest:

To the objection made in argu-

ment, that the prisoner is dis-

charged by this writ from the

power of the state court to try

him for the whole offense, the

reply is, that if the prisoner

is held in the state court to

answer fur an act which he was

authorized to do by law of the

United States, which is was his

duty to do as marshal of the

United States, and if in doing~

that act he did no more than

°F

what was necessary and proper

for him to do, he cannot be

guilty of a crime under the law

of the State of California.

When these things are shown, it

is established that he is innocent

of any crime against the laws of

the State, or of any other author-

ity whatever. In Re Neagle, supra,

The Court of Appeals, in speaking of

the presentation of the defense of immun-

ity, probably were referring to the case

of United States ex rel. Drury v. Lewis,

200 US 1, 26 S.Ct. 229, 50 L.Ed 343 (1906)

were the court suggested that a jury

question was presented by the defense of

immunity. The suggestion made in Drury

has found very little acceptance in the

years since its pronouncement, most of the

cases being determined in the context of

a habeas corpus proceeding. Such was the

case in Clifton v. Cox, 549 F2d 722

(CA9-1977), the case principally relied

upon by Judge Frey, which held that the :

question of jurisdiction of federal officer

was a matter for decision for the court,

ere

not a jury:

The issue of petitioner's scope

of authority presents a question

Of law which we find was properly

resolved by the district court.

Id. 726 (Emphasis added)

To the knowledge of this writer, the

Ninth Circuit has not held that the ques-

tion of federal supremacy is a matter

for the jury's consideration, Cox right-

fully followed Neagle in stating that

the federal courts would delineate

federal jurisdiction:

One of the basic tenets in

the application of the supre-

macy clause is that the states

have no power to determine the

extent of federal authority.

To rule otherwise would allow

a state to punish the exercise

of federal authority under the

guise of questioning the right

of federal officials to act.

Id. 730.

The position that a jury should be per-

mitted to decide the question of federal

supremacy and jurisdiction, as suggested

by Judge Kennedy, is to suggest that the

federal district court abdicate its

function and responsibility to the tender

mercies of the jury. Nor is Judge Kennedy

correct in his assertion that the failure

to seek a jury instruction might “"...

have been a deliberate trial strategem."

State v. Manypenny, supra, 1205. The issue

of the right of the state to prosecute the

Respondent was always treated by him as a

legal question and was posed as such

throughout the trial of the action.

As was stated in Brown v. Cain, 56

F. Supp. 56 (D.C. Pa. - 1944), the case

principally relied upon throughout by

the Respondent:

I have no doubt that a guard

in the service of the United

States, protecting the plant

of a vital war industry, who,

in the. performance of his duty,

does an act for which the state

authorities propose to prosecute

him, should be half amenable to

the law of the United States and

to no other. Id. 60.

The issue of immunity may not have been

specifically enunciated in the trial of

this action. However, the proposition

S97

that the officer was not answerable to

the state while performing his duties as

an immigration officer, on a federal

reservation was the basic thrust of the

Motion to Dismiss, CR. 79, filed prior

to trial, where after stating the above

law from Brown v. Cain, the motion stated:

The case at bar is even more

persuasive for the protection

of the officer from state pro-

secution, since the act in

question no (sic.) only was

done in furtherance of federal

aims but was done federal soil.

The questions of the State's right to

act against the Respondent were raised

throughout the proceedings, and although

the magic word “immunity” was not mouthed,

but the concepts of federal supremacy,

which is the foundation of any immunity,

were certainly presented. See CR. 73-79;

CR. 120-125; R132 & 348.

II (A)

WHERE A JURISDICTIONAL DEFECT IS NOT

APPARENT ON THE RECORD, A MOTION FOR

JUDGMENT OF ACQUITTAL IS THE PROPER

METHOD OF TESTING THE JURISDICTIONAL

DEFECT, NOT A MOTION IN ARREST OF

JUDGMENT. THE COURT WILL LOOK TO

FORM NOT SUBSTANCE.

A motion in arrest of judgment, challeng-

ing the jurisdiction of the court, must be

based upon only the following matters of re-

cord: "...,indictment, the plea, the verdict...

and the sentence." Cited in Footnote 10,

United States v. Sisson, 399 U.S. 267, 281,

26 L. Ed. 2d 608(1970).

If the indictment and other pleadings are

sufficient on their face, then the motion in

arrest of judgment will not lie and is impro-

per, United States v. Daniel, 6 Wheat. (U.S.)

542, 5 L. Ed. 326(1821); United States v.

Green, 350 U.S. 415, 416, 100 L. Ed. 494(1955).

In the present case, there is not doubt

hat on both occasions i.e. the ruling of

November 30th, 1976(CR.137) and September 28th,

1977(CR.156), that the Court ruled upon the

post verdict motions. It was necessary to go

beyond the face of the record and inspect the

evidence to determine if the State could right-

fully try the Respondent. As an example, in

order to make its decision on either occasion

concerning the ability to try the Respondent

on a federal national monument or upon an

Indian reservation, the Court had to examine

the Attachments to the Motion to Dismiss in

the first instance and the testimony of the

witnesses as the trial progressed. CR.73.

On the question of the Respondent being within

the course of his employment and acting in the

pursuance of his official duties, testimony

had to be heard, since no information could be

gleaned from the indictment, the plea, or the

verdict. In sum, the importance of evidence

considered by the Court, in its resolution of

the question of the State's right to try the

Respondent, must necessarily be in addition to

the record. Since the motion in arrest of

+. }

ro Sean # ,

tytee Ove us

judgment dealt with matters far beyond the face

of the record as outlined above, the motion was

in effect a motion for judgment of acquittal

testing the sufficiency of the evidence and

the right of the State to try the Respondent.

As stated by this Court in United States v.

Sisson, supra:

For the purpose of this case, the

critical requirement is that a

judgment can be arrested only on

the basis of error appearing "on

the face of the record” and not

on the basis of proof offered at

trial.

"(A) motion in arrest of judgment

can only be maintained for a defect

apparent upon the face of the re-

cord, and the evidence is no part

of the record for this purpose."

Id. 281.

In Sisson, supra, the right of the govern-

ment to appeal from an order granting a motion

in arrest of judgment under 18 U.S.C. 3731

depended upon whether in fact the motion was

actually one in arrest of judgment or a motion

for judgment of acquittal and barred. .Id. 289.

The court looked beyond the designation of the

record at its implicit characteristics and

found that the motion addressed the merits, was

ruled upon on the basis of the merits and,

thus, suspect under 3731. Id. 290. If this

Court looks beyond the categorization of the

motion in arrest of judgment and recognizes

that the essential nature of the motion is

based upon factual material adduced at the

trial, there should be no question that the

ruling was factual beyond the bare pleadings

and the motion was raised and ruled upon in a

timely fashion. Rule 29 requires that the

motion for judgment of acquittal be brought

within seven days and if substance is to pre-

vail over form, the notion was well within the

rules.

Additionally, the State has spent five

pages of its brief (pp. 7-12) in reciting its

version of the facts and argued long and

strenuously concerning the nature of land upon

which the

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