Biller v. Lopes

• Decision Date: 05 March 1987
• Docket Number: Civ. No. N-86-229(AHN).
• Citation: 655 F. Supp. 292
• Parties: Meyer BILLER, Petitioner, v. Raymond LOPES, Respondent.
• Court: U.S. District Court — District of Connecticut

655 F. Supp. 292

Meyer BILLER, Petitioner, v. Raymond LOPES, Respondent.

Civ. No. N-86-229(AHN).

United States District Court, D. Connecticut.

March 5, 1987.

Howard A. Jacobs & William M. Bloss, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, Conn., M. Mitchell Morse, University of Bridgeport School of Law, Bridgeport, Conn., for petitioner.

Steven M. Sellers, Office of the Chief State's Atty., Wallingford, Conn., for respondent.

MEMORANDUM OF DECISION ON PETITION FOR WRIT OF HABEAS CORPUS

NEVAS, District Judge.

Meyer Biller, a former licensed public adjuster, has been convicted in the Connecticut Superior Court of interfering with a police officer. The Court has released him on bond pending this decision. He seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241. He claims that his conviction for interfering with a police officer violated the Fifth and Fourteenth Amendments in that it is the fruit of a coerced confession. For the reasons set forth below, the petition is GRANTED.

I. Facts

A.

The petitioner is presently challenging the legality of his 1982 conviction on charges of interfering with a police officer in violation of Conn.Gen.Stat.Sec. 53a-167a. However, this challenge is based upon the illegal use of his 1976 conviction on a two count information charging him with falsely certifying two oaths in violation of Conn. Gen.Stat.Sec. 53-368. Accordingly, the Court begins by examining the facts surrounding the 1976 conviction.

On April 13, 1975, and April 18, 1975, suspicious fires heavily damaged an apartment building located at 66-68 Norton Street in the city of New Haven. The property was an asset of the Bridgehaven Corporation, a closely held corporation controlled by Peter and Marilyn Cappola.

Peter Cappola, a key state's witness, had insured the property for approximately $580,000. Prior to the date of the fires, the Cappolas had retained Meyer Biller for the purpose of settling claims with insurance companies. Also prior to the date of the April 13, 1975 fire, Peter Cappola advised Biller that a fire would in fact occur. Cappola admitted setting the April 13, 1975 fire, but denied any involvement in the April 18, 1975 fire.

Biller proceeded to adjust claims arising out of both fires. He and his son, Lawrence Biller, prepared a detailed survey itemizing the damage and replacement costs. Before the expiration of the deadline for filing proofs of loss with the insurance company, Biller provided Peter Cappola with two proof of loss forms and instructed Cappola to take them home and get his wife's signature. Cappola took the forms home. There the Cappolas signed one blank form for each fire. These signed but otherwise blank forms were then submitted to Biller's office. The Cappolas were unaware of the amounts claimed in the proofs of loss until after their submission to the insurer. Neither Peter nor Marilyn Cappola took an oath concerning the claims submitted.

Gerald Hale, the insurance company adjuster, received the proofs with a cover letter from the defendant and sent them on to the insurer. When Hale received the proof of loss statements, they were completely filled with no blank lines remaining on the forms. The forms were signed by the defendant as a notary. The damages claimed were $538,180.58 for the April 13 fire and $123,206.60 for the April 18 fire. Hale, who had examined the Norton Street structure soon after both fires and on subsequent occasions, considered the claims excessive. It was Hale's opinion that $225,000.00 and $75,000.00 were proper figures for the first and second fires respectively. Additionally there was evidence that the defendant had inflated the figures by twenty percent and that he had charged a fee of ten percent of the settlement.

State v. Biller, 190 Conn. 594, 596-97, 462 A.2d 987 (1983) (hereinafter referred to as "Biller I").

On appeal, Biller claimed that the trial court erred in admitting statements allegedly compelled from him by a one man investigative grand jury. Meyer Biller and his son, Lawrence, were engaged in the adjuster business under the name "Biller Associates." Biller appeared before the grand jury on nine different days between October 9, 1975 and March 12, 1976. The Connecticut Supreme Court found that, when questioned about his activities on behalf of Biller Associates, Meyer Biller consistently asserted his constitutional privilege against self-incrimination. Nevertheless, "the grand juror ordered him to answer the questions because they involved actions which the defendant might have taken in a corporate capacity regardless of whether the answers would implicate him personally." Id. at 599, 462 A.2d 987.

At the Biller I trial, the State offered several statements which the petitioner made before the investigative grand jury. The statements were offered in the form of excerpts from the grand jury transcript. In this testimony, Biller implied that he sometimes would obtain blank proof of loss forms and would have an insured sign them before completing the claim information. Id. at 598-99 n. 1, 462 A.2d 987. The Connecticut Supreme Court found that the grand juror had violated the petitioner's Fifth Amendment rights by compelling him to make incriminating statements in his "corporate capacity." Id. at 601, 462 A.2d 987. Since two excerpts of this coerced testimony were admitted at trial, the supreme court set the conviction aside and ordered a new trial.

On remand, Superior Court Judge J. Higgins found that the petitioner could not, as a matter of law, have committed the crimes with which he was charged, even assuming the State's version of the facts. State v. Biller, No. 22265, Memorandum of Decision on Motion to Dismiss (Superior Court, Judicial District of New Haven, August 15, 1984). Construing applicable statutes, Judge Higgins concluded that a proof of loss of the type that Meyer Biller was accused of improperly filing "is not required to be sworn to under oath." Id. at 6. Accordingly, he could not be charged with falsely certifying to the administration of an oath in violation of Conn.Gen. Stat.Sec. 53-368. The State never appealed the dismissal of the charges.

B.

The circumstances surrounding the conviction which the petitioner now challenges are as follows:

On March 12, 1981, a fire took place at a house owned by Wilken Shaw located at 79 Hallock Street in New Haven. At the scene of the fire, Joseph Toscano, an arson control assistant inspector assigned to the office of the New Haven State's Attorney, saw the defendant approach Shaw and his daughter-in-law, Willa Shaw. Toscano watched as the defendant spoke to the Shaws and provided them with some documents which Wilken Shaw signed. Toscano then approached the defendant and the Shaws with another officer, Joseph Howard. As the officers approached the trio, they heard the defendant state to the Shaws that he would contact the insurance companies.

Toscano identified himself to the defendant who responded by acknowledging that he knew Toscano's identity. Toscano then asked the defendant if he was licensed to act as a public adjuster in this state. Toscano also, at that time, saw the documents which Shaw had signed. He believed that one of those documents was a retainer for the services of a public adjuster. Because he knew that the defendant no longer was licensed as a public adjuster, Toscano ordered the defendant's arrest for violating General Statutes Sec. 38-71, which prohibits acting as a public adjuster without a license.

At some time during these events, the defendant tore up certain documents which Shaw had signed and placed the pieces in his pocket. After the arrest, Howard handcuffed the defendant. When the officers attempted to search his pockets, however, the defendant resisted this effort and struggled to prevent them from doing so. The officers then led the defendant to a police car. There, the police succeeded in entering the defendant's pockets and retrieving the remnants of the torn documents.

State v. Biller, 5 Conn.App. 616, 618-19, 501 A.2d 1218 (1985) (hereinafter referred to as "Biller II").

The defendant was charged with acting as a public adjuster without a license in violation of Conn.Gen.Stat.Sec. 38-71 and interfering with a police officer in violation of Conn.Gen.Stat.Sec. 53a-167a. During the Biller II trial, the petitioner's appeal of his convictions in Biller I was still pending. Accordingly, the petitioner filed a motion in limine to prevent the State from impeaching him with that two count felony conviction. The record makes clear that Biller's decision on whether to testify was contingent on the trial court's granting of his motion in limine. However, the record is silent concerning whether Biller made any proffer of his proposed testimony. Ultimately, the Biller II trial court denied the motion in limine. As a result of this denial, Mr. Biller decided not to take the stand on his own behalf and risk impeachment by use of the felony convictions. See Biller II Transcript at 12.

The defendant pleaded not guilty to the charges against him. After the trial, the jury was unable to agree on a verdict on the first count, and a mistrial was declared as to that count. The jury, however, found the petitioner guilty on the second count, interfering with a police officer. On November 24, 1982, the trial court sentenced the petitioner to the maximum sentence of one year imprisonment and imposed a $500.00 fine. In sentencing the petitioner, the trial judge apparently considered Mr. Biller's background, including his two, then valid, Biller I felony convictions. Biller II Transcript at 755 et seq. The Connecticut Appellate Court affirmed the Biller II conviction. 5 Conn.App. at 625, 501 A.2d 1218. On March 6, 1986, the Connecticut Supreme Court denied certification to appeal. Subsequently, the United States Supreme Court denied a petition for a writ of certiorari.

II. Questions Presented

The petitioner claims that his...