DICKINSON R. DEBEVOISE, UNITED STATES DISTRICT JUDGE
NATURE OF THE CASE
This is a criminal case instituted by a private complainant, Deborah Hadley, who charged defendant William Kinder with simple assault and battery in violation of N.J. Stat. Ann. 2C:12-1a. The Municipal prosecutor is not prosecuting this action. Until after argument of the motion addressed in this opinion, Ms. Hadley represented herself, but at trial she will prosecute the action through her private attorney pursuant to New Jersey Municipal Court Rule 7:4-4(b). This case was removed by defendant from the Municipal Court of New Brunswick, New Jersey, to this court pursuant to 28 U.S.C. § 1442(a). Defendant's motion to dismiss pursuant to Fed. R. Crim. P. 12(b) is presently before the court. Defendant contends, inter alia, that the authorization in Rule 7:4-4(b) for the use of a private prosecutor is unconstitutional. Despite certification by this court pursuant to 28 U.S.C. § 2403(b), the New Jersey Attorney General's Office has declined to exercise its right to intervene.
Defendant has related the following facts in an affidavit. Ms. Hadley works as a letter carrier in the New Brunswick Section of the United States Post Office in New Brunswick, New Jersey. On June 30, 1988, defendant was the acting supervisor of the North Brunswick Section of that office. It was his responsibility to assure that the letter carriers who serve North Brunswick picked up mail at the post office and delivered it to the residents of North Brunswick.
On June 30, Ms. Hadley was on "partial disability" which restricted her from actually delivering the mail. Instead, she was responsible for casing the mail for delivery. Defendant contends that on numerous occasions on the day in question he observed that Ms. Hadley was not doing her job, but was conducting non-work related conversations with other postal employees. Defendant claims that Ms. Hadley twice refused to obey defendant's order to leave the work floor so that he could reprimand her in private. Ms. Hadley charges that sometime after these refusals defendant committed an assault and battery by pushing her with his body.
A summons was issued to the defendant by the New Jersey Municipal Court on July 7, 1988. The summons and complaint charge defendant with simple assault and battery in violation of N.J. Stat.Ann. 2C:12-1a. The maximum penalty for such an offense is six months in prison and a fine of $ 1,000. N.J. Stat. Ann. 2C:43-3, 43-8.
On July 29, 1988, defendant removed the Municipal Court action to this court pursuant to 28 U.S.C. § 1442(a). In a letter to defense counsel after the case was removed, the Municipal Prosecutor declined to prosecute stating that his "prosecutorial powers are limited to the Municipal Court, City of New Brunswick" and therefore it is "inappropriate" for him to prosecute matters in any other court. The prosecutor also stated that "Citizen Complaints" like the one involved in this matter "are not prosecuted by the Municipal Prosecutor."
A threshold issue to be resolved in this case is whether New Jersey Municipal Court Rule 7:4-4(b) must be applied, despite the fact that this former Municipal Court action was removed to federal court. It is firmly established that when a criminal case is removed from state to federal court, the federal court must conduct the trial under federal rules of procedure, while applying the criminal law of the state. Arizona v. Manypenny, 451 U.S. 232, 241, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981) rehearing denied, 452 U.S. 955, 69 L. Ed. 2d 965, 101 S. Ct. 3100 (citing Tennessee v. Davis, 100 U.S. 257, 271-72, 25 L. Ed. 648 (1880)). There is, however, sound authority which requires that Rule 7:4-4(b) be applied in this case.
New Jersey Municipal Court Rule 7:4-4(b) provides:
Appearance of Prosecution. Whenever in his judgment the interests of justice so require, or upon the request of the court, the Attorney General, county prosecutor, municipal court prosecutor, or municipal attorney, as the case may be, may appear in any court on behalf of the state, or of the municipality, and conduct the prosecution of any action, but if the Attorney General, county or municipal court prosecutor or municipal attorney does not appear, any attorney may appear on behalf of any complaining witness and prosecute the action on behalf of the state or the municipality.
This Rule contains both procedural and substantive rights, allowing a complaining witness who is the victim of a disorderly persons offense to enforce the criminal law in cases where the state or municipality lacks the resources to do so.
The importance of the Rule becomes evident when one realizes that absent its use, disorderly persons offenses would go unprosecuted, harming not only the state's interest in enforcing its laws, but also the victim's (if not society's) interest in obtaining satisfaction for wrongs committed. Beyond the importance of this rule, it is significant that there is no provision of the Federal Rules of Criminal Procedure which conflicts with its provisions. Thus, the instant case does not present circumstances previously addressed by the Supreme Court in the context of civil removal cases. Those civil cases involved circumstances where a state procedural rule conflicted with a federal rule; in such circumstances the Court required that federal courts exclusively apply the federal rule. See e.g., Burlington Northern R. Co. v. Woods, 480 U.S. 1, 94 L. Ed. 2d 1, 107 S. Ct. 967 (1987); Hanna v. Plumer, 380 U.S. 460, 469-74, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965).
The present case presents issues similar to those discussed by the Supreme Court in Arizona v. Manypenny, 451 U.S. 232, 68 L. Ed. 2d 58, 101 S. Ct. 1657 (1981), a criminal removal case. In Manypenny, the Court confronted the delicate balance between state and federal law which is involved in criminal cases removed from state to federal court under 28 U.S.C. § 1442(a). The defendant in Manypenny was a Border Patrol Agent with the Immigration and Naturalization Service ("INS"), who was charged in state court with the state offense of assault with a deadly weapon. The state court action was removed to federal district court because the defendant committed the alleged assault while on duty with the INS. After the defendant was found guilty by a jury, the district court, acting sua sponte, granted a motion for acquittal based on federal immunity, despite the fact that immunity was not raised as a defense at trial. The state timely filed an appeal with the Court of Appeals, but that appeal was dismissed based on a lack of jurisdiction. The Court of Appeals held that a criminal proceeding removed under 28 U.S.C. § 1442(a)(1) was governed by federal law which did not provide a right for a state to appeal a criminal case in federal court. Thus, the Court of Appeals held that the state could not appeal the district court's decision.
Reversing the Court of Appeals, the Supreme Court held that Arizona could rely on appellate authorization under state law as a basis for its right to appeal.
The Manypenny Court held that it "would be anomalous to conclude that the State's appellate rights were diminished solely because of removal." 451 U.S. at 243. The Court further held:
. . . 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 purely a derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties.
451 U.S. at 242. The Manypenny Court also recognized a "'strong judicial policy against federal interference with state criminal proceedings.'" Id. at 243 (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975)). Moreover, the Court stressed that the purpose of section 1442(a)(1) is to ensure a neutral forum for federal employees who might be subject to prejudice in state courts and not to alter the rights of parties provided by state law. Id. 451 U.S. at 242.
In the instant matter, as in Manypenny, it would be anomalous to conclude that the state's right to prosecute the defendant through the use of a private attorney was diminished solely because of removal. See Manypenny, 451 U.S. at 253. If this case were tried in New Brunswick Municipal Court where it originated, it is beyond question that a private attorney could prosecute the disorderly persons charge initiated by Ms. Hadley. It would therefore be unjust for this court to dismiss this prosecution merely because it was removed to federal court. As noted above, the inadequate resources of municipal prosecutors necessitates the use of private attorneys. To refuse to permit private attorneys to appear in federal court would create an undesirable double standard wherein federal employees who commit a disorderly persons offense would not be prosecuted, while all other citizens of New Jersey would be. Such a result ignores both the limited purpose of federal removal provisions and the strong judicial policy against federal interference with state criminal proceedings recognized in Manypenny and Huffman, supra. For these reasons, I find that New Jersey Municipal Court Rule must be applied in this case.
Having found that Rule 7:4-4(b) is applicable to this case, it is necessary to consider defendant's contention that the Rule violates his constitutional right to due process, including his right to a fair trial. See e.g., Strickland v. Washington, 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (discussing the right to a fair trial as an element of the Due Process Clause and the Sixth Amendment). The defense contends that permitting Ms. Hadley's attorney to prosecute defendant would be unconstitutional because there is an impermissible conflict of interest between Ms. Hadley's attorney's role as private counsel and his role as the prosecutor in this case. More specifically, defendant argues that there is an inherent conflict which exists when a prosecutor has a pecuniary or other interest in the outcome of a criminal prosecution. Such a conflict was acknowledged in United States v. Heldt, 215 U.S. App. D.C. 206, 668 F.2d 1238, 1277 (D.C. Cir. 1981) cert. denied, 456 U.S. 926, 72 L. Ed. 2d 440, 102 S. Ct. 1971 (1982), where the Court stated:
. . . a public prosecutor, as the representative of the sovereign, must "seek justice -- to protect the innocent as well as to convict the guilty." . . .