People v. Clarke
| Decision Date | 25 June 2009 |
| Docket Number | Criminal No. 2009–09. |
| Citation | 51 V.I. 1007 |
| Parties | PEOPLE OF the VIRGIN ISLANDS, Plaintiff, v. William G. CLARKE, Defendant. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Brenda Scales, Esq., St. Thomas, U.S.V.I., for the plaintiff.
Kerry E. Drue, Esq., St. Thomas, U.S.V.I., for the defendant.
Before the Court is the motion of the People of the Virgin Islands (the “Government”) to remand the above-captioned matter to the Superior Court of the Virgin Islands, Division of St. Thomas and St. John (the “Superior Court”).
On the morning of September 7, 2008, Defendant William G. Clarke (“Clarke”), a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, observed Marguerite Duncan (“Duncan”) and Marcus Sukow (“Sukow”) arguing loudly outside of Clarke's condominium at the Mahogany Run Condominium complex, in St. Thomas, U.S. Virgin Islands. Duncan and Sukow had been drinking. At some point during their argument, Duncan left her condominium, got into her vehicle, and attempted to reverse out of her parking space. Clarke was leaving his condominium and walking toward his vehicle when he saw Sukow yelling at Duncan. Clarke asked Sukow and Duncan if everything was alright. Thereafter, Sukow retrieved a steel flashlight, approximately twelve inches in length, from his car. Sukow struck the hood of Duncan's vehicle with the flashlight. Sukow then stood in the middle of the street, preventing Duncan from driving away. Thereafter, Duncan asked Clarke for a ride. While Sukow was distracted by a neighbor, Duncan got out of her vehicle and got into Clarke's vehicle. A security guard heard Sukow ask Clarke to let Duncan out of the vehicle. Duncan heard Clarke say, “Marcus buddy go inside.” Sukow approached Clarke and Duncan, who were seated in Clarke's vehicle. Sukow then struck Clarke's car with the flashlight. Clarke thereafter shot and killed Sukow.
On January 13, 2009, the Government filed a four-count information against Clarke in the Superior Court. Count One of the information charges Clarke with second degree murder for Sukow's death, in violation of title 14, sections 921 and 922 of the Virgin Islands Code (“Section 921” and “Section 922”). Count Two charges Clarke with using a dangerous weapon during the commission of a second degree murder, in violation of title 14, section 2251(a)(2)(B) of the Virgin Islands Code (“Section 2251(a)(2)(B)”). Count Three charges Clarke with committing voluntary manslaughter, in violation of title 14, section 924 of the Virgin Islands Code (“Section 924”). Count Four charges Clarke with using a dangerous weapon during the commission of a voluntary manslaughter, in violation of Section 2251(a)(2)(B).
On January 15, 2009, Clarke was arraigned on the charges in the information in the Superior Court.
On February 13, 2009, Clarke filed a notice of removal of the matter to this Court, along with a supporting memorandum of law. On March 13, 2009, the Government filed an opposition to the notice of removal, along with a motion to remand the matter to the Superior Court. Clarke timely opposed the motion to remand.
An evidentiary hearing on the motion to remand was conducted on April 1, 2009, in accordance with 28 U.S.C. § 1446(c)(5).2
At the outset, the Court notes that this case presents a unique issue in the context of removal of criminal prosecutions—one which is not easily resolved. Indeed, there is not a wealth of cases involving similar circumstances to those presented in the case at bar.
Clarke has removed this matter pursuant 28 U.S.C. § 1442(a)(1) (“Section 1442(a)(1)”), which provides:
A civil action or criminal prosecution commenced in a State court against any of the following 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) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity 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.
To show that removal jurisdiction is appropriate under Section 1442(a)(1), a defendant must establish that: (1) he is a “person” within the meaning of the statute; (2) he acted under color of federal office, and there is a causal nexus between the charges against him and the acts performed under color of federal office; and (3) he raises a colorable federal defense. See Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir.1998) (). The Supreme Court of the United States has explained that “the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal ‘should not be frustrated by a narrow, grudging interpretation of [Section] 1442(a)(1).’ “ Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed .2d 58 (1981) (quoting Willingham v. Morgan, 395 U.S. at 409).
The Government does not dispute that Clarke, as an ATF special agent, is a “person” within the meaning of Section 1442(a)(1).4 Rather, the Government argues that Clarke was not acting under color of federal office, and has not raised a colorable federal defense.
1. Under Color of Federal Office
In order to remain in federal court, Clarke must establish that the act complained of—the shooting and killing of Sukow with a gun on September 7, 2008—was done under color of federal office. See28 U.S.C. § 1442(a)(1). The color of office test has repeatedly been interpreted to require a “causal connection between the charged conduct and asserted official authority.” Com. of Pa. v. Newcomer, 618 F.2d 246, 249 (3d Cir.1980) (quotation omitted). To satisfy this requirement, the defendant must show that the prosecution arises out of the acts done by him under color of federal authority. See Maryland v. Soper, (No. 1), 270 U.S. 9, 33, 46 S.Ct. 185, 189, 70 L.Ed. 449 (1926). Section 1442(a)(1) “does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority.” Id. at 33. Rather, “[i]t is enough that [the defendant's] acts or presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.” Id.
Black's Law Dictionary defines acts taken under “color of office” as acts that are “vested with, or appear to be vested with, the authority entrusted to that office.” Black's Law Dictionary (8th ed.2004). Indeed, as the Supreme Court has explained, the term “ ‘color of office,’ ... suggests a kind of holding out and means appearance, semblance, or simulacrum, but not necessarily the reality.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 211, 90 S.Ct. 1598, 1630–31 (1970) (quotation omitted). Thus, an act performed by a federal officer may be considered to be “under color of office” so long as the officer acted under the guise of his official authority, even if he did not actually have the authority to perform the act in question. See id.; see also Maryland Cas. Co. v. McCormack, 488 S.W.2d 347, 352 (Ky.1972) (); Pontiac Trust Co. v. Newell, 254 N.W. 178, 181 (Mi.1934) ().
Clarke argues that the shooting was performed under color of federal office because it was within his authority as an ATF agent to intervene when he witnessed the dispute between Sukow and Duncan. He points to 18 U.S.C. § 3051,5 which authorizes ATF agents to carry firearms and to make warrantless arrests for federal crimes.
At the April 1, 2009, removal hearing, Clarke indicated to the Court an inclination to proceed without putting on any evidence. At the beginning of the hearing, the Court engaged in the following exchange with the defense attorney:
THE COURT: All right. This is a 1442 matter. Does counsel have a position on burden and procedure?
...
[DEFENSE ATTORNEY]: .... It's our position that in terms of where we are at this point, and what we should be doing, we do not believe, for example, that an evidentiary hearing is necessary....
...
(Hr'g Tr. 5–6, Apr. 1, 2009.)
During the hearing, the Court made repeated efforts to remind Clarke of the need to satisfy his burden of proof as to removal. For instance, the Court asked the defense attorney:
... if the United States District Court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly.
To continue reading
Request your trial