Brief for the Respondent in Opposition — Steinman v. Nadjari

No. 74-1425

WILLIAM STEINMAN,

Petitioner,

against

MAURICE H. NADJARI, individually and as Special

Deputy Attorney General of the State of New York,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR CERTIORARI

Mavzice H. NaDbaam

Deputy Attorney General

Special State Prosecutor

Respondent Pro Se

2 World Trade Center

New York, New York 10047

(212) 466-1250

Bennett L. Gexsuman

Alux G. Swan

Special Assistant Attorneys General

Of Counsel

TABLE OF CONTENTS

Preliminary Statement . b bee ee

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The investigation, arrest and indietment of Wil-

amn. . GS

The proceedings in the Appellate Division

The instant action for injunctive and declara-

tory re . . . ee ae

Argument

The proceedings below present a classic situa-

tion properly barring federal intervention

in a pending state criminal prosecution. ........

UG e e eee

TABLE OF AUTHORITIES

PAGE

Cases:

Allee v. Medrano, 416 U.S. 802 (1974) 11

Bailey v. Patterson, 369 U.S. 31 (1962) 20

Baxstrom v. Herold, 383 U.S. 107 (19660) 19

Boyle v. Landry, 401 U.S. 77 (1971) 0.000.000.0000... 11

Byrne v. Karalexis, 401 U.S. 216 (1971777 11

Cameron v. Johnson, 390 U.S. 611 (1968) 13, 15

Canal Theatres, Inc. v. Murphy, 473 F.2d 4 (2d Cir.

177 ˙ÄAT—T—sÄ%¼ a, cas ae 14

Citizens for a Better Environment, Inc. v. Nassau

County, 488 F.2d 1353 (2d Cir. 1973) 15

Coleman v. Alabama, 399 U.S. 1 (19700)0ʒꝗhꝙꝓ: 21

Dombrowski v. Pfister, 380 U.S. 479 (1965) 13, 14, 15

Douglas v. City of Jeannette, 319 U.S. 157 (1943) 15

Dreyer v. Illinois, 187 U.S. 71 (1902) 0.00000. 18

Dyson v. Stein, 401 U.S. 200 (197177 11

Fenner v. Boykin, 271 U.S. 240 (19260) 13

Gajon Bar and Grill v. Kelly, 508 F.2d 1317 (2d Cir.

— RRRT IS RSENS ac | CLA RE 11

Gerstein v. Pugh, —— U.S. —— (Feb. 18, 1975) ........ 21

Gibson v. Berryhill, 411 U.S. 564 (1973) 18

Griffin v. People of the State of Illinois, 351 U.S. 12

a . daahinitlcenshcienicchetaie 19

Huffman v. Pursue, Ltd., —— U.S. —— (Mar. 18

%%% — — 12

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370

/ d 20

Inmates of Attica Correctional Facility v. Rockefeller,

e 12, 14

111

PAGE

Klein, Matter of, v. Murtagh, 44 A.D.2d 465 (2d Dept.

1974), aff’d, 34 N.Y.2d 988 (1974!“::t eee. 6, 16

Kugler v. Helfant, US. (Apr. 28, 1975) 12

Leslie v. Matzkin, 450 F.2d 310 (2d Cir. 1971), cert.

denied, 406 U.S. 932 (1972777) 14

Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 19717 12

Mallory v. United States, 354 U.S. 449 (1957) 21

McNabb v. United States, 318 U.S. 332 (1943) 21

Murchison, In re, 394 U.S. 133 (1955) eas 18

Nigrone, Matter of, v. Murtagh, —— N.Y.2d ——

(Apr. 3, 1975), aff’g 46 A.D.2d 343 (2d Dept.

— . peesictessaseosesceayernconsess 15, 16

O’Shea v. Littleton, 414 U.S. 488 (1974) 14

People v. Davis, 67 Misc. 2d 14 (Sup. Ct., Extraordi-

nary Special and Trial Term, Ontario Co. 1971) 18

People v. Steinman, 44 A. D. 2d 839 (2d Dept.

c 6, 13, 16

Perez v. Ledesma, 401 U.S. 87 (19717777 11, 15, 16

Phillips v. United States, 312 U.S. 246 (19417 20

Reilly v. Doyle, 483 F.2d 123 (2d Cir. 1973 11, 12

Reynolds, Matter of, v. Cropsey, 241 N.Y. 389 (1925) 18

Salem Inn v. Frank, 501 F.2d 18 (2d Cir. 1974) 11-12

Samuels v. Mackell, 401 U.S. 66 (1971777 11

Schlesinger v. Councilman, —— U.S. —— (Mar. 25,

%%] T2 12

Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972), cert.

denied, 409 U.S. 1024 (197) 15

Steffel v. Thompson, 415 U.S. 452 (1974) .................. 11

Tumey v. State of Ohio, 273 U.S. 510 (1927) ice

New York Executive Law (McKinney 1972):

Section 63 ey Ege Po An 7, 8, 9, 10, 11, 19, 20

1

|

Iv |

PAGE |

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

7, 15, 20

United States v. Brown, 381 U.S. 437 (1965) 18

United States v. Russell, 411 U.S. 423 (1973) 20

United States ex rel. Monty v. McQuillan, 385 F. Supp.

1308 (E.D.N.Y. 1974), aff’d, 2d Cir., Docket No.

75-2012 (May 1, 1975) (no opinion) 17,18

Watson v. Buck, 313 U.S. 387 (1941) 14, 16, 20

Williams v. Oklahoma City, 395 U.S. 458 (1969) 19

Younger v. Harris, 401 U.S. 37 (1971) 11, 12, 13, 14, 16, 20 |

Constitutions, Statutes, Orders: |

Executive Orders of the Governor of New York: |

Number 55, 9 NYCRR 1.55 7,9

Number 58, 9 NYCRR 1.553 10-11, 19

Number 64, 9 NYCRR 1.6 17

New York Constitution (McKinney 1969) :

Article VI, section 27 . . . . 9, 10, 16, 17, 20

— OMNI M ½⅛—¾)..:.. cas ancnas, ok 19

New York Criminal Procedure Law (McKinney 1971):

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PAGE

New York Judicial Conference Rules:

22 NYCRR 33.3(eù)) 18

New York Judiciary Law (McKinney 1968):

Section 114. ͥ . ...... ...t. 18

Seeeen 10 eee , 5, 8, 9, 10, 16, 17, 19, 20

New York Penal Law (McKinney 1967):

ON 9 EO RTE Neer See 13, 20

Section 105.05 o........-c.ccccccccscscecsenseseeessenssnsseranererenes 4

Section 110.00 U . . . ...... 4

Section 155.3ö53ůùłỹðJt:.ꝑ—ê „„ me 4

Section 200.00 .. ...... 4

United States Constitution:

Article IV, section ::: ꝛ]ẽ 18-19

Fifth Amendment 6

Fourteenth Amendmennnnt᷑ 6

United States Statutes:

%% geeesmereh st 2

28 U.S. C. 6221111 q ...... 20

28 U.S. C. 6228 „%. 20

Bap, R. Crr. P. 56 . . ...... ..... 11

Bap, R. CA. P. 5. ...... 21

IN THE

Supreme Court of the United States

October Term, 1974

No. 74-1425

eR A A tom

WLan SrTemnman,

Petitioner,

against

Mavrice H. Napsart, individually and as Special

Deputy Attorney General of the State of New York,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

7

re ů

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR CERTIORARI

Preliminary Statement

Petitioner William Steinman seeks a writ of certiorari

to review a judgment of the United States Court of Ap-

peals for the Second Circuit, entered April 14, 1975, unan-

imously affirming a judgment of the United States District

Court for the Eastern District of New York, entered De-

ceraber 12, 1974, dismissing petitioner’s complaint for de-

2

claratory and injunctive relief to bar a pending criminal

prosecution against him in the Extraordinary Special and

Trial Term of the New York State Supreme Court, Kings

County.

Opinions Below

The unreported opinions of the United States District

Court for the Eastern District of New York are reprinted

in the appendix to the Petition at pages A-1-12. The

judgment and oral opinion of the United States Court of

Appeals for the Second Circuit are reprinted in the sup-

plemental appendix to the Petition at pages SA-1-4.

The judgment of the United States Court of Appeals

for the Second Circuit was entered on April 14, 1975, and

the Petition was filed within 90 days of that date. Peti-

tioner invokes this Court’s certiorari jurisdiction pur-

suant to 28 U.S.C. §1254(1).

Question Presented

Whether a defendant in a pending state criminal pros-

ecution is barred from enjoining his prosecution on the

grounds of alleged prosecutorial misconduct and the al-

leged unconstitutionality of various state statutes when

those sarae issues may be raised in his state trial and in

the state appellate courts.

Statutes Involved

The pertinent federal and state constitutional and stat-

utory provisions are set forth in the Petition at pages 3-9.

Statement of the Case

The investigation, arrest and indictment

of William “teinman*

In the early part of 1973, members of the Office of the

United States Attorney for the Southern District of New

York learned from Nicholas DiStefano, a federal inform-

ant, that petitioner William Steinman, Administrative As-

sistant to the Comptroller for the State of New York, had

agreed to receive money to illegally influence the actions

of public agencies and officials (Federman affidavit, June

25, 1974, p. 49).** The United States Attorney began an

investigation of Steinman with the cooperation of the New

York City Police Department (ibid.). Pursuant to this

investigation, the prosecutors caused Virginia Morgan, a

federal agent, to be arrested in Kings County for the crime

of possession of a weapon (id. at 42). Thereafter, from

February 20, 1973, until September, 1973, DiStefano, work-

ing as an undercover agent, met with Steinman several

times concerning disposition of the Morgan case (id. at

49-50).

In August, 1973, the United States Attorney deter-

mined that the investigation fell within the jurisdiction

of state law enforcement agencies, and transferred it to

the office of respondent, Maurice H. Nadjari, the Special

* Many of the facts in this case, including the circumstances of

the arrest and indeed the guilt or innocence of petitioner, are subject

plo eee iary hearings at the

state .

** Parenthetical page references, unless otherwise indicated, are to

the appendix filed by petitioner in the Court of Appeals. In the event

that the original record and not the ix is transmitted to this

Court, the documents referred to in these pages are also identified.

q

State Prosecutor (id. at 50). The investigation then con-

tinued, partly with the use of court-ordered wiretaps (id.

at 50-51). Finally, on September 25, 1973, Steinman was

discovered near the Kings County Supreme Court House

with $5,000 in cash in his pocket (id. at 51). According to

the affidavit of Special Assistant Attorney General Mark

Federman, Steinman at first agreed to furnish the pros-

ecutors with information on corruption within the New

York City criminal justice system; in December, 1973, he

refused to cooperate further (id. at 51-52).

By an indictment filed December 18, 1973 (id. at 52),

the Extraordinary Special Grand Jury for the County of

Kings charged Steinman with the crimes of conspiracy in

the third degree [N. Y. Penal Law §105.05 (McKinney

1967)], attempted bribery in the second degree [N. V.

Penal Law §§110.00, 200.00 (McKinney 1967)] and grand

larceny in the second degree [N. V. Penal Law 6155.35

(McKinney 1967)] (Indictment No. S. P. O. K-6/1973, pp.

42-44). Specifically, the indictment alleged that, after Vir-

ginia Morgan had been arrested, Steinman had conspired

with others to receive $10,000, some of which would be paid

as bribes to members of the criminal justice system and

to two political district leaders to influence the outcome

of the Morgan case (id. at 42). Pursuant to this conspir-

acy, the indictment alleged, Steinman engaged in a series

of overt acts, in which he had discussed the Morgan case

with an unidentified individual (February 20, 1973), stated

that he would contact a public official in the criminal jus-

tice system, who would affect the Morgan case (May 21,

1973), obtained a list of officials in the criminal justice

system in Kings County (May 21) and displayed such a

5

list to another person (May 29), spoke to a public official

in the criminal justice system concerning the Morgan case

(July 3), received $1,000 in cash at a restaurant (August

13), stated that he had met and conferred with a second

public official (August 14), discussed the Morgan case with

a third official (August 16), stated that he had spoken to

two political district leaders concerning the case (Septem-

ber 6), and received $5,000 in cash near the Kings County

Supreme Court House (September 20) (id. at 43).

The proceedings in the Appellate Division

By permission granted January 25, 1974, pursuant to

section 149, subdivision 2, of the New York Judiciary Law,

Steinman moved in the Appellate Division of the New York

Supreme Court, Second Department, for an order dis-

missing the indictment in the interest of justice, dismissing

the indictment on the ground that the Special Prosecutor

had abused his statutory power and authority, disqualify-

ing the justice of the Extraordinary Special and Trial Term

of the Supreme Court from presiding at his trial, super-

seding and disqualifying the Special Prosecutor from

prosecuting his case, granting discovery, and impounding

tape recordings of intercepted conversations (Nussbaum

affidavit, June 10, 1974, pp. 26-28). On the issue of pros-

ecutorial misconduct and abuse of power, Sicinman alleged

that the Special Prosecutor had entrapped him by use of

a ‘‘manufactured”’ crime (id. at 29-33), that he had released

to the press portions of the prosecutor’s brief and affi-

davit in the Appellate Division in apparent violation of

an order of that court that the papers before it be sealed

(id. at 35-36), and that a member of the prosecutor’s staff,

6

during oral argument, had misrepresented to the Appellate

Division that former Chief Judge Fup of the New York

State Court of Appeals had sanctioned the use of ‘‘mock

arrests, when in fact the judge had not done so (id, at

36-37).

‘The Appellate Division granted partial discovery and

denied the rest of the motion, citing the concurring opinion

of Mr. Justice Snarmo in Matter of Klein v. Murtagh, 44

A.D.2d 465, 473-74 (2d Dept. 1974), af d, 34 N.Y. 2d 988

(1974), that questions of prosecutorial misconduct should

be decided at the trial level. People v. Steinmam, 44 A. D. 2d

839 (2d Dept. 1974). Steinman has since made a motion in

the trial court to dismiss the indictment on, for the most

part, the same grounds of prosecutorial misconduct. That

motion is still pending.

The instant action for injunctive and declaratory relief

After denial of the motion by the Appellate Division

and referral of the matter to the trial court, Steinman

brought a civil rights action in the United States District

Court for the Eastern District of New York on essentially

the same grounds raised in the Appellate Division and re-

quested declaratory judgment, a permanent injunction and

the convening of a three-judge court to dismiss his ‘‘indict-

ment as null and void under the Due Process Clause of the

Fifth and Fourteenth Amendments of the Constitution“

(complaint, pp. 2-9). Through a series of affidavits sub-

mitted by Steinman and his counsel, Steinman made allega-

tions of entrapment, specifically that the Special Prosecutor

had engaged in a ‘‘mock arrest (Steinman affidavit, June

10, 1974, pp. 13-15; Nussbaum affidavit, June 10, 1974, pp.

7

29-33; Nussbaum reply affidavit, June 27, ae

Nussbaura affidavit, Jul. 12, 1974, pp. 73-78) and that

Special Prosecutor and the United States Attorney for the

Southern District of New York had attempted to coerce him

into entrapping other public officials (Steinman affidavit,

June 10, 1974, pp. 15-19; Nussbaum reply affidavit, June 27,

1974, p. 58; Steinman reply affidavit, June 27, 1974, pp.

62-67). Steinman further alleged that between his arrest

and the indictment he had been denied a preliminary hear-

ing as required by state law (Nussbanm reply affidavit,

June 27, 1974, p. 58), that the Special Prosecutor had im-

properly released to the press portions of papers which the

prosecution had submitted in the Appellate Division (Nuss-

baum affidavit, June 10, 1974, pp. 35-36; Nusebaum reply

affidavit, June 27, 1974, p. 58), and that Chief Special As-

sistant Attorney General Joseph A. Phillips had misrepre-

sented former Chief Judge Fup’s approval of the arrest

procedure both in the instant case in the Appellate Division

and as amicus curiae in the United States Court of Appeals

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

(Nussbaum affidavit, June 10, 1974, pp. 36-37; Nussbaum

reply affidavit, June 27, 1974, pp. 58-60; Nussbaum affidavit,

Jul. 12, 1974, pp. 78-79; Nussbaum affidavit, Jul. 17, 1974,

and exhibits, pp. 80-83).

Steinman also claimed that the Special Prosecutor had

abused his authority under section 63 of the New York

Executive Law and the Governor’s Executive Order Num-

ber 55, and that therefore those provisions were uncon-

stitutional as applied (Nussbaum affidavit, June 10, 1974,

pp. 31-32; Nussbaum reply affidavit, June 27, 1974, pp. 55-

56). Finally, he asserted that the Special Prosecutor and

the trial judge should be disqualified pursuant to section

63 of the New York Executive Law and section 149 of the

New York Judiciary Law, respectively (Nussbaum affidavit,

June 10, 1974, pp. 33-35). He submitted that he was irrep-

arably injured because the trial judge could not be im-

partial in light of his official association“ with the Special

Prosecutor (Nussbaum affidavit, June 10, 1974, pp. 37-38).

The Special Prosecutor moved to dismiss the complaint

for failure to state a claim on which relief could be granted

(notice of motion, p. 45). In a series of affidavits submitted

by Chief Special Assistant Attorney General Joseph A.

Phillips, Special Assistant Attorney General Mark I.

Federman and Assistant United States Attorney Rudolph

W. Giuliani, the Special Prosecutor argued that Steinman

had not been entrapped (Giuliani affidavit, June 25, 1974,

pp. 46-48; Federman affidavit, June 25, 1974, pp. 51-52;

Phillips reply affidavit, Jul. 8, 1974, pp. 68-72), but that,

in any event, the questions of prosecutorial misconduct

should be resolved in the pending state prosecution, which

had been brought in good faith (Phillips affidavit, June 25,

1974, pp. 53-54; Phillips reply affidavit, Jul. 8, 1974, p. 68).

Mr. Phillips further stated that the information he had

supplied to the Appellate Division on oral argument, to

the effect that Judge Fur had approved the investigative

technique in a discussion with the United States Attorney,

was an inadvertent error and that he had corrected the

error by submitting a letter to that court (Phillips affidavit,

June 25, 1974, p. 54).

On June 27, 1974, in an oral, argument before the United

States District Court for the Eastern District of New York

(Constantino, J.), Steinman, through counsel, contended

9

that a three-judge panel should be convened because the

Special Prosecutor, in light of his alleged misconduct, had

exceeded his authority under section 63 of the New York

Executive Law and under the Governor’s executive order.

Counsel also noted that section 149 of the New York

Judiciary Law, which provides that the Governor may

appoint a Supreme Court justice to preside at an extraor-

dinary special and trial term, is unconstitutional because

it violates the federal separation of powers doctrine. By

a memorandum and order dated August 8, 1974, Judge

Consrantino denied the application for a three-judge court

on the ground that the constitutionality of the provisions

cited in the complaint, to wit, section 63 of the New York

Executive Law and Executive Order Number 55, had not

been challenged. The court invited further briefs on the

Special Prosecutor’s outstanding motion to dismiss the

complaint, to be thereafter treated as a motion for sum-

mary judgment. Petition, pp. A-1-5.

Both sides submitted further memoranda of law on the

motion. Steinman, through counsel, filed an additional

affidavit challenging the constitutionality of article VI,

section 27, of the New York State Constitution and its

implementing statute, section 149 of the New York Judi-

ciary Law. He asserted that the state prosecution sub-

jected him to irreparable injury because he was ‘‘without

financial resources“ to defend his case (Nussbaum supple-

mental affidavit, Oct. 15, 1974, pp. 94-96).

By a memorandum and order dated December 6, 1974,

and an amended memorandum and order dated December

10, 1974, Judge Constantino granted the Special Prose-

10

eutor's motion to dismiss the complaint on the ground that

the questions presented in the action could be resolved in

the state proceeding. Petition, pp. A-6-12. On December

12, 1974, judgment was entered dismissing the complaint.

On appeal to the United States Court of Appeals for

the Second Circuit, petitioner argued that the denial of his

application for a three-judge court and the subsequent dis-

missal of his complaint were erroneous. The Court of

Appeals (Kaurman, C.J., Surrn and Timers, JJ.) unani-

mously affirmed the judgment of the District Court on April

14, 1975. Petition, pp. SA-1-4.

ARGUMENT

The proceedings below present a classic situa-

tion properly barring federal intervention in a pending

state criminal prosecution.

Petitioner brought an action in the United States Dis-

trict Court for declaratory and injunctive relief to stay

his state criminal proceeding on the grounds of prosecu-

torial misconduct, to wit, entrapment, failure to provide

petitioner a preliminary hearing, releasing to the press

court papers in apparent violation of a state court order,

and misleading the Appellate Division on what former

Chief Judge Ful said concerning the prosecution’s inves-

tigative techniques. During the course of the proceeding,

petitioner tangentially challenged the constitutionality of

several state provisions. N.Y. Const. art. VI, §27 (Me-

Kinney 1969); N.Y. Judiciary Law §i149(1) (McKinney

1968); N.Y. Executive Law §63 (McKinney 1972); Exec.

11

Order No. 58, 9 NYCRR 1.58.“ After denying an initial

application for the convening of a three-judge court and

receiving affidavits and memoranda of law submitted by

both parties,** the District Court held that Steinman had

not demonstrated the irreparable injury necessary to allow

federal intervention in a pending state prosecution and

granted respondent’s motion to dismiss the complaint. Peti-

tion, pp. A-6-12. The United States Court of Appeals for

the Second Circuit affirmed the dismissal. Petitioner seeks

a writ of certiorari to review that decision.

It is now well established that, with few exceptions,

a federal court, as a matter of comity, should dismiss an

action for declaratory and injunctive relief when the claims

submitted may be raised in a pending state criminal prose-

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

Mackell, 401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77

(1971); Perez v. Ledesma, 401 U.S. 87 (1971); Dyson v.

Stein, 401 U.S. 200 (1971) ; Byrne v. Karalexis, 401 U.S. 216

(1971); Gajon Bar and Grill v. Kelly, 508 F. 2d 1317 (2d

Cir. 1974); cf. Allee v. Medrano, 416 U.S. 802 (1974); Steffel

v. Thompson, 415 U.S. 452 (1974); Salem Inn v. Frank, 501

* Erroneously cited in the complaint as Executive Order Number

55, 9 NYCRR 1.55, by which the Governor, pursuant to section 63

of the New York Executive Law, gave the Attorney General

and his deputy, the respondent herein, power to prosecute cases of

official corruption in the criminal justice system in New York County.

The correct order in issue, number 58, is an identical order applying

to Kings County.

** In its decision of December 6, 1974, the District Court granted

the Special Prosecutor’s motion to dismiss the complaint and, in

so doing, assumed the truth of the facts alleged by petitioner.

Petition, p. A-9. However, since the court examined papers sub-

mitted by both parties and had earlier stated that it would treat the

Special Prosecutor’s motion to dismiss as one for summary judg-

ment, the court’s decision may be viewed as having granted sum-

mary judgment in favor of the Special Prosecutor. Petition, pp.

A-4-5; see Fep. R. Civ. P. 56; Reilly v. Doyle, 483 F. 2d 123, 125,

n. 2 (2d Cir. 1973).

12

F. 2d 18 (2d Cir. 1974). This rule applies no matter whether

the underlying basis for the claim is the unconstitutionality

of a state statute or the misconduct of state officials. See

Kugler v. Helfant, —— U.S. —— (Apr. 28, 1975); Reilly

v. Doyle, 483 F. 2d 123, 128 (2d Cir. 1973) ; Inmates of At-

tica Correctional Facility v. Rockefeller, 453 F. 2d 12, 22

(2d Cir. 1971); Lewis v. Kugler, 446 F. 2d 1343, 1348 (3d

Cir. 1971). When a state prosecution is pending, federal

intervention is only allowed when the plaintiff has shown

that he faces great and immediate injury [Younger v. Har-

ris, supra at 46], or that the prosecution has been brought

in bad faith or merely to harass the plaintiff [id. at 49],

or that other ‘‘extraordinary circumstances’’ exist which

require intervention. Id. at 53-54. Recently, this Court

has expanded these rules to proceedings other than state

criminal prosecutions. Schlesinger v. Councilman, —— U.S.

—— (Mar. 25, 1975) (military court-martial) ; Huffman v.

Pursue, Ltd., —— U.S. —— (Mar. 18, 1975) (state civil

proceeding akin to criminal prosecution).

The decisions of the courts below, barring federal inter-

vention in this case, clearly follow the precepts of Younger

v. Harris, supra, and subsequent cases and in no way con-

flict with the holdings of other federal courts. Indeed,

petitioner has failed to indicate how the instant case is of

such a unique character as to require review by this Court.

Quite the contrary, a brief analysis of the prerequisites for

federal intervention in light of petitioner’s claims indicates

the correctness of the denial of relief by the District Court.

The ‘‘traditional prerequisite to obtaining an injunc-

tion’’ is a showing of irreparable injury which is both

great and immediate. Younger v. Harris, supra at 46;

13

Fenner v. Boykin, 271 U.S. 240, 243-44 (1926). One aspect

of such injury is the lack of an adequate remedy in the state

proceedings by which the federal plaintiff may assert his

claim. Younger v. Harris, supra at 48-50. Most of the

same claims which petitioner submitted in the District Court

have been included in an omnibus motion to dismiss the

indictment on jurisdictional grounds and in the interest of

justice. See N. V. Criminal Procedure Law §210.20 (Me-

Kinney 1971). That motion is now pending in the state

trial court pursuant to the directive of the Appellate Divi-

sion. See People v. Steinman, 44 A.D.2d 839 (2d Dept.

1974). In turn, it is ‘‘generally to be assumed that state

courts and prosecutors will observe constitutional limita-

tions’’ and that the mere possibility of erroneous initial

application of constitutional standards will usually not

amount to the irreparable injury necessary to justify a dis-

ruption of orderly state proceedings. Dombrowski v.

Pfister, 380 U.S. 479, 484-85 (1965) ; see Cameron v. John-

son, 390 U.S. 611, 621 (1968). Here, the state trial court

will presumably rule correctly on the questions of law and

will hold, if necessary, an evidentiary hearing to determine

factual issues relevant to those portions of the motion con-

cerning prosecutorial misconduct. See N.Y. Criminal Pro-

cedure Law §210.45(6) (McKinney 1971).

Moreover, petitioner’s allegation of prosecutorial mis-

conduct as it relates to the affirmative defense of entrap-

ment will be presented to and decided by the trial jury in

its determination of petitioner’s guilt or innocence. N. Y.

Penal Law §40.05 (McKinney 1967). Further, all those

issues raised in the trial court, including that of the trial

judge’s alleged bias, may be subject to full review by judg-

14

ment appeal in the Appellate Division and again in the New

York Court of Appeals, by post-conviction remedy [see

N. Y. Criminal Procedure Law §440.10 (McKinney 1971)],

by certiorari in this Court, and by habeas corpus and addi-

tional appeal in the federal courts. O’Shea v. Littleton, 414

U.S. 488 (1974); Watson v. Buck, 313 U.S. 387, 401 (1941);

Canal Theatres, Inc. v. Murphy, 473 F. 2d 4, 6 (2d Cir.

1973); Leslie v. Matzkin, 450 F. 2d 310 (2d Cir. 1971), cert.

denied, 406 U.S. 932 (1972).

A federal plaintiff could also demonstrate great and

immediate injury by showing that prosecutorial misconduct

is presently continuing and thus may not be subject to

attack in a pending case unrelated to the misconduct. See,

e. g., Dombrowski v. Pfister, supra (police continued to

threaten prosecution, even though vital evidence was or-

dered suppressed by a state court); Inmates of Attica Cor-

rectional Facility v. Rockefeller, supra (injunctions only

allowed against continuing brutality in state prison). In

the instant case, petitioner alleged no continuing miscon-

duct. All the alleged misconduct has already occurred and

is subject to challenge in the state prosecution. Again, no

irreparable injury is indicated. 1

The second ground for federal intervention is a showing

that the state prosecution has been brought in bad faith or

to harass the party seeking relief. Younger v. Harris, supra

at 49. Petitioner urged, more specifically in the Court of

Appeals than in the Distriet Court, that the instant prosecu-

tion has been brought in bad faith, and, in this respect, he

pointed to his allegations of prosecutorial misconduct. Bad

faith or harassment prosecutions, however, have been spe-

cifically defined as those brought ‘‘without hope of obtain-

15

ing a valid conviction’’ [Perez v. Ledesma, supra at 85] or

with ‘‘no intention of pressing the charges * * *, knowing

that [the defendant] did not violate the [criminal] statute.

Cameron v. Johnson, supra at 619-20. In other words, the

prosecution must be shown to have a ‘‘sham case.’’ Citizens

for a Better Environment, Inc. v. Nassau County, 488 F. 2d

1353, 1360 (2d Cir. 1973); see, e.g., Dombrowski v. Pfister,

supra; Shaw v. Garrison, 467 F. 2d 113 (5th Cir. 1972), cert.

demed, 409 U.S. 1024 (1972). No such showing has been

made of the instant state prosecution, where it is undis-

puted that the acts alleged in the indictment would, if

proved, constitute conspiracy, attempted bribery and grand

larceny.

It is necessary to point out that the tactics allegedly

used by the prosecution here, specifically by the United

States Attorney before the case was transferred to the

Special State Prosecutor for lack of federal jurisdiction—

i. e., employing a fictitious indictment to investigate corrup-

tion in the criminal justice system—have been questioned in

other cases. See, e.g., Matter of Nigrone v. Murtagh, ——

N.Y.2d —— (Apr. 3, 1975), aff’g 46 A.D.2d 343 (2d Dept.

1974); United States v. Archer, 486 F. 2d 670 (2d Cir. 1973).

But, while not the case here, even a prosecution brought

upon a clear constitutional infirmity does not constitute

bad faith. See Douglas v. City of Jeannette, 319 US. 157

(1943) (no bad faith even though prosecution was brought

under a statute found unconstitutional by this Court). The

state court is still assumed to ‘‘observe constitutional lim-

itations.’? Dombrowski v. Pfister, supra at 484-85.

Moreover, unlike the situation in Douglas v. City of

Jeannette, supra, the constitutional propriety or impro-

16

priety of the prosecutorial tactics used here is far

from: clear. And, indeed, the state appellate courts —

have overwhelmingly found, both in petitioner’s and other

cases, that such questions of prosecutorial misconduct

should be resolved at the trial level. Matter of Nigrone v.

Murtagh, supra; Pedple v. Steinman, supra; Matter of

Klein v. Murtagh, 44 A.D. 465, 473-74 (2d Dept. 1974)

(Snarmo, J., concurring), af d, 34 N. V. 2d 988 (1974).

Petitioner's claims thus should await further adjudication

in the trial court, both as a ground for dismissal and as a

etatatory defense. It cannot be said that the prosecution

has been brought ‘‘without hope of obtaining a valid con-

vietion. Perez v. Ledesma, supra at 85.

The last exception to the bar to federal intervention was

defined in Younger v. Harris, supra at 53-55, as ‘‘extraor- ,

dinary circumstances, an example of which was there

given in a quotation from Watson v. Buck, supra at 402:

It is of course conceivable that a statute might

be flagrantly and patentiy violative of express consti-

tutional prohibitions in every clause, sentence and

paragraph, and in whatever manner and against whom-

ever an effort might be made to apply it.“

None of the statutes challenged by petitioner presents such

an infirmity.

Petitioner’s first attack is directed at article VI, sec-

tion 27, of the New York State Constitution and its imple-

menting statute, section 149, subdivision 1, of the New

York Judiciary Law, both of which provide that the Gov-

ernor may, when the public interest requires, appoint

one or more extraordinary special and trial terms of the

/

— ih

— ERD en

17

New York Supreme Court and may name “the justice

who shall hold the term’’; further, the Governor may

terminate the assignment of the justice and may name

another justice in his place to hold the term.“ N.Y. Coxsr.

art. VI, §27 (McKinney 1969); N. V. Judiciary Law 6149

(1) (McKinney 1968). By this procedure, the Governor,

as he did at the same time in the other four counties of

New York City, established the Extraordinary Special and

Trial Term of the Supreme Court, Kings County, for the

triakof cases brought by the Special Prosecutor, and named

Mr. Justice Jonx M. Murtacn to preside. at the term.

Exec. Order No. 64, 9 NYCRR 1.64. Petitioner claims that

this procedure allows the Governor to appoint and remove

a judge at will and thus violates the separation of powers

doctrine of the United States Constitution and ~ inde-

‘pendence of the judiciary. He i is wrong.

To begin with, at least one federal court having an op-

portunity to discuss this procedure on the merits has found

it to comply with due process standards. United States ex

rel. Monty v. McQuillan, 385 F. Supp. 1308 (E. D. N. V. 1974),

ff d, 2d Cir., Docket No. 75-2012 (May 1, 1975) (no opin-

ion). Moreover, with respect to the trial justice, the Gov-

ernor’s power consists only of appointment, when the public

interest requires, and removal, presumably when the as-

signed justice has become unable or unwilling to continue

in his position. Further, the power of terminating the

assignment and naming another justice to hold the

term has not even been exercised as to this Extraordinary

Term.* And for the Governor to abuse his authority and

* Interestingly it iti himself who sought to have

ont Bae eae

é

18

make his appointments for any purpose other than in the

public interest would be a ‘‘violation of [the] law’’ under

attack. People v. Davis, 67 Misc. 2d 14, 16 (Sup. Ct., Ex-

traordinary Special and Trial Term, Ontario Co. 1971).

In sum, the extraordinary term is ‘‘to be conducted in

accordance with the rules of law governing all the other

terms of court with the exception of the designation of the

judge.’’ Matter of Reynolds v. Cropsey, 241 N.Y. 389, 395

(1925). The procedure in no way creates a tribunal with a

built-in personal or pecuniary interest in the outcome of a

trial. Cf. Gibson v. Berryhill, 411 U.S. 564 (1973); In re

Murchison, 394 U.S. 133 (1955); Tumey v. State of Ohio,

273 U.S. 510 (1927). Indeed, if the trial judge is unbiased,

petitioner would have no ground to complain. United

States ex rel. Monty v. McQuillan, supra at 1311. And if

the judge is biased against petitioner, the latter has an

adequate remedy at state law for seeking the judge’s dis-

qualification. N.Y. Judiciary Law §14 (McKinney 1968) ;

22 NYCRR 33.3(c) (N.Y. Judicial Conference).

Petitioner’s additional argument that this state proce-

dure of establishing an extraordinary term violates the

separation of powers doctrine of the United States Con-

stitution is likewise without merit. The Constitution con-

tains no requirement that the structure of state govern-

ments conform exactly to the structure of the national gov-

ernment; the federal separation of powers doctrine does

not apply to the states. Dreyer v. Illinois, 187 U.S. 71, 84

(1902); cf. United States v. Brown, 381 U.S. 437, 442-43

(1965). In fact, all that the Constitution requires of each

state is a Republican Form of Government [U.S. Coxsr.

—

the New York Executive Law, provides that the Attorney

19

art. IV, §4], the existence of which here is demonstrated by

the fact that the People of the State of New York them-

selves voted to adopt the very state constitutional provision

under attack. See N.Y. Constr. art. XIX, 51 (McKinney

1969).

Another challenged statute, section 149, subdivision 2,

of the New York Judiciary Law, provides that the Appel-

late Division, in its discretion, may hear a motion addressed

to an extraordinary special and trial term. The existence

of such discretion does not, as petitioner claims, deny him

equal protection of the law. For the use of sound judicial

discretion is not uncommon to state or federal courts in

setting bail, imposing sentence or granting leave to appeal,

or to this Court in granting certiorari. Finally, there is

no showing that the Appellate Division has practiced in-

vidious discrimination or unreasonable distinctions in

deciding whether to entertain a pre-trial motion. Cf. Wil-

hams v. Oklahoma City, 395 U.S. 458 (1969); Baxstrom .

Herold, 383 U.S. 107 (1966) ; Griffin v. People of the State

of Illinois, 351 U.S. 12 (1956).

The last challenged siatute, section 63, subdivision 2, of

General or one of his deputies (in this case, the Special

State Prosecutor, pursuant to the Governor’s Executive

Order Number 58, 9 NYCRR 1.58), shall, upon request of

the Governor, supersede a local district attorney, and prose-

cute a certain case or class of cases. Petitioner’s argument

that the Special Prosecutor abused his authority by en-

gaging in various forms of misconduct is not a challenge

to the constitutionality of a statute, but is merely a reword-

20

ing of his challenge to respondent’s conduct.* See Phillips

v. United States, 312 U.S. 246, 252 (1941).

In sum, the state provisions challenged are not ‘‘viola-

tive of express constitutional prohibitions in every clause,

sentence and paragraph’’ as to create an extraordinary

circumstance calling for federal intervention. Younger v.

Harris, supra at 53-55; Watson v. Buck, supra at 402. Any

challenge to their constitutionality should be made in the

state court, and petitioner has made such a challenge in his

pending motion to dismiss the indictment.

Finally, it should be noted that the constitutional nature

of petitioner’s claims of prosecutorial misconduct is highly

questionable and may in fact be ‘‘nonexistent,’’ thereby de-

priving him of any ground for a civil rights complaint. See

Bailey v. Patterson, 369 U.S. 31, 33 (1962). Thus, the in-

vestigative techniques allegedly used may well involve only

the ‘‘nonconstitutional’’ defense of entrapment. United

States v. Russell, 411 U.S. 423, 482-33 (1973); see N.Y.

Penal Law §40.05 (McKinney 1967). And even if the de-

fense here is a due process claim, the District Court correct-

ly noted that United States v. Archer, supra, was not

decided in the context presented here, i. e., where a federal

* At the time the District Court entertained petitioner’s applica-

tion for a three-judge court, section 63 of the New York Executive

Law was the only challenged state statute included in petitioner’s

papers. But since the allegation was directed at the Special Prosecu-

tor’s conduct and not at the constitutionality of a state statute, the

application was properly denied, since it did not conform to the

three-judge statute. Petition, pp. A-1-5; 28 U.S.C. §§2281, 2284.

When petitioner subsequently submitted his challenges to article

VI, section 27, of the New York Constitution and section 149 of

the New York Judiciary Law, the District Court properly refrained

from reconsidering the application since the constitutional questions

were clearly not substantial as to warrant the convening of a three-

judge panel. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370

.S. 713, 715 (1962). The Court of Appeals affirmed this decision,

finding that the “claims relating to the constitutionality of the State

statutes are frivolous.” Petition, p. SA-4.

21

court is asked to interfere with a pending state prosecution.

Plaintiff has a forum where he can assert these due process

violations.’’ Petition, p. A-10. Petitioner’s further alle-

gation that he was not, before indictment, afforded a prompt

arraignment or preliminary hearing concerns a violation,

if any, of state, not constitutional, law. See N.Y. Criminal

Procedure Law 6640.20, 180.60, 180.70 (McKinney 1971) ;

cf. Mallory v. United States, 354 U.S. 449 (1957); McNabb

v. United States, 318 U.S. 332 (1943); Fep. R. Crim. P. 5,

5.1. Whatever the meaning of his statements in the District

Court that he was held ‘‘incommunicado,”’ it was never as-

serted that during the three months before indictment, when

the prosecution sought his cooperation in investigating cor-

ruption, he was incarcerated in jail or physically prevented

from seeing an attorney. Cf. Gerstein v. Pugh, —— US.

—— (Feb. 18, 1975); Coleman v. Alabama, 399 U.S. 1

(1970). Rather, it appears that his indictment was delayed

for a determination of whether he would become an inform-

ant; throughout that time he remained at liberty, as he

does now. Additionally, no constitutional questions are in-

volved in an apparent violation of a state court order to

seal court papers or in an obvious misunderstanding over

what the former Chief Judge said to whom. All these ques-

tions may and should be resolved in the state court.

Petitioner demonstrated none of the extraordinary cir-

cumstances required to invoke federal intervention into a

pending state criminal prosecution. As the Court of Ap-

peals correctly perceived, ‘‘this is a classic case for re-

straint in invoking federal equitable relief, out of respect

for State processes.’’ Petition, p. SA-4. The dismissal of the

complaint was in full accord with the guidelines established

by this Court and in harmony with the principles of fed-

eralism. Petitioner’s claim is thus not sufficiently substan-

tial to warrant the granting of a writ of certiorari.

22

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Maurice H. Napsari

Deputy Attorney General

Special State Prosecutor

Bennett L. GersHMAN

Auten G. Swan

Special Assistant Attorneys General

Of Counsel

May, 1975.