State of Arizona v. William Dale Manypenny

608 F.2d 1197

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 1979
• Docket: 77-3453
• Status: Published

Opinions

CHOY, Circuit Judge:

The State of Arizona brought this criminal prosecution against Manypenny, a border patrolman of the United States Immigration and Naturalization Service. The State charged Manypenny with assault with a deadly weapon in violation of Arizona law. Ariz.Rev.Stat. § 13-249(A) & (B). On Manypenny’s motion, the case was removed to federal court. See 28 U.S.C. § 1442(a)(1).¹

After trial, the jury returned a verdict of guilty. Manypenny then moved for arrest of judgment or, alternatively, for a new trial. See Fed.R.Crim.P. 33, 34. The court granted the Rule 34 motion for arrest of judgment. Thereafter, the State moved for reconsideration of the grant of the Rule 34 motion. The court granted the motion for reconsideration, but no action was taken for a year.

On September 8, 1977, Manypenny moved for a hearing to determine the status of the State’s pending motion. The hearing was held on September 26. Two days later, the district court reversed its previous order arresting judgment. The court construed Manypenny’s Rule 34 motion to be a motion for judgment of acquittal under Fed.R. Crim.P. 29(c), granted the motion for acquittal, set aside the jury’s verdict and held Manypenny not guilty. Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz.1977).²

The State appeals from these rulings. We find that we are without jurisdiction to entertain such an appeal. We therefore dismiss the appeal.

It is well-settled that the prosecution has no right to appeal an adverse decision absent some statutory authorization. See United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Sanges, 144 U.S. 310, 312, 318-23, 12 S.Ct. 609, 36 L.Ed. 445 (1892).³ The State contends that it may appeal the judgment in this case under 18 U.S.C. § 3731, the Criminal Appeals Act.

Section 3731 provides in part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

The provisions of this section shall be liberally construed to effectuate its purposes.

(Emphasis added.)

While the Supreme Court has stated that § 3731 was “intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit,” United States v. Martin Linen Supply Co., 430 U.S. at 568, 97 S.Ct. at 1353, quoting United States v. Wilson, 420 U.S. at 337, 95 S.Ct. 1013, it is manifest that § 3731 is limited by its own terms to appeals by the United States as a prosecuting entity. The statute authorizes “an appeal by the United States,” not an appeal by a state or by “any of the United States.” As we have previously stated, “ ‘[t]he language of a statute is the best and most reliable index of its meaning, and where the language is clear and unequivocal it is determinative of it construction.’ ” Smith v. Califano, 597 F.2d 152, 155 (9th Cir. 1979), quoting Monte Vista Lodge v. Guardian Life Insurance Co., 384 F.2d 126, 128 (9th Cir. 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968).

We note that no court has ever interpreted § 3731 as providing for appeals by a state in a § 1442(a)(1) prosecution. Moreover, the legislative history of this provision and its predecessors makes it clear that Congress was only concerned with appeals by the federal Government.⁴

We share the concerns expressed by Judge Kennedy in his dissent that the policy of § 3731, which is designed to “prevent erroneous trial court rulings from thwarting lawful prosecutions,” is equally applicable to state prosecutions and federal prosecutions, and that not allowing state appeals in cases removed to the federal courts under § 1442(a)(1) has a substantial effect on the delicate balance of our federal system. However, we cannot rewrite § 3731 for Congress. As the Supreme Court has warned:

[A] statute “is not an empty vessel into which this Court is free to pour a vintage that we think better suits present day tastes.” United States v. Sisson, 399 U.S. 267, 297, 90 S.Ct. 2117, 2133, 26 L.Ed. 608 (1970). Considerations of this kind are for Congress, not the courts.

National Broiler Marketing Association v. United States, 436 U.S. 816, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978), quoted in Smith v. Califano, 597 F.2d at 158.

Neither can we look to state law as providing Arizona with a right to appeal in this case. A case before the federal courts under § 1442(a)(1) is one within the judicial power of the United States, for it arises under federal law. See Tennessee v. Davis, 100 U.S. 257, 262-65, 25 L.Ed. 648 (1879). In a case arising under federal law, federal law, rather than state law, controls. See D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 456, 62 S.Ct. 676, 86 L.Ed. 956 (1942); Deitrick v. Greaney, 309 U.S. 190, 200-01, 60 S.Ct. 480, 84 L.Ed. 694 (1940); Board of County Commissioners v. United States, 308 U.S. 343, 349-53, 60 S.Ct. 285, 84 L.Ed. 313 (1939); United States v. Crain, 589 F.2d 996, 998 (9th Cir. 1979).

While in certain cases the Federal courts may adopt state law as federal law, see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); D’Oench, Duhme & Co. v. FDIC, 315 U.S. at 468-72, 62 S.Ct. 676 (Jackson, J., concurring); Board of Commissioners v. United States, 308 U.S. at 349-52, 60 S.Ct. 285; United States v. Crain, 589 F.2d at 999-1000, adoption of state law in this ease does not aid the State’s case. As previously noted, the prosecution may appeal only where authorized to do so by statute. See United States v. Martin Linen Supply Co., 430 U.S. at 568, 97 S.Ct. 1349; United States v. Wilson, 420 U.S. at 336, 95 S.Ct. 1013; United States v. Sanges, 144 U.S. at 312, 318-23, 12 S.Ct. 609. Adoption of state law as the federal rule would not meet this requirement of statutory authorization, for such a federal rule would be a “common law” rule, even if based upon a state statute. See United States v. Crain, 589 F.2d at 998-1000; United States v. Best, 573 F.2d 1095, 1101 (9th Cir. 1978).

In conclusion, only Congress can authorize an appeal by a state in a § 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.

1 . 28 U.S.C. § 1442(a)(1) provides:

A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or any person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

2 . The court stated that its reason for ordering Manypenny’s acquittal was that he was entitled to immunity under the principle announced in In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890). See Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977). The immunity defense had not been raised at trial. However, the district court concluded that it had erred in failing to sua sponte instruct the jury on such a defense.

3 . In his dissent, Judge Kennedy suggests that this court may have jurisdiction over the state’s appeal under 28 U.S.C. § 1291, the final judgment rule. We disagree.

The Supreme Court has twice held that general appeals provisions are not sufficiently explicit to overcome the common-law rule that the state may not appeal an adverse decision in a criminal case. United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Sanges, 144 U.S. 310, 318, 322-23, 12 S.Ct. 609, 36 L.Ed. 445 (1892). A statute expressly giving the state a right to appeal in a criminal case is required. Section 1291 is not such a statute. Neither does § 1291 allow us to refer to state law to determine whether or not the state has a right of appeal. See discussion of state law infra.

4 . Nowhere in the legislative history of the various criminal appeals acts does it appear that Congress addressed or even considered appeals by the state in state prosecutions before the federal courts under § 1442. See S.Rep. No. 1296, 91st Cong., 2d Sess. (1970); H.R.Rep. No. 1768, 91st Cong., 2d Sess. (1970); 41 Cong.Rec. 2190-97 (Feb. 4, 1907), 2744-63 (Feb. 12, 1907). The reports and debate on the issue of such acts indicate that Congress was concerned only with the right of the federal Government to appeal in criminal cases. See S.Rep. No. 1296 at 2, 5, 9-11, 18; H.R.Rep. No. 1768 at 21; 41 Cong.Rec. at 2190 (remarks of Sen. Hale) (concerned with rights of the “General Government”), 2192 (remarks of Sen. Bacon) (concerned with lower court determinations that acts of Congress unconstitutional), 2760 (remarks of Sen. Spooner) (the United States should have the same right to appeal in federal criminal cases as many of the states do in their own courts).