Venezia v. Robinson
| Citation | 16 F.3d 209 |
| Decision Date | 02 March 1994 |
| Docket Number | No. 93-2448,93-2448 |
| Parties | Thomas VENEZIA, Plaintiff-Appellant, v. Bonds ROBINSON, Jr., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Amiel Cueto, Christopher Cueto, Cueto, Cueto & Cueto, Belleville, IL, for plaintiff-appellant.
Robert L. Simpkins, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Div., Fairview Heights, IL, Jan E. Hughes, Asst. Atty. Gen., Office of the Atty. Gen., Civ. Appeals Div., Chicago, IL, James M. Hipkiss, Office of the U.S. Atty., Civ. Div., Fairview Heights, IL, for defendant-appellee.
Before POSNER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
Thomas Venezia, who runs a vending and amusement business, placed three "video poker" machines with V.F.W. Post 4183 on Scott Air Force Base in Illinois. State agents believed that the machines were being used for gambling. Video games that swallow pocket change and "pay off" in replays are unobjectionable; but if they (or the owners of the establishments) pay winners in cash or liquor, then they violate the law of Illinois. Agents of the Illinois Liquor Control Commission began to enforce regulations to the hilt, visiting the place so often that they became as well known as regular customers. The managers did not take the hint. In May 1992 state agents raided the Post and seized the three video poker machines. Venezia supplied four more; in August 1992 all four were seized in a second raid. Between the seizures Bonds Robinson, Jr., one of the agents, sent word to Venezia that he could avoid further interruptions in business by paying graft. Venezia says that he pretended to play along in order to ensnare a dishonest agent. During a two-hour meeting with Robinson, Venezia promised to buy $250 per week in merchandise from Robinson's wife. He did not keep this promise and insists that he never meant to; after the second seizure, Robinson sent a message that Venezia had better keep his word if he wanted to avoid additional trouble.
Instead of paying, Venezia filed a suit against Robinson in state court, asking for an injunction against extortion and other vexation. Robinson received a subpoena requiring him to be in court within 15 minutes; he complied, and at 9:30 A.M. on September 1, 1992, the morning the complaint was filed, Judge James Radcliffe of the circuit court in St. Clair County, Illinois, opened a hearing on Venezia's request for injunctive relief. Robinson had not seen a copy of the complaint, had not been served with process, and was not represented by counsel; he asked for time to obtain a lawyer, and the judge denied this request. (The judge would not even give Robinson a minute to use the telephone.) A reluctant Robinson then testified that he had participated in the raids but denied threatening Venezia. By 10:30 A.M. Venezia had completed his case. Without permitting Robinson to put on a defense--and without setting out findings of fact or conclusions of law--the judge immediately signed a preliminary injunction (not a TRO but an order of indefinite duration) tendered by Venezia's lawyer. The injunction barred Robinson from "threatening or coercing" Venezia and his businesses (although they are not parties to the litigation), from "soliciting bribes or acts of extortion", and from "unlawfully seizing the property" of Venezia and his firms. This parody of legal procedure violated so many rules of Illinois law--not to mention the due process clause of the fourteenth amendment--that it is not worth reciting them. d
Represented by the United States Attorney for the Southern District of Illinois, Robinson removed the action to federal court under 28 U.S.C. Sec. 1442(a)(1). This statute permits "[a]ny officer of the United States ... or person acting under him" to remove a suit instituted to challenge "any act under color of such office" when the defendant's action rests on "authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue." Robinson is not an "officer of the United States"; he is a supervisory agent of the Illinois Liquor Control Commission. But in an affidavit filed with the removal petition, Robinson stated that he was at all pertinent times acting under the direction of agents of the Federal Bureau of Investigation as part of a criminal investigation, and that during the two-hour meeting with Venezia he had been wearing a tape recorder at the federal agents' request. Two agents of the FBI filed affidavits verifying Robinson's claim. In other words, Robinson was participating in a sting operation, trying to find out whether Venezia would pay bribes to avoid close supervision by state regulators. Venezia depicted himself in the state litigation as an honest businessman trying to fend off a crooked state inspector; a less charitable view would be that after getting wind that the FBI had his bribe offer on tape, Venezia tried to put a better light on things by taking the offensive. (Robinson testified in the state court hearing that the meeting had been taped and that the FBI had a copy; the judge also compelled him to answer questions about who he called first (the FBI) on receiving the subpoena; it is most doubtful that this discovery into an ongoing criminal investigation was proper, or that it would have occurred had Judge Radcliffe permitted Robinson a legal representative.) At all events, the United States Attorney contended that Robinson is a "person acting under" a federal agent, and that the litigation therefore belongs in federal court.
The district judge denied Venezia's motion to remand, ruling that the affidavits support removal under Sec. 1442(a)(1). (Venezia waived any contest to the timeliness of removal by omitting that ground from his motion to remand.) Next the district court vacated the injunction, concluding that many procedural flaws in the notice, hearing, and decision, coupled with the vagueness of the injunction itself, see Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), prevent its enforcement. Moreover, the court observed, an injunction against...
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