State of Ariz. v. Manypenny

Decision Date09 July 1979
Docket NumberNo. 77-3453,77-3453
PartiesSTATE OF ARIZONA, Plaintiff-Appellant, v. William Dale MANYPENNY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen D. Neely, County Atty., D. Jesse Smith, Deputy County Counsel, Tucson, Ariz., for plaintiff-appellant.

James D. Whitney, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and KENNEDY, Circuit Judges, and HALL, * District Judge.

CHOY, Circuit Judge:

The State of Arizona brought this criminal prosecution against Manypenny, a border patrolman of the United States Immigration and Naturalization Service. The State charged Manypenny with assault with a deadly weapon in violation of Arizona law. Ariz.Rev.Stat. § 13-249(A) & (B). On Manypenny's motion, the case was removed to federal court. See 28 U.S.C. § 1442(a)(1). 1

After trial, the jury returned a verdict of guilty. Manypenny then moved for arrest of judgment or, alternatively, for a new trial. See Fed.R.Crim.P. 33, 34. The court granted the Rule 34 motion for arrest of judgment. Thereafter, the State moved for reconsideration of the grant of the Rule 34 motion. The court granted the motion for reconsideration, but no action was taken for a year.

On September 8, 1977, Manypenny moved for a hearing to determine the status of the State's pending motion. The hearing was held on September 26. Two days later, the district court reversed its previous order arresting judgment. The court construed Manypenny's Rule 34 motion to be a motion for judgment of acquittal under Fed.R.Crim.P. 29(c), granted the motion for acquittal, set aside the jury's verdict and held Manypenny not guilty. Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz.1977). 2

The State appeals from these rulings. We find that we are without jurisdiction to entertain such an appeal. We therefore dismiss the appeal.

It is well-settled that the prosecution has no right to appeal an adverse decision absent some statutory authorization. See United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Sanges, 144 U.S. 310, 312, 318-23, 12 S.Ct. 609, 36 L.Ed. 445 (1892). 3 The State contends that it may appeal the judgment in this case under 18 U.S.C. § 3731, the Criminal Appeals Act.

Section 3731 provides in part:

In a criminal case An appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

The provisions of this section shall be liberally construed to effectuate its purposes.

(Emphasis added.)

While the Supreme Court has stated that § 3731 was "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit," United States v. Martin Linen Supply Co., 430 U.S. at 568, 97 S.Ct. at 1353, Quoting United States v. Wilson,420 U.S. at 337, 95 S.Ct. 1013, it is manifest that § 3731 is limited by its own terms to appeals by the United States as a prosecuting entity. The statute authorizes "an appeal by the United States," not an appeal by a state or by "any of the United States." As we have previously stated, " '(t)he language of a statute is the best and most reliable index of its meaning, and where the language is clear and unequivocal it is determinative of it construction.' " Smith v. Califano, 597 F.2d 152, at 155 (9th Cir. 1979), Quoting, Monte Vista Lodge v. Guardian Life Insurance Co., 384 F.2d 126, 128 (9th Cir. 1967), Cert. denied, 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968).

We note that no court has ever interpreted § 3731 as providing for appeals by a state in a § 1442(a)(1) prosecution. Moreover, the legislative history of this provision and its predecessors makes it clear that Congress was only concerned with appeals by the federal Government. 4 We share the concerns expressed by Judge Kennedy in his dissent that the policy of § 3731, which is designed to "prevent erroneous trial court rulings from thwarting lawful prosecutions," is equally applicable to state prosecutions and federal prosecutions, and that not allowing state appeals in cases removed to the federal courts under § 1442(a)(1) has a substantial effect on the delicate balance of our federal system. However, we cannot rewrite § 3731 for Congress. As the Supreme Court has warned:

(A) statute "is not an empty vessel into which this Court is free to pour a vintage that we think better suits present day tastes." United States v. Sisson, 399 U.S. 267, 297, 90 S.Ct. 2117, 2133, 26 L.Ed. 608 (1970). Considerations of this kind are for Congress, not the courts.

National Broiler Marketing Association v. United States, 436 U.S. 816, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978), Quoted in Smith v. Califano, 597 F.2d at 158.

Neither can we look to state law as providing Arizona with a right to appeal in this case. A case before the federal courts under § 1442(a)(1) is one within the judicial power of the United States, for it arises under federal law. See Tennessee v. Davis, 100 U.S. 257, 262-65, 25 L.Ed. 648 (1879). In a case arising under federal law, federal law, rather than state law, controls. See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 456, 62 S.Ct. 676, 86 L.Ed. 956 (1942); Deitrick v. Greaney, 309 U.S. 190, 200-01, 60 S.Ct. 480, 84 L.Ed. 694 (1940); Board of County Commissioners v. United States, 308 U.S. 343, 349-53, 60 S.Ct. 285, 84 L.Ed. 313 (1939); United States v. Crain, 589 F.2d 996, 998 (9th Cir. 1979).

While in certain cases the Federal courts may adopt state law as federal law, See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); D'Oench, Duhme & Co. v. FDIC, 315 U.S. at 468-72, 62 S.Ct. 676 (Jackson, J., concurring); Board of Commissioners v. United States, 308 U.S. at 349-52, 60 S.Ct. 285; United States v. Crain, 589 F.2d at 999-1000, adoption of state law in this case does not aid the State's case. As previously noted, the prosecution may appeal only where authorized to do so by statute. See United States v. Martin Linen Supply Co., 430 U.S. at 568, 97 S.Ct. 1349; United States v. Wilson, 420 U.S. at 336, 95 S.Ct. 1013; United States v. Sanges, 144 U.S. at 312, 318-23, 12 S.Ct. 609. Adoption of state law as the federal rule would not meet this requirement of statutory authorization, for such a federal rule would be a "common law" rule, even if based upon a state statute. See United States v. Crain, 589 F.2d at 998-1000; United States v. Best, 573 F.2d 1095, 1101 (9th Cir. 1978).

In conclusion, only Congress can authorize an appeal by a state in a § 1442(a) (1) criminal prosecution. Thus far, Congress has not seen fit to do so. Therefore, we hold that we are without jurisdiction to entertain this appeal.

APPEAL DISMISSED.

KENNEDY, Circuit Judge, dissenting:

I respectfully dissent from the majority's conclusion that we are without jurisdiction to entertain this appeal.

There are two possible sources of jurisdiction, 18 U.S.C. § 3731 and 28 U.S.C. § 1291. With respect to section 3731, the majority concludes that the section must be confined to the United States. This is a reasonable position and it certainly has textual validity. But while a court cannot ignore the language of the statute, the Supreme Court has warned against "the dangers of an approach to statutory construction which confines itself to the bare words of a statute . . . for 'literalness may strangle meaning.' " Lynch v. Overholser, 369 U.S 705, 710, 82 S.Ct. 1063, 1067, 8 L.Ed.2d 211 (1962) (quoting Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 90 L.Ed. 1071 (1946)). It is true that no court has ever interpreted section 3731 as providing for appeals by a state; on the other hand we find no holding to the contrary. This is, apparently, a case of first impression. The legislative history reveals that Congress simply never considered the question before us. I conclude that Congress did not intend a state to be completely prohibited from appealing in a removed criminal prosecution. My concern with the majority's approach is that as well as producing an anomalous result, it creates serious and difficult problems of federalism. In effect the majority opinion holds that through removal, a state cannot only be deprived of jurisdiction to try a case in its own courts, it can also be completely deprived of any right to appeal that would have existed under state law.

The original Criminal Appeals Act, 34 Stat. 1246 (1907), was the subject of extended congressional debate. See United States v. Sisson, 399 U.S. 267, 293-96, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Upon its enactment, government appeals were limited to a narrow category of cases. The Act was amended in 1971 to permit all appeals that can be maintained consistently with the Constitution, and thus the amendment "remove(d) all statutory barriers to Government appeals." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975). The new Act contains a provision that it shall be liberally construed. 18 U.S.C. § 3731. The statutory scheme is designed to prevent erroneous trial court rulings from thwarting lawful prosecutions. That policy applies with equal force to appeals in those cases in which the state is the prosecuting entity under the removal statute. In view of the sensitive nature of state-federal relations in section 1442(a)(1) removal cases, I do not believe that Congress intended to deprive states of any right to appeal.

Even if one agrees with the majority's interpretation of section 3731, there remains another possible source of jurisdiction, that is, the...

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