State of Indiana v. Adams

• Citation: 892 F. Supp. 1101
• Decision Date: 23 June 1995
• Docket Number: No. IP95-0725-C-T/G.,IP95-0725-C-T/G.
• Parties: STATE OF INDIANA, Plaintiff, v. Raymond K. ADAMS, Defendant. In re Order Denying Motion to Quash Subpoenas Directed to Federal Bureau of Investigation Technicians Andrea Gibson and Charles Huff.
• Court: U.S. District Court — Southern District of Indiana

892 F. Supp. 1101

STATE OF INDIANA, Plaintiff, v. Raymond K. ADAMS, Defendant.

In re Order Denying Motion to Quash Subpoenas Directed to Federal Bureau of Investigation Technicians Andrea Gibson and Charles Huff.

No. IP95-0725-C-T/G.

United States District Court, S.D. Indiana, Indianapolis Division.

June 23, 1995.

Sonia J. Leerkamp, Pros. Attorney's Office, Noblesville, IN, for plaintiff State of Indiana.

Marcus C. Emery, and Robert J. Hill, Indianapolis, IN, for defendant Adams.

Gerald A. Coraz, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, IN, for Gibson & Huff.

Entry Regarding Defendant's Motion to Remand and the Government's Motion To Set Aside the State Court's Denial of Their Motion to Quash Subpoenas

TINDER, District Judge.

This matter comes before the court upon the motion of Defendant, Raymond K. Adams, to remand this case to the Superior Court of Hamilton County, Indiana pursuant to 28 U.S.C. § 1447(c) and the motion of the United States to set aside the state court's denial of their motion to quash subpoenas in this case.¹ The court, having considered the submissions of the parties, finds that Defendant's motion to remand should be GRANTED for the reasons set forth below. Because the court finds that it does not have jurisdiction over the subject matter of the instant dispute, it will not address the substance of the Government's arguments regarding the validity of the subpoenas at issue in this case.

I. Background Facts and Procedural History

The case underlying the instant dispute is a state court criminal action wherein Defendant is charged with three murders for which the state is seeking the death penalty. The present trial date for the murder prosecution is July 5, 1995. In connection with the investigation of those crimes, certain DNA samples were collected and sent to the Federal Bureau of Investigation ("FBI") Laboratory in Washington, D.C. for testing. These tests were conducted by two FBI technicians, Charles Huff ("Huff") and Andrea Gibson ("Gibson"), who are the subject of the instant dispute. The results of the DNA tests were apparently returned to Indiana for interpretation.

Defendant seeks to depose Huff and Gibson to question the procedures used in the testing of the DNA samples and to determine whether their interpretation of the results of those tests differs from that of the experts who will testify at trial. Defendant notes that he does not intend to call Huff and Gibson at trial, rather he intends to enter said deposition testimony upon the record as necessary. To that end, at the request of counsel for the Defendant, on May 22, 1995, subpoenas were issued to Huff and Gibson and Defendant submitted the affidavit required by 28 C.F.R. § 16.22(c) to the United States Attorney for the Southern District of Indiana.

The Government, through the United States Attorney, subsequently filed a motion to quash the subpoena in the Hamilton Superior Court. The reasons provided for the Government's motion were that service of the subpoenas on Huff and Gibson was not proper pursuant to Rules 4.1, 4.16, 5(b) and 45 of the Indiana Rules of Trial Procedure and that the affidavit submitted by Defendant is insufficient to comply with the requirements of 28 C.F.R. § 16.22(c). The state trial court through the Honorable Jerry M. Barr, denied the Government's motion to quash the subpoenas.²

Subsequently, on June 5, 1995, the Government filed a notice of removal, seeking to remove to this court that portion of the state court action regarding the subpoenas to Huff and Gibson. On June 13, 1995, Defendant filed the instant motion to remand, which the court will now address.

II. Discussion

The Government seeks removal to enforce the doctrine stated by the Supreme Court in United States ex rel. Touhy v. Ragen, which provides that a subordinate official cannot be held in contempt for refusing to obey a subpoena when his or her compliance has been prohibited by a higher level official based upon valid federal regulations. 340 U.S. 462, 466-68, 71 S.Ct. 416, 418-19, 95 L.Ed. 417 (1951). The Government correctly argues that the regulations in question clearly prohibit Huff and Gibson from being deposed until approval for the deposition has been obtained from the appropriate Justice Department official. 28 C.F.R. § 16.22(a) (1994). Accordingly, any action undertaken by the state court to coerce or compel said testimony in the absence of such approval would be a clear violation of the Touhy doctrine. Nevertheless, before the court may address this question, it must determine whether there is any case or controversy before it at all. General Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982) ("A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears."); Vang v. Healy, 804 F.Supp. 79, 81 (E.D.Cal.1992); Fleet Bank — NH v. Engeleiter, 753 F.Supp. 417, 418 (D.N.H.1991); Fountain Park Coop., Inc. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 289 F.Supp. 150, 153 (C.D.Cal.1968) ("Removal statutes should be strictly construed and all doubts should be resolved in favor of remand.").

The portion of the statute under which the Government attempts to remove this action reads 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.

28 U.S.C. § 1442(a)(1). A threshold question which must be addressed in the instant case is whether a civil action has been "commenced" against Huff and Gibson such that they may remove said action to this court.

It is clear that commencement in the state court of a contempt action intended to compel discovery which has not been approved by a federal agency would constitute an action "commenced" against a federal official. Wisconsin v. Hamdia, 765 F.2d 612, 614-15 (7th Cir.1985); Wisconsin v. Schaffer, 565 F.2d 961, 963 (7th Cir.1977); California v. Reyes, 816 F.Supp. 619, 622 (E.D.Cal. 1992). Moreover, another court in this district has recently held that an order to compel such discovery issued by the state trial court would sufficiently "commence" an action against the federal official so as to justify removal. Bosaw v. National Treasury Employees' Union, 887 F.Supp. 1199, 1207-09 (S.D.Ind.1995); see also Nationwide Investors v. Miller, 793 F.2d 1044, 1046-47 (9th Cir.1986); Ferrell v. Yarberry, 848 F.Supp. 121, 122-23 (E.D.Ark.1994). The question before this court is whether a subpoena, standing alone, even after the denial of a motion to quash, is sufficient to constitute commencement of a civil or criminal action against the officials involved so as to justify removal.

The court cannot succinctly answer this question without some reference to the regulations under which the Government seeks to quash the subpoenas in question. See 28 C.F.R. §§ 16.21-16.29 (1994). Section 16.22 of those regulations provides, in pertinent part, as follows:

(a) In any federal or state case or matter in which the United States is not a party, no employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official duties or because of that person's official status without prior approval of the proper Department official in accordance with §§ 16.24 and 16.25 of this part.

* * * * * *

(c) If oral testimony is sought by a demand in any case or matter in which the United States is not a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by his attorney, setting forth a summary of the testimony sought and its relevance to the proceeding, must be furnished to the responsible U.S. Attorney. Any authorization for testimony by a present or former employee of the Department shall be limited to the scope of the demand as summarized in such statement.

28 C.F.R. § 16.22(a), (c) (1994). This portion of the regulation essentially requires two elements to initiate the process whereby approval may be obtained for the depositions sought in this case: (1) a demand and (2) an affidavit. The question which is key to both the validity of the subpoenas issued in this case and to the question of whether an action has been "commenced" against Huff and Gibson for the purposes of section 1442(a) is what form the "demand" must take.

The regulations themselves make quite clear that a subpoena requesting attendance at a deposition expressly fulfills the requirement of a demand.³ 28 C.F.R. § 16.21(a)(2) (1994). This interpretation has been adopted by the Seventh Circuit which held that a state court subpoena constitutes the "demand" required by the regulations. Edwards v. United States Dep't of Justice, 43 F.3d 312, 316 (7th Cir.1994). Accordingly, the subpoenas issued by the trial court in this case, assuming they are otherwise sufficient, would serve as the "demand" required by section 16.22.

Courts which have interpreted section 1442 broadly generally rely upon the Supreme Court's statement that the policy which favors granting Government officials a federal forum in which to vindicate their federal rights "should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1)." Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct....