Eduardo Cruz v. Robert Alexander

MANSFIELD, Circuit Judge

(dissenting):

I respectfully dissent for the reason that in my view the majority errs in concluding that the New York Court of Appeals implicitly found in People v. Cruz, 34 N.Y.2d 362, 314 N.E.2d 39, 357 N.Y.S.2d 709 (1974), that “wiretapping did not occur.” (Maj. op. 36). In addition, although the state’s denial of wiretapping is proper in form, as we held in Cruz v. Alexander, 669 F.2d 872 (2d Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 99, 74 L.Ed.2d 89 (1982), its content is incomplete and should be supplemented. For these reasons I would remand the case for limited further proceedings.

Congress has by statute barred the use in either federal or state proceedings of the contents of any conversation wiretapped in violation of procedures required by federal law. See 18 U.S.C. § 2515; see also §§ 2516-19 (outlining proper procedures). In addition, the Sixth Amendment prohibits the receipt by a prosecutor of privileged information pertaining to an individual’s preparation of his defense to criminal charges that is gained from wiretapping or the presence of an informer in the defense camp. See Weatherford v. Bursey, 429 U.S. 545, 554 & n. 4, 97 S.Ct. 837, 843 & n. 4, 51 L.Ed.2d 30 (1977). A defendant who believes that he has been wiretapped, however, will usually be faced with formidable difficulties in finding direct evidence, such as an actual “bug,” to support his claim; typically, all he will be able to produce is circumstantial evidence that his conversations, or those of his attorney, have been overheard.

Recognizing these evidentiary difficulties, Congress has provided for a specific procedure, applicable in terms only to federal prosecutions, whereby a defendant who makes a colorable claim that some evidence against him is the product of illegal electronic surveillance may require the prosecutor to “affirm or deny” that wiretapping has occurred. See 18 U.S.C. § 3504. The extent of the prosecutor’s obligation to respond depends on the strength of the de*38fendant’s showing: a weak showing is satisfactorily answered by a correspondingly minimal denial, while a strong showing requires the prosecutor to make a more detailed inquiry into whether any state or federal agency in fact wiretapped the defendant. See United States v. Gardner, 611 F.2d 770, 774 (9th Cir.1980); United States v. Yanagita, 552 F.2d 940, 944 (2d Cir.1977); In re Buscaglia, 518 F.2d 77 (2d Cir.1975). While the procedure under § 3504 is not in terms applicable to state proceedings, some substantially similar procedure must be followed in state actions to give defendants a reasonable opportunity to vindicate their rights under § 2515 and the Sixth Amendment. See People v. Cruz, supra, 34 N.Y.2d at 369-70, 314 N.E.2d at 43, 357 N.Y.S.2d at 714.

During the trial Cruz initially made a weak showing, to which the state prosecutor responded that he had “nothing . .. derived from any ... surveillance of the nature [Cruz’s counsel] was talking about” and disclosed portions of his file to the trial judge. The trial judge properly denied Cruz’s motion. Thereafter, however, the prosecutor in his summation referred to the testimony of a “Sister Anne Marie,” identified by him as a character witness for Cruz, even though no such person had testified at any time or been mentioned during the trial.

Cruz and his trial counsel swore in a post-judgment motion to vacate his conviction that the name of “Sister Anne Marie” had been mentioned only once during a telephone conversation between Cruz’s counsel and a third party the day before the prosecutor’s summation. These facts raise a much stronger suspicion that the state’s case may have been derived in part from wiretapping in violation of Cruz’s Sixth Amendment right to counsel. Yet the prosecutor did not expand on his earlier response. He was not required by the trial court to explain how he learned of “Sister Anne Marie” and no hearing was held to determine whether wiretapping had occurred and, if so, whether any of the state’s case had been derived from such tapping. Upon appeal, after the Appellate Division affirmed without opinion, 41 A.D.2d 1027, 343 N.Y.S.2d 786, the Court of Appeals, granting leave to appeal, affirmed by opinion, 34 N.Y.2d 362, 314 N.E.2d 39, 357 N.Y.S.2d 709 (1974), which it later modified and supplemented, 35 N.Y.2d 708, 320 N.E.2d 274, 361 N.Y.S.2d 641 (1974). These opinions shed considerable light on the question of whether the state courts ever found that wiretapping of Cruz had not occurred, as the majority here asserts.

In its first opinion the Court of Appeals characterized Cruz’s “initial allegation of eavesdropping ... as vague, conclusory and unsupported ... [which] barely sufficed to shift to the People the burden of responding” and held that the “People’s denial ... sufficiently met the allegation.” With this holding I do not disagree. With respect to Cruz’s post-trial allegation based on the prosecutor’s mysterious reference to “Sister Anne Marie” in his summation the New York Court of Appeals initially wrote in a footnote:

“Moreover, we are advised that the allegations of wiretapping of counsel were reasserted in a post judgment motion to vacate the conviction on which the People submitted an affidavit in opposition containing specific denials. The motion to vacate was denied and apparently no appeal was pursued. While we might otherwise be disposed to remand for further proceedings with respect to these allegations, in light of these developments such a course would now be purposeless.” People v. Cruz, Slip Op. No. 271, p. 4 (Ct.App.1974).

When Cruz moved for reargument on the ground that there had not been any such post-trial disposition on the merits by the trial court of the wiretapping question, the Court of Appeals deleted its footnote, stating in its final published opinion that “Allegations respecting ... the reference in summation to Sister Annmarie, following, as they did, so closely upon the previous *39denial, are fairly within its sweep as well. And these latter allegations, although more specific, were, on the record before us, little more than speculative.” 34 N.Y.2d at 368-69, 314 N.E.2d at 42-43, 357 N.Y.S.2d at 1713-14.

I submit that this decision is not, as the majority states, a finding “that wiretapping did not occur.” (Maj. op. at 36). Rather, the Court of Appeals found that the “Sister Anne Marie” allegations were too vague, conclusory and unsupported to warrant an inquiry — a finding with which I, and I believe even the majority here, disagree. The Court of Appeals thus ended its inquiry into whether wiretapping occurred after making only a threshold determination that Cruz had not presented facts raising a reasonable suspicion of wiretapping. Such a threshold finding — in effect, a decision not to make a careful inquiry into whether Cruz had been wiretapped — can hardly be converted into a finding that no wiretapping took place. Since the New York courts never “found” that wiretapping “did not occur,” there was no finding of fact on that issue which would bind us in this habeas corpus proceeding. See 28 U.S.C. § 2254(d).

Nor, surely, are we bound by the New York court’s erroneous threshold determination that the “Sister Anne Marie” incident did not raise a reasonable suspicion of wiretapping. Such a determination is not a finding of “basic, primary, or historical fact[ ] ... in the sense of a recital of external events and the credibility of their narrators.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980), quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963). At most it “is a mixed determination of fact and law ... open to review on collateral attack in a federal court.” See Cuyler, supra, 446 U.S. at 342, 100 S.Ct. at 1715. Upon this petition for habeas corpus we cannot therefore rely on the state’s fact-finding procedure as precluding a federal inquiry. See 28 U.S.C. § 2254. Indeed, absent a state finding of fact on whether wiretapping occurred, we must resolve that issue.

Nor is such an inquiry barred by our prior decision in this case. Thus far our federal inquiry on this habeas petition has only been into the form of the denials of wiretapping, i.e., whether each investigating agency must submit an affidavit rather than a letter response, but not into the substantive issue, i.e., whether any wiretapping in fact occurred. Although we stated in our prior opinion that the state’s denial of wiretapping “contains no deficiency cognizable on federal collateral attack,” 669 F.2d at 873, we were referring only to the alleged deficiency in form which was the subject of our opinion, 669 F.2d at 875-76. Our decision was not an adjudication “of any other than the questions in terms discussed and decided.” Imperial Chemical Industries, Ltd. v. National Distillers and Chemical Corp., 354 F.2d 459, 463 (2d Cir. 1965).

The record reveals that a limited inquiry by the district court into whether wiretapping occurred is advisable in this case. In prior proceedings before that court, various state and federal agencies were ordered to determine whether or not they had any records of wiretapping of Cruz. To date, with one exception to be discussed below, all of these agencies have responded by denying that any wiretapping took place. However, some of the denials are incomplete in material substantive aspects. For instance, the investigator in the office of the District Attorney of New York County denied only that his office had any records of electronic surveillance “ordered by the courts,” thus leaving open the possibility that wiretapping not ordered by the courts was performed. The FBI’s denial does not state whether its New York field offices were checked, which becomes significant in light of later developments discussed below. In addition, the responses of the U.S. Customs Service, the CIA, and the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department are likewise incomplete in that they deny only that Cruz was the “subject” of electronic surveillance, leaving open the possibility that he or his attorneys were overheard on wiretaps directed toward others.

*40The need for a limited inquiry into the substantive adequacy of the state’s denial of wiretapping has been strengthened by the recent disclosure that on July 16, 1969, Cruz was overheard by the FBI, on its wiretap of another person, having a brief conversation with a member of the Black Panther Party in New York. On June 18, 1980, in response to a request from an Assistant Attorney General from the State of New York, the FBI reported that a search of its indices of electronic surveillance had turned up no indication that Cruz was “the target of electronic surveillance” or was “monitored by any electronic device of the FBI,” or was “known to have owned, leased or licensed premises on which the FBI maintained an electronic surveillance.” See Exhibit F, at 3. On June 20, 1980, Cruz presented the district court with a memorandum from the New York office of the FBI, obtained a few days earlier through the Freedom of Information Act, stating that Cruz had been overheard on the July 16,1969 wiretap. On July 15,1980, the FBI wrote to the New York Assistant Attorney General on the case to confirm the accuracy of the information previously disclosed to Cruz; the district court was not told of this confirmation until November 1982. Although the state prosecutor’s failure to notify the court was attributable to an oversight on the part of the FBI, these facts do indicate the advisability of a further inquiry into whether Cruz was in fact overheard on other wiretaps.

The need for limited further inquiry is also highlighted by the fact that at the time the wiretapping allegedly took place, Cruz was classified in FBI records as “EM-UGW,” meaning “Extremist Matters — Urban Guerrilla Warfare.” This occurred at a time when the FBI, according to one of its internal memoranda, maintained special “JUNE” files pertaining to “technical sur-veillances, microphone surveillances where trespass is involved, [and] ‘black bag jobs’ ... . ” Exhibit I at 3-4. The same FBI document states that “all sources used in criminal ... investigations where the code word ‘JUNE’ is utilized were sources illegal in nature and, of course, to protect these sources all information is included in the ‘JUNE’ file

Since Cruz has raised a reasonable suspicion that his counsel’s “Sister Anne Marie” conversation may have been wiretapped, which would amount to a violation not merely of his statutory but of his Sixth Amendment rights, I would remand the case to the district court to permit an inquiry to determine whether the state obtained the “Sister Anne Marie” information from illegal electronic surveillance and, if so, what relief is appropriate. See Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); United States v. Morales, 635 F.2d 177 (2d Cir. 1980). In view of the above-mentioned substantive incompleteness of some of the responses to the allegations of eavesdropping I would clarify our earlier opinion by instructing the district court to permit very limited discovery into the origin of the prosecutor’s “Sister Anne Marie” references and to order the state to obtain from the foregoing agencies complete responses remedying the deficiencies I have noted.