The opinion of the court was delivered by: Nicholas G. Garaufis, District Judge
Before the court is defendant Jude Tanella's motion, pursuant Rule 12(b) of the Federal Rules of Criminal Procedure, to dismiss the indictment on the ground that he is immune from prosecution under the Supremacy Clause of the United States Constitution. For the reasons stated here, the motion to dismiss the indictment is granted.
Jude Tanella is a special agent with the United States Drug Enforcement Administration ("DEA"). At the time of the events giving rise to this case, he was assigned to Group D-24, New York Field Division, Drug Enforcement Task Force. (A. 265, 310, 366).*fn2 Group D-24 consisted of approximately sixteen to eighteen law enforcement officers from both the DEA and the New York City Police Department. (A. 199-210).
In April of 2002, as a result of a DEA investigation in another state, an individual was arrested in New York. (A. 245-47, 209-10). This individual became a confidential informant "CI". (A. 246-47, Page 2 266-67). The CI identified Egbert Dewgard as a person who had supplied him in the past with approximately 25 to 30 kilograms of cocaine. (A. 246-47).
Special Agent Rafael Reyes of the DEA was the supervising agent in charge of Group D-24. The second in command was New York City Police Sergeant William Murray. Agent Reyes assigned Special Agent Leonard Johnson and Detective Pedro Colon to be the co-case agents of the investigation into Dewgard. (A. 244-45, 266, 210-11). The CI provided Agent Johnson and Detective Colon with Dewgards home address, place of business, cell phone and telephone numbers, a description of Dewgards car, and the addresses of Dewgards relatives. (A. 247). Detective Colon confirmed the information provided by the CI. (A. 248, 271).
On April 27, 2002, the CI contacted Detective Colon and said that Dewgard had just called him and had asked if the informant was interested in purchasing "white T-shirts." (A. 248-49). "White T-shirts" referred to kilograms of cocaine. (A. 249). Dewgard also asked the informant if he had any guns for sale. (Id.). The informant told Dewgard that he was interested in purchasing cocaine, but that he had no weapons and that he, the informant, would call back Dewgard later in the week. (Id.).
On April 30, 2002, the CI was brought to the New York Field Division Office of the DEA. (A. 249, 251). The CI placed two telephone calls to Dewgard, which Detective Colon monitored. (A. 249-51). During the course of these telephone conversations, the CI agreed to purchase three T-shirts, meaning three kilograms of cocaine, from Dewgard. (A. 250-51, 267). The CI attempted to negotiate the price down, but Dewgard informed him that he could not alter the price because the cocaine was not his. (A. 250-51). The CI and Dewgard agreed that the CI would call Dewgard the following day to arrange the time and place of the transaction. (A. 251). Page 3
After the telephone conversations between the CI and Dewgard, Agent Johnson and Detective Colon prepared a "tact plan," which described how they intended to arrest Dewgard. (A. 212-13, 251-52, 267-68, 272). Agent Tanella and ten other members of Group D-24 were chosen to participate in this operation. (A. 213, 271-72). According to the plan, on the morning of May 1, 2002, the field team would establish surveillance on Dewgard's home and at Dewgard's place of business, a printing shop in Brooklyn. (A. 212-13, 252-53). The CI would call Dewgard to set up a time and place for the exchange. (A. 213-14, 253, 267). Agent Johnson and Detective Colon instructed the informant to try to set up the exchange in a borough other than Brooklyn, because they believed that it would be safer to arrest Dewgard outside his own neighborhood. (A. 214, 253). The field team planned to follow Dewgard on his way to the exchange. (A. 215). Once the field team determined that Dewgard was in possession of the cocaine, they would stop Dewgard's car and arrest him. (A. 215, 268). Agent Johnson and Detective Colon hoped to arrest Dewgard before he reached the agreed-upon location for the exchange. (A. 215, 268). On the night of April 30, 2002, the agents and detectives who were to be part of the field team were advised of their assignments for the following day. (A. 216, 252, 314-15, 347-48).
On the morning of May 1, 2002, Agent Tanella and other members of the field team began their surveillance of Dewgard's home and place of business. (A. 215-16, 253, 314-16, 398). The agents and detectives were dressed in plainclothes and they were driving unmarked government cars. (A. 201-07, 216-17, 224, 396-98). The unmarked cars were equipped with DEA radios, so that the agents and detectives could remain in constant radio contact. (A. 207-08, 275, 321, 397-98). The agents and detectives were armed with .40 caliber semi-automatic pistols. (A. 201-02). Page 4
Agent Tanella arrived at Dewgard's residence shortly before 7:00 a.m. and began surveillance of the home. He was the first member of the team to arrive. At about 7:15 or 7:30 a.m., Agent Tanella saw Dewgard leave his home, enter a car, and drive away. (A. 219). Tanella radioed Sergeant Murray that Dewgard was driving away, and was instructed to follow Dewgard's car. Sergeant Murray also informed Tanella that he, Sgt. Murray, was right behind him and was also following the car. After reporting this activity to Detective Colon, Agent Tanella and Sgt. Murray were instructed by Detective Colon to let Dewgard go because he would be returning to his residence later to drive his children to school. Agent Tanella and Sgt. Murray then returned to the residence.
It appears that Dewgard drove to his printing shop, where other members of the field team saw him. (A. 220). Agent Tanella and the other members of the field team who were performing surveillance at Dewgard's home were ordered to join the surveillance at Dewgard's printing shop. (A. 371, 399).
While Dewgard was inside the printing shop, the CI, who was with Detective Colon and another agent in Queens, called him to arrange the time and place for the drug transaction. (A. 218, 253, 297-98). The CI made three telephone calls to Dewgard, which were monitored by the law enforcement officers who were with him. During these telephone calls, the informant attempted to persuade Dewgard to make the transaction in Queens County, but Dewgard refused. (A. 219, 254-55). The informant eventually agreed to meet Dewgard in the vicinity of his home in Brooklyn. (A. 255-56, 299). Dewgard mentioned that he would need a little time because he had to pick up the drugs before the exchange. (A. 219, 256, 299). Detective Colon notified the field team that the time of the exchange was set for 11:00 or 11:30 a.m. in the vicinity of Dewgard's home. Page 5
At around 10:30 a.m., members of the field team saw Dewgard leave his printing shop and drive away. (A. 220, 257, 321, 399-400). Agent Reyes ordered the field team to follow Dewgard's car. (A. 220, 321). Dewgard drove to an apartment building, parked in front of it and remained inside his car. (A. 257, 276, 400-401). A man carrying a black plastic bag exited the apartment building, approached Dewgard's car, and placed the black plastic bag on the passenger seat of Dewgard's car. (A. 221, 257, 402). After a brief conversation the man went back into the building and Dewgard drove away. (A. 402). Agent Reyes instructed the field team to continue to follow Dewgard. (A. 221). At this point, three vehicles were following Dewgard's vehicle: Agent Tanella was by himself in one vehicle, Detective Edward Corcoran was by himself in another vehicle, and Agents Scott Herbel and Dennis Peterson were together in the third vehicle.
Soon thereafter, while Dewgard's car was stopped at a red light, Agent Reyes gave the order to effect a car stop and arrest Dewgard. The car with Agents Herbel and Peterson was directly behind Dewgard, and they were instructed to make the arrest. Detective Corcoran tried to box in Dewgard's car by driving his car around Dewgard's and turning in front of it so that the side of his car prevented Dewgard's car from moving forward. (A. 324-25, 327, 404-05). Agent Peterson placed a flashing red light on the dashboard of his car and he and Agent Herbel began to exit their car in order to make the arrest. (A 207, 317-18, 324-26). Agent Tanella was directly next to the car with Agents Herbel and Peterson.
Dewgard then looked in his rear view mirror and over his right shoulder. (A. 405). At first, Dewgard's car started to roll forward slowly. (A. 324, 326, 405). Then he turned his steering wheel to the right and pressed the accelerator, ramming the right front bumper of Detective Corcoran's car. Page 6 Dewgard then drove up onto the sidewalk past Detective Corcoran and continued driving along Farragut Road at an extremely high rate of speed. (A. 325, 327, 405-06).
The field team immediately began pursuing Dewgard. (Id.). Detective Corcoran's car was initially leading the pursuit, but because he did not have lights or sirens in his car, he pulled aside to permit the remaining cars to take the lead. (A. 328, 405-06). Agent Tanella, whose lights and sirens were on, started to lead the pursuit. (A. 327-28, 406, 408). The other members of the field team lost sight of the pursuit, but heard Agent Tanella continuously transmitting his location on the radio.
The pursuit continued on Farragut Road for approximately fifteen blocks. Farragut Road has one lane of traffic in each direction. Dewgard drove his car at a high rate of speed, often swerving into oncoming traffic and onto the sidewalk. (Tanella 94).*fn3 He continued to drive in this manner until he drove up on the sidewalk and wedged his car in between a telephone pole and a hydrant at the intersection of Farragut Road and New York Avenue. (A. 7). In doing so, he nearly struck a woman and her baby who were on the sidewalk. (A. 8).
Dewgard then got out of his car and started running along New York Avenue towards Foster Avenue, still carrying the black plastic bag. (A. 9). Agent Tanella stopped his car next to Dewgard's, radioed the other officers that he was in a foot pursuit, and began to chase Dewgard. (A. 9-10). While Page 7 chasing Dewgard, Agent Tanella continued shout that he was the police and instructed Dewgard to stop.
At this point, the State's witnesses provide varying accounts of the events that followed. There is no dispute, however, that Agent Tanella caught up with Dewgard, and that a violent close quarter struggle ensued, during which Dewgard continued to resist Tanella's efforts to apprehend him. The two were struggling in a narrow space between two parked vehicles, just off the curb. At some point during the struggle, Agent Tanella fired one shot killing Dewgard.
Agent Tanella claims that during their struggle Dewgard reached for his gun, which Tanella perceived as an immediate threat to his life, forcing him to shoot. (Tanella 108-09). The State argues that Dewgard was getting the better of Agent Tanella throughout their struggle, and at one point managed to push Tanella away and resume his escape. According to the State's account, Tanella shot Dewgard in the back to prevent his escape. This, the State contends, was neither necessary nor proper, but was, rather, an unconstitutional use of force, which strips Tanella of immunity. Exactly what occurred during this struggle is at the heart of Agent Tanella's motion to dismiss, and forms the basis of the State's indictment. The various accounts of the State's witnesses are considered in greater detail below.
II. PROCEDURAL BACKGROUND
The State of New York, through the Office of the Kings County District Attorney, presented evidence to a grand jury, which returned a one-count indictment against Agent Tanella charging him with Page 8 Manslaughter in the First Degree, a violation of N.Y. Penal Law' 125.20(1).*fn4 Tanella was arraigned on the charge in Kings County Supreme Court on November 1, 2002, and entered a plea of not guilty.
On November 13, 2002, Tanella filed a Notice of Removal pursuant to the Federal Officers Removal Statute, 28 U.S.C. `1442(a) (1). The State filed briefs in opposition to removal, and oral argument was heard on December 12, 2002. By Memorandum and Order dated January 13, 2003 the court removed this case from the New York Supreme Court. See New York v. Tanella, 239 F. Supp.2d 291 (E.D.N.Y. 2003).
Agent Tanella filed the instant motion to dismiss the indictment pursuant to Fed.R.Crim.P. 12(b). The State filed a Memorandum of Law in Opposition to the Motion to Dismiss ("State Memo"), and a two-volume Page 9 appendix consisting of transcripts of the grand jury proceedings.*fn5 After the motion was fully briefed, the court heard oral argument on May 12, 2003.*fn6
Rule 12(b) of the Federal Rules of Criminal Procedure provides that "A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b) (2). The Advisory Committee Notes indicate that the defense of immunity is among the defenses which is "capable of determination without a trial of the general issue." See Kentucky v. Long, 837 F.2d 727, 750 (6th Cir. 1988) ("We therefore hold, as a general proposition, that a Rule 12(b) motion is a proper vehicle by which to assert the defense of immunity under the Supremacy Clause of the United States Constitution.").
Although a motion to dismiss generally presents the court with only issues of law, it is clear from Rules 12(d) and (f) that a court may make certain factual findings in deciding the motion. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."); Fed.R.Crim.P. 12(f) ("All proceedings at a motion hearing, including any findings of fact and conclusions of law made orally by the court, must be recorded by a court reporter Page 10 or a suitable recording device."); see also Long, 837 F.2d at 750 (noting that courts may make preliminary factual findings "necessary to decide the questions of law presented by a pre-trial motion"). The defense of Supremacy Clause immunity may be determined "without a trial of the general issue," Fed.R.Crim.P. 12(b) (2), "if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." United States v. Covington, 395 U.S. 57, 60 (1969). It is important to note the distinction — albeit a narrow one — between facts surrounding the commission of the offense, which may be for a jury to decide, and facts concerning the validity of the defense, which are properly the province of the court. The State blurs this distinction by arguing that the immunity defense should be decided by a jury.
The State also misconceives the distinction between Supremacy Clause immunity and the defense of justification under state law, arguing that the two are inextricably linked and should be resolved at trial. See State Memo, at 36. Such reasoning, however, is contrary to the rationale behind federal immunity. As the Sixth Circuit explained in Long, federal immunity under the Supremacy Clause is analogous to the concept of qualified immunity in the civil context. In both cases, "there comes a point early in the proceedings where the federal immunity defense should be decided in order to avoid requiring a federal officer to run the gauntlet of standing trial and having to wait until later to have the [immunity] issue decided." Long, 837 F.2d at 752; see Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (stating that qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial") (emphasis in original). Page 11
The burden of presenting evidence raising a material issue of fact concerning the validity of Supremacy Clause immunity is on the State. See Long, 837 F.2d at 752; City of Jackson v. Jackson, 235 F. Supp.2d 532, 534 (S.D. Miss. 2002). The court, however, views the evidence in the light most favorable to the State, and assumes the truth of the allegations in the indictment. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16 (1952) ("This case is here to review the granting of a motion to dismiss the indictment. It should not be necessary to mention the familiar rule that, at this stage of the case, the allegations of the indictment must be taken as true."); United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999) ("We must view all facts in the light most favorable to the government on a motion to dismiss [the indictment]."); Morgan v. California, 743 F.2d 728, 733 (9th Cir. 1984) (stating that in granting a writ of habeas corpus on the basis of the Supremacy Clause, the court must "view the disputed evidence in the light most favorable to the state"); Clifton v. Cox, 549 F.2d 722, 728 (9th Cir. 1977) (assuming the truth of the state's evidence in determining whether the conduct of a federal officer was necessary and proper).
This does not mean, however, that mere allegations by the State, without evidentiary support, are sufficient to raise a material issue of fact concerning the validity of the immunity defense. See Long, 837 F.2d at 752 ("We merely hold that, when a threshold defense of federal immunity is raised to meet a state criminal prosecution, the state cannot overcome that defense merely by way of allegations."). In this case, for example, the indictment does not allege any facts; it merely repeats the statutory elements of manslaughter in the first degree under New York law. Thus, for purposes of this motion, I assume that Tanella intended to "cause serious physical injury to another person, [and caused] the death of such person." N.Y. Penal Law `125.20(1). That fact, which is typically the general issue to be decided at Page 12 trial, provides "no assistance in determining the validity of the [immunity] ...