An indictment in a state court charging federal prohibition
agents with a conspiracy to obstruct justice by giving false
testimony at a coroner's inquest concerning a homicide for which
they were then under arrest and subsequently were indicted for
murder is not removable to the federal court under § 33 of the
Judicial Code, even though the murder charge would be removable as
one commenced "on account" of their official acts. P.
270 U. S.
42.
Mandamus made absolute.
Petition by the State of Maryland for a writ of mandamus
directing the United States District Judge of the District of
Maryland to remand to the proper state court an indictment for
conspiracy to obstruct justice by false testimony, which had been
removed to the district court under the provisions of § 33 of the
Judicial Code.
See also the case next preceding.
Page 270 U. S. 39
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a petition for mandamus by the State of Maryland to
require the district court of the United States for that state to
remand to the State Circuit Court for Harford county an indictment
by the grand jury of that county for obstructing justice of the
state by false testimony. The indictment had been removed from the
circuit court to the federal court in asserted compliance with § 33
of the Judicial Code. The amended petition of removal, upon the
sufficiency of which the application of § 33 turns, discloses the
same state of facts as that shown in the mandamus case between the
same parties just decided. The indictment charges that the same
defendants as were there charged with murder conspired in a hearing
before a justice of the peace of Harford County, acting as the
coroner with a jury and engaged in the official duty of inquiring
into the manner of the death of Lawrence Wenger on November 20,
1924, to deceive the coroner and jury by withholding the facts
concerning Wenger's death, and falsely asserting ignorance thereof,
in order to induce them to return a false and erroneous verdict,
and thus to obstruct justice in violation of a criminal statute of
Maryland. This testimony was given the day after Wenger's death
while the defendants were under arrest on the charge of murder, and
the indictment in this case was returned at the same time as the
indictment for murder.
Page 270 U. S. 40
The amended petition of defendants for removal avers that,
"on the afternoon of November 20th, your petitioners were called
before the coroner's inquest heretofore described in the
indictment, and freely and without reservation, in accordance with
their duty as investigating and reporting officers of the federal
government and acting under the direction of the Maryland Federal
Prohibition Director, related the facts before mentioned, and
thereupon they were again placed in the Harford County jail and
held for the action of the Harford County Grand Jury."
The amended petition concludes with the statement that
"the said indictment is now pending in the Circuit Court for
Harford County, and is a criminal prosecution on account of acts
alleged to have been done by your petitioners at a time when they
were engaged in the performance of their duties as federal
prohibition officers and chauffeur for federal prohibition
officers, as set forth in the aforegoing paragraphs."
The record in this case is in all respects like that in the case
just decided, except that the prosecution is for obstruction of
justice. The orders of the federal district court, the other
proceedings, the stipulation as to evidence, the petition for
mandamus, and the return of Judge Soper to the rule issued on the
petition of the state for mandamus are all similar.
Counsel for the State of Maryland argue that the accused
officers were in no sense acting in their official capacity when
engaged in the alleged conspiracy to deceive the coroner; that
their duty had been discharged when they destroyed the still; that
their subsequent reports of what had happened to their federal
superiors are not the subject of this prosecution; that the
indictments for conspiracy and perjury were based not on acts which
the defendants had done in pursuance of federal law and in
discharge of their duty to the federal government, but on testimony
given by them under their obligations to
Page 270 U. S. 41
the state as individuals and for which they were detained in
jail. To this it is answered, on behalf of the United States, as
follows:
"But how did the officers come to be in jail? If they had not
been engaged in the performance of their duties as federal
officers, they would never have been there. When they found
Wenger's body, they had just come from performing their duty, and
were on their way back to report officially to their superior. At
that time they were still acting in their official capacity.
United States v. Gleason, 1 Woolw. 128, Fed.Cas. No.
15216. In immediately seeking for a physician, and in reporting
Wenger's death at once to the state's attorney, they were doing the
only reasonable act which could be expected of them, both as public
officers and as private citizens. But, as their petition alleges,
the state's attorney, on being informed by them that your
petitioners . . . were prohibition officers, ordered them to be at
once placed under arrest."
"If they had not discovered Wenger and reported his murder,
there would have been no need for them to testify before the
coroner's jury, and there would have been no occasion for any
charge of conspiracy. The two charges, it is submitted, are so
closely interrelated that they cannot properly be separated. The
charge of murder gave rise to the charge of conspiracy. If the
former charge is removable to the federal court, it is submitted
that the latter should be removable also."
"Considerable danger would be involved in a contrary holding. If
charges of murder alleged to have been committed by federal
officers are removable, and charges of conspiracy and similar
offenses are not removable, an obvious expedient would suggest
itself. In localities where the administration of particular
federal laws is unpopular, federal officers need no longer be
dragged before hostile state tribunals on charges such as murder,
on which they may successfully claim removal and plead
self-defense.
Page 270 U. S. 42
The charge can readily be altered to 'conspiracy,' or to some
other crime, which the accused officers deny having committed at
all, but on which it will be clear that removal cannot be obtained.
The actual charge will serve merely as a cloak to obtain the
desired end -- namely, incarceration of an unpopular officer. In
this way, the functions of the federal government may be harassed
or impeded, and its officers withdrawn from their duty, as
effectively as by prosecutions for homicide actually committed in
self-defense. This method may easily become as effective as
out-and-out nullification of federal laws."
We may concede that the reports of the officers to their federal
superiors were within their official duty, but it does not follow
that whatever happened between the events at the place of the still
and the return to Baltimore to make report was within the
protection of their official immunity. It depends upon the nature
of that which they did in the interval. The right of the state to
inquire into suspected crime in its territory justifies the use of
investigation by its officers and the questioning of suspected
persons under oath. The response of the federal officer under
suspicion to such questioning is not an act of his under federal
authority.
Of course, one can state a case in which acts not expressly
authorized by the federal statutes are such an inevitable outgrowth
of the officer's discharge of his federal duty and so closely
interrelated with it as necessarily to be within the protection of
§ 33.
Thus, removals of prosecution on account of acts done in
enforcement of the revenue or prohibition laws or under color of
them properly include those for acts committed by a federal officer
in defense of his life, threatened while enforcing or attempting to
enforce the law. Such acts of defense are really part of the
exercise of his official authority. They are necessary to make the
enforcement effective.
Page 270 U. S. 43
This is as far as the case of
United States v. Gleason,
supra, 25 Fed.Cas. 1335, No. 15,216, cited by government
counsel, would by analogy carry us. That was a charge to the jury
by Mr. Justice Miller in the trial of a federal criminal indictment
under a statute punishing the obstruction of a federal officer in
arresting an army deserter which caused the death of the officer.
The justice said to the jury that, if the officer having been
obstructed was retreating with a view of making other arrangements
to perform his duty of arresting, he was still employed in
arresting deserters. It was not necessary, to render his killing an
offense against the United States that he should be engaged in the
immediate duty of arrest.
"The purpose of the law is to protect the life of the person so
employed, and this protection continues so long as he is engaged in
a service necessary and proper to that employment."
But the indictment which is here removed is for acts not thus
closely connected with, and included in, the attempted enforcement
of the federal law.
The defendants, when called upon to testify before the coroner,
were not obliged by federal law to do so. Indeed, even under state
law, they might have stood mute, because the proceeding was one in
which they were accused of crime. They themselves show that they
voluntarily made the statements upon which these indictments were
founded. While, of course, it was natural that, if not guilty, they
should have responded fully and freely to all questions as to their
knowledge of the transaction with a view of showing their
innocence, nevertheless their evidence was not in performance of
their duty as officers of the United States.
In answer to the suggestion that our construction of § 33 and
our failure to sustain the right of removal in the case before us
will permit evilly minded persons to evade the useful operation of
§ 33, we can only say that, if prosecutions of this kind come to be
used to obstruct
Page 270 U. S. 44
seriously the enforcement of federal laws, it will be for
Congress, in its discretion, to amend § 33 so that the words "on
account of" shall be enlarged to mean that any prosecution of a
federal officer for any state offense which can be shown by
evidence to have had its motive in a wish to hinder him in the
enforcement of federal law may be removed for trial to the proper
federal court. We are not now considering or intimating whether
such an enlargement would be valid; but what we wish to be
understood as deciding is that the present language of § 33 cannot
be broadened by fair construction to give it such a meaning. These
were not prosecutions, therefore, commenced on account of acts done
by these defendants solely in pursuance of their federal authority.
With the statute as it is, they cannot have the protection of a
trial in the federal court, however natural their denials under
oath of inculpating circumstances. As the indictment in this case
was not removable under § 33, the mandamus to the judge of the
district court to remand it to the Circuit Court for Harford
County, Maryland, must be made absolute. The writ need not issue,
however, as Judge Soper's return indicates that he will act upon an
expression of our views.