State of La. v. Sparks

• Decision Date: 03 December 1992
• Docket Number: 91-3592,Nos. 91-3118,s. 91-3118
• Citation: 978 F.2d 226
• Parties: STATE OF LOUISIANA, Plaintiff, v. Thomas SPARKS, Jr., a/k/a Abdullah Hakim El Mumit, Defendant-Appellant, v. Gordon GSELL, U.S. Probation Officer, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 226

978 F.2d 226

24 Fed.R.Serv.3d 411

STATE OF LOUISIANA, Plaintiff, v. Thomas SPARKS, Jr., a/k/a Abdullah Hakim El Mumit, Defendant-Appellant, v. Gordon GSELL, U.S. Probation Officer, Defendant-Appellee.

Nos. 91-3118, 91-3592.

United States Court of Appeals Fifth Circuit.

Dec. 3, 1992.

Lila Tritico Hogan, Hogan & Hogan, Hammond, La., George J. Domas, Cheryl V. Cunningham, Liskow & Lewis, New Orleans, La., Frank M. Adkins, Walsh, Donovan, Lindh & Keech, San Francisco, Cal., for defendant-appellant.

Thomas L. Watson, Asst. U.S. Atty., New Orleans, La., Janice McLeod, U.S. Dept. of Justice, Parole Comm., Chevy Chase, Md., for defendant-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before VAN GRAAFEILAND, ^* KING, and EMILIO M. GARZA, Circuit Judges.

KING, Circuit Judge:

Thomas Sparks was convicted of capital murder and sentenced to death in Louisiana trial court. Sparks attempted to secure a new trial by subpoenaing a federal officer, Gordon Gsell, who allegedly could show that a key prosecution witness had been biased against Sparks as a result of undisclosed plea negotiations with state and federal officials. Gsell removed the state court subpoena proceedings to federal court under 28 U.S.C. § 1442(a). This is a consolidated appeal from both the district court's dismissal of the removal for lack of prosecution (No. 91-3118) and the court's subsequent denial of Spark's Rule 60(b) motion urging the court to reconsider its dismissal (No. 91-3592).

Finding that the case was properly removed under 28 U.S.C. § 1442(a), we hold that the district court did not abuse its discretion by dismissing this case for lack of prosecution. Nevertheless, we believe that the court did abuse its discretion by failing to grant Spark's Rule 60(b)(1) motion for relief from judgment. The extremely confusing procedural posture of the § 1442(a) removal in this case excused Sparks' arguably mistaken belief that the Government had the burden to re-urge Gsell's motion to quash once the subpoena proceedings were removed.

However, we hold that any error in denying Sparks' Rule 60(b) motion was in effect harmless. We hold that the doctrine of sovereign immunity requires that the subpoenas be quashed and the subpoena proceedings be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1988, after being sentenced to death in the 21st Judicial District Court for the Parish of Livingston, Louisiana, Sparks moved for a new trial on the basis of a Giglio claim. ¹ Sparks alleged that one of the State's key witnesses, Annie Broadway, had been biased against Sparks as a result of undisclosed plea negotiations, including a threat of revoking Broadway's parole. Sparks claimed that Broadway's federal probation officer, Gordon Gsell, likely had pertinent information about such negotiations.

On November 15, 1988, Sparks' defense counsel wrote a letter to the local United States Attorney ² and requested that Gsell be permitted to produce and testify about all parole records pertaining to Broadway and Sparks. Before the United States Attorney could respond to Sparks' request, however, the Louisiana trial court on November 30th issued a subpoena duces tecum, which was served the same day, ordering Gsell to appear with the requested materials on February 16, 1989, at a hearing on Spark's motion for a new trial. Shortly thereafter, a subpoena ad testificandum was also issued and served on Gsell. In early 1989, the United States Attorney, on behalf of Gsell, filed a motion to quash the subpoenas in state court. The United States Attorney argued that federal statutes, ³ federal regulations, ⁴ and federal common law doctrine ⁵ prevented the state court from requiring Gsell to disclose or testify about the parole files. On February 9, 1989, the state trial judge ordered a continuance in the hearing on Spark's motion for a new trial and, as a result, the return date on the original subpoenas passed. The judge ordered that the subpoenas tecum would be "enforced and reissued" at whatever future date the hearing on the motion for new trial would be held.

On February 16, 1989, the state trial court held a hearing on Gsell's motion to quash the subpoenas. On March 28, the state judge rejected the United States Attorney's arguments and ordered Gsell to comply with the subpoenas. On April 7 and 18, on behalf of Gsell, the U.S. Attorney filed a petition and amended petition to remove the subpoena proceedings to federal court under 28 U.S.C. § 1442(a), the "federal officer protection" removal statute. ⁶ The federal district court assumed jurisdiction over the matter. On May 24, 1989, Sparks filed a motion to remand to state court, arguing that Gsell had failed to remove in a timely manner. On July 19, 1989, the federal district court denied Spark's motion to remand.

During the eight months following removal, neither the district court, Sparks, nor Gsell did anything further with respect to the subpoena proceedings. Finally, on March 11, 1990, the federal district court in writing warned both Sparks and Gsell that unless either party took some further action within two weeks, the case would be dismissed for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Neither party responded and, on April 3, 1990, the court dismissed the case.

On May 10, 1990, the state trial judge notified counsel for Sparks that she had until June 1, 1990, to reissue the subpoenas. On May 22, 1990, Sparks requested that the state trial court set a new hearing date on Spark's motion for a new trial and also reissue the subpoenas to Gsell. The court scheduled the hearing for August 9, 1990.

On May 30, 1990, on behalf of Gsell, the United States Attorney, filed in federal district court a motion to reopen the dismissed case, which was granted. The United States Attorney also requested that the federal court declare any reissued subpoenas to be null and void as a result of the res judicata effect of the prior dismissal for lack of prosecution. While the federal district court had the matter under consideration, the state trial court reissued the subpoenas on September 14, 1990; Gsell refused service of them on September 25, 1990. The state trial court then agreed to grant a continuance in the state proceedings until disposition of the reopened federal proceedings.

On January 4, 1991, the federal district court ruled that the April 3, 1990 dismissal had been both on the merits and with prejudice--and thus had res judicata effect with regard to any subsequent subpoenas, including those issued in September 1990. From that order and from a denial of his Rule 60(b) motion, Sparks appeals.

II. REMOVAL JURISDICTION

At this court's request, the parties were asked to supplementally brief two questions regarding whether the district court had proper removal jurisdiction: i) whether Gsell's removal after the return date on the original set of subpoenas had passed deprived him of a basis for removal under state law; and ii) whether Gsell's removal under § 1442(a), prior to the initiation of contempt proceedings, was premature. We will address the two issues in turn.

A. Did the "expiration" of the first set of subpoenas prior to removal deprive Gsell of a legal basis, under Louisiana law, from which to remove to federal court?

The first set of subpoenas issued and served on Gsell required that he appear at Spark's motion for new trial originally scheduled for February 16, 1989. Because the state trial judge postponed the hearing on Sparks' motion for a new trial once Gsell filed his motion to quash, the subpoenas' return date of February 16th had passed by the time that Gsell removed the case to federal court in April 1989. The second set of subpoenas was issued over a year later in September 1990. Gsell did not technically remove the state court proceedings regarding the second set of subpoenas but instead simply reopened the federal proceedings regarding the original subpoenas, which had earlier been dismissed for lack of prosecution.

At oral argument, the following question was raised: whether, because the original February 16, 1989 return date seemingly "expired" before the case was removed, the subpoenas were a dead letter and removal was thus improper. This issue requires that we examine the legal effect, under Louisiana law, of a subpoena whose return date has passed as a result of a continuance in the proceedings.

Sparks argues that under Louisiana law the postponement of the February 16, 1989 hearing on his motion for a new trial, to which Gsell had been subpoenaed, rendered the original set of subpoenas a legal nullity. Sparks cites as authority a 1977 Louisiana Supreme Court case, State v. Passman, 345 So.2d 874 (La.1977). In Passman, the trial court in a criminal case rejected the defendant's motion for a continuance in a hearing on a motion for a new trial based on the absence of two material witnesses. The hearing on previous occasions had been postponed for other reasons. In originally scheduling the hearing, the trial court had, at the defendant's request, issued subpoenas ordering the two witnesses to appear. Defense counsel, however, failed to request a reissuance of subpoenas after the first hearing was postponed. The Louisiana Supreme Court held that the trial court did not err in denying the requested continuance in the hearing on the motion for a new trial because the absence of the two material witnesses resulted from the failure of defense counsel to request the reissuance of subpoenas. Id. at 886.

Sparks argues that Passman implies that a subpoena becomes a legal nullity when its return date passes because of a continuance ordered by a trial court. We disagree. In Passman, all that was at issue was the denial of a continuance. The Louisiana Supreme Court simply held that because the defense failed to seek a reissuance of the subpoenas whose return dates had passed, it could not...