State of Tennessee v. Keenan

• Decision Date: 25 February 1936
• Docket Number: No. 4915.,4915.
• Citation: 13 F. Supp. 784
• Parties: STATE OF TENNESSEE v. KEENAN.
• Court: U.S. District Court — Western District of Tennessee

13 F. Supp. 784

STATE OF TENNESSEE v. KEENAN.

No. 4915.

District Court, W. D. Tennessee.

February 25, 1936.

Wm. McClanahan, U. S. Atty., and R. G. Draper and C. P. J. Mooney, Asst. U. S. Attys., all of Memphis, Tenn., for petitioner.

W. T. McLain, Dist. Atty. Gen., of Tennessee, and W. P. Battle, Jr., Asst. Atty. Gen., for the State of Tennessee.

MARTIN, District Judge.

James B. Keenan, an investigator in the Alcohol Tax Unit, Bureau of Internal Revenue, United States Treasury Department, was indicted in the criminal court of Shelby county, Tenn., on February 8, 1935, for the crime of murder of James Cullen Baw. On the same date, he was indicted, also, for the crime of attempt to murder Willie Cigalina.

On September 10, 1935, the said James B. Keenan filed his petition in this court, praying the removal of said criminal prosecution from the criminal court of Shelby county, Tenn., to the District Court of the United States for the Western Division of the Western District of Tennessee; and praying writs of certiorari from this court to the aforesaid state court, transferring and removing said causes in the manner required by law. The petition for removal was sworn to by the petitioning defendant, James B. Keenan, and was signed and certified by Honorable William McClanahan, United States Attorney for the Western District of Tennessee, attorney for petitioner.

The petition averred that the defendant, Keenan, is not guilty of either of the charges laid in the indictments; that, at the time the alleged offenses were committed, the petitioner was an officer of the United States; that the acts of the petitioner, upon which the indictments were returned against him, were done and performed by him under color of his office as an investigator of the Alcohol Tax Unit, Bureau of Internal Revenue, United States Treasury Department; and that, under and by virtue of section 76, U.S.C.A., title 28, Jud.Code, § 33, as amended, he is entitled to have the criminal prosecution pending against him in the state court removed for trial to this court. Copies of the two aforesaid indictments and an affidavit of petitioner, detailing the occurrences out of which the indictments grew, were exhibited with and made parts of the petition for removal.

This court directed the issuance of writs of certiorari as prayed in the petition.

On November 9, 1935, the District Attorney General for the Fifteenth Judicial Circuit of Tennessee, Honorable W. T. McLain, filed in this court a motion to quash the writs of certiorari, and to rescind the order of removal.

In behalf of the defendant, James B. Keenan, the United States Attorney filed, on December 27, 1935, a reply to the said motion of the state of Tennessee; and, on the same date, the said District Attorney General of the state of Tennessee filed a motion to remand the causes to the state court; the motion embracing also an answer to the original petition.

In open court, on the date set for hearing the motion to remand, the District Attorney General of Tennessee moved for permission to combine the motion to quash with the motion to remand, which was granted.

At the oral hearing on said date, the Assistant United States Attorney presented numerous motions urging that, if the affidavit of the defendant, James B. Keenan, is deemed sufficient in its allegations that he was acting under color of his office or authority, this court must conclude that fact as true and deny the state of Tennessee the right to introduce proof to combat the allegations of the petition.

This court overruled all motions of the United States Attorney which asserted the proposition that the jurisdiction of a sovereign state to try a person indicted for murder may be defeated finally by the mere sworn allegation of the defendant that he was acting under color or authority of his office as an internal revenue agent; and held (1) that the state has the right to challenge the truth and correctness of the allegations of the petition for removal on the motion of the state to remand; (2) that a fact issue is raised, triable on the motion to remand, in the determination of which it is not within the purview of the court to pass upon the question of the guilt or innocence of the accused; but it is the duty of the court to decide the single issue of fact as to whether or not the defendant, Keenan, at the time he killed Baw and injured Cigalina, was acting under color of his office as a United States revenue agent, or under authority of the laws of the United States in the performance of his official duty; that is to say, whether the acts of the defendant for which he was indicted are proven to fall within the purview of title 28, § 76, U.S.C.A. (Jud.Code, § 33, amended); and (3) that, upon the issue of fact raised by the state of Tennessee, the burden of proof rests upon the United States to establish the allegations of the removal petition and the accompanying affidavit; but that the duty of going forward with the evidence must be met by the state of Tennessee.

The court then ordered the case to proceed to trial on the motion to remand, permitting testimony to be introduced in open court, both by the District Attorney General of Tennessee and by the United States Attorney, with witnesses subject to cross-examination by the opposing parties.

The exercise of the judicial function of the United States to restrain a criminal proceeding in a state court must be supported always by plain warrant of law. The essential preservation of dual sovereignty necessitates the utmost care upon the part of a United States court, in the performance of the delicate duty of deciding an issue of contested jurisdiction between sovereignties. This ever-recognized principle has burdened United States judges from the earliest days of the Republic. The established supremacy of the United States in an appropriate case accentuates rather than softens the responsibility.

Section 33 of the Judicial Code (title 28, § 76, U.S.C.A.), under which this proceeding has been removed to this court, provides: "When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner," etc.

The constitutionality of the original act, Revised Statutes, § 643; Act March 3, 1875, c. 130, § 8, 18 Stat. 401 (subsequently enlarged by successive amendments), was upheld in Tennessee v. Davis (1879) 100 U. S. 257, 261, 262, 263, 265, 266, 267, 25 L.Ed. 648. The Supreme Court said:

"The Act of Congress authorizes the removal of any cause, when the acts of the defendant complained of were done, or claimed to have been done, in the discharge of his duty as a federal officer. It makes such a claim a basis for the assumption of federal jurisdiction of the case, and for retaining it, at least until the claim proves unfounded.

"That the Act of Congress does provide for the removal of criminal prosecutions for offenses against the state laws, when there arises in them the claim of the federal right or authority, is too plain to admit of denial. Such is its positive language, and it is not to be argued away by presenting the supposed incongruity of administering state criminal laws by other courts than those established by the State. * * *

"The United States is a government with authority extending over the whole territory of the Union, acting upon the States and upon the People of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State Government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it. * * *

"The judicial power is declared in the constitution to extend to all cases of the character described, making no distinction between civil and criminal, and the reasons for conferring upon the Courts of the National Government superior jurisdiction over cases involving authority and rights under the laws of the United States, are equally applicable to both. * * *

"If, whenever and wherever a case arises under the Constitution and laws or treaties of the United States, the National Government cannot take control of it, whether it be civil or criminal, in any stage of its progress, its judicial power is, at least, temporarily silenced, instead of being at all times supreme. * * *

"The removal of cases arising under those laws, from State into Federal courts, is, therefore, no invasion of state domain. On the contrary, a denial of the right of the General Government to remove them, to take charge of and try any case arising under the Constitution or laws of the United States, is a denial of the conceded sovereignty of that government over a subject expressly committed to it."

In answering the question of procedural difficulties in removal cases, the court said (100 U.S. 257, 271, 25 L.Ed. 648): "While it is true there is neither in section 643 nor in the Act of which it is a reenactment, any mode of procedure in the trial of a removed case prescribed, except that it is ordered, the cause when removed shall proceed as a cause originally commenced in that court, yet the mode of trial is sufficiently obvious. The Circuit Courts of the United States have all the appliances which are...