Appendix — Steinman v. Nadjari

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APPENDIX

MEMORANDUM AND ORDER

(SAME TITLE)

Appearances:

Hervey & Legum, Esqs., 16 Court Street,

Brooklyn, New York 11241

by Aaron Nussbaum, Esq., for plaintiff

Maurice H. Nadjari, Esq., Deputy Attorney General,

Special Prosecutor, 2 World Trade Center,

New York, New York 10047

by Melvin M. Dildine, Esq.,

Special Assistant Attorney General,

for defendant

This is an action to convene a three-judge court, pur-

suant to 28 U.S.C. §§ 2281 and 2284, seeking the following

relief: (1) a declaratory judgment that the state prosecution

of plaintiff is being carried out in an unconstitutional

manner; and ‘(2) an injunction barring the defendant and

his agents from continuing the prosecution. Plaintiff was

indicted on December 18, 1973 by the Extraordinary and

Special Grand Jury for the County of Kings for the crimes

of conspiracy in the third degree, attempted bribery in the

second degree, and grand larceny in the second degree. He

had been arrested September 25, 1973 after an in-

vestigation started by the office of the United States At-

torney for the Southern District of New York and com-

pleted by defendant's office after the decision in United

States v. Archer, 486 F. 2d 670 (2d Cir. 1973).

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On January 25, 1974 the Honorable J. Irwin Shapiro,

Assoeiate Justice of the Appellate Division of the Supreme

Court, Second Judicial Department, granted an order

authorizing the plaintiff herein to bring certain pretrial

motions before a term of the Appellate Division. Those

motions, briefly summarized, requested dismissal of the

pending indictment on the ground that the defendant

herein, the Special Deputy Attorney General, had abused

his powers with regard to the investigation and prosecution

of this criminal matter; disqualification of the Honorable

John M. Murtagh, presiding Justice of the Extraordinary

Special and Trial Term; disqualification of Maurice H.

Nadjari, the defendant herein, from conducting the

prosecution; discovery; and an order impounding tapes of

electronic recordings made during the course of the in-

vestigation of the plaintiff. On May 20, 1974 the Appellate

- Division denied all but the plaintiff's discovery motions. In

adopting the concurring opinion of Justice Shapiro in Klein

v. Murtagh, 44 App. Div. 2d 465, 355 N.Y.S.2d 622, 630

(2d Dep’t 1974), the Appellate Division indicated its view

that the questions raised should be decided at the trial

level.

Plaintiff's allegations in the case at bar are similar to

those raised before the Appellate Division. He asserts that

he was unfairly “entrapped” into committing the acts

which led to his indictment. Further, plaintiff claims that

the prosecutors have engaged in gross misconduct in that

they threatened plaintiff with the indictment before he

finally was indicted and attempted to coerce him into

“cooperating’’ with the prosecution by “setting up”

Justices of the Supreme Court, Kings County and other

public officials, i.e., involve them in crimes similar to those

he is charged with. In an affidavit in support of the motion

plaintiff specifies his allegations of misconduct on the part

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of defendant’s agents. The defendant strenuously denies

these factual allegations. The court makes no findings with"

respect to plaintiff's charges of prosecutorial misconduct.

It does, however, share the concern of Judge Friendly in

United States v. Archer, 486 F.2d 670 (2d Cir. 1973) and

Justice Shapiro in Klein v. Murtagh, 44 App. Div. 2d 465,

355 N.Y.S. 2d 622, 630 (2d Dep’t 1974) (concurring

opinion), that investigatory methods should not undermine

the integrity of the judicial process.

Defendant opposes plaintiff's motion on the authority of

Younger v. Harris, 401 U.S. 37 (1971) and Samuels v.

Mackell, 401 U.S. 66 (1971). However, a three-judge court

must be convened in order to dismiss on Younger-Samuels

principles, ie., whereas the requisite bad faith en-

forcement or other special circumstances exist. Steffel v.

Thompson, 42 U.S.L.W. 4357, 4359, n. 7 (March 19,

1974); Abele v. Markle, 452 F.2d 1121 (2d Cir. 1971).

A district court faced with an application for a three- ;

judge court is limited to determining (1) whether the

constitutional question is substantial; (2) whether the

complaint at least formally alleges a basis for equitable

relief, and (3) whether the case otherwise comes within the

requirements of the three-judge statute. Idlewild Bon

Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962)

(per curiam). The statute is to be narrowly construed.

Phillips v. United States, 312 U.S. 246 (1941). Without

deciding whether the first two requirements have been met,

the court questions whether the three-judge statute is

intended to apply to this type of case. Plaintiff argues that

the statute, Executive Law § 63 (McKinney 1951) and

Executive Order No. 55, under which the office of the

Special Deputy Attorney General was set up, are un-

constitutional as applied to him because agents of the

Special Deputy Attorney General allegedly acted im-

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properly by depriving him of his constitutional rights.

Accepting the allegations as true for the purposes of this

motion, Goosby v. Osser, 409 U.S. 512, 521, n. 7 (1973);

Nieves v. Oswald, 477 F.2d 1109, 1112 (2d Cir. 1973), the

real issue presented here is not whether the statute is

unconstitutional, even as applied to the plaintiff, but

rather whether acts committed by siate officers appointed

under the authority of a statute deprive the plaintiff of due

process and warrant federal intervention under the three-

judge court statute. This court must pass upon the

authority of federal courts to intervene in state criminal

prosecutions. When what in substance being challenged is

neither a statute, nor the policy underlying the statute, but

rather the activities of a state officer appointed under the

authority of the statute, resort to a three-judge court is

inappropriate. Phillips v. United States, 312 U.S. 246

(1941); Ex Parte Bransford, 310 U.S. 354 (1940); Galvan v.

Levine, 490 F.2d 1255, 1258 (2d Cir. 1973). The statute

and executive order under which the Special Deputy At-

torney General was appointed and operates cannot be

construed to authorize the alleged wrongful activities.

Therefore, the policy of the three-judge court statute — to

protect state statutory policy from being overturned by a

single federal judge — would not be served by convening

such a court here. Congress did not intend for federal

courts to interfere with the execution of state statutes

except where a showing is made that the statute is un-

constitutional on its face or as applied; it recognized that

adequate remedies exist within the states for solving

problems of the type presented here. Since plaintiff has

failed to fulfill the strict requirements for convening a

three-judge court, his application must be denied.

The Rule 12(b)(6) motion pending, which must hereafter

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be treated as a Rule 56 motion for summary judgment, is

not decided. The court, however, will entertain a motion to

dismiss the complaint.

s/Costantino

U.S.D.J.

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MEMORANDUM AND ORDER

_ DATED DECEMBER 6, 1974

(SAME TITLE)

Appearances:

Hervey & Legum, Esgs.,

16 Court Street, Brooklyn, New York 11241

by Aaron Nussbaum, Esq., for plaintiff

Maurice H. Nadjari, Esq.,

Deputy Attorney General, Special Prosecutor,

2 World Trade Center, New York, N.Y. 10047

by Melvin M. Dildine, Esq., Special Assistant

Attorney General, for defendant

By Memorandum and Order dated August 8, 1974 this

court denied plaintiffs motion to convene a three-judge

court pursuant to 28 U.S.C. §§ 2281 and 2284. Still

pending is plaintiff's suit for a declaratory judgment that

the state indictment of the plaintiff is “‘null and void under

the Due Process Clauses of the Fifth and Fourteenth

Amendments of the Constitution,” his application for a

preliminary and permanent injunction prohibiting the

defendant from continuing with the prosecution of plaintiff

in the state courts, and defendant’s cross motion to dismiss

for failure to state a claim for which relief can be granted,

Rule 12(b)(6), Fed. R. Civ. P. This case presents a delicate

question involving federal-state comity and requires

examination of the rules enunciated by the Supreme Court

in Younger v. Harris, 401 U.S. 37 (1971); Samuels v.

Mackell, 401 U.S. 66 (1971), and later cases.

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The essential facts were outlined in the August 8, 1974

memorandum. All that need be restated is that plaintiff

alleges an abuse of discretion on the part of defendant in

the investigation and prosecution of plaintiff. He contends

that this case presents the “extraordinary circumstances”

and “bad faith and harassment” that the Supreme Court in

Younger v. Harris, supra, referred to as justifying the

intervention of a federal court in a- pending state

prosecution. Defendant denies plaintiff's allegations and

argues that plaintiff will have a full opportunity in the

course of the state prosecution to assert any defenses and

objections to the actions of the prosecutor, thereby ren-

dering resort to this court unnecessary and ihappropriate.

A brief summary of the applicable standards serves to

aid an analysis of the allegations herein. Chief Justice

Burger recently stated in a concurring opinion in Allee v.

Medrano, U.S. , 94 Sup. Ct. 2191, 2210

(1974);

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. The

federal plaintiff must prove bad faith and requisite

injury.

It is clear, then, that the Younger standard is an ex-

tremely strict one. This reflects the reluctance of federal

courts to interfere with pending state prosecutions. The

Supreme Court has not stated with specificity the type of

activities which would jusiify a federal court in enjoining a

state prosecution. In Dombrowski v. Pfister, 380 U.S. 479

(1965), a pre- Younger decision, and the only recent case in

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which the Court has held allegations sufficient to justify

federal relief, the plaintiff alleged that a state prosecutor

was holding public hearings and disseminating evidence

which had already been ordered suppressed by a state

court. The Court held that the facts alleged justified in-

terference because the conduct of the prosecutor “‘chilled”’

plaintiff's First Amendment right to free speech and a

subsequent state trial under those circumstances would not

assure vindication of that right. Since Younger was

decided, however, no set of facts has been found by the

Supreme Court to justify intervention by means of an

injunction of the state prosecution.

The alternative of granting declaratory relief was

discussed by the Supreme Court in Samuels v. Mackell,

401 U.S. 66 (1971), a companion decision of Younger.

There it was stated that in the context of a pending state

prosecution a declaratory judgment would have “‘virtually

the same practical impact as a formal injunction would.”

401 U.S. at 72. The Court went on to hold that the stan-

dards for granting declaratory relief should be the same as

for granting injunctive relief. There was an exception to

this rule:

There may be unusual circumstances in which an

injunction might be withheld because, despite a

plaintiffs strong claim for relief under the

estab.ished standards, the injunctive remedy

seemed particularly intrusive or offensive; in such a

situation, a declaratory judgment might be ap-

propriate and might not be contrary to the basic

equitable doctrines governing the availability of

relief.

Samuels v. Mackell, 401 U.S. at 73.

A recent Third Circuit decision found that under the

special facts in that case declaratory relief was called for

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where enjoining a pending state prosecution was inap-

propriate, Helfant v. Kugler, S00 F.2d 1188 (3d Cir. 1974),

petition for cert. filed, 43 U.S.L.W. 3129 (U.S. August 6,

1974) (No. 74-80); cross-petition for cert. filed, 43

U.S.L.W. 3285 (U.S. August 13, 1974) (No. 74-277). The

case involved the question of whether a former municipal

court judge could get a fair trial where his admissions made

before a grand jury may have been compelled by prior

testimony given to New Jersey State Supreme Court Justices

acting in their administrative capacity. The Third Circuit

held that under the circumstances of the case before it,

federal intervention would have a limited impact on the

state prosecution. The district court was authorized to hold

a hearing to determine whether the grand jury testimony

was coerced and to issue a declaratory judgment if coercion

were found. The court was “persuaded that any

precedential value to our holding is miniscule.”” S00 F. 2d

at 1798. This decision was reached over the strong dissent -

of Judge Adams in which Judges Van Dusen and Weis

joined. They argued that both the policy against federal

intrusion into state prosecutions and the constitutional

right to a fair adjudication of guilt or innocence would be

served by awaiting final disposition of the state procedures

before resorting to federal courts for relief. Thé dissent

reiterated the fear expressed in Samuels that declaratory

relief has virtually the same impact as an injunction. The

decision, both majority opinion and dissent, contains

excellent commentary upon the state of the law in this

difficult area.

Assuming the truth of the facts alleged by plaintiff for

the purposes of this motion, it must be determined whether

these tacts warrant federal intrusion in light of the strong

policy against it. It is clear from a reading of Younger,

Samuels, and their progeny that traditional equitable

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principles are to be applied in deciding whcther a federal

court ought to interfere with pending state prosecutions

either by way of an injunction or a declaratory judgment.

This involves examining the severity of the prejudice to

plaintiff if the prosecution is allowed to continue as well as

scrutinizing the conduct complained of. Plaintiff affirms

that the expense of defending himself in the state action

has forced him to go deeply into debt. The Court in

Younger, however, made it clear that the cost, anxiety, and

inconvenience of defending against a prosecution cannot

“by themselves be considered ‘irreparable’ in the special

legal sense of that term.’”’ 401 U.S. at 46. No allegation of

harm comparable to that which the plaintiff suffered in

Dombrowski v. Pfister, 380 U.S. 479 (1965) has been

made.

Relying on United States v. Archer, 486 F.2d 670, 474-

75 (2d Cir. 1973) and United States v. Toscanino, SOO F.2d

267 (2d Cir. 1974), plaintiff contends that defendant’s

conduct is violative of his due process rights. This court

reiterates its comment in its August 8, 1974 memorandum

that investigatory methods should never undermine the

integrity of the judicial process. See also Rochin v.

California, 342 U.S. 165 (1952) and United States v.

Russell, 411 U.S. 423, 431 (1973). It should be noted,

however, that Archer and Toscanino were not decided in

the context presented here, i.e., where a federal court is

asked to interfere with a pending state prosecution.

Plaintiff has a forum where he can assert these due process

violations. If for some reason the state cqurts fail to protect

his constitutional rights, resort may be had to federal relief

under the habeas corpus statute, 28 U.S.C. § 2254.

Reviewing the facts as alleged in conjunction with

plaintiff's claim of prejudice this, court holds that to in-

terfere with the ongoing state prosecution even by way of

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holding a hearing looking towards a possible declaratory

judgment would be unwise and in contravention of

Younger-Samuels principles. The rule as expounded by the

Supreme Court does not authorize federal interference

where defenses and allegations of prosecutorial misconduct

can be raised at the state proceeding and no prejudice other

than the “‘cost, auxiety, and inconvenience” of defending

against that prosecution is shown.

Accordingly, plaintiff's request for declaratory and

injunctive relief is denied and defendant's motion to

dismiss the complaint for failure to state a claim upon

which relief can be granted is granted. The Clerk of the

court is directed to prepare an order dismissing the

complaint. '

i

s/Costantino

U.S.D.J.

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AMENDED MEMORANDUM AND ORDER

(SAME TITLE) - |

COSTANTINO, D.J.

The concluding paragraph on page 9 of the

Memorandum and Order filed December 6, 1974 is

amended to read as follows:

Accordingly, plaintiff's request for bitoni, and

injunctive relief is denied and defendant’s motion to

dismiss the complaint for failure to state a claim upon

which relief can be granted is granted. The Clerk of the

court is directed to prepare a jaca dismissing the

complaint.

So Ordered.

s/Costantino

U.S.D.J.

7 | MAY 20

MICHASL fOUAK, J

In THE

Supreme Court of the United States

October Term 1974

No. 74-1425

WILLIAM STEINMAN,

Petitioner,

v.

MAURICE H. NADJARI, individually and

as Special Deputy Attorney General

of the State of New York,

Respondent.

Supplemental Appendix

HERVEY & LEGUM

Attorneys for Petitioner

AARON NUSSBAUM

Of Counsel

16 Court Street

Brooklyn, New York

Tel. (212) 237-1717

DICK BAILEY PRINTERS TEL. (212) 447-5358

TABLE OF CONTENTS

Page

Order and Judgment of United States Court of Appeals

for te Dias Nb os ia EBS... SA-1

Statement Made by the Court at Disposition of Appeal

OW GME wns wb N SORT OTIS Ee heed wb cas dbnvac.ci SA-3

ORDER AND JUDGMENT OF UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the fourteenth day of April one thousand

nine hundred and seventy-five.

Present: HON. IRVING R. KAUFMAN, Chief Judge; HON. J.

JOSEPH SMITH, HON. WILLIAM H.

TIMBERS, Circuit Judges.

William Steinman,

Plaintiff-Appeliant

v.

Maurice H. Nadjari, individually and as Special Deputy

Attorney General of the State of New York,

Defendant-Appellee

Appeal from the United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District of

New York, and was argued by counsel.

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ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order of said District

Court be and it hereby is affirmed with costs to be taxed against

the appellant.

A. DANIEL FUSARO, Clerk

By VINCENT A. CARLIN,

¢ Chief Deputy Clerk

A true copy,

s/A. Daniel Fusaro, Clerk

F es

SA-3

STATEMENT MADE BY THE COURT AT

DISPOSITION OF APPEAL IN OPEN COURT

[The following statement does not constitute a formal opinion

of the Court and is not to be reported. It sbould not be recited

or otherwise used in unrelated cases.]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Title

Docket No. 75-7625

Before: HON. IRVING R. KAUFMAN, Chief Judge, SMITH and

TIMBERS, Currcuit Judges.

New York, N-Y.

April 14, 1975

Statement made by the Court at disposition of appeal in

open court.

CHIEF JUDGE KAUFMAN:

It should come asno surprise that we are familiar with this

area of law and, of course, familiar with the case. We affirm the

district court's judgment in all respects. We see no reason why

the State courts cannot fairly and fully consider Steisman’s

claims. The requisite showing of “bad faith” is lacking, see, e.g.,

Perez v. Ledesma, 401 U.S. 88, 95 (1971) and it is well

established that the need to defend against a State criminal

prosecution is not the irreparable injury which is a prerequisite

to Federal intervention. Se e, e.g., Younger v. Harris, 401 U.S.

SA-4

37, 46 (1971), and Douglas v. City of Jeannette, 319 U.S. 157,

164 (1943). Nor do we believe that the Governor’s power to

appoint and remove an Extraordinary Term judge or the

requirement that motions to the Appellate Division can be

made only by permission violate due process. A fortiori, they

are not “s»graordinary circumstances” that allow a litigant to

come into the federal court in the first instance. In sum, this is a

classic case for restraint in invoking federal equitable relief, out

of respect for State processes. The New York courts are fully

capable of protecting against alleged constitutional violations, as

the recent reversal of former District Attorney Mackell’s

conviction demonstrates.

You also raise the point about the convocation of a

three-judgg court. We believe that was properly denied, for the

claims relating to the constitutionality of the State statutes are

frivolous.

Accordingly, we affirm the judgment of the lower court.