Petition — Wasserberger v. New York

¥ RECEIVED)

80-5026 JUL 7- 1980 ’

OFFICE OF THE CLERK

SUPREME COURT, U.S.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

LEON WASSEPBERGER,

Petitioner,

Ws

THE PEOPLE OF THE STATE

OF NEW YORK,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The petitioner, LEON WASSERBERGER, who is presently at

liberty pending « determination of his Petition for a Writ of

Certiorari, asks leave to file the attached Petition for a Writ

of Certiorari to the Court of Appeals of the State of New York

without prepayment of costs and to proceed in forma pauperis

pursuant to Rule 53.

The petitioner's affidavit in support of this motion

is attached hereto.

Ca C

IRVING ANOLIK, A Member of the

Bar of this Court

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

LEON WASSERBERGER,

Petitioner,

” RECEIVED

THE PEOPLE OF THE STATE 1980

OF NEW YORK, JUL 7

' OF THE CLERK

Responden E COURT, U.S.

AFFIDAVIT

STATE OF FLORIDA )

COUNTY OF G@KoWwARD) ss.:

I, LEON WASSERBERGER, being first duly sworn according

to law, depose and say, in support of my motion for leave to

proceed without being required to prepay costs or fees: 1. I am

the petitioner in the above-entitted case. 2. Because of my

proverty I am unable to pay the costs of said cause. 3. I am

unable to give security for the same. 4. I believe that I am

entitled to the redress I seek in said case. 5. The nature of

said cause is briefly stated as follows:

i was tried for a violation of 18 U.S.C. 1952 (Travel

Act) in the United States District Court for the Southern District

of New York, and was convicted. After being sentenced to 3 years

imprisonmert, I appealed to the United States Court of Appeals for

the Second Circuit, which reverse! the conviction and dismissed

the indictment.

Thereafter, I was indicted by a grand jury in the

State of New York for crimes based upon the identical facts as

those presented in the federal prosecution. I pleaded double

jeopardy and collateral estoppel, as well as prosecutorial mis-

conduct, as a bar to a retrial. Nevertheless, the state courts

denied my plea in bar and I pleaded guilty, with the understandings

that I could raise the same appeal points as those raised by

petitioner Norman Archer, who was a co-defendant in the prosecu-

tion, as set forth in his petition, under No. , the

substance of which I adopt. I am, however, annexing a single

copy of a petition of my own since I was convicted and my

conviction was affirmed under a separate judgment.

I am presently at liberty pending a determination of

my Petition for Certiorari.

ee J

pea O22) fc. —7. Sennnaiee

LEON WASSERBERGER

J

Duly witnessed and sworn to before °

me, c Notary Public, this Az day

of June, 1980.

eee fe —Meaiies.

Notary Public

MOTARY PUBLIC STA © FLORIDA Al LARGE

MAY COMMISSION Eo 1tS NOV. 2 1982

@ONDLL THRU GENERA: (NS UNDERWRITERS

———

80 - 5026

In the

SUPREME COURT OF THE UNITED STR&TES

October Term, 1979 RECEIVED

JUL 71980

No.

OFFICE OF THE CLERK

SUPREME COURT, U.S.

LEON WASSERBESGER,

Petitioner,

Ve

THE PEOPLE OF THE STATE

OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE STATE

OF NEW YORK

Petitioner, LEON WASSERBERGER, respectfully prays that

this Court will grant a writ of certiorari to review an order of

the Court of Appeals of the State of New York rendered the 24th

day of April, 1980, which affirmed an order of the New York

Supreme Court, Appellate Division, Second Department, which in

turn had affirmed a judgment of the Supreme Court of the State

of New York, County of New York, convicting the defendant-

petitioner of the crimes of bribe receiving and receiving a

reward for official misconduct, upon his plea of guilty before

Sandler, J. (PEOPLE v. ARCHER, 68 A.D.2d 441, 417 N.Y.S.2d 507).

The petitioner was sentenced to 3 years imprisonment,

but execution thereof has been stayed throughout the proceedings

and at present, until this Court determines whether or not to

grant certiorari.

OPINIONS BELOW

The Court of Appeals of the State of New York affirmed

the Appellate Division of the Supreme Court of the State of New

York upon the opinion of the latter court. The decision and

opinion of the Appellate Division is contained in the Appendix

Opinions of petitioner NORMAN ARCHER, and are incorporated by

reference herein. The order affirming the judgment of conviction

in the New York Court of Appeals is annxed hereto.

The other opinions germane to this petition are MATTER

OF KLEIN (WASSERBERGER) v. MURTAGH, 44 A.D.2d 465, aff'd., 34

N.Y.2d 988, and UNITED STATES v. ARCHER,486 F.2d 670 (2 Cir.

1973). }

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3). The Court of Appeals of the State of New York

affirmed the order of the Appellate Division, Second Department,

on the 24th day of April, 1980.

QUESTIONS PRESENTED

1. Whether the case at bar presents sufficiently

compelling circumstances warranting a bar to the prosecution of

the petitioner herein because of police misconduct, irrespective

of entrapment, in accordance with the reservations this Court

made in the cases of UNITED STATES v. RUSSELL, 411 U.S. 423 and

HAMPTON v. UNITED STATES, 425 U.S. 484?

2. Since the New York courts have sanctioned instiga-

tion of crimes by both federal and state agents as a means to

investigate unknown and undiscovered criminality in a particular

community of the state, should this conduct be condemned by this

Court by removing the incentive for such actions in the tuture

by vacating the conviction of petitioner (LEE v. FLORIDA, 392

U.S. 378, 20 L.Ed.2d 1166)?

(A) This raises the collateral issue of whether,under

any circumstances, a federal agent should have been permitted to

participate in such illegal activity and to have testified on

behalf of the prosecution as to the fruits of such unlawful

conduct by the authorities (REA v. UNITED STATES, 350 U.S. 214,

100 L.Ed. 233)?

3. Whether the New York state trial of petitioner

upon identical evidence used for the federal prosecution was

barred under the doctrine of collateral estoppel within the

purview of ASHE v. SWENSON, 397 U.S.436, 25 L.Ed.2d 469?

4. Whether the post-trial dismissal and reversal by

the United States Court of Appeals of petitioner's federal |

indictment for violating 18 U.S.C. §1952, with intent to violate

the New York bribery statutes (Travel Act), upon the grounds that

‘there was insufficient evidence to have warranted the conviction,

barred any further prosecution by the State of New York for

bribery (PERRIN v. UNITED STATES, 100 S.Ct. 311; ASHE v. SWENSON,

397 U.S. 436, 25 L.Ed.2d 459)?

5. Whether petitioner's conviction shall be allowed to

stand where, concededly, the prosecution had created the subject

matter of the crime; supplied all of the ingredients for its

commission, and, in the course of participating in this scheme

committed the crimes of perjury in a state grand jury; submitting

perjurious affidavits to be filed in the courts of record of the

State of New York; suborning the commission of perjury in

affidavits to be filed in court; committing the crime of offering

false instruments for filing with a state public official;-

committing the crime of forgery; and conspiring to commit the

foregoing offenses and to solicit, induce and aid and abet in

their commission?

6. Whether the State of New York had the right to

again try petitioner for crimes predicated upon the same facts

and evidence for which he had been convicted in the United States

District Court for the Southern District of New York, and upon

which facts the United States Court of Appeals for the Second

Circuit reversed the conviction and dismissed the indictment

because of insufficiency of evidence and prosecutorial misconduct

(486 F.2d 670)?

7. Whether a person, such as Wasserberger, who has

been tried and convicted in a federal court on a charge that he

violated 18 U.S.C. §1952 by using the means of interstate

commerce to facilitate the crime of "bribery in violation of...

Section 200.00 and 200.10 of the Penal Law of the State of New

York", and where such conviction is subsequently reversed on

appeal by the United States Court of Appeals on the grounds that

there was insufficient evidence of the use of the means of

interstate commerce, can such a person thereafter constitutional];

be tried in the State of New York for the same alleged bribery

as that charged in the federal indictment? Does the subsequent

state prosecution constitute a prosecution for a different

"offense"? If so, and if Section 40.20(2)(f) of the Criminal

Procedure Law permits such prosecution, is that statute valid

and constitutional in view of a claim of double jeopardy and

collateral estoppel?

8. Whether, in the circumstances of the preceding

“question, has the earlier federal prosecution been "terminated"

by the appellate court order reversing the conviction, within

the meaning of the Criminal Procedure Law statute in New York

[Section 40.20(2) (f£)]?

é 9. Whether an exploratory invasion of the criminal

justice system of the County of Queens, State of New York, by

federal and state officials who invent crimes to test that system,

be encouraged and approved by permitting these officials to

retain petitioner's conviction, which was engineered by this

illegality?

10. Whether the determination by the United States

Court of Appeals for the Second Circuit conclusively terminated

the prosecution so that no further prosecution upon the same

facts was permissible [486 F.2d 670 (2 Cir. 1973)]?

11. Whether petitioner was deprived of a speedy trial?

12. Whether this Court should order a dismissal of the

charges and indictment herein as a matter of fundamental fairness

and due process of law? f

CONSTITUTIONAL AND

STATUTORY PROVISIONS

INVOLVED

The Fourth, Fifth, Sixth and Fourteenth Amendments of

the United States Constitution are involved herein, as are 18

U.S.C. §1952, Sections 200.00 and 200.10 of the Penal Law of the

State of New York, and Section 40.20(2)(f), Criminal Procedure

Law.

THE FACTUAL BACKGROUND

The factual background of this case is identical to

that as presented in the Petition of a co-defendant of petitioner

Wasserberger, namely Norman Archer, who has filed a Petition with

this Court under No. |9- , October Term 1979.

We incorporate by reference the factual allegations

therein, except we ask this Court to note that, unlike petitioner

Archer, petitioner Wasserberger only went to trial in the United

States District Court for the Southern District of New York and

pleaded guilty in the Supreme Court of the State of New York,

with the specific understanding that he could preserve the same

appellate points as petitioner Archer.

We also adopt and incorporate by reference that

portion of petitioner Archer's Petition for Certiorari under the

topic "REASONS FOR GRANTING THE WRIT".

The Appendix Opinions of petitioner Archer are also

incorporated by reference herein, but we have annexed the order

affirming the judgment of conviction of petitioner Wasserberger

in the New York Court of Appeals.

CONCLUSION

The petition for certiorari should be granted and the

judgment of conviction of petitioner Wasserberger should be

vacated.

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioner

APPENDIX

ORDER OF AF¥IRMANCE OF NEW YORK COURT OF APPEALS

COURT OF APPEALS

STATE OF NEW YORK

2 No. 232

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

vs.

LEON WASSERBERGER,

Appellant.

Order affirmed (see People v. Archer, N.Y.2d ,

decided herewith).

All concur.

Dated: April 24, 1980.

Clerk of the Court

6 Lees