Baucom v. Martin

• Decision Date: 07 June 1982
• Docket Number: No. 81-7171,81-7171
• Citation: 677 F.2d 1346
• Parties: Robert W. BAUCOM, Plaintiff-Appellee, v. John R. MARTIN, as District Attorney pro tem, Stone Mountain Judicial Circuit, Georgia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1346

677 F.2d 1346

Robert W. BAUCOM, Plaintiff-Appellee, v. John R. MARTIN, as District Attorney pro tem, Stone Mountain

Judicial Circuit, Georgia, Defendant-Appellant.

No. 81-7171.

United States Court of Appeals, Eleventh Circuit.

June 7, 1982.

John R. Martin, Atlanta, Ga., for defendant-appellant.

Robert J. Castellani, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, RONEY and WOOD ^*, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge:

A special agent of the FBI, Robert W. Baucom, brought this suit seeking declaratory and injunctive relief to prevent his threatened state prosecution by defendant, John R. Martin, District Attorney pro tem, for the Stone Mountain Judicial Circuit, Georgia. Baucom had participated during the course of an investigation in an alleged bribery attempt of a state prosecutor. The district court granted plaintiff declaratory judgment finding that his acts in the bribery scheme were within his authority as an FBI agent, and that therefore any state conviction of him for those acts would contravene the Supremacy Clause of the Constitution of the United States. ¹ The declaratory judgment relief being considered sufficient, the requested injunctive relief was denied. The defendant appeals. We affirm.

I.

The underlying facts are not in substantial dispute. The FBI, in cooperation with Georgia law enforcement authorities, engaged in an investigation of possible violations of 18 U.S.C. §§ 1961 et seq., commonly known as the RICO statute. ² In pursuing the investigation into gambling and bribery activities, Randall Peek, the District Attorney for the Stone Mountain Judicial Circuit of Georgia, a known associate of gamblers, became identified as a possible subject. There were allegations that gamblers were being officially protected.

Terry Wayne Bardill, who had recently entered a guilty plea and had been sentenced for unrelated federal charges, voluntarily began cooperating with the FBI as an informant. Bardill was approached by one of the gambling suspects with a scheme to "fix" criminal cases in the state circuit by bribery. Peek had been defeated for reelection. The scheme was to contact persons awaiting trial on state criminal charges and endeavor to arrange the favorable disposition of their cases for substantial sums of money before Peek left office. Bardill also informed the FBI that he had had a conversation with State Representative Joe J. Johnson who informed Bardill that he had previously fixed cases with Peek.

Agent Baucom received authority from his supervisors and the United States Attorney to run an undercover bribe attempt in cooperation with the state to determine if Peek could in fact be bribed. Bardill was acquainted with James Ingram, who was awaiting trial on state charges. Bardill, as part of the investigation, talked to Ingram and offered to provide $2,000.00 ³ to fix Ingram's case, the sum Johnson reported would be necessary for that purpose. Ingram reluctantly agreed to the benevolent effort in his behalf not knowing it was part of the undercover investigation. As originally set up by Johnson, according to the evidence, Bardill was not to be present when Peek was to be given the money by Johnson. Although the absence of Bardill as an eyewitness to the transfer of money would weaken any future case against Peek, it was believed that Peek could be shown by circumstantial evidence to have accepted the bribe if Peek actually effected dismissal of the case against Ingram. As it turned out, however, Bardill and Johnson were both present when the meeting occurred with Peek. There was some discussion at that meeting about a campaign contribution and $1,000 was given to Peek. Peek, however, turned the tables by having Johnson and Bardill arrested by local authorities for attempted bribery. ⁴ Those state charges resulted in the revelation of the true nature of the bribery attempt and that Agent Baucom had participated. In the meantime, Martin was appointed district attorney pro tem to prosecute the state charges because of the disqualification of Peek.

II.

The resulting issue is the impact of the Supremacy Clause on state prosecution of a federal agent who purportedly within the scope of his official duties allegedly commits a state crime, an attempted bribery. It is Martin's position that there is no authority for a federal agent to "fix" a state prosecution even if the motive is to enforce federal criminal statutes. That being so, it is argued that Baucom was acting outside the scope of his federal authority and is therefore not immune from state prosecution. The distinction is made between an undercover agent who merely gathers evidence and another undercover agent who commits a state offense in the process.

The government argues that the Supremacy Clause protects the agent if he was acting in the performance of his official duties, and did no more than was reasonable. The issue is not, the government argues, whether the agent had express authority to actually violate a state criminal statute. In any event, it is claimed, the agent's acts in the bribery scheme could not constitute a state criminal violation because criminal intent was lacking. United States v. Rosner, 485 F.2d 1213, 1223 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974).

As Judge Ward noted, "This case lies at the delicate interface between state and federal law enforcement." In granting summary judgment, rather than injunctive relief, Judge Ward adopted the less intrusive means of vindicating the agent's rights. That sensitive understanding is necessary when there is antagonism between the federal and state governments.

No one has cited a case factually similar, yet there is some precedent for guidance. ⁵ In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890), has long been the foundation for consideration of federal-state conflicts arising from state prosecution of federal officers for alleged state crimes. Neagle, a marshal, had been assigned by the Attorney General of the United States to protect Justice Field of the United States Supreme Court as the Justice went about his circuit duties in California. In carrying out that assignment, the marshal shot and killed a man who assaulted the Justice. California sought to prosecute Neagle, but Neagle was discharged from state custody by a federal writ of habeas corpus. The Attorney General of California argued that the writ was improperly issued as nothing in the Constitution or in any act of Congress conferred authority on marshals to protect federal judges. If that specific legal basis was not essential to justify the marshal's assignment, it was argued, then the government's "position would seem to be alarming in its character, and obliterative of the terminal bounds between federal and state jurisdiction. It would recognize a vast body of officers, and constantly increasing, as owing no allegiance except to the federal courts, and possessed of special privileges and immunities not conferred by any act of Congress." Id. at 37, 10 S.Ct. 658.

The Supreme Court answered California's argument by holding that even in the absence of specific legislation, "any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is 'a law' " within the meaning of the Supremacy Clause. Id. at 59, 10 S.Ct. at 666. Although the marshal's particular assignment could not be found to be specifically authorized by statute, it was considered to be within the general scope of his duties. The Court concluded by holding "that if the prisoner (the marshal) is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State of California." Id. at 75, 10 S.Ct. at 672. From that may be drawn the test for application in this case.

Martin argues, however, that Neagle is to be distinguished because the marshal's assignment to protect the Justice was "clearly" within the scope of the marshal's authority. California made the same argument in Neagle that Martin makes-that the officer's act was beyond any specific authority. It was not, however, "clearly" within the scope of the marshal's authority until the Supreme Court spoke and found that authority lodged within the "general scope of his duties."

Neagle was followed by Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343 (1906), which Martin claims narrowed Neagle 's application only to cases of "peculiar urgency" with "extraordinary" reasons and "exceptional facts," or otherwise federal court interference cannot be justified. In Drury a United States soldier was charged by the state with murder in an incident in which the soldier was attempting to arrest a non-military person suspected of larceny from a federal arsenal. The Court noted that there was a conflict in the evidence as to whether the person shot was a felon attempting to escape arrest. If he were not, it was held that it could not be claimed the shot was fired in performance of the soldier's duty. The determination of the evidentiary dispute, therefore, was left to the state court, there being no need seen for habeas corpus relief in advance of trial.

There are more recent cases applying Neagle. In In Re McShane's Petition, 235 F.Supp. 262 (N.D.Miss.1964), after a careful analysis of the law by the district judge, the chief marshal of the United States was granted habeas relief from state charges arising from the alleged unlawful use of tear gas during a disturbance at the University of Mississippi.

In United States v. Archer, 486 F.2d 670 (2d Cir. 1973), the court was faced with an extensive and complicated federal...