Com. of Ky. v. Long
| Decision Date | 21 January 1988 |
| Docket Number | No. 86-5842,86-5842 |
| Citation | 837 F.2d 727 |
| Parties | COMMONWEALTH of KENTUCKY, Plaintiff-Appellant, v. Larry A. LONG, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
L.J. Hollenbach, III, William C. Grimes (argued), Aleta A. Bolte, Louisville, Ky., for plaintiff-appellant.
Larry S. Roberts, Lexington, Ky., C. Cleveland Gambill (argued), U.S. Atty., Louisville, Ky., for defendant-appellee.
Before LIVELY, Chief Judge, KEITH, Circuit Judge, and DOWD, District Judge. *
The issue in this case is whether the Supremacy Clause of the United States Constitution requires that a state's indictment of a federal agent be dismissed before trial, absent an affirmative showing by the state that facts are in dispute as to whether the agent committed the crime within the necessary and proper scope of his federal duties. We hold that the Supremacy Clause does so require, and we affirm the judgment of the district court dismissing the indictment in this case. 637 F.Supp. 1150.
The proceedings below are more comprehensible when presented in the following chronological format. 1
On January 22, 1986, the appellant, Commonwealth of Kentucky, returned an indictment for burglary against the appellee Larry Long, an agent for the Federal Bureau of Investigation. The indictment contained two counts as follows:
COUNT ONE
That during the period March and April, 1979, in Jefferson County, Kentucky, the above named defendant, Larry A. Long, alone or in complicity, committed the offense of Burglary in the Third Degree by knowingly and unlawfully entering or remaining in a building located at 1357 Gardiner Lane with intent to commit a crime.
That on or about the 25th or 26th day of August, 1979, in Jefferson County, Kentucky, the above named defendant, Larry A. Long, alone or in complicity, committed the offense of Burglary in the Third Degree by knowingly and unlawfully entering or remaining in a building located at 9820 Bluegrass Parkway with intent to commit a crime.
The defendant Long then removed the case to federal court, invoking the provisions of 28 U.S.C. Sec. 1442(a)(1), which state:
(a) 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 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.
In asserting his right to remove the case under 28 U.S.C. Sec. 1442(a)(1), defendant Long alleged in his petition for removal that he "is an officer with the Federal Bureau of Investigation and was acting under color of such office and within the scope of his employment as an employee of the United States in pursuing the apprehension of persons engaged in criminal activities."
Defendant Long attached to the removal petition a copy of the indictment and his own affidavit, which states in its entirety as follows:
Comes the Affiant, LARRY A. LONG, Defendant in Action No. 86-CR-0107-11, which is presently pending in the Jefferson Circuit Court, and states as follows:
I became an agent with the Federal Bureau of Investigation in November 1968. I was assigned to the Louisville office in September 1977. In 1979, I became acquainted with Delane Colvin and subsequently developed a relationship with him as a person who assisted the FBI in the role of an informant. Colvin provided me with extensive information of criminal activity which involved other persons and with whom, Colvin advised, he had close contact. The information provided by Colvin related in part to the burglaries with which I am charged in Counts One and Two of the Indictment, which is attached to the Petition herein. I was given information by Colvin about burglaries and, while acting totally within the scope of my responsibilities as an agent of the Federal Bureau of Investigation, I was actively pursuing the apprehension of individuals who were involved with the interstate transportation and sale of stolen property. At no time did I ever direct or instruct any person to commit any crime, and in particular, the offenses charged in the Indictment. I was made aware by Colvin of crimes both having been committed and going to occur at future times. I believed then that I was acting under the express authority of the attorney general's guidelines in the use of informants, which were in effect at the time of my relationship with Colvin.
Following removal, the U.S. Attorney entered his appearance on behalf of Agent Long. Pursuant to 28 U.S.C. Sec. 1446(c)(5), 2 the district court then scheduled an evidentiary hearing on the removal petition, but upon the parties' agreement that such a hearing was not necessary, the court proceeded to grant the removal petition. The Commonwealth does not challenge that ruling, which was rendered after the following discussion took place:
THE COURT: All right. What do you envision, Mr. Gambill or Mr. Roberts, as to what, what this evidenciary [sic] hearing that subsection (c)(5) talks about, or whether anybody wants one, frankly? These cases being removed are so rare that--
MR. GRIMES [counsel for the Commonwealth of Kentucky]: Judge, if I may.
Following the granting of the removal petition, the defendant Long and the United States on his behalf filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, which states in relevant part as follows: Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.
In the briefing papers supporting the motion, the defense asserted that any alleged crime Agent Long had committed was accomplished within the necessary and proper scope of his duties as an FBI agent, and that even if Agent Long had displayed poor judgment, the Supremacy Clause of the United States Constitution required dismissal of the indictment.
We note that in moving to dismiss, the defense conceded that Delane "Red" Colvin was one of Agent Long's informants; that Colvin was the informant involved in the two burglaries charged in Long's indictment; that Colvin informed Long of those burglaries; and that Long approved Colvin's participation in the burglaries. The defense asserted further, however, that Agent Long "believed [Colvin's participation in the burglaries] to be for the purpose of obtaining further information as part of the ongoing investigation into such crimes."
In opposing the motion to dismiss the indictment, the Commonwealth challenged what it characterized as the "assertion of innocent error." The Commonwealth took the following position in its briefing papers:
The protection of the Supremacy Clause cannot be made available to the defendant, Larry Long, as his actions do not support innocent error, but rather indicate that he violated Agency guidelines and supervisory trust at the expense of private entities and for his own personal gain and enhancement within the Federal Bureau of Investigation.
On May 30, 1986, the district court conducted an evidentiary hearing on the motion to dismiss the indictment. During a preliminary side bar conference among counsel and the Court, counsel for the Commonwealth handed up a bill of particulars which was not actually filed until June 3, 1986. In the bill of particulars, the Commonwealth alleged the following:
1. Between 1979 and 1981, Larry Long, while employed as a Federal Bureau of Investigation agent, used an informant, Delane Colvin, to commit burglaries at at least two locations in Jefferson County, Kentucky. At Larry...
To continue reading
Request your trial
-
Battle v. State
...to lack jurisdiction to prosecute the agent "for conduct facially violative of the state's criminal code." Commonwealth of Kentucky v. Long , 837 F.2d 727, 744 (6th Cir. 1988) ; see also Wyoming v. Livingston , 443 F.3d at 1220.Here, the question is whether Battle qualified for Supremacy Cl......
-
U.S. v. Levin
...of the facts in terms of the mechanics of the thing and where the money went. There probably aren't.See also Commonwealth of Kentucky v. Long, 837 F.2d 727, 749-59 (6th Cir.1988); United States v. Smith, 866 F.2d 1092, 1097 (9th Cir.1989); United States v. Shortt Accountancy Corp., 785 F.2d......
-
U.S. v. Salemme
...to obtain information needed for purposes of federal prosecution. Id. § 108 pt. IV(3)(4) (emphasis added). See also Kentucky v. Long, 837 F.2d 727, 732-33 (6th Cir.1988) (Chief of FBI Criminal Informant Unit testifies that one instruction in the Levi Guidelines was "that the informant is to......
-
State v. Kleinert
...and that belief must be objectively reasonable.7 See, e.g. , New York v. Tanella , 374 F.3d 141, 147 (2d Cir. 2004) ; Kentucky v. Long , 837 F.2d 727, 745 (6th Cir. 1988). In other words, the Supremacy Clause prohibits a state from punishing, whether by local prosecution or private suit und......