State of Arizona v. William Dale Manypenny

608 F.2d 1197 STATE OF ARIZONA, Plaintiff-Appellant, v. William Dale MANYPENNY, Defendant-Appellee. No. 77-3453. United States Court of Appeals, Ninth Circuit. July 9, 1979. As Amended Aug. 13, 1979. Stephen D. Neely, County Atty., D. Jesse Smith, Deputy County Counsel, Tucson, Ariz., for plaintiff-appellant. James D. Whitney, Tucson, Ariz., for defendant-appellee. Appeal from the United States District Court for the District of Arizona. Before CHOY and KENNEDY, Circuit Judges, and HALL, * District Judge. CHOY, Circuit Judge: 1 The State of Arizona brought this criminal prosecution against Manypenny, a border patrolman of the United States Immigration and Naturalization Service. The State charged Manypenny with assault with a deadly weapon in violation of Arizona law. Ariz.Rev.Stat. § 13-249(A) & (B). On Manypenny's motion, the case was removed to federal court. See 28 U.S.C. § 1442 (a)(1). 1 2 After trial, the jury returned a verdict of guilty. Manypenny then moved for arrest of judgment or, alternatively, for a new trial. See Fed.R.Crim.P. 33, 34. The court granted the Rule 34 motion for arrest of judgment. Thereafter, the State moved for reconsideration of the…

The State of Arizona brought this criminal prosecution against Manypenny, a border patrolman of the United States Immigration and Naturalization Service. The State charged Manypenny with assault with a deadly weapon in violation of Arizona law. Ariz.Rev.Stat. § 13-249(A) & (B). On Manypenny’s motion, the case was removed to federal court. See 28 U.S.C. § 1442 (a)(1).

After trial, the jury returned a verdict of guilty. Manypenny then moved for arrest of judgment or, alternatively, for a new trial. See Fed.R.Crim.P. 33, 34. The court granted the Rule 34 motion for arrest of judgment. Thereafter, the State moved for reconsideration of the grant of the Rule 34 motion. The court granted the motion for reconsideration, but no action was taken for a year.

On September 8, 1977, Manypenny moved for a hearing to determine the status of the State’s pending motion. The hearing was held on September 26. Two days later, the district court reversed its previous order *1199 arresting judgment. The court construed Manypenny’s Rule 34 motion to be a motion for judgment of acquittal under Fed.R. Crim.P. 29(c), granted the motion for acquittal, set aside the jury’s verdict and held Manypenny not…

dissenting:

I respectfully dissent from the majority’s conclusion that we are without jurisdiction to entertain this appeal.

There are two possible sources of jurisdiction, 18 U.S.C. § 3731 and 28 U.S.C. § 1291 . With respect to section 3731, the majority concludes that the section must be confined to the United States. This is a reasonable position and it certainly has textual validity. But while a court cannot ignore the language of the statute, the Supreme Court has warned against “the dangers of an approach to statutory construction which confines itself to the bare words of a statute for ‘literalness may strangle meaning.’ ” Lynch v. Overholser, 369 U.S. *1201 705, 710 , 82 S.Ct. 1063, 1067 , 8 L.Ed.2d 211 (1962) (quoting Utah Junk Co. v. Porter, 328 U.S. 39, 44 , 66 S.Ct. 889 , 90 L.Ed. 1071 (1946)). It is true that no court has ever interpreted section 3731 as providing for appeals by a state; on the other hand we find no holding to the contrary. This is, apparently, a case of first impression. The legislative history reveals that Congress simply never considered the question before us. I conclude that Congress did not intend a state to be completely prohibited from…