In re Heisig

• Decision Date: 09 November 1959
• Docket Number: No. 59 C 1515,59 C 1519.,59 C 1515
• Citation: 178 F. Supp. 270
• Parties: In the Matter of Criminal Proceedings against Theodore J. HEISIG and Edward A. Cass (Criminal Action No. 59-2322). In the Matter of Criminal Proceedings against John Joseph GENARELLA (Criminal Action No. 59-2322).
• Court: U.S. District Court — Northern District of Illinois

178 F. Supp. 270

In the Matter of Criminal Proceedings against Theodore J. HEISIG and Edward A. Cass (Criminal Action No. 59-2322) In the Matter of Criminal Proceedings against John Joseph GENARELLA (Criminal Action No. 59-2322).

Nos. 59 C 1515, 59 C 1519.

United States District Court N. D. Illinois, E. D.

November 9, 1959.

R. Tieken, U. S. Atty. for Northern Dist. of Illinois, Chicago, Ill., for petitioners.

PERRY, District Judge.

Before the court are two petitions for removal. Both petitions relate to contempt proceedings against each of the petitioners, therein named, based on certain testimony given by each of them in the Criminal Court of Cook County, Illinois, in a certain case entitled, "People of the State of Illinois v. William A. Taylor and Otis Peek, Jr.," numbered therein Criminal Action No. 59-2322. (That case will hereinafter be referred to as the "Taylor case".) Both petitions for removal to this court are founded on Section 1442(a), Title 28 of the United States Code.

Case No. 59 C 1515

In Case No. 59 C 1515 in this court, the petitioners are Theodore J. Heisig and Edward A. Cass and their petition for removal reads as follows:

"1. That on September 16, 1959, the trial of a criminal matter entitled People of the State of Illinois vs. William A. Taylor and Otis Peek, Jr., was commenced in the Criminal Court of Cook County and State of Illinois wherein the aforementioned defendants were charged with the sale and possession of a certain narcotic drug, to wit, heroin.

"2. That on September 16 and 17, 1959, your petitioners, Theodore J. Heisig and Edward A. Cass, were subpoenaed as witnesses and did testify on behalf of the People of the State of Illinois in the aforesaid criminal matter.

"3. That at all times mentioned in the aforesaid court action your petitioners were officers of the United States Government, to wit, United States Treasury Enforcement Agents assigned to the Bureau of Narcotics, and at the time and place of their testimony in the aforesaid action were acting solely under the right and color of their office and in pursuance of their official duties as such agents.

"4. That as a result of the testimony given by your petitioners in the aforesaid case your petitioners were summarily cited for contempt of court on September 17, 1959.

"5. No service of process was at any time made upon your petitioners nor have any pleadings been served upon your petitioners.

"6. That the time for your petitioners to remove this cause to the United States District Court has not yet expired.

"7. This petition for removal of this cause from the Criminal Court of Cook County, Illinois, to the United States District Court for the Northern District of Illinois, Eastern Division, is founded upon Section 1442(a), Title 28, United States Code.

"8. This petition is accompanied by bond with good and sufficient surety that your petitioners, and each of them, will pay all costs and disbursements by reason of these removal proceedings in the event that determination is made that this action is not removable or is improperly removed.

"Wherefore, your petitioners, Theodore J. Heisig and Edward A. Cass pray that this action be removed from the Criminal Court of Cook County, Illinois, to this Court for hearing, trial and determination, as provided under Section 1442(a), Title 28, United States Code."

Case No. 59 C 1519

In case No. 59 C 1519 in this court, the petitioner is John Joseph Genarella. His petition, with the exception of paragraph 3 thereof, and some minor changes, is the same as that filed in case No. 59 C 1515. Paragraph 3 of his petition reads as follows:

"3. That at all times mentioned in the aforesaid court action your petitioner was a person acting under officers of the United States Government, to wit: United States Treasury Enforcement Agents assigned to the Bureau of Narcotics, and at the time and place of your petitioner's testimony in the aforesaid action, your petitioner was a person acting under an office (sic) of the United States, which officer was in pursuance of his official duties as United States Treasury Enforcement Agent."

Pursuant to a writ of certiorari issued herein, a certified transcript of the record and proceedings had in the Criminal Court in the Taylor case, as well as the record of the contempt proceedings had against each of the petitioners herein, is now before this court.

It appears that on June 12, 1959, Agents Cass and Heisig arrested one William A. Taylor for the possession and sale of narcotic drugs; that at the trial of the case Agents Cass and Heisig and Special Employe Genarella each identified a person—then in the courtroom and on trial as a defendant in the case—as the William A. Taylor who had been so arrested; that the person so identified was called as a witness in his own behalf and testified that his name was William Taylor and that on June 12, 1959, he had been in the Cook County Jail where he had been continuously since May 22, 1959; that court records, as well as the testimony of Warden Johnson, called to testify in the matter, substantiated the defendant's assertion that he had been in jail continuously since May 22, 1959, and so could not have been the person arrested by the agents on June 12, 1959.

It further appears that both William Taylor and William A. Taylor were brought into court, whereupon each of the petitioners herein, when called to the stand and asked to identify the man who had been arrested on June 12, 1959, pointed to William A. Taylor and admitted that the previous identification of William Taylor had been erroneous.

At this point it should be observed that the two Taylors, in addition to bearing similar names, appear to have been very similar in appearance. Both men were of the Negro race with brown eyes, black hair, and a mustache. William was 5' 4" and weighed about 130 pounds while William A. was 5' 5" and weighed about 135 pounds.

It further appears that on September 17, 1959, Judge Covelli of the Criminal Court, having indicated his intention to hold each of the petitioners herein in contempt of court on the ground that their testimony had been perjurious, sentenced each of them to a term of six months in the Common Jail of Cook County, Illinois, for direct contempt of court, and continued the cases until 2:00 o'clock on the next day, September 18, 1959, for disposition.

It further appears that the petitions for removal to this court were filed in this court at 10:00 o'clock A.M. on September 18, 1959; that at 10:05 o'clock A.M. on the same day an order of removal was entered by this court, and that at 1:45 o'clock P.M. on September 18th copies of the aforesaid writ of certiorari were served on said Judge Covelli and the Clerk of the Criminal Court of Cook County, and the cause was removed to this court for further proceedings.

A careful examination of the petitions for removal and of the aforesaid transcript and records caused this court, sua sponte, to question the propriety of the removal to this court of these two cases and of this court's jurisdiction to proceed to a hearing on the merits of the two cases.

All petitioners herein base the removal of their cases to this court on Section 1442(a) of Title 28 U.S.C. which reads, in part, as follows:

"(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."

Since the right to remove a cause from a State court to a federal court is entirely statutory, the first query to be answered is: Have all the requirements of the statute been met in these removals?

Obviously all petitioners have met one of the requirements set forth in above sub-paragraph (1) of the statute since petitioners Heisig and Cass are enforcement agents of the Federal Bureau of Narcotics, United States Treasury Department, and petitioner Genarella was a special employe acting under said two enforcement agents.

An examination of each of the petitions herein, however, raises a question as to the sufficiency of the allegations therein. Although there is a general allegation in each petition that "as a result of the testimony given" by petitioners in the Taylor case they were summarily cited for contempt of court on September 17, 1959, there is no allegation stating what petitioners' testimony was which caused them to be so cited. There is no allegation that the testimony complained of consisted in the erroneous identification by petitioners of a defendant in the Taylor case, nor is there an allegation that the petitioners did in fact identify the wrong person during the trial of that case.

A petition for removal should incorporate sufficient averments to inform the court fully and a petition which does not do so is insufficient.

Turning to Section 1442(a) again, we find that the statute requires that the proceeding to be removed be "a civil action or criminal prosecution commenced in a State court." The proceedings here removed were neither civil actions nor were they criminal prosecutions commenced in the State court. They were proceedings conducted by the court, pursuant to its inherent power to punish for contempt, and as such were not subject to removal to this court.

The power to punish for contempt of his court is a judge's means of preserving the dignity of that court, and when a State court judge sees fit to exercise his power to punish for contempt of his court, the proceeding is not one that can be removed to a federal court under Section 1442—not only because it is not a "civil...