Respondents Brief — Maryland v. Soper (No. 3)

INDEX

Page

NI OO ce saat a tant ry th cs dina Snes aint 1

co gars Sc esa Sie eases mee Re nin ost cose esa IS wae A 2

SN cc cca ea ns ano lo dee nc ts tala ig Sep 6-10

I. The prosecution for perjury was properly removable,

notwithstanding that the defendant did not admit the

II. The decision of the district court granting the petition

for removal, and denying the motion to remand, was

an exercise of lawful judicial discretion, and can not

ae Oe er CUR bie eciticdicticcccimawnnn 8

SRN ac cn ccck mim memaenaeme mie naimm cima mii mame 10

CASES CITED

RUNNER EE, Ce cena sierenisha pecs dannii naar een aicacanias ie 6

nee tT. COMMNENEE, BTUs UU. BRB nq oncc cn ccicmncnncscccnccnan &

i: 2 SO 0 Oh Ot icnannnnccheanancennemacancinaenm 10

en ©. SOR, BE Cl. Oe Onan cneiccnmccnmes naman 7

Massachusetts v. Bogan, 285 Fed. 668__...-.-------.---------- 8

ee, ee ey A 8. Oe, SR ais a kc cennacceseecamcees 10

NOE (0, SIN, IE I, Sooo ahd seiner menace 6

NO Oo ce camdc inion aien danenentnn cei 10

Tee ©. Sen Gek Bes). Gh My MO Eniennccatdanawannmncimnem 6, 8,10

STATUTES CITED

Judicial Code (Act of March 3, 1911, c. 231, 36 Stat. 1087:

8S. 33 (as amended by the Act of Aug. 23, 1916, c. 399, 39

URE. TR inn cacencecnintninnsminadannenels eeree | S

iE eke ceadi dnc namaenenanne Retin Mana eeem 1

Act of Oct. 28, 1919, c. 85 (41 Stat. 305) (National Prohibi-

RN aol; acs 0 sh cil testa teem aaiaicaa odio inmpeamiomninagia ms an aullbealieom

70280— 25

Inthe Supreme Court of the United States

OctToBeR ‘TreRM, 1925

No. 25, OriGgiInaL

Ex Parre: IN THE MATTER OF THE STATE OF

MARYLAND

Cask: “Cc”

PETITION FOR A WRIT OF MANDAMUS TO THE DISTRICT

COURT FOR THE DISTRICT OF MARYLAND

BRIEF FOR RESPONDENTS IN SUPPORT OF RETURN TO

THE RULE

GROUNDS OF JURISDICTION

This case, like Nos, 23 and 24, Original, is a peti-

tion by the State of Maryland for a writ of manda-

mus to the Distriet Court for the District of Mary-

land. The jurisdiction of this Court is invoked

under Section 234 of the Judicial Code (Act of

March 3, 1911, e. 231, 36 Stat. 1087, 1156).

On October 12th, 1925, this Court granted a rule

to show cause why a peremptory writ should not

issue. The rule was made returnable on or before

November 16th, 1925.

Q)

4

&

|

3

+

£

4

a

Rhee TSA VER:

Revel hie'

tia

)

STATEMENT

The purpose of the petition is to compel the

District Court to remand to the Circuit Court of

the State for Harford County an indictment

charging E. Franklin Ely, a Federal Prohibition

Agent, with the crime of perjury. Ely is one

of the five persons who are the objects of a prose-

eution for murder in Case ‘‘A’’ (Original No. 23)

and who are also the objects of a prosecution for

conspiracy to obstruct justice in Case * B ”’ (Origi-

nal No. 24). Most of the facts in the present case

have been already set forth in the respondents’

briefs, in Cases ‘*A”’ and ‘‘B.”’ For convenience,

they will be briefly repeated here.

The defendant, Ely, was a duly appointed Fed-

eral Prohibition Officer. His commission em-

powered him—

‘*to act under the authority of and to en-

force the National Prohibition Act and Acts

supplemental thereto and all Internal

Revenue Laws, relating to the manufacture,

sale, transportation, control, and taxation

of intoxicating liquors’ * * * and to

execute and perform all the duties delegated

to such officers by law.’’ (Exhibit A to Peti-

tion of the State of Maryland, pp. 40-41.)

On November 19, 1924, the defendant, Ely, and

three other Prohibition Officers, together with

their chauffeur, Trabing, were ordered by the Fed-

eral Prohibition Director for Maryland to investi-

3

gate the alleged unlawful distilling of liquor on an

unoccupied farm near the village of Madonna,

Maryland. They went there by motor, arriving

shortly after noon, and discovered in a secluded

valley the materials for illicit distilling. They hid

themselves in the woods. Soon afterwards a num-

ber of men came up, carrying a still. When the

officers made their presence known the men

dropped the still and fled. The officers pursued,

but failed to arrest anyone. They thereupon re-

turned to the still, destroyed the materials, and

proceeded back to their car to return to Baltimore

and report the affair to their superior. On their

way to the car, about 400 or 500 yards from the

site of the still, they found a man (Wenger) lying

mortally wounded. They picked him up and took

him in their ear to Jarrettsville, and thence to Bel

Air, in search of a doctor. By the time one was

found, the man was dead. The officers then at once

reported the matter to the State’s Attorney in Bel

Air. Upon learning that his informants were Pro-

hibition Officers, the State’s Attorney at once or-

dered all five to be placed under arrest. They

were confined in the local jail that night; and the

next day they gave further information to the

State officials and to the Coroner’s Jury. The

charge of perjury which gives rise to the present

case was predicated upon the statement made by

the defendent, Ely, before the Coroner’s Jury that

4

he had not seen Wenger at the time when Ely and

the other officers lay hidden watching the still. The

indictment for perjury is set forth in full in the

amended petition of Ely for removal of his cause

to the Federal Court. (Exhibit A to petition of

the State of Maryland, at pp. 26-28.)

On the evening of November 20th Ely, together

with his companions, was released on bail at the

instance of the United States Attorney. In Febru-

ary, 1925, the indictment for perjury against Ely

was returned by the grand jury of the State to the

Cireuit Court for Harford County. The defendant

petitioned for removal of the cause, under Section

33 of the Judicial Code. Removal was granted.

Subsequently, the State of Maryland moved to

quash the order of removal and to remand the pros-

ecution to the State Court. After argument upon

this motion, leave was granted to amend the peti-

tion for removal. The petition was accordingly

amended to set forth in greater detai all the cir-

cumstances surrounding the indictment. Proper

allegations were included, stating that the defend-

ant was a Federal officer, and that at the time

when the alleged perjury was committed, he had

been in the discharge of his duties—

‘fas a Federal Prohibition Officer, and in

making and attempting to make an investi-

gation concerning a violation of the National

Prohibition Act and other Internal Revenue

5

Laws, and in reporting the results of said

investigation concerning a violation of the

National Prohibition Act and other Internal

Revenue Laws, and in protecting himself

and his fellow officers of the Internal

Revenue in the discharge of his and their

duty.

It was also alleged that the defendant and his as-

sociates had been called before the Coroner’s In-

quest as set forth and had—

without reservation in accordance with their

duty as investigating and reporting officers

of the Federal Government and acting under

the direction of the Maryland Federal Pro-

hibition Director, related the facts afore-

mentioned.

The defendant did not, however, admit that he

had committed any perjury. The petition ended by

alleging that the indictment for perjury was—

a criminal prosecution on account of acts al-

leged to have been done by your petitioner at

a time when he was engaged in the perform-

ance of his duties as a Federal Prohibition

Officer.

Upon this amended petition removal was granted.

The State of Maryland again moved to quash the

order of removal and to remand the cause. Its mo-

tion was denied. To compel the District Court to

remand the cause, the State has now petitioned for

a writ of mandamus from this Court.

aayarsk vss

Sod UPAR RRC EAS

bee

a BBS LES

ni DIR ea ig ook baie

Dect ANI SORA OP Ie RO

€

6

z

5

x

:

te

*

za

©

e

#

BY

é

4

BD

;

‘

ARGUMENT

SUMMARY

I. The Prosecution for Perjury Was Properly Remov-

able, Notwithstanding That the Defendant Did Not Admit

the Charge.

Il. The Decision of the District Court Granting the

Petition for Removal, and Denying the Motion to Remand,

Was an Exercise of Lawful Judicial Discretion, and Can

Not Be Controlled by Mandamus.

I

The Prosecution for Perjury Was Properly Removable,

Notwithstanding That the Defendant Did Not Admit

the Charge.

Points I and II of the respondents’ brief in Case

“A? (No. 23 Original) dealt with the application of

Section 33 of the Judicial Code and Section 28 of

the National Prohibition Act to prosecutions

against Federal Prohibition Agents. Point I of

the respondents’ brief in Case ‘‘B’”’ (No. 24 Origi-

nal) dealt with the necessity for an admission of

the act charged as a prerequisite to the right of

removal. It is unnecessary here to repeat those

arguments at length. It is submitted that there is

no necessity for any such admission of guilt.

Tennesse ¥. Davis, 100 U.S. 257.

Alabama vy. Peak, 252 Fed. 306.

Oregon Vv. Wood, 268 Fed. 979.

In the case now under consideration it is sub-

mitted that to require such an admission would be

altogether unreasonable. If the accused officer in

this case were required to incriminate himself by

admitting that he had committed perjury, before

—

7

he could claim the right of removal, the subsequent

proceedings would be a farce. His guilt would be

established by his own sworn statment, and there

would be nothing left for any Court, Federal or

State, totry. It is submitted that Section 33 of the

Judicial Code contains nothing which requires

such an admission.

With respect to the proper interpretation of

Section 33, and in particular with respect to the

phrases ‘‘color of office’’ and ‘‘color of law’’, refer-

ence is made to the respondents’ brief in Case ‘‘B,”’

at pages 12-15.

It is of course true, as the State of Maryland

urges, that the Internal Revenue laws do not re-

quire Federal officers to commit perjury. But the

accused officer in this case does not admit that he

committed perjury. He is not seeking to be freed

of liability under the charge. He seeks only to

have his guilt or innocence determined in the Fed-

eral Court.

It is also true that perjury may be regarded as

‘‘peculiarly an offense against the courts of a par-

ticular sovereign ;’’ and it is urged that it should

be triable only by that sovereign. The same rea-

soning certainly applies to the case of contempt of

court, and to the case of murder, which this Court

has declared to be governed by ‘‘the most unques-

tionable and most universally applicable of State

laws.”’ Johnson v. Maryland, 254 U.S. 51. Yet

Federal officers accused of murder and of con-

tempt of State courts have in numberless cases

8

been granted aid, either by removal or by discharge

on habeas corpus, by the Federal courts.

Boske v. Comingore, 177 U. 8. 459.

Tennessee Y. Davis, 100 U. 8. 257.

Massachusetts v. Bogan, 285 Fed. 668.

At the time this alleged perjury was committed,

the accused was still a Federal officer, and had come,

shortly before, from the performance of his duty in

destroying an illicit still. When he had given his

information to the State’s Attorney, and had in-

formed the State’s Attorney that he was a Federal

officer, he had at once been placed in custody. He

remained in custody until and during the hearing

before the Coroner. In his petition for removal,

proper allegations were made as to his official capa-

city. It is submitted that the charges of murder

(Case A), of conspiracy (Case B), and of perjury

(Case C), are so closely inter-related that they can

not be separated. The charges in Case B and Case C

arose directly out of the charge of murder in Case

A. Itis submitted that all three must be considered

together, and that all three are properly removable

to the Federal court.

Il

The Decision of the District Court Granting the Peti-

tion for Removal, and Denying the Motion to Remand,

was an Exercise of Lawful Judicial Discretion, and

can not be Controlled by Mandamus.

Argument in support of this proposition has

already been given at length under Point II of the

respondents’ brief in Case “B,” at pages 15-19. It

9

will be necessary here to give only a brief addi-

tional mention of the facts in this case.

The petition of the accused officer for removal

included, of course, full allegations of the facts

upon which the right to removal was based. The

motion to remand, interposed by the State of Mary-

land, directly traversed these allegations. Among

the grounds assigned for that motion were these

(Exhibit A to petition for mandamus, at pages

39-37 ) :

(1) Because the allegations of the second

paragraph of the amended petition are un-

true. (This paragraph contained an allega-

tion that the petitioner was a Federal Pro-

hibition Officer of the Bureau of Internal

Revenue, acting to enforce the National Pro-

hibition Act and the Internal Revenue Laws

relating to the manufacture, ete., of intoxi-

cating liquor.)

(3) Because the allegations set forth in

said petition are contradictory, evasive,

founded on hearsay, and in part untrue.

(10) And for other good and sufficient

reasons to be shown at the hearing.

It is very clear, therefore, that by the petition

for removal and by the motion of the State to re-

mand, issues both of law and fact (or issues of

mixed law and fact) were raised. It is submitted

that the decision of these issues of law and fact

rested with the District Court alone. The petition

for removal was duly verified under oath and was

signed by the petitioner. The District Court was

entitled to treat it as evidence of the facts therein

dp at AD

~ ae gis

a

la oe ea eT EATS

REE IP PE ie:

BAPE Pe EE ee fo ER

10

contained. It is submitted that the District Court

was at liberty to believe or to disbelieve that evi-

denee in its own diseretion, and according to its

belief or disbelief, to deny or to grant the motion

of the State to remand the cause. It is submitted

that the writ of mandamus can not be used to con-

trol the lower court’s discretion in deciding upon

the issues thus presented. In passing upon the

claim of the accused officer for removal, the Dis-

trict Court was acting within its lawful jurisdie-

tion. That Court alone had authority to decide

the issues presented. If it has erred, it has erred

only in discretion. Such an error, if it exists, can-

not be corrected by mandamus.

Ex Parte Muir, 254 U.S. 522,

In re Cooper, 143 U.S. 472,

In re Rice, 155 U.S. 396, 403,

Tennessee v. Davis, 100 U. 8. 257, 261,

And cases cited in respondents’ brief in

Case B, at pages 15-19.

CONCLUSION

It is therefore respectfully submitted that the

rule should be discharged, and that the petition

for a writ of mandamus should be denied.

Wiuiam D. MITCHELL,

Solicitor General.

WituiaM J. Donovan,

Assistant te the Attorney Genera!.

Of Counsel for the Respondents.

NovEeMBER, 1925.

O