United States v. Conley

• Decision Date: 25 October 1948
• Docket Number: Civ. 7901.,Cr. 18074
• Citation: 80 F. Supp. 700
• Parties: UNITED STATES v. CONLEY. CONLEY v. BARNES et al.
• Court: U.S. District Court — District of Massachusetts

80 F. Supp. 700

UNITED STATES v. CONLEY.

CONLEY v. BARNES et al.

Cr. 18074, Civ. 7901.

United States District Court D. Massachusetts.

October 25, 1948.

Cr. No. 18074:

William T. McCarthy, U. S. Atty., and Charles Miller, Asst. U. S. Atty., both of Boston, Mass., for the United States.

Geo. S. McCarthy, of Amarillo, Tex., for defendant, Conley.

Civ. No. 7901:

Sturtevant Burr, of Boston, Mass., for Edmund R. Dewing, Dist. Atty. for the County of Plymouth.

Michael Fredo, Asst. Atty. Gen. and Charles Miller, Asst. U. S. Atty., of Boston, Mass., for Clarence Barnes.

WYZANSKI, District Judge.

The grand jury in the United States District Court for the District of Massachusetts on June 4, 1948, indicted Conley for violation of the Fugitive Felon Act, 48 Stat. 782, as amended by 60 Stat. 789, 18 U.S.C.A. § 408e now § 1073. Presentment was made on the charge that "Conley of Amarillo, in the District of Texas * * * did travel in interstate commerce from * * * Massachusetts to * * * Texas, with intent to avoid prosecution for assault with a dangerous weapon upon one Bertha LaCroix, an offense against the laws of the Commonwealth of Massachusetts". See this Court's Criminal No. 18074.

Thereafter, the United States District Court for the Northern District of Texas issued a warrant of removal requiring Conley to appear before this Court to stand trial on the indictment. Simultaneously, that Court admitted Conley to bail for appearance in this District. See Federal Rules of Criminal Procedure, Rules 40(b) (3) and 46, 18 U.S.C.A.

Conley alleges that the Attorney General of the Commonwealth of Massachusetts and the District Attorney for the County of Plymouth, Massachusetts in connection with an indictment already returned by a Massachusetts state grand jury charging Conley with violation of the Massachusetts statute respecting assault and battery with a dangerous weapon, Mass.G.L. (Ter.Ed.) c. 265, § 15A, will seek to arrest and try him in the state court either upon Conley's "entering the Commonwealth" or after Conley's acquittal in this Court.

To protect himself against such state prosecution before or after the federal trial Conley first applied to this Court for a writ of protection. He asserts that by virtue of 28 U.S.C.A. § 1651(a) this Court may issue the writ in connection with Criminal No. 18074. Later at the Court's own suggestion, Conley also applied for an injunction against the Massachusetts Attorney General and the Plymouth County District Attorney. This second action appears on the docket as Civil Action No. 7901.

Although this Court itself suggested to Conley's counsel that he file the independent suit in equity, now known as C.A. No. 7901, I am persuaded that that suit must be dismissed for lack of jurisdiction. The jurisdiction of federal district courts is, of course, statutory. And there seems to be no statute applicable to this case. Even the diversity jurisdiction provisions of 28 U.S.C.A. § 1332 are of no avail since $3,000 is not involved.

There is no similar jurisdictional difficulty with respect to a writ of protection. Admittedly this Court has jurisdiction to hear the trial of defendant on the indictment returned by the grand jury in what is known as Cr. 18074. And having jurisdiction of the criminal case this Court may issue "writs necessary or appropriate in aid of" that jurisdiction "agreeable to the usages and principles of law." 28 U.S.C.A. § 1651(a). Such auxiliary writs of protection have frequently been issued by this Court see Benesch v. Foss, D.C.D.Mass., 31 F.2d 118 in addition to the following unreported cases, Eq. 659; Eq. 835; Cr. 438; C.A. 3170 as well as other courts. Chanler v. Sherman, 2 Cir., 162 F. 19, 22 L.R.A.,N.S., 992.

This brings us to inquire what are the usages and principles of law with respect to protecting defendants in criminal cases. When a defendant is compelled to enter a state to answer a charge of violation of federal law, is he entitled to protection from arrest on a charge of another crime committed prior to his entry? A satisfactory answer to that question can be given only by considering it against a broad background.

Except in situations covered by statutes and treaties — to which I shall refer later — the general rule is that a party or witness does not have either before or during or after his attendance at any judicial proceeding a personal privilege to avoid service or arrest in connection with any other judicial proceeding. Such privilege as exists belongs not to the individual but to the court. Lamb v. Schmitt, 285 U. S. 222, 225, 52 S.Ct. 317, 76 L.Ed. 720; Long v. Ansell, 293 U.S. 76, 83, 55 S.Ct. 21, 79 L.Ed. 208.

It is sometimes said that the rationale of the privilege is to encourage voluntary attendance of suitors and litigants who might stay away if they feared service of process in other litigation. But while that may be a good reason, it is historically an inaccurate one. The privilege was first granted in England and America to those who came involuntarily in response to subpoenas. See Judge Learned Hand in Dwelle v. Allen, D.C.S.D.N.Y., 193 F. 546, 548. And even today immunity from civil process is often accorded to defendants and witnesses appearing in civil cases in response to subpoenas. See cases collected in Wigmore, Evidence, (3d Ed.) § 2195g.

It is sometimes said that the rationale of the privilege is to prevent an interruption or embarrassment of the judicial proceedings. But there are two reasons why this explanation will not stand. The service of process to attend a second trial neither interrupts or embarrasses the first trial unless the dates of the two proceedings conflict. Moreover, if the purpose of the privilege were to avoid interruption of the first proceeding, then the protection would not extend, as it sometimes does, to the party or witness during his return from court to his home. Cf. Chanler v. Sherman, supra.

Perhaps the best that we can say is that historically the courts, without minutely examining each individual case to see whether a person's attendance was voluntary or whether a particular process issued by another court caused embarrassment, but in order to "conduce to obedience" to compulsory process, see L. Hand, D. J. in Dwelle v. Allen, D.C.S.D.N.Y., 193 F. 546, 549, to encourage persons to have their private rights judicially enforced, see Chanler v. Sherman, 2 Cir., 162 F. 19, 21, 22 L.R.A.,N.S., 992 and to emphasize the dignity and importance of attendance at court, have protected litigants and witnesses in civil cases from service of process in another civil suit. Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192. Wigmore, Evidence, (3d Ed.) § 2195g. But this doctrine has not been customarily extended to protecting a litigant or witness in a civil suit from service of process in a criminal suit. Schwartz v. Dutro, Mo. Sup., 298 S.W. 769. But see contra the writ in Eq. 835 issued by this court. The public interest in apprehending and prosecuting him for his alleged criminal conduct outweighs the public interests in the dignity of the courts, in conducing to obedience to subpoenas (when attendance is compulsory), in inducing voluntary attendance (when attendance is voluntary), in encouraging vindication of private rights and in preventing the interruption of judicial proceedings (when interruption is actually threatened).

The extent to which protection is available to a witness in criminal cases is much more debatable. Several rules are possible: for example, (1) like the civil witness, the criminal witness, whether voluntary or involuntary, might be exempt from civil process Dwelle v. Allen, D.C.S.D.N.Y., 193 F. 546, per Learned Hand, D. J.; Kauffman v. Kennedy, C.C.D.Neb., 25 F. 785; or (2) where the criminal witness is summoned against his will he might be subject to all process Cf. Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L.R.A.,N.S., 333, 134 Am.St.Rep. 886 (involving a criminal defendant not a mere witness); or (3) where the criminal witness is summoned against his will he might be immune from all process, criminal and civil United States v. Baird, D.C.D. N.J., 85 F. 633; or (4) where the criminal witness comes voluntarily in a situation where he could not be compelled to come or comes under a special interstate arrangement, he might be immune from arrest or the service of process, civil or criminal, in connection with matters which arose before his entry. Cf. Mass.G.L.(Ter.Ed.) c. 233, § 13C, as added by St.1937, c. 210, § 1. See also Uniform Act to Secure the Attendance of Witnesses from Within or Without a State Criminal Proceeding. It is unnecessary at this time to select one of these four rules or some other rule. Even if — which I do not suggest is so — Judge Kirkpatrick's ruling in the Baird case is correct or even if — as the Uniform Act implies — there is now a recognized public policy in protecting persons who voluntarily or in response to a summons come within the state as witnesses in a criminal trial, that ruling and policy do not purport to extend to persons brought to the state as defendants in criminal cases. The Uniform Act and its local embodiment, Mass.G.L.(Ter.Ed.) c. 233, § 13C, are so drawn as to cover only those who are ordered to come to the state "to attend and testify". A defendant in a federal criminal case is ordered merely to stand trial. He is not and cannot be ordered to testify. United States Constitution Amendment V.

With regard to defendants in criminal cases, the point which has been most frequently raised is whether a non-resident criminal defendant appearing voluntarily or involuntarily is subject to civil process. The authorities are collected in 22 L.R.A., N.S., 992; 14 A.L.R. 771; 40 A.L.R. 93 and 65 A.L.R. 1370. It is...