Edwin H. Helfant v. George F. Kugler, Attorney General of the State of New Jersey

ADAMS, Circuit Judge

(dissenting).

The majority, while conceding that this case presents “a delicate question of federal-state comity,” resolves that question by sanctioning federal interference in an ongoing state criminal proceeding. Warrant for this interference is purportedly found in the “extraordinary circumstances” exception to the anti-in-junctive strictures of Younger v. Harris. 1 *1199 I conclude that this case, unusual as its facts may be, provides no occasion for casting aside the interwoven precepts of federalism and equitable jurisdiction that combine to make up the Younger doctrine of non-intrusion. Accordingly, I dissent.

The majority’s exposition of the rule of Younger is fair: a federal court may not interfere in an ongoing state criminal proceeding 2 absent a showing of prosecutorial bad faith or harassment, or other “extraordinary circumstances.” It is conceded that neither bad faith nor ' harassment are present in Helfant’s prosecution. 3 Rather, the majority holds that the alleged involvement of the New Jersey Supreme Court in Helfant’s prosecution embodies an “extraordinary” situation.

What the majority appears to overlook is that Younger, while setting out a nucleus of rules, did more. It expressed a spirit. Though some of the historical antecedents of the Younger decision undoubtedly extend further, 4 the first formal expression of the Younger spirit in federal law came in 1793, when Congress imposed an absolute ban on federal injunctions issued “to stay proceedings in any court of a state.” 5 Two apparent motives behind the statutory inhibition of the 1793 Act were to prevent encroachments by federal courts upon the then well-established state-court domain, and to codify the prevailing prejudices against extensions of equity jurisdiction and power. 6 One hundred and fifty years later the theme was repeated in Oklahoma Packing Co. v. Oklahoma Gas & Electric Co. 7 There the anti-injunction statute was viewed as necessary, in part, to “prevent needless friction between state and federal courts.” 8 And only this term the Supreme Court reiterated its sensitivity “to principles of equity, comity, and federalism.” 9

Of course, the Supreme Court has recently acknowledged that section 1983, under which Helfant’s suit has been brought, is a specific exception to the absolute interdiction of the anti-injunction statute. 10 Nonetheless, section 2283 expresses a “long standing public policy” 11 against federal interference in state proceedings. The emanations from that policy must thus be heeded even in a 1983 suit. 11a Accordingly, the same considerations that underlay the 1793 Act and its successors — a respect for *1200 state sovereignty and “basic doctrine [s] of equity” which “restrain equity jurisdiction within narrow limits” 12 — have been imported into our civil rights jurisprudence.

The prime vehicle of this importation is Younger v. Harris. 13 Supplemented by Samuels v. Maekell, supra, the Younger doctrine makes it clear that only prosecutorial bad faith or harassment, or “perhaps other extraordinary circumstances” 14 will justify federal intrusion, by way of injunction, declaratory relief or, as here, “federal fact-finding,” into a state criminal proceeding. The doctrine is not hortatory. Given the policies incarnate in the Younger rule, it would appear that we should sanction interference under the “extraordinary circumstances” exception only when absolutely satisfied that neither “comity” nor equitable principles of restraint will suffer. Analysis of Hel-fant’s situation leaves me far from satisfied that such is the case here.

A. “Comity”

The concept of comity, though often invoked, tends to elude precise definition. Webster’s dictionary offers a generic meaning — "mutual consideration between . . . equals.” In the context of federal-state judicial relations, the meaning is more sharply etched. “Comity” is

“a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” 15

Among the “state functions” of which a federal court should be particularly respectful is the administration of state criminal justice. 16 The recognition that administration of the criminal law is “intimately involved with sovereign prerogative” 17 should result in an extreme diffidence on the part of a federal court asked to intrude into the state criminal process. Diffidence may be dispelled where, as in cases of “bad faith” or “harassment,” the criminal law is being utilized for other than its ordinary, legitimate purpose, or where the state is acting in flagrant disregard of the orderly processes of criminal justice. But when, as here, a criminal prosecution has been brought with the hope of obtaining a valid conviction, “comity” dictates that the federal courts indulge every presumption in favor of the state court’s impartiality, orderliness and competence to decide federal questions.

While avowing its recognition of this notion of respect for state functions, the majority concludes that the presumption in favor of the state criminal justice system is punctured and deflated by the circumstances of this case. The majority’s view distills to this: because the New Jersey Supreme Court exercises rather plenary “administrative power” over the lower state courts, and because certain of the Justices of the New Jersey Supreme Court itself were the alleged instrument of Helfant’s “coercion,” there is likelihood of partiality on the part of the state trial court that would, ordinarily, resolve the factual *1201 questions embodied in Helfant’s Fifth Amendment claim. 18

The erection and entertainment by this Court of the foregoing scenario, and its use as a justification for interfering in a state criminal proceeding, appears to me to be squarely in the teeth of the spirit of comity expressed in Younger. The scenario presumes, for example, that the state trial judges act with a constant eye on the New Jersey Supreme Court, seeking not to apply the law fairly but to preserve or advance their own interests by a devious, obsequious sycophancy. It seems to postulate, further, that the New Jersey Supreme Court itself might be so venal and vindictive as to mete out some administrative “punishment” in the event that a trial court determined that Helfant had been “coerced.” Finally, the majority’s view overlooks what is the case in the federal system as well as in the states — that courts are sometimes asked to resolve controversies in which a party holds some power to affect adversely the very judges who are deciding the dispute. 19 In such instances, there is not imputed to the federal courts a hint of partiality. “Mutual respect among equals” — the generic definition of “comity” — would seem to demand, then, that no such imputation be made concerning the state courts either.

The majority, perhaps in recognition of the harsh light in which their decision might seem to cast the New Jersey courts, try to meliorate the implications of their opinion by speaking in terms of the mere “appearance” of a less than impartial state court process.

In sum, the majority’s assertion that the possible “appearance of a biased [state] decision” warrants federal intrusion smacks of the federal high-handedness that section 2283 and Younger were fashioned to prevent. In my view, the spirit of comity, properly conceived and applied, would be reason enough to reject Helfant’s plea for federal relief at this stage of the controversy. 20

B. “Great and Immediate” Harm

A crucial aspect of Younger’s limitation upon incursions into state proceedings is the concept that federal interference may be sanctioned, if at all, only when the alleged unconstitutional harm will be “both great and immediate.” 21 This teaching has its genealogy in traditional precepts of equitable restraint. 22 A consideration of the facts of the present dispute shows that, even were it the case that Helfant had been “coerced” into testifying, any harm resulting from *1202 that coercion would not be “immediate” —a sine qua non of federal relief.

The majority, having correctly determined that there is no basis in law for an outright injunction against Helfant’s prosecution, concludes that if the facts are as Helfant alleges, declaratory relief should issue to the effect that the “coerced” testimony may not be introduced at Helfant’s trial. The edict thus fashioned by the majority is bottomed on what is, at best, mere speculation that the state will in fact attempt to introduce against Helfant the testimony elicited from him at the grand jury hearing. At oral argument, counsel for the state represented to this Court that Helfant’s grand jury testimony will be used, if ever, only to impeach any inconsistent statements Helfant might utter should he take the witness stand. 23 The “harm” that the majority’s decision seeks to avert is thus conjectural, depending for its very existence upon events that may never occur. Consequently, the majority’s result tends to ignore or flout the “great and immediate” requirement.

Another point should be mentioned briefly here. Helfant was indicted for three “substantive” offenses, 24 as well as for false swearing before the grand jury. Insofar as the false swearing counts are concerned, it would appear that Helfant’s grand jury testimony will be admissible in evidence in any event, even if it should be determined that that testimony was “coerced.” The Supreme Court, and this Court as well, have held that the Fifth Amendment does not confer upon a witness the privilege to lie while under oath. 25 Thus, though “coerced” testimony may not be used to establish Helfant’s commission of “substantive” offenses, it would appear that the state may use it to prove that he swore falsely.

The majority’s disregard of the “great and immediate” limitation thus emerges in sharp focus. There is no reasonable assurance that Helfant’s grand jury utterances will ever be introduced at trial of the substantive counts, and there is a positive indication that Helfant can suffer no unconstitutional harm at all by introduction of his testimony at trial of the false swearing counts. The equitable doctrine that harm must be imminent before an injunction will issue against a state criminal proceeding — a precept whose substance is an integral part of the doctrine of federal non-intrusion — is, therefore, disregarded by the result the majority reaehes. 25a

C. “Irreparable Injury” and “Adequate Remedy at Law”

Among the central limiting principles of equity jurisprudence is the maxim *1203 that equity will act only when there is no adequate remedy at law. 26 This notion, too, has its roots in the historical bifurcation — and the resultant conflict —between courts of law and of equity. 27 The requirement that a plaintiff show “irreparable injury” before an injunction will issue is but an alternative statement of the “adequate remedy” rule.

Younger emphasizes that the “adequate remedy” rule is to be given rigorous application when a federal court is asked to interfere in an ongoing state criminal proceeding. Mere allegations of unconstitutionality will ordinarily not suffice to justify intrusion into a state criminal trial:

“Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves, be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” 28

Even prior to Younger the Supreme Court had explained, in forceful language, why challenges to certain types of unconstitutionality would not ordinarily support federal interruption of a state criminal trial. First, the state criminal process is presumed to be an “adequate” channel for vindicating federal rights. Second, if federal relief were granted in the midst of a state criminal proceeding,

“[e]very question of procedural due process of law — with its far flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum ... to determine the issue. Asserted unconstitutionality in the impanelling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities ... to subvert the orderly, effective prosecution of local crime in local courts.” 29

This exposition by the Supreme Court of the underpinnings of the adequate remedy doctrine makes plain that, besides honoring tenets of equitable restraint, the adequate remedy rule advances and protects the concept of federal-state comity. The requirement that there be no adequate remedy at law is thus strengthened by Younger’s explicit and implicit re-invigoration of “a proper respect for state functions.” 30

The sanctioning of federal relief at this stage of Helfant’s prosecution practically undermines the “adequate remedy” precept. What Helfant seeks, and what the majority would permit, is a federal declaration in the middle of a state criminal trial to the effect that certain evidence was unconstitutionally obtained, and so is inadmissible in the state court. To my mind, this situation so closely resembles that adverted to in Stefanelli, supra, that there is little justification for denominating this an “extraordinary situation” and shelving the *1204 restraints on our remedial powers. A criminal prosecution, followed by appeal and petition for certiorari, is presumed to be an adequate remedy for the constitutional deficiencies Helfant alleges. The “inadequacy” the majority perceives is, of course, the asserted involvement of the New Jersey Supreme Court. However, as we have seen, that very claim of “inadequacy” is itself in derogation of the program of comity.

Moreover, there is an alternative federal remedy available to Helfant if the need for it should ever arise, a remedy which would provide an opportunity for the sort of “federal fact finding” adverted to by the majority. Yet, this alternative remedy — habeas corpus — would not cause so severe a wrench to federal-state relations as the one advanced by the majority. Should Helfant lose his Fifth Amendment claims in the state courts and receive a custodial sentence, 31 he may seek a writ of habeas corpus. The habeas statute would appear to require full federal fact finding on Hel-fant’s “coercion” claim, 32 given the circumstances Helfant alleges.

Again, the dominant chord of Younger, requiring as it does that we pay scrupulous heed to the adequacy of state remedies and alternative federal remedies, appears to have been abridged by the majority’s decision. And certainly, when the “adequate remedy” rule, the requirement of “great and immediate” harm, and the cardinal principle of comity are considered together,.the sanctioning of federal interference in this case cannot be justified.

D. “Extraordinary Circumstances”

The assumption that there exists an “extraordinary circumstance” exception to Younger’s interdiction is grounded in the language of the Younger opinion itself. There, the Supreme Court said:

“There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.” 33

But the Court immediately proceeded to point to an illustration of what such circumstances might be, quoting from Watson v. Buck: 34

“It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” 35

No other delineation of the contours of the “extraordinary circumstances” exception has yet been undertaken by the Supreme Court. Indeed, scattered statements by the Court seem to indicate doubt on the part of some of the Justices that any such exception exists at all. Thus in Perez v. Ledesma, 36 for example, decided on the same day as Younger, Justice Black was willing to say only that “perhaps in extraordinary circumstances where irreparable *1205 injury can be shown is federal . relief against pending state prosecutions appropriate.” 37 And only recently, in Allee v. Medrano, 38 Chief Justice Burger, joined by two other members of the Court, offered a reading of Younger that seems to leave no room for any extraordinary circumstances exception:

“To meet the Younger test the federal plaintiff must show manifest bad faith and injury that is great, immediate, and irreparable, constituting harassment of the plaintiff in the exercise of his constitutional rights, and resulting in a deprivation of meaningful access to the state courts.” 39

While it cannot be said that these statements affirmatively establish that there is no “extraordinary circumstances” exception, they do indicate that uncertainty exists concerning what circumstances, if any, will warrant federal intrusion under that circumscribed exception. Absent a clear benchmark to guide us in identifying “extraordinary circumstances,” we should hew closely to the concepts of equitable restraint and comity, concepts which, after all, Younger was designed to preserve, protect and perpetuate.

E. Practical Considerations

Thus far, I have sought to point out how historical and doctrinal considerations weigh against a federal incursion into the midst of Helfant’s state prosecution. But more is called for in this case than “a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law.” 40 A glance at pragmatics and at the realities of time and cost emphasize how damaging to federal-state relations the majority’s decision may prove.

Helfant was first subpoenaed to appear before the state grand jury in October of 1972. On January 17, 1973, an indictment was returned, charging Helfant with the commission of crimes that occurred as early as 1968. It has now been more than a year-and-a-half since New Jersey has been thwarted from proceeding with the prosecution because of the federal intervention sought by Helfant. During that time, a critical witness has died and the administration of the prosecutor’s office has changed. The prospect now is for further delay, since “fact finding” has been ordered in the district court, and because there is the possibility of another appeal to this Court from the fact finding proceeding. It is, therefore, not unlikely that a two-year suspension in the state prosecution will result. A delay of such duration in a state criminal proceeding, sanctioned by a federal court, and predicated solely on a challenge to the admissibility of evidence — evidence that may never be offered — would certainly seem to be an “insupportable disruption.” 41 This is particularly true in these times when special efforts are being made to expedite criminal proceedings. 42

Looming large among the doctrinal premises of Younger, of section 2283, and of the recent proliferation of commentary justifiably decrying the “denigration of state courts,” 43 is the idea that, for our federal system to function as it ought, the states must be accorded a full measure of dignity, respect and confidence. When a federal court, on the occasion of a criminal defendant’s objection to evidence, imposes a substantial impediment upon a state criminal trial, little is done to enhance the prestige of either court, state or federal.

*1206 What is at stake in this case is the need to strike a balance between the regimen of non-intrusion on the one hand, and a citizen’s right to federal disposition of his federal claims on the other. The two are not irreconcilable. Helfant, under the view expressed in this dissent, could have his day in federal court by certiorari or by habeas. And, of course, by declining to permit federal interference now we would save to the state its sovereign prerogative to try an accused without delay. The majority’s solution of the problem, however, disrupts and disdains the state process for no other reason than to assure Helfant of an immediate federal forum for a factual claim that may never ripen into controversy. Comity thus suffers, not in the interest of preserving intact the right to be heard in federal court, but solely as a guarantee that that right be vindicated instanter.

For all of the reasons set forth, I dissent, and would affirm the judgment of the district court.

Judges VAN DUSEN and WEIS join in this dissenting opinion.

. The term “anti-injunctive” is, of course, shorthand for the notion that any federal interference in ongoing state criminal proceedings, be it by injunction, declaratory judgment, or otherwise, is to be disfavored. See Samuels v. Mackell, 402 U.S. 66 , 91 S.Ct. 764 , 27 L.Ed. 688 (1971).

. Compare Steffel v. Thompson, 415 U.S. 452 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (Mar. 19, 1974).

. “Bad faith” and “harassment” signify, generally, that a prosecution is being brought or threatened with no reasonable hope or expectation of obtaining a valid conviction. See Perez v. Ledesma, 401 U.S. 82, 85 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971).

. For example, the conflict between law and equity, particularly as embodied in the practice of equity of enjoining proceedings at law, extends back at least into the seventeenth century. See O. Fiss, Injunctions 12 (1972). Justice Frankfurter, speaking more particularly, stated “[t]he maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law.” Stefanelli v. Minard, 342 U.S. 117, 120 , 72 S.Ct. 118, 120 , 96 L.Ed. 138 (1951).

. 1 Stat. 335 , the forebear of 28 U.S.C. § 2283 . See Note, Anti-Suit Injunctions Between State and Federal Courts, 32 U.Chi. L.Rev. 471, 480 (1965). The statutory ban is today subject to several clearly delineated exceptions. See Mitchum v. Foster, 407 U.S. 225 , 92 S.Ct. 2151 , 32 L.Ed.2d 705 (1972).

. See C. Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 347 (1930); Toucey v. N. Y. Life Ins. Co., 314 U.S. 118, 131 , 62 S.Ct. 139 , 86 L.Ed. 100 (1941).

. 309 U.S. 4 , 60 S.Ct. 215 , 84 L.Ed. 447 (1940).

. Id. at 9, 60 S.Ct. at 218 .

. Steffel v. Thompson, supra.

. See Mitchum v. Foster, 407 U.S. 225 , 92 S.Ct. 2151 , 32 L.Ed.2d 705 (1972).

. Younger v. Harris, 401 U.S. 37, 43, 46 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971); Mitchum v. Foster, supra, 407 U.S. at 230 , 92 S.Ct. 2151 .

. See O’Shea v. Littleton, 414 U.S. 488, 499 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974); Mitchum v. Foster, supra, 407 U.S. at 243 , 92 S.Ct. 2151 .

. Younger v. Harris, supra, 401 U.S. at 43, 44, 91 S.Ct. at 750 .

. It must be noted that the Supreme Court, in Younger , emphasized that the anti-intrusive spirit adumbrated there was not a departure from the Court’s prior decisions. See, e. g., Fenner v. Boykin, 271 U.S. 240 , 46 S.Ct. 492 , 70 L.Ed. 927 (1926); Douglas v. City of Jeannette, 319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 (1943); Dombrowski v. Pfister, 380, U.S. 479, 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965).

. Perez v. Ledesma, 401 U.S. 82, 85 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971).

. Younger v. Harris, supra, 401 U.S. at 44, 91 S.Ct. at 750 .

. See Railroad Comm’n v. Pullman, 312 U.S. 496, 500 , 61 S.Ct. 643 , 85 L.Ed. 971 (1941). See also Aldisert, Judicial Expansion of Federal Jurisdiction, 1973 Ariz.St.U.L.J. 557, 572 (1973).

. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 30 , 79 S.Ct. 1070 , 3 L.Ed.2d 1058 (1959).

. Of the Justices that were on the New Jersey State Supreme Court at the time of tlie incident referred to in Ilelfant’s complaint, only four remain as members of the Court, and more specifically the Chief Justice, who exercises the administrative supervision referred to in the majority opinion, has since retired.

. To cite an obvious example, federal courts quite often assess the constitutional validity of Congressional legislation. Congressmen, of course, may grant or withhold a salary increase to federal judges at any time. There thus exists something of an economic motivation for a federal judge to be less than impartial in reviewing federal legislation. Yet I do not think the probity of a federal court decision may be properly questioned on such bases.

. Only recently, a three-judge federal district court sitting in New Jersey rejected the notion that the New Jersey state courts are incapable of fairly adjudicating issues implicating their own state Supreme Court. In American Trial Lawyers Ass’n v. New Jersey Supreme Court, No. 64-72 (D.N.J., June 20, 1972), where there was attacked by a bar association a rule promulgated by the New Jersey Supreme Court setting forth the ground rules for contingent fees, the district court in rejecting the complaint stated:

“Rather [plaintiffs] emphasize that by leaving [their claims] to the state courts they ultimately must have their cause decided by the same body which took the action they attack. Admittedly, this is so. Nevertheless, we cannot conclude that the state courts will listen with deaf ears to plaintiffs’ challenge simply because plaintiffs attack the rulemaking authority of the State Supreme Court.”

. Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. 746 ; Fenner v. Boykin, supra, 271 U.S. at 243 , 46 S.Ct. 492 .

. Fletcher v. Bealey, 28 Ch. 688 (1885). See Story, Equity Jurisprudence 377 (1919).

. The colloquy at oral argument between the Court anfl counsel for New Jersey was as follows:

Judge Aldisert: Is the state representing to this federal court that it does not intend to and will not use the testimony elicited from the plaintiff at the grand jury proceeding?

A. At this time there is no present intention of using that testimony. But were tlie appellant to take the stand, were his testimony to deviate in strong terms, that testimony then, of course, under Harris v. New York, might well be ...

Judge Aldisert: . . . [N]ow we do not have as strong a position that I thought we liad a minute ago.

* :¡: * * *

Judge Aldisert: The question now comes if the plaintiff is not entitled to federal court protection of an asserted constitutional right at this time, at what time could he possibly have federal protection if an issue at stake is the possible bias of a state court system?

A. Were the state to seek to introduce the grand jury testimony as a declaration against penal interests, for the purpose of argument, perhaps the appellant might have standing to come into this Court.

. The three “substantive” state offenses with which Helfant is charged are conspiracy, obstructing justice, and aiding in the compounding of a crime.

. See United States v. Knox, 396 U.S. 77 , 90 S.Ct. 363 , 24 L.Ed.2d 275 (1969); Glickstein v. United States, 222 U.S. 139 , 32 S.Ct. 71 , 56 L.Ed. 128 (1911); United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973). See also United States ex rel. Annuziato v. Deegan, 440 F.2d 304 (2d Cir. 1971).

. See O’Shea v. Littleton, supra, 414 U.S. at 498 , 94 S.Ct. 669 .

. O. Fiss, Injunctions 9 (1973).

. Id. at 12. Cf. Story, Equity Jurisprudence 375-80 (1919).

. Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. at 751 ; see also Watson v. Buck, 313 U.S. 387, 400 , 61 S.Ct. 962 , 85 L.Ed. 1416 (1941).

. Stefanelli v. Minard, 342 U.S. 117, 123-124 , 72 S.Ct. 118, 122 (1951) (footnotes omitted) ; see also Cleary v. Bolger, 371 U.S. 392, 397 , 83 S.Ct. 385 , 9 L.Ed.2d 390 (1963).

. 401 U.S. at 44, 91 S.Ct. at 750. It is significant to note that Justice Brennan, writing for the majority in Dombrowski v. Pfis-ter, supra, 385 U.S. at 485 n. 3, 85 S.Ct. at 1120 , adverted to a situation closely analogous to that presented in this case, lie said:

“It is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment.”

. See 28 U.S.C. § 2254 ; United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557 (3d Cir. 1971), cert. denied, 409 U.S. 853 , 93 S.Ct. 184 , 34 L.Ed.2d 96 (1972).

. 28 U.S.C. § 2254 (d) provides in part that in federal district courts, upon an application for habeas, prior state-court findings of fact “shall be presumed to be correct” unless :

“(2) . . . the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; or “(6) . , . the applicant did not receive a full, fair, and adequate hearing in the state court proceeding; or

“(7) . . . the applicant was otherwise denied due process of law in the State court proceeding.”

If Helfant is convicted by use of improperly procured evidence, his conviction thus could be set aside by such a finding by a federal district court.

. 401 U.S. at 53, 91 S.Ct. at 755 (emphasis added).

. 313 U.S. 387 , 61 S.Ct. 962 , 85 L.Ed. 1416 (1941).

. Id. at 402 , 61 S.Ct. at 967.

. 401 U.S. 82 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971).

. Id. at 85 , 91 S.Ct. at 677.

. 416 U.S. 802 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (May 20, 1974).

. 416 U.S. at 836 , 94 S.Ct. at 2210 (Burger, C. ,T., concurring and dissenting).

. Stefanelli v. Minard, supra, 342 U.S. at 123 , 72 S.Ct. at 123 .

. Id.

. ,Stee., c. (/., Rule 50(b), Federal Rules of Criminal Procedure; ABA Project on Standards for Criminal Justice, Standards Relating to Speedy Trial (Approved Draft, 1968).

. Aldisert, supra, at 573.