State of Arizona v. William Dale Manypenny

The case comes before us for a second time. Our earlier opinion is reported at 608 F.2d 1197 (9th Cir. 1979). William Many-penny was a United States border patrolman on duty near the line dividing Mexico from Arizona. In circumstances much disputed, he wounded an illegal alien and was indicted, under Arizona law, for assault with a deadly weapon. Manypenny removed the prosecution to the United States District Court for Arizona, as was his right under 28 U.S.C. § 1442 (a)(1) (1976). Before trial, Manypenny’s attorney apparently made a strategic choice not to raise the federal immunity defense of In re Neagle, 135 U.S. 1 , 10 S.Ct. 658 , 34 L.Ed. 55 (1890) and went to trial on the theory the shooting was accidental rather than justified. Upon trial, Manypenny was convicted.

The trial court entered judgment in accordance with the verdict and denied Many-penny’s timely Fed.R.Crim.P. 29 motions for acquittal based on insufficiency of the evidence. Manypenny moved for a new trial under Fed.R.Crim.P. 33 or, alternatively, arrest of judgment under Fed.R.Crim.P. 34, on the theory that since state law could not govern the acts of a federal official in the circumstances, the court lacked…