Respondent was indicted in an Arizona state court for the
commission of a state crime. Because the charge arose from an act
committed while he was on duty as a federal Border Patrol Agent,
respondent, pursuant to 28 U.S.C. § 1442(a)(1), removed the case to
Federal District Court. After a jury trial, a guilty verdict was
returned, but ultimately the District Court
sua sponte
concluded that respondent had a valid immunity defense, and entered
a judgment of acquittal. The State appealed, but the Court of
Appeals dismissed the appeal for lack of jurisdiction, holding,
inter alia, that a criminal proceeding removed to federal
court under § 1442(a)(1) arises under federal law, and accordingly
is controlled by that law. The court concluded that only Congress
can authorize an appeal by a State in a § 1442(a)(1) criminal
prosecution, and that it had not done so. The court rejected the
suggestion that Arizona's appeal was authorized by 28 U.S.C. §
1291, which confers jurisdiction on United States courts of appeals
over appeals from all final decisions of federal district courts,
except where a direct review may be had in the Supreme Court.
Held : In a criminal proceeding removed to federal
court under § 1442(a)(1), a State may appeal under § 1291 from an
adverse judgment if statutory authority to seek such review is
conferred by state law. Thus, because Arizona law conferred such
authority here, and because removal does not alter the nature of
the authority conferred, the State must be allowed to appeal from
the post-guilty-verdict judgment of acquittal. Pp.
451 U. S.
239-250.
(a) Arizona statutes, as construed by Arizona courts, authorize
the prosecution to seek review when it claims that the trial court
has exceeded its jurisdiction or abused its discretion, as is the
claim in this case. Pp.
451 U. S.
239-240.
(b) Respondent, by obtaining a federal forum, fully vindicated
the federal policies supporting removal -- permitting a trial on
the merits of the state law question free from local interests or
prejudice and enabling the defendant to have the validity of his
immunity defense adjudicated in a federal forum. No further purpose
of the removal statute would be served by denying the State a right
to seek review when that very
Page 451 U. S. 233
right is available under state law. On the contrary, it would be
anomalous to conclude that the State's appellate rights were
diminished solely because of the removal. Pp.
451 U. S.
241-243.
(c) This Court's prior decisions restricting the availability of
§ 1291 and its predecessors when the Government seeks to appeal in
a criminal case flow from a tradition of requiring that a
prosecutorial appeal be affirmatively sanctioned by the same
sovereign that sponsors the prosecution. The intention to restrict
sovereign power in this area is adequately addressed when the
legislature responsible for that power has spoken in express terms,
or when a legislative enactment has been authoritatively construed
by the sovereign's highest court. Section 1291 neither compels nor
forecloses appellate jurisdiction in an appeal taken by a State as
prosecutor. Instead, the provision permits a State to appeal if it
is authorized to do so by state law. Arizona can rely on § 1291
combined with appellate authorization from the Arizona Legislature.
In the circumstances of this case, no more is required. Pp.
451 U. S.
244-249.
608 F.2d 1197, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, REHNQUIST, and STEVENS,
JJ., joined. STEVENS, J., filed a concurring opinion,
post, p.
451 U. S. 250.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
451 U. S.
251.
JUSTICE BLACKMUN delivered the opinion of the Court.
Respondent, a federal officer, was charged in Arizona with the
commission of a state crime. On the officer's motion, the case was
removed from state court and tried in federal court. The issue
presented is whether a federal appellate court has jurisdiction to
entertain Arizona's appeal from the District Court's judgment of
acquittal entered after a jury verdict of guilty.
Page 451 U. S. 234
I
A
Respondent William Dale Manypenny had been employed for six
years as a Border Patrol Agent in the United States Immigration and
Naturalization Service (INS). On the moonlit evening of March 15,
1976, he and fellow Agent Gerald Wayne Hjelle were assigned to
patrol the Sweetwater Pass, located on federal land in Pima County,
Ariz., approximately 10 miles from the Mexican border. [
Footnote 1] INS officials knew that the
Pass was frequently traveled by aliens illegally entering the
United States. While patroling the Pass, respondent and his
colleague were expected to stop and question any person suspected
of being an alien and to arrest that person if he could not produce
a lawful entry permit. [
Footnote
2] Both agents wore plain clothes, as was customary for patrol
work in that rugged desert area. Tr. 248-249, 293.
Three Mexican males were traveling north along the trail when
respondent's electronic sensor system signaled their approach.
[
Footnote 3] Following standard
procedure, Agent Hjelle stationed himself near where the path
emerged from the canyon onto higher ground. Respondent took a
position some 100 yards to the south, on a bluff overlooking, but
out of sight of, the path. The plan called for Ejelle to stop any
suspected illegal alien, identify himself, and conduct a brief
inquiry to determine the suspect's status, while respondent
approached from behind.
Page 451 U. S. 235
The three men emerged from the canyon and saw Hjelle, who
ordered them to stop.
Id. at 117, 283-284. Before Hjelle
could begin his questioning, one of the men turned and ran back
south toward the border. Respondent shouted after him to halt.
Id. at 174. When the fleeing man failed to stop,
respondent fired three shotgun blasts in his direction. One hit the
fugitive in the buttocks, causing multiple wounds.
Id. at
105-106. Another struck him in the upper spine, severing the cord
and leaving him a quadriplegic.
Id. at 87-88, 93.
B
Respondent was indicted in the Superior Court of Pima County,
Ariz., for assault with a deadly weapon, in violation of
Ariz.Rev.Stat.Ann. § 13-249A and B (Supp. 1973). [
Footnote 4] Because the charge arose from an
act committed while on duty for the INS, respondent, pursuant to 28
U.S.C. § 1442(a)(1), [
Footnote
5] removed the case to the United States District Court
Page 451 U. S. 236
for the District of Arizona. The case was tried before a jury,
and a verdict of guilty was returned. Respondent then timely moved
for arrest of judgment or, alternatively, for a new trial.
See Fed.Rules Crim.Proc. 33 and 34 [
Footnote 6] The District Court granted
respondent's motion to arrest judgment and dismissed the
indictment; it did so on the ground that the State could not assert
its criminal jurisdiction over federal lands. 7 Record 7-8. The
State immediately moved for reconsideration; the District Court
also granted the State's motion and took the matter under
advisement. App. 36-38. Nine months later, the District Court
vacated its previous order arresting judgment.
445 F.
Supp. 1123 (1977). The court, on reconsideration, held that
Arizona retained criminal jurisdiction over all land within its
exterior boundaries. [
Footnote
7] Having determined that it properly could exercise
jurisdiction over Arizona's claim, the District Court then
proceeded
sua sponte to construe respondent's motion under
Rule 34 as a motion for judgment of acquittal, pursuant to Federal
Rule of Criminal Procedure 29(c). Although an immunity defense had
not been raised at trial, and the State had not introduced any
evidence designed to overcome that defense, the court concluded
that it had erred in failing to instruct the jury on such a
defense. Relying on principles enunciated in
In re Neale,
135 U. S. 1,
135 U. S. 75
(1890), and
Clifton v. Cox, 549 F.2d 722 (CA9 1977), the
District Court reasoned that respondent
Page 451 U. S. 237
would be immune from prosecution on a state criminal charge if
he acted under color of federal law and in the honest belief that
his actions were necessary and proper for the execution of his
federal duties. 445 F.Supp. at [1126] 1127. The court applied this
standard to the evidence adduced at trial, and concluded that a
reasonable jury could not have found respondent guilty beyond a
reasonable doubt.
Id. at 1128. The presumed motion for
acquittal was granted, and the jury verdict was set aside.
Claiming that the trial court had exceeded its authority,
[
Footnote 8] the State filed a
timely notice of appeal from the acquittal. It invoked the
appellate court's jurisdiction under 18 U.S.C. § 3731. [
Footnote 9] The United States Court of
Appeals for the Ninth Circuit, by a brief per curiam opinion citing
Sanabria v. United States, 437 U. S.
54 (1978), initially dismissed the appeal on double
jeopardy grounds. [
Footnote
10] Upon timely petition for rehearing, however, the Court of
Appeals withdrew the opinion, App. to Pet. for Cert. 1a, and
substituted another in its place. This time, by a divided vote, the
court dismissed Arizona's appeal on the ground that jurisdiction
was lacking.
Page 451 U. S. 238
608 F.2d 1197 (1979). It noted that, under settled precedent of
this Court, the Government may take an appeal from an adverse
decision in a criminal case only if expressly authorized by statute
to do so.
United States v. Martin Linen Supply Co.,
430 U. S. 564,
430 U. S. 568
(1977);
United States v. Wilson, 420 U.
S. 332,
420 U. S. 336
(1975);
United States v. Sanges, 144 U.
S. 310,
144 U. S. 312,
144 U. S.
318-323 (1892). Emphasizing the language of 18 U.S.C. §
3731, the court held that the statute authorizes an appeal only
when the
United States is the prosecutor, not when a state
prosecution has been removed to federal court.
The Court of Appeals declined to consider whether state law
provided Arizona with a right to appeal in this case. Instead, the
court reasoned that a criminal proceeding removed to federal court
under 28 U.S.C. § 1442(a)(1) arises under federal law, and
accordingly is to be controlled by that law, rather than state law.
The court concluded that "only Congress can authorize an appeal by
a state in a § 1442(a)(1) criminal prosecution," and Congress had
not done so. 608 F.2d at 1200. The Court of Appeals also rejected
the suggestion that the general appeals statute, 28 U.S.C. § 1291,
[
Footnote 11] provided
authorization for Arizona's appeal. 608 F.2d at 1199, n. 3.
The dissenting judge discerned separate bases for appellate
jurisdiction in 18 U.S.C. § 3731 and 28 U.S.C. § 1291. 608 F.2d at
1200-1202. [
Footnote 12]
Page 451 U. S. 239
We granted certiorari in order to resolve a problem of appellate
jurisdiction created by the federal removal statute. 445 U.S. 960
(190). Because it is an issue that carries significance for
federal-state relations, we pay close attention to both state and
federal law bearing on its resolution.
II
We begin by noting that, had respondent's trial occurred in
state, rather than federal, court, Arizona's statutes, as construed
and applied by the courts of that State, would enable the State to
obtain the appellate review it seeks. Under Arizona law, the
prosecution is authorized to seek review, by certiorari, when its
claim is that the lower court has exceeded its jurisdiction or has
abused its discretion.
See Ariz.Rev.Stat.Ann. 12-2001
(1956). [
Footnote 13] The
State's petition for review
Page 451 U. S. 240
has ben routinely granted in numerous instances exactly like
this case, where the prosecution seeks review of a judgment of
acquittal following a guilty verdict.
See, e.g., State ex rel.
Hyder v. Superior Court (Clifton, Real Party in Interest), 128
Ariz. 216,
624 P.2d
1264 (1981);
State ex rel. Hyder v. Superior Court (Moya,
Real Party in Interest), 124 Ariz. 560,
606 P.2d 411
(1980);
State ex rel. Dawson v. Superior Court, 112 Ariz.
123,
538 P.2d 397
(1975).
See also State v. Allen, 27 Ariz.App. 577, 557
P.2d 176 (1976);
State v. Lopez, 26 Ariz.App. 559, 550
P.2d 113 (1976);
State v. Gradillas, 25 Ariz.App. 510,
512, 544 P.2d 1111, 1113 (1976). [
Footnote 14]
Thus, the sole question posed here is whether respondent's
removal of the state prosecution to federal court for trial alters
the nature of the State's otherwise well established right, under
state law, to seek review of the instant judgment of acquittal. We
consider this question first by reviewing the legal effect of, and
the policies served by, removal for trial under § 1442(a)(1). We
then examine respondent's argument that the federal law governing
federal appellate jurisdiction not only does not permit, but also,
in fact, bars the State's criminal appeal in federal court.
Page 451 U. S. 241
A
The Court of Appeals concluded that the fact of removal
substantially alters the State's right to seek review. Reasoning
that a case brought pursuant to §1442(a)(1) arises under federal
law, the court held that state enabling statutes retain no
significance. But a state criminal proceeding against a federal
officer that is removed to federal court does not "arise under
federal law" in this preempting sense. Rather, the federal court
conducts the trial under federal rules of procedure while applying
the criminal law of the State.
Tennessee v. Davis,
100 U. S. 257,
100 U. S.
271-272 (1880).
See Fed.Rule Crim.Proc. 54
(b)(1), Advisory Committee Notes, 18 U.S.C.App. pp. 1480-1481.
[
Footnote 15]
This principle is entirely consistent with the purpose
underlying the removal of proceedings commenced in state court
against a federal officer. Historically, removal under § 1442(a)(1)
and its predecessor statutes was meant to ensure a federal forum in
any case where a federal official is entitled to raise a defense
arising out of his official duties. [
Footnote 16] The act
Page 451 U. S. 242
of removal permits a trial upon the merits of the state law
question free from local interests or prejudice.
See Colorado
v. Symes, 286 U. S. 510,
286 U. S.
517-518 (1932);
Maryland v. Soper, 270 U. S.
9,
270 U. S. 32
(1926). It also enables the defendant to have the validity of his
immunity defense adjudicated in a federal forum.
Willingham v.
Morgan, 395 U. S. 402,
395 U. S. 407
(1969). For these reasons, this Court has held that the right of
removal is absolute for conduct performed under color of federal
office, and has insisted that the policy favoring removal "should
not be frustrated by a narrow, grudging interpretation of §
1442(a)(1)."
Ibid.
At the same time, the invocation of removal jurisdiction by a
federal officer does not revise or alter the underlying law to be
applied. In this respect, it is a purely derivative form of
jurisdiction, neither enlarging nor contracting the rights of the
parties. [
Footnote 17]
Federal involvement is necessary in order to insure a federal
forum, but it is limited to assuring that an impartial setting is
provided in which the federal defense of immunity can be considered
during prosecution under state law. Thus, while giving full effect
to the purpose of removal,
Page 451 U. S. 243
this Court retains the highest regard for a State's right to
make and enforce its own criminal laws.
Colorado v. Symes,
286 U.S. at
286 U. S.
517-518.
Under our federal system,
"[i]t goes without saying that preventing and dealing with crime
is much more the business of the States than it is of the Federal
Government."
Patterson v. New York, 432 U.
S. 197,
432 U. S. 201
(1977). Because the regulation of crime is preeminently a matter
for the States, we have identified "a strong judicial policy
against federal interference with state criminal proceedings."
Huffman v. Pursue, Ltd., 420 U. S. 592,
420 U. S. 600
(1975). A State's interest in enforcing its criminal laws merits
comparable judicial respect when pursued in the federal courts.
Cf. Colorado v. Symes, 286 U.S. at
286 U. S.
518.
Respondent here, by obtaining a federal forum, has fully
vindicated the federal policies supporting removal. The plainest
evidence of this vindication is the District Court's application of
the immunity defense. No further purpose of the removal statute
would be served by denying the State a right to seek review when
that very right is available under applicable state law. On the
contrary, it would be anomalous to conclude that the State's
appellate rights were diminished solely because of the removal. The
statutory goal of ensuring fair and impartial adjudication is not
advanced when the State, in effect, can be penalized by the
defendant's decision to remove a criminal prosecution. Absent any
indication that the removal statute was intended to derogate from
the State's interest in evenhanded enforcement of its laws, we see
no justification for providing an unintended benefit to a defendant
who happens to be a federal officer. [
Footnote 18]
Page 451 U. S. 244
B
Although the purposes of the removal statute do not support
denial of a State's customary right to seek appellate review, we do
not suggest that this alone establishes the State's right to appeal
in federal court. Authorization to seek review under Arizona law is
not a grant of federal
appellate jurisdiction. Nor, when
added to the conclusion that removal itself fails to diminish
Arizona's appellate rights, does this authorization amount to a
grant of equivalent federal jurisdiction at the appellate level.
Because the criminal removal statute does not confer federal
appellate jurisdiction, some independent federal basis is required
if a State is to perfect its appeal. Petitioner contends, in part,
that such authorization derives from 28 U.S.C. § 1291, the general
statutory grant of appellate jurisdiction. Brief for Petitioner
49-58. Respondent argues, however, that § 1291 cannot support
Arizona's appeal, because it has been found inadequate, standing
alone, to support a criminal appeal by the Federal Government.
Brief for Respondent 32-40. This argument deserves close attention,
for it draws on the important tradition disfavoring criminal
appeals by the sovereign.
Under 28 U.S.C. § 1291, any litigant armed with a final judgment
from a lower federal court is entitled to take an appeal. By its
terms, the statute addresses neither the identity of particular
parties nor the nature of the prior legal
Page 451 U. S. 245
proceedings. [
Footnote
19] But while it is settled that a civil appeal, or an appeal
by the defendant in a criminal case, may be taken from any final
decision of a District Court, this Court has observed on prior
occasions that, "
in the federal jurisprudence, at least,
appeals by the Government in criminal cases are something unusual,
exceptional, not favored.'" Will v. United States,
389 U. S. 90,
389 U. S. 96
(1967), quoting from Carroll v. United States,
354 U. S. 394,
354 U. S. 400
(1957). This federal policy has deep roots in the common law, for
it was generally understood, at least in this country, that the
sovereign had no right to appeal an adverse criminal judgment
unless expressly authorized by statute to do so. [Footnote 20] Accordingly, from the early
days of the Republic, most state courts refused to consider appeals
by prosecutors who lacked the requisite statutory authority.
[Footnote 21]
Page 451 U. S. 246
Both prudential and constitutional interests contributed to this
tradition. The need to restrict appeals by the prosecutor reflected
a prudential concern that individuals should be free from the
harassment and vexation of unbounded litigation by the sovereign.
See, e.g.,State v. Jones, 7 Ga. 422, 425-426 (1849);
People v. Corning, 2 N.Y. 9, 16 (1848). This concern also
underlies the constitutional ban against double jeopardy, which
bars an appeal by the prosecutor following a jury verdict of
acquittal.
See, e.g., People v. Webb, 38 Cal. 467, 476-480
(1869);
State v Burris, 3 Tex. 118 (1848);
State v.
Hand, 6 Ark. 169, 171 (1845).
See also Burks v. United
States, 437 U. S. 1,
437 U. S. 16
(1978);
Fong Foo v. United States, 369 U.
S. 141,
369 U. S. 143
(1962).
See generally United States v. DiFrancesco,
449 U. S. 117,
449 U. S.
129-130 (1980). In general, both concerns translate into
the presumption that the prosecution lacks appellate authority
absent express legislative authorization to the contrary.
This presumption was first announced as a rule of federal law in
United States v. Sanges, 144 U. S. 310
(1892). There, the Court held that no appellate right by the
Federal Government exists in the absence of express enabling
legislation from Congress. The Court also concluded that the
general grant of appellate jurisdiction contained in the Judiciary
Act of 1891 did not satisfy this requirement. [
Footnote 22] In subsequent decisions, the Court
has reaffirmed that the Federal Government enjoys no inherent right
to appeal a criminal judgment, and that the grant of general
appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not
authorize such a federal appeal.
DiBella v. United States,
369 U. S. 121,
369 U. S. 130
(1962);
Carroll v. United
States, 354 U.S.
Page 451 U. S. 247
394,
354 U. S.
400-403 (1957).
See Will v. United States,
389 U. S. 90,
389 U. S. 96-97
(1967);
United States v. Burroughs, 289 U.
S. 159,
289 U. S. 161
(1933).
Respondent contends that
Sanges and its progeny must be
read to foreclose a criminal appeal in federal court by
any governmental entity unless the appellate right derives
from an express
federal statute. We do not believe that
Sanges is to be so broadly construed.
Sanges
holds simply that the federal sovereign may not subject one of its
citizens to continued federal prosecution in its own courts where
it has not been expressly permitted to do so under federal law. 144
U.S. at
144 U. S. 323.
[
Footnote 23] Our continuing
refusal to assume that the United States possesses any inherent
right to appeal reflects an abiding concern to check the Federal
Government's possible misuse of its enormous prosecutorial powers.
By insisting that Congress speak with a clear voice when extending
to the Executive a right to expand criminal prosecutions,
Sanges and its subsequent applications have placed the
responsibility for such assertions of authority over citizens in
the democratically elected Legislature, where it belongs. Congress
has properly assumed this responsibility by first defining, and
then broadening and clarifying, the Federal Government's right to
appeal an adverse criminal judgment. [
Footnote 24]
Page 451 U. S. 248
The concern to restrict prosecuting authority to express
congressional grants, however, does not justify a requirement of
express authorization by
Congress when the sovereign
seeking to appeal is a State, rather than the Federal Government.
Nothing in the language or logic of the
Sanges opinion
contains any suggestion of that kind. Nor should such an intimation
be read into the Court's subsequent decisions adhering to
Sanges' principle. [
Footnote 25] For the purposes of
Page 451 U. S. 249
congressional restriction of prosecution by the sovereign, the
Federal Executive, not the State, is the relevant sovereign. The
decision to limit or extend a State's appellate authority is a
matter of state law within constitutional constraints. If a State
wishes to empower its prosecutors to pursue a criminal appeal under
certain conditions, it is free so to provide, limited only by the
guarantees afforded the criminal defendant under the Constitution.
Requiring Congress also to address explicitly the State's authority
contributes nothing to the policy concerns that prompt the
requirement of express sovereign action. There is, in short, no
basis for concluding that Congress' neglect specifically to
authorize a state appeal in a removed criminal proceeding impairs
the appellate rights of the state prosecutor acting to enforce his
separate body of criminal law.
In sum, the Court's prior decisions restricting the availability
of § 1291 in a criminal context flow from a tradition of requiring
that a prosecutorial appeal be affirmatively sanctioned by the same
sovereign that sponsors the prosecution. The intention to restrict
sovereign power in this area is adequately addressed when the
legislature responsible for that power has spoken in express terms,
or when a legislative enactment has been authoritatively construed
by the sovereign's highest court. We conclude that § 1291 neither
compels nor forecloses appellate jurisdiction in an appeal taken by
a State as prosecutor. Instead, the provision permits a State to
appeal if it is authorized to do so by state law. Petitioner
Arizona can rely on § 1291 combined with appellate authorization
from the Arizona Legislature. [
Footnote 26] In the circumstances of this case, no more
is required. [
Footnote
27]
Page 451 U. S. 250
III
We hold that, in a criminal proceeding removed to federal court,
a State may appeal under § 1291 from an adverse judgment if
statutory authority to seek such review is conferred by state law.
Because Arizona law conferred such authority here, and because
removal does not alter the nature of the authority conferred, the
State must be allowed to appeal from the post-guilty-verdict
judgment of acquittal. Accordingly, the judgment of the United
States Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
Sweetwater Pass is located about 29 miles southeast of Ajo,
Ariz. The Pass is bounded on the west by the Organ Pipe Cactus
National Monument and on the east by the Papago Indian Reservation.
It is undisputed that the events in question occurred on land owned
by the Federal Government.
[
Footnote 2]
Under 8 U.S.C. § 1325, an alien not previously convicted of
illegal entry who enters the United States at an improper time or
place is guilty of a misdemeanor.
[
Footnote 3]
According to testimony at trial, the Mexicans were unarmed, and
were seeking employment in this country. Tr. 15, 23.
[
Footnote 4]
The statute then read in pertinent part:
"A. A person who commits assault upon the person of another with
a deadly weapon or instrument . . . shall be punished by
imprisonment in the state prison for not less than one nor more
than ten years, by a fine not exceeding five thousand dollars, or
both."
"B. A crime as prescribed by the terms of subsection A,
committed by a person armed with a gun or other deadly weapon, is
punishable by imprisonment in the state prison, for the first
offense, for not less than five years . . . and in no case . . .
shall the person convicted be eligible for suspension or
commutation of sentence, probation, pardon or parole until such
person has served the minimum sentence imposed."
Section 13-249 was repealed by 1977 Ariz.Sess.Laws, ch. 142, §
4, effective Oct. 1, 1978, and replaced by other legislation.
See Ariz.Rev.Stat.Ann. § 13-1204 (1978).
[
Footnote 5]
Title 28 U.S.C. § 1442(a)(1) provides:
"(a) A civil action or criminal prosecution commenced in a State
court against any one of the following persons may be removed by
them to the district court of the United States for the district
and division embracing the place wherein it is pending:"
"(1) Any officer of the United States or any agency thereof, or
person acting under him, for any act under color of such office or
on account of any right, title or authority claimed under any Act
of Congress for the apprehension or punishment of criminals or the
collection of the revenue."
[
Footnote 6]
In his motion in arrest of judgment under Rule 34, respondent
maintained that the State of Arizona, and therefore the United
States District Court on removal, had no criminal jurisdiction over
the federal land where the shooting occurred. Respondent further
contended that any attempt to prosecute him under a state statute
unlawfully interfered with the exclusively federal interest in
regulating immigration.
[
Footnote 7]
The court further concluded that the federal interest in
enforcement of the immigration laws did not preempt the
applicability of state criminal law in this instance. 445 F. Supp.
at 1125-1127.
[
Footnote 8]
Arizona argued that the District Court lacked jurisdiction to
act on a Rule 29(c) motion 11 months after a guilty verdict, in
violation of the Rule's 7-day requirement. Brief for Appellant in
No. 77-3453 (CA9), pp. 8-11. The State also contended that the
District Court had misapplied relevant immunity law, and that the
evidence was more than sufficient to sustain the jury verdict.
Id. at 17-24.
[
Footnote 9]
Section 3731 provides, in pertinent part:
"In a criminal case an appeal by the United States shall lie to
a court of appeals from a decision, judgment, or order of a
district court dismissing an indictment or information as to any
one or more counts, except that no appeal shall lie where the
double jeopardy clause of the United States Constitution prohibits
further prosecution."
[
Footnote 10]
The court reasoned that even if, in a removed criminal
prosecution, the State of Arizona had the same right of appeal
under 18 U.S.C. § 3731 as is accorded the United States in a
federal prosecution, the judgment of acquittal nonetheless was
unreviewable on double jeopardy grounds. App. to Pet. for Cert.
39a-40a.
[
Footnote 11]
Title 28 U.S.C. § 1291 provides:
"The courts of appeals shall have jurisdiction of appeals from
all final decisions of the district courts of the United States,
the United States District Court for the District of the Canal
Zone, the District Court of Guam, and the District Court of the
Virgin Islands, except where a direct review may be had in the
Supreme Court."
[
Footnote 12]
Having found jurisdiction, the dissent concluded on the merits
that the judgment of acquittal should be reversed. 608 F.2d at
1205. The Court of Appeals' majority, however, did not reach the
merits. In view of the posture of the case, we also intimate no
view on the merits. Neither do we have any occasion now to decide
whether the instant appeal would be barred under the Double
Jeopardy Clause of the Fifth Amendment, which is enforceable
against the States through the Fourteenth Amendment.
Benton v.
Maryland, 395 U. S. 784,
395 U. S.
793-796 (1969). That question was not decided by the
Court of Appeals, and the parties have not raised it before this
Court.
See Tr. of Oral Arg 33.
[
Footnote 13]
Section 12-2001 reads:
"The writ of certiorari may be granted by the supreme and
superior courts or by any judge thereof in all cases when an
inferior tribunal, board or officer, exercising judicial functions,
has exceeded its jurisdiction and there is no appeal, nor, in the
judgment of the court, a plain, speedy and adequate remedy."
A writ of certiorari may be obtained by filing a petition for
special action, pursuant to Rule 4, Rules of Procedure for Special
Actions, vol. 17A, Ariz.Rev.Stat.Ann. (1973). The certiorari
provision itself speaks of review to determine whether the lower
court has exceeded its jurisdiction, but, as consistently construed
by the Arizona Supreme Court, the statute also authorizes review
for abuse of discretion.
State ex rel. Hyder v. Superior Court
(Clifton, Real Party in Interest), 128 Ariz. 216, 222,
624 P.2d
1264, 1270 (191);
State ex rel. Dawson v. Superior
Court, 112 Ariz. 123,
538 P.2d 397
(1975);
State ex rel. Ronan v. Superior Court, 95 Ariz.
319, 322,
390 P.2d 109,
111 (1964);
State ex rel. Mahoney v. Stevens, 79 Ariz. 29,
300, 28 P.2d 1077, 107 (1955).
See Rule 3, Rules of
Procedure for Special Actions, vol. 17A, Ariz.Rev.Stat.Ann. (1973)
.
[
Footnote 14]
The dissent maintains that this longstanding application of the
statute, never questioned by the Arizona Legislature, is an
insufficiently clear expression of state law. But it is obvious
that, in the precise circumstances of this case, the Arizona
Legislature and the Arizona Supreme Court have authorized the
appellate review requested by the State. The absence of a statutory
formula providing for automatic appeal by the State in every
criminal prosecution does not alter this fact.
A separate Arizona statute permits the State to appeal from an
"order made after judgment affecting the substantial rights of the
state." Ariz.Rev.Stat.Ann. § 13-4032.5 (1978), formerly 13-1712.5.
Although there is little case law interpreting this provision, it
may furnish an additional basis for appellate review here.
See
generally State ex rel Hyder v. Superior Court (Clifton, Real Party
in Interest), 128 Ariz., at 220, 624 P.2d at 1268;
State
v. Wynn, 114 Ariz. 561, 563, 562 P.2d 734, 736 (App. 1977)
.
[
Footnote 15]
In concluding that federal law controls all aspects of a case
before the federal court under § 1442(a)(1), the Court of Appeals
relied on several decisions, none of which involved proceedings
removed from state to federal court.
See D'Oench, Duhme Co. v.
Federal Deposit Ins. Corp., 315 U. S. 447
(1942);
Deitrick v. Greaney, 309 U.
S. 190 (1940);
Board of Comm'rs v. United
States, 308 U. S. 343
(1939);
United States v. Crain, 589 F.2d 996 (CA9 1979).
Moreover, in each of these cases, federal law was deemed
controlling because the rights that the complainant sought to
protect or enforce were created by federal statutes. In contrast,
petitioner here seeks to enforce a state statute.
[
Footnote 16]
This Court elsewhere has reviewed the "long history" of the
federal officer removal statute.
Willingham v. Moran,
395 U. S. 402,
395 U. S.
405-406 (1969). It has been 100 years since the Court in
Tennessee v. Davis, 100 U. S. 257
(1880), first emphasized the need to safeguard the exercise of
legitimate federal authority:
"[The Federal Government] can act only through its officers and
agents, and they must act within the States. If, when thus acting,
and within the scope of their authority, those officers can be
arrested and brought to trial in a State court, for an alleged
offense against the law of the State, yet warranted by the Federal
authority they possess, and if the general government is powerless
to interfere at once for their protection -- if their protection
must be left to the action of the State court -- the operations of
the general government may at any time be arrested at the will of
one of its members."
Id. at
100 U. S.
263.
[
Footnote 17]
In the area of general civil removals, it is well settled that,
if the state court lacks jurisdiction over the subject matter or
the parties, the federal court acquires none upon removal, even
though the federal court would have had jurisdiction if the suit
had originated there.
Freeman v. Bee Machine Co.,
319 U. S. 448,
319 U. S. 449
(1943);
Minnesota v. United States, 305 U.
S. 382,
305 U. S. 389
(1939);
Lambert Run Coal Co. v. Baltimore & Ohio R.
Co., 258 U. S. 377,
258 U. S. 382
(1922). This principle of derivative jurisdiction is instructive
where, as here, relevant state court jurisdiction is found to exist
and the question is whether the federal court in effect loses such
jurisdiction as a result of removal. Of course, because appellate,
rather than original, jurisdiction is at issue, the analogy is not
perfect.
See Subpart B,
infra.
[
Footnote 18]
By enacting the current version of 18 U.S.C. § 3731,
see 84 Stat. 1890, Congress manifested an intent to remove
all statutory barriers to a criminal appeal taken by the Federal
Government.
United states v. Wilson, 420 U.
S. 332,
420 U. S. 337
(1975). Petitioner argues that this intent should inform our
deliberations concerning a state prosecution's appellate rights
upon removal to federal court. A proper respect for the State's
interest in enforcing its own criminal laws, however, counsels
against that conclusion. While the policy announced in § 3731 might
perhaps be viewed as indicative of congressional support for any
prosecutor's appeal in federal court, the statute does not speak in
such terms. Moreover, if § 3731 is construed to extend broad
appellate rights to a State that does not authorize comparable
rights under state law, one result might be to inhibit the exercise
of the removal right, contrary to established federal policy. In
light of these uncertainties, and our resolution of the case on
other grounds, we do not reach the question whether § 3731 applies
to the States.
[
Footnote 19]
Congress, from the very beginning, provided that final civil
judgments were reviewable as a matter of statutory right. Judiciary
Act of Sept. 24, 1789, § 22, 1 Stat. 84. Later, when the growing
volume of appellate business threatened to overwhelm this Court's
docket, Congress acted to establish circuit courts of appeals.
Judiciary Act of Mar. 3, 1891, 26 Stat. 826.
See, e.g.,
H.R.Rep. No. 1295, 51st Cong., 1st Sess., 3-4 (1890); 21 Cong.Rec.
10220-10222 (1890) (remarks of Sen. Evarts). While preserving,
under § 5 of the 1891 Act, 26 Stat. 827, several designated
categories of cases under this Court's direct appellate
jurisdiction, the Act, in § 6, conferred on the new intermediate
appellate court the power to review and revise final judgments in
all other cases, civil and criminal, "unless otherwise provided by
law." 26 Stat 828. Through a succession of recodifications and
technical amendments, § 6 of the 1891 Act has been carried forward
as 28 U.S.C. § 1291.
[
Footnote 20]
There is disagreement among scholars as to whether, at common
law in England, the prosecution could appeal.
See R.
Moreland, Modern Criminal Procedure 273 (1959); L. Orfield,
Criminal Appeals in America 57 (1939); Miller, Appeals by the State
in Criminal Cases, 36 Yale L.J. 486, 491 (1927); Note, Criminal
Procedure -- Right of State to Appeal, 45 Ky.L.J. 628, 629 (1957).
See generally United States v. Sanges, 144 U.
S. 310,
144 U. S. 312
(1892).
[
Footnote 21]
See United States v. Sanges, 144 U.S. at
144 U. S.
313-318, and cases cited therein.
See also L.
Orfield, Criminal Appeals in America 58 (1939); Comment, State
Appeals in Criminal Cases, 32 Tenn.L.Rev. 449, 450-451 (1965) .
[
Footnote 22]
In
Sanges, the Government sought review of 3 lower
court judgment quashing the federal indictment. The Court
determined that no provision of the new 1891 Judiciary Act had
conferred upon the United States the right to appeal a criminal
judgment. 144 U.S. at
144 U. S.
322-323.
[
Footnote 23]
After finding no such express permission in the federal statute
there at issue, the Court concluded as follows:
"In none of the provisions of this act defining the appellate
jurisdiction either of this court or of the Circuit Court of
Appeals is there any indication of an intention to confer upon the
United States the right to bring up a criminal case of any grade
after judgment below in favor of the defendant. It is impossible to
presume an intention on the part of Congress to make so serious and
far-reaching an innovation in the criminal jurisprudence of the
United States."
Id. at
144 U. S. 323.
[
Footnote 24]
At least partially in response to the
Sanges decision,
Congress passed the Criminal Appeals Act of Mar. 2, 1907, ch. 2564,
34 Stat. 1246 conferring limited rights of appeal on the United
States in criminal cases.
See, e.g., H.R.Rep. No. 2119,
59th Cong., 1st Sess., 3 (1906); S.Rep. No. 5650, 59th Cong., 2d
Sess., 1 (1907). Following this Court's opinion in
United
States v. Sisson, 399 U. S. 267
(1970), Congress broadened the Federal Government's right of appeal
to its current status under 18 U.S.C. § 3731. 84 Stat. 1890.
[
Footnote 25]
Respondent and the dissent unsuccessfully attempt to derive
support from the decision in
Maryland v. Soper,
270 U. S. 9 (1926).
There this Court awarded Maryland mandamus relief after the State
had challenged the legality of removing a particular criminal
prosecution to federal court. In general, this decision supports
the ability of a State to secure review in a removed criminal
prosecution. Moreover, the decision held simply that mandamus was
appropriate in the absence of any other means of reviewing the
District Court's order refusing remand. Respondent and the dissent
seek to rely on the Court's further statement in
Soper,
270 U.S. at
270 U. S. 30,
that, once a criminal action is removed to federal court, "a
judgment of acquittal in that court is final.
United States v.
Sanges, 144 U. S. 310."
Although this statement is merely dictum, to respondent and the
dissent, it implies that a state prosecutor lacks congressional
authorization to take an appeal in federal court. We, however,
adopt what we view as a more sensible reading, namely, that the
Court's statement reflects an awareness of controlling double
jeopardy doctrine, which, at the time, was thought to protect a
defendant once a judgment of acquittal had been entered in federal
court.
See, e.g., Kepner v. United States, 195 U.
S. 100,
195 U. S. 130,
195 U. S. 133
(1904);
United States v. Ball, 163 U.
S. 662,
163 U. S. 671
(1896).
But see United States v. Wilson, 420 U.
S. 332 (1975). Since this Court had earlier assumed,
without deciding, that the Double Jeopardy Clause of the Fifth
Amendment applied to state prosecutions,
see Dreyer v.
Illinois, 187 U. S. 71,
187 U. S. 85-86
(1902), it would not have been unreasonable for a state court or
prosecutor to make the same assumption in 1926. Of course, the
decision in
Soper could hardly reflect awareness that, 11
years later, the Court would decline to extend Fifth Amendment
double jeopardy protection in prosecutions brought by a State.
See Palko v. Connecticut, 302 U.
S. 319 (1937),
overruled by Benton v. Maryland,
395 U. S. 784
(1969).
[
Footnote 26]
The relevance of state authorization to our jurisdictional
determination under 28 U.S.C. § 1291 does not affect the
exclusively federal character of the forms of review available once
the state sovereign enters federal court. Thus, while Arizona's
authorization of appellate review by certiorari has no precise
analogue in the federal system, it is necessary to choose from
among the available forms of federal review. As noted above,
Arizona law authorizing review for abuse of discretion is
administered in a sufficiently routine manner as to be more akin to
ordinary federal appellate review than to the federal mandamus
remedy reserved for extraordinary circumstances. We express no view
regarding the correct federal analogue for a State with a right of
review that is more limited than that afforded by Arizona law.
[
Footnote 27]
We have no occasion to address the situation where state law
does not authorize the review sought by its prosecutor in federal
court. We note, however, that, in the majority of States, the
prosecution possesses at least some rights to appeal from an
adverse judgment in a criminal case.
See Note, Limited
Right of Appeal for the State, 14 Hous.L.Rev. 735, 737 (1977).
Similarly, because we find that appellate jurisdiction exists under
§ 1291 combined with relevant Arizona law, we do not decide the
applicability of § 3731 to the States.
See n 18,
supra.
The dissent suggests that this case presents an anomalous
circumstance. But an anomaly is created only if we accept that
Congress denied a State the right, established under state law, to
prosecute an appeal when the proceeding is removed to federal
court.
JUSTICE STEVENS, concurring.
There is a distinction between a court's power to accept an
appeal and an executive's power to prosecute an appeal. The
question whether the United States Court of Appeals in this case
had jurisdiction to entertain the appeal is a federal
Page 451 U. S. 251
question. I agree with the Court's conclusion that such
jurisdiction is conferred by 28 U.S.C. § 1291.
*
The question whether the prosecutor had authority to prosecute
an appeal is, I believe, a question controlled by the law of the
sovereign that the prosecutor represents. I therefore agree with
the Court's conclusion that the holding in
United States v.
Sanges, 144 U. S. 310, to
the effect that a federal prosecutor had no such authority in 1892,
is not controlling in this case. The controlling authority is
conferred by Arizona, which does empower its prosecutors to appeal
in the situation presented here.
Although this simple analysis persuades me to join the Court's
opinion, I write separately to emphasize that it lends no support
to an argument that 18 U.S.C. § 3731, or any other federal statute,
would authorize an appeal by a state prosecutor.
* Title 28 U.S.C. § 1291 provides in part:
"The courts of appeals shall have jurisdiction of appeals from
all final decisions of the district courts of the United States. .
. ."
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
United States v. Sanges, 144 U.
S. 310 (1892), announced the general rule that
governments may not appeal in criminal cases in the federal courts
in the absence of express statutory authority. Finding,
inter
alia, that the predecessor to 28 U.S.C. § 1291 was not
sufficiently express, [
Footnote
2/1]
Sanges refused to allow an appeal by the Federal
Government. Today,
Page 451 U. S. 252
however, the Court intertwines § 1291 with an Arizona statute
authorizing writs of certiorari on behalf of the State in criminal
cases in the Arizona courts to make § 1291 "sufficiently express"
to authorize a State to appeal from a federal district court's
judgment of acquittal. Because this result flouts Congress'
authority to regulate the jurisdiction of the lower federal courts,
I respectfully dissent.
I
The Court proposes the novel interpretation of
Sanges
and its progeny as
"flow[ing] from a tradition of requiring that a prosecutorial
appeal be affirmatively sanctioned by the same sovereign that
sponsors the prosecution."
Ante at
451 U. S. 249.
[
Footnote 2/2] I find this reading
of the
Sanges rule inaccurate: in my view,
Sanges
plainly requires express authorization from the legislative body
controlling federal court jurisdiction for all government appeals
in criminal cases in the federal courts. [
Footnote 2/3] The Court stated that the express
authorization must be made by the legislature "acting within its
constitutional authority." 144 U.S. at
144 U. S. 318.
Since Congress is the only entity constitutionally empowered to
grant express authority for government appeals in the federal
courts, the
Sanges principle necessarily confines our
inquiry to whether there is express authorization in federal
statutes controlling criminal appeals by the States in federal
court. Therefore, the Court's finding that Arizona, the sovereign
sponsoring the prosecution in the instant case, has sanctioned
prosecutorial appeals in its courts is irrelevant to the question
of federal appellate jurisdiction
Page 451 U. S. 253
here. Focusing as we must on federal statutes, I find the
pertinent federal statutes wholly barren of any express
authorization of criminal appeals by States to the federal courts
of appeals. [
Footnote 2/4] Today,
as in 1892, § 1291
"says nothing as to the party by whom the writ of error may be
brought, and cannot therefore be presumed to have been intended to
confer upon the government the right to bring [an appeal]."
Id. at 144 U.S. 323323.
This conclusion is supported by
Maryland v. Soper,
270 U. S. 9 (1926),
which relied on the
Sanges rule to conclude that a State
has no right of appeal from a decision of a federal district court
in a criminal case removed from state court. In
Soper,
four United States prohibition agents and their chauffeur were
indicted for murder in the State of Maryland. The defendants
petitioned the Federal District Court for removal, averring that
they were federal agents [
Footnote
2/5] and that their acts "were done in the discharge of their
official duties as prohibition agents." 270 U.S. at
270 U. S. 22. The
District Court granted defendants' petition, and the State
subsequently applied to this Court for a writ of mandamus to
overturn the removal order. Over respondent's objection that
mandamus did not lie to correct an erroneous removal order, this
Court granted the writ. Observing that "there should be a more
liberal use of mandamus [in removal of State criminal cases] than
in removal of civil cases,"
id. at
270 U. S. 29, the
Court specifically noted:
"Except by issue of mandamus, [the State] is without an
opportunity to invoke the decision of this Court upon the issue it
would raise. The order of the United States District Judge refusing
to remand is not open to review
Page 451 U. S. 254
on a writ of error, and a
judgment of acquittal in that
court is final. United States v. Sanges, 144 U. S.
310. . . . "
Id. at
270 U. S. 30
(emphasis added). Significantly, the predecessor to § 1291 was
available then, as it is now, to support an argument that the State
had a right of appeal. Nonetheless, on the strength of
Sanges, the Court concluded that a judgment of acquittal
was unreviewable [
Footnote 2/6]
because there was no express
federal statute authorizing
an appeal by the State.
See Government of Virgin Islands v.
Hamilton, 475 F.2d 529, 530-531 (CA3 1973).
The Court attempts to deflect the force of this precedent by
interpreting
Maryland v. Soper as merely
"reflect[ing] an awareness of controlling double jeopardy
doctrine, which at the time was thought to protect a defendant once
a judgment of acquittal had been entered in federal court."
Ante at
451 U. S. 248,
n. 25. But this is a clearly incorrect reading, for it ignores the
fact that, at the time
Maryland v. Soper was decided, the
prohibition contained in the Fifth Amendment's Double Jeopardy
Clause was applicable only against the
Federal Government in
federal prosecutions, and not against
state governments in
state prosecutions. See Palko v. Connecticut,
302 U. S. 319
(1937). [
Footnote 2/7] It was not
until 32 years later that
Benton
Page 451 U. S. 255
v. Maryland, 395 U. S. 784
(1969), overruled
Palko and held that the Double Jeopardy
Clause was applicable against the States. Since the Double Jeopardy
Clause did not apply to prosecutions initiated by the States, and
state substantive law governed criminal cases removed to federal
district court,
Tennessee v. Davis, 100 U.
S. 257,
100 U. S. 271
(1880), the Court's suggestion that the statement in
Maryland
v. Soper referred to double jeopardy limitations is plainly
unfounded.
II
Even on its own terms, the Court's opinion is unpersuasive. The
Court concludes that appeals by the States are permissible under §
1291
"when the legislature responsible for that power has spoken in
express terms, or when a legislative enactment has been
authoritatively construed by the sovereign's highest court."
Ante at
451 U. S. 249.
The Arizona statute supposedly authorizing appeal, however, is
anything but "express." That statute provides:
"The writ of certiorari
may be granted by the supreme
and superior courts or by any judge thereof, in all cases when an
inferior tribunal, board or officer, exercising judicial functions,
has exceeded its jurisdiction and there is no appeal, nor, in the
judgment of the court, a plain, speedy and adequate remedy."
Ariz.Rev.Stat.Ann. § 12-2001 (1956) (emphasis added). The State
may obtain a writ of certiorari by filing a petition for special
action pursuant to Rule 4, Rules of Procedure for Special Actions,
vol. 17A, Ariz.Rev.Stat.Ann. (1973).
If it be true the State's petition for review "has been
routinely granted" by the appellate courts,
ante at
451 U. S. 240,
this hardly qualifies as an authoritative construction by the
State's highest court that the
statute itself authorizes
review in every case. The Court has failed to cite a single
precedent in which the Arizona Supreme Court has investigated the
intent of the state legislature in passing the statute
authorizing
Page 451 U. S. 256
prosecutorial appeals. More importantly, by relying on state
court decisions allowing certiorari review on behalf of the State,
the Court has undercut the only rationale justifying today's
result. The Court reasons:
"Our continuing refusal to assume that the United States
possesses any inherent right to appeal reflects an abiding concern
to check the Federal Government's possible misuse of its enormous
prosecutorial powers. By insisting that Congress speak with a clear
voice when extending to the Executive a right to expand criminal
prosecutions,
Sanges and its subsequent applications have
placed the responsibility for such assertions of authority over
citizens in the democratically elected legislature, where it
belongs."
Ante at
451 U.S.
247.
It is difficult to understand how the Court's insistence that
the democratically elected legislature speak with a clear voice can
be satisfied without interpretive decisions of the State's highest
court holding that the state legislature has done so in the case of
§ 12-2001. Indeed, the Court's application of a less stringent
requirement of clarity in the case of state legislation than in the
case of federal legislation,
see, e.g., United States v. Martin
Linen Supply Co., 430 U. S. 564,
430 U. S. 568
(1977) ("express congressional authorization");
United States
v. Wilson, 420 U. S. 332,
420 U. S. 336
(1975) ("express statutory authority");
DiBella v. United
States, 369 U. S. 121,
369 U. S. 130
(1962) ("expressly authorized by statute");
Carroll v. United
States, 354 U. S. 394,
354 U. S. 399
(1957) ("expressly conferred by statute");
United States v.
Burroughs, 289 U. S. 159,
289 U. S. 161
(1933) ("express statutory authority");
United States v.
Sanges, 144 U.S. at
144 U. S. 318
("statute expressly giving the right"), is surely unprecedented.
The Court has offered no justification for its more expansive
treatment of state statutes. Indeed, since the Court has convinced
itself that there are "express" provisions in the Arizona statute,
I see no logical barrier -- under the Court's novel determination
of what is
Page 451 U. S. 257
"express" -- to a construction of § 1291 as an express grant of
authority for state appeals,
without reference to state
statutes.
III
The Court has noted time and again that appeals by the
government in criminal cases are exceptional, and not favored.
E.g., Will v. United States, 389 U. S.
90,
389 U. S. 96-97
(1967);
DiBella v. United States, supra, at
369 U. S. 130;
Carroll v. United States, supra, at
354 U. S. 400.
I would have thought, therefore, that the Court would be especially
careful before concluding that Congress intended that § 1291 would
authorize criminal appeals by the State in removal cases. [
Footnote 2/8]
See Will v. United
States, supra, at
389 U. S. 96-97
("the Criminal Appeals Act is strictly construed against the
Government's right of appeal"). Instead, the Court has abandoned
its traditional presumption in this area to imply -- on the
strength of its own policy analysis -- authorization for a state
appeal in a criminal case where no federal statute expressly
authorizes one. But
"[i]t is axiomatic . . . that the existence of appellate
jurisdiction in a specific federal court over a given type of case
is dependent upon authority expressly conferred by statute. And
since the jurisdictional statutes prevailing at any given time are
so much a product of the whole history of both growth and
limitation of federal court jurisdiction . . . , they have always
been interpreted in the light of that history, and of the axiom
that clear statutory mandate must exist to found jurisdiction."
Carroll v. United States, supra, at
354 U. S.
399.
Page 451 U. S. 258
It is hard to imagine a federal "statutory mandate" for
government appeals that is less clear than one that fluctuates
depending on state law.
This case admittedly presents an anomalous circumstance,
[
Footnote 2/9] and concededly there
is great temptation to correct it. But because I believe it is for
Congress, not the courts, to make changes in federal jurisdictional
statutes,
cf. Will v. United States, supra, at
389 U. S. 97, n.
5, I respectfully dissent.
[
Footnote 2/1]
This statute, the Judiciary Act of 1891, provided that
"appeals or writs of error may be taken from the district courts
or from the existing circuit courts direct to the Supreme Court . .
. [i]n any case that involves the construction or application of
the Constitution of the United States,"
26 Stat. 827-828, and to the circuit courts of appeal from final
decisions of the district courts "in all cases other than those
provided for in the preceding section of this act, unless otherwise
provided for by law,"
id. at 828.
[
Footnote 2/2]
The Court also finds that allowing an appeal would not frustrate
the removal statute's primary purpose of providing an impartial
setting in which a federal official's immunity defense may be
considered.
Ante at
451 U. S.
241-242. But the Court candidly admits that this alone
would not establish the State's right to appeal in federal court.
Ante at
451 U. S.
244.
[
Footnote 2/3]
Because
Sanges dealt with a Government appeal to this
Court,
see 451
U.S. 232fn2/1|>n. 1,
supra, the Court observed that
"[t]he appellate jurisdiction of [this Court] rests wholly on the
acts of Congress." 144 U.S. at
144 U. S.
319.
[
Footnote 2/4]
Title 18 U.S.C. § 3731, authorizing criminal appeals from
federal district courts by the United States, obviously cannot be
read to give that authority to state prosecutors in removal
cases.
[
Footnote 2/5]
The petition claimed that the chauffeur was assisting the four
agents under the authority of the Prohibition Director.
[
Footnote 2/6]
The State of Maryland had conceded as much in its argument in
its brief that,
"[s]hould the final judgment be an acquittal, in whole or in
part, the State could not have a writ of error to review it.
United States v. Sanges, 144 U. S. 310. Unless this Court
entertains the petition for mandamus, the State is without any
redress."
See Maryland v. Soper, 270 U.S. at 12 [argument of
counsel -- omitted].
[
Footnote 2/7]
In
Palko, the Court rejected the broad thesis that
"[w]hatever would be a violation of the original bill of rights
(Amendments I to VIII) if done by the federal government is now
equally unlawful by force of the Fourteenth Amendment if done by a
state."
302 U.S. at
302 U. S. 323.
Observing that
"[t]o retry a defendant, though under one indictment and only
one, subjects him, it is said, to double jeopardy in violation of
the Fifth Amendment if the prosecution is one on behalf of the
United States,"
the Court declined to adopt the argument that "there is a denial
of life or liberty without due process of law if the prosecution is
one on behalf of the People of a State."
Id. at
302 U. S.
322.
[
Footnote 2/8]
Indeed, until Congress amended 18 U.S.C. § 3731 in 1971, no
appeal would have been permitted the United States in a prosecution
similar to the instant case. The Court's opinion today introduces
the anomaly that § 1291 could be interpreted to permit appeals by
state, but not by federal, prosecutors in federal court. Surely it
is more reasonable to read § 1291 as not authorizing government
appeals in any criminal case, whether federal or state.
[
Footnote 2/9]
I suspect that Congress has never considered the issue presented
in this case. The Court does not suggest the contrary.