Arizona v. Manypenny

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.

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.1 INS officials knew that the Pass was frequently traveled by aliens illegally entering the United States. While patrolling 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.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.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 Hjelle to stop any suspected illegal alien, identify himself, and conduct a brief inquiry to determine the suspect’s status, while respondent approached from behind.

The three men emerged from the canyon and saw Hjelle, who ordered them to stop. Id., at 16-17, 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. §§ 13-249 A and B (Supp. 1973).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),5 removed the case to the United States District Court 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 Grim. Proc. 33 and 34.6 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.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 Neagle, 135 U. S. 1, 75 (1890), and Clifton v. Cox, 549 F. 2d 722 (CA9 1977), the District Court reasoned that respondent 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 P. 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,8 the State filed a timely notice of appeal from the acquittal. It invoked the appellate court’s jurisdiction under 18 II. S. C. § 3731.9 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.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. 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, 568 (1977); United States v. Wilson, 420 U. S. 332, 336 (1975); United States v. Sanges, 144 U. S. 310, 312, 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. § 1291,11 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 1200-1202.1212

We granted certiorari in order to resolve a problem of appellate jurisdiction created by the federal removal statute. 445 U. S. 960 (1980). 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).13 The State’s petition for review has been 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 , State ex rel.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).1414

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.

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 pre-empting 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, 271-272 (1880). See Fed. Rule Crim. Proc. 54(b)(1), Advisory Committee Notes, 18 U. S. C. App., pp. 1480-1481.15

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.16 The act 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. 610, 617-518 (1932); Maryland v. Soper, 270 U. S. 9, 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, 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.Ibid.

“[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 263.

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.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, this Court retains the highest regard for a State's right to make and enforce its own criminal laws. Colorado v. Symes, 286 II S., at 517-618.

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, 201 (1977). Because the regulation of crime is pre-eminently 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, 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 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.18

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 proceedings.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, 96 (1967), quoting from Carroll v. United States, 354 U. S. 394, 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.20 Accordingly, from the early days of the Republic, most state courts refused to consider appeals by prosecutors who lacked the requisite statutory authority,21

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, 16 (1978); Fong Foo v. United States, 369 U. S. 141, 143 (1962). See generally United States v. DiFrancesco, 449 U. S. 117, 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.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, 130 (1962); Carroll v. United States, 354 U. S. *247394, 400-403 (1957). See Will v. United States, 389 U. S. 90, 96-97 (1967); United States v. Burroughs, 289 U. S. 159, 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 323.23 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.2424

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.25 For the purposes of 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.26 In the circumstances of this case, no more is required.27

Ill

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.