State of North Carolina v. Carr
| Decision Date | 06 November 1967 |
| Docket Number | No. 11292.,11292. |
| Citation | 386 F.2d 129 |
| Parties | STATE OF NORTH CAROLINA, Appellant, v. Gordon S. CARR, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Francis O. Clarkson, Jr., Charlotte, N. C. (Elliott Schwartz, Charlotte, N. C., on the brief), for appellant.
John C. Eldridge, Atty., Dept. of Justice (Carl Eardley, Acting Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept. of Justice, and William Medford, U. S. Atty., on the brief), for appellee.
Before SOBELOFF, BRYAN and WINTER, Circuit Judges.
The State of North Carolina appeals from an order of the United States District Court at Charlotte voiding a judgment of a State court holding an agent of the Federal Bureau of Investigation in contempt. The finding of contempt rested on the agent's refusal, pursuant to the instructions of the Attorney General of the United States, to answer questions propounded to him when called as a witness in a private civil action then on trial in the State court. As the contempt order now presents only an academic question, we dismiss the appeal as moot.
In the private litigation, plaintiff was seeking to recover damages for fraud on the allegation that the defendant had sold him a Trailmobile trailer knowing it to be a stolen vehicle. The agent was subpoenaed by the plaintiff to testify to his official investigation of the imputed larceny, to produce the FBI records compiled in the course of that inquiry and to bring with him also a piece of the Trailmobile bearing its serial number.
The agent appeared in the State court with an Assistant United States Attorney and, pleading the Attorney General's instruction, moved to quash the subpoena. This official directive was supported by the Attorney General's order No. 324-60, which appears as Section 16.1 et seq., Title 28, Code of Federal Regulations. The regulations promulgated by this order forbid any such testimony or production by an agent without the prior approval of the Attorney General.
The State court on February 1, 1967 overruled the motion, and the agent was called to the stand. After he declined to answer, he was cited and held in contempt. The judgment was that the agent be imprisoned until he should answer the questions. Execution of this order was stayed until the completion of the defendant's evidence.
On the same day, February 1, 1967, a petition was filed to remove the contempt proceeding from the State court to the United States District Court for the Western District of North Carolina pursuant to 28 U.S.C. § 1442, infra.1 At the same time the District Court awarded a temporary restraining order against enforcement of the contempt conviction and set the petition for hearing on February 6th. Meanwhile, North Carolina sought remand of the removal on the ground that contempt was not within the scope and intent of 28 U.S.C. § 1442, which as pertinent reads as follows:
After a final hearing, the District Court delivered its opinion on February 15th that the case was a criminal contempt removable under 28 U.S.C. § 1442 (a), that the agent had acted under color of his office in the performance of his duties, that the Attorney General's order was valid, and hence the agent's refusal to testify did not constitute contempt and the order of conviction was of no effect. On February 21, 1967 the remand was denied and the contempt proceeding dismissed. The State appeals this order.
The issue is whether or not the contempt proceedings constituted a "civil action or criminal prosecution commenced in a State court" within...
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Williams v. Williams
...861, 862 n. 2 (D.Neb.1976). Insofar as section 1442(a)(1) is concerned, this Court respectfully disagrees. In State of North Carolina v. Carr, 386 F.2d 129 (4th Cir. 1967), an FBI agent, who had refused, when called as a witness in a civil state court trial, to answer questions in accordanc......
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Bosaw v. National Treasury Employees Union
...grand jury proceedings in state court criminal prosecution was a civil action for purposes of § 1442 and removable); Carr v. North Carolina, 386 F.2d 129, 131 (4th Cir.1967) (holding removal proper whenever federal officer is being forced to answer in a state court for conduct assertedly wi......
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United States v. Pennsylvania Environmental Hear. Bd.
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Matter of Doe
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