Cerbo v. Fauver

• Decision Date: 13 March 1980
• Docket Number: No. 79-2248,79-2248
• Citation: 616 F.2d 714
• Parties: John CERBO, Appellant, v. William H. FAUVER, and Attorney General of the State of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 714

616 F.2d 714

John CERBO, Appellant, v. William H. FAUVER, and Attorney General of the State of New Jersey.

No. 79-2248.

United States Court of Appeals Third Circuit.

Argued Feb. 22, 1980.

Decided March 13, 1980.

Thomas S. Higgins, First Asst. Federal Public Defender (argued), Newark, N. J., for appellant.

John J. Degnan, Atty. Gen. of N. J., Trenton, N. J., William F. Lamb, Deputy Atty. Gen. (argued), Div. of Crim. Justice, Appellate Section, Princeton, N. J., for appellee.

Before ROSENN and SLOVITER, Circuit Judges, and LAYTON, District Judge. ^*

OPINION OF THE COURT

ROSENN, Circuit Judge.

Appellant John Cerbo appeals from a decision of the United States District Court for the District of New Jersey, denying without an evidentiary hearing his habeas corpus petition brought under 28 U.S.C. § 2254 (1976). ¹ In his petition, Cerbo charged, inter alia, that he had been denied his sixth amendment right to the effective assistance of counsel in his direct appeal from his conviction in New Jersey state court on gambling related charges. The district court concluded that Cerbo's sixth amendment rights had not been violated. We affirm.

I.

Cerbo was convicted in April 1974 of bookmaking and conspiracy to violate New Jersey gambling laws in violation of N.J.S.A. 2A:112-3; 98-1 & 2. Cerbo's conviction was the end result of an investigation of Michael Centrone, a suspected gambling offender, begun in mid-1972 by the Bergen County New Jersey Prosecutor's Office. In carrying out this investigation, the prosecutor obtained judicial authorization to electronically surveil Centrone's telephone line. The wiretap revealed evidence implicating Centrone, Cerbo and John Benevento in illegal bookmaking activities.

The electronic surveillance also produced a bounty of tape recorded conversations. The tapes of the various recorded conversations were removed from the recording machines each day, placed inside their original containers and locked in a storage cabinet. The wiretap authorization expired on September 7, 1972 at which time search and arrest warrants for Cerbo and the others were executed. On September 8, 1972, the tapes were transferred to a steel vault in the chief of county detectives' office for protection.

Over the course of the next thirty-two days, the tape recorded conversations which the prosecutor intended to use at trial were condensed for trial into three tapes. Nicholas Gallo, an investigator in the prosecutor's office signed out the tapes each day, worked in a room specially designed for tape editing and then returned the tapes to the vault. A log of all editing sessions with the tapes was kept and no one besides Gallo had access to the tapes. Although the actual tape editing process consumed only seven to ten working days, the thirty-two day period was caused by the interrupting demands of Gallo's other duties. When the editing was finally completed, the original tapes were transferred to and sealed under court order.

Cerbo, Centrone and Benevento were thereafter indicted on the state gambling charges. They moved in a pre-trial motion to suppress the wiretap evidence principally on three grounds: (1) the tapes had been obtained without probable cause; (2) the prosecutor had not demonstrated the special need required under New Jersey law to wiretap a residential dwelling; and (3) the prosecutor had not complied with the sealing provisions of the New Jersey wiretap law, N.J.S.A. 2A:156A-14. The third argument was based on the following provision in the wiretap law: "Immediately upon the expiration of the (wiretap) order or extensions or renewals thereof, the tapes, wires or other recordings shall be transferred to the judge issuing the order and sealed under his direction."

At a pre-trial hearing, the prosecutor explained that the thirty-two day delay in sealing the tapes was occasioned by interruptions in Gallo's work and that the tapes had been kept carefully and securely during this period. The investigating officers were apparently under the mistaken belief that the wiretap evidence had to be presented for sealing only as soon as practicable. The trial court, after considering the sealing violation argument, denied the motion to suppress, on the ground that there was a satisfactory explanation for the delay. Further, the court noted that the defendants had advanced no claim of tape alteration or tampering and that no prejudice from the thirty-two day delay had been asserted.

The tapes were played for the jury at trial and Cerbo was convicted and sentenced to a term of two to four years in prison and fined $2000. Cerbo then filed a notice of appeal to the New Jersey Superior Court, Appellate Division, on August 14, 1974. ² R. Jerome Jabbour, an experienced appellate attorney was appointed as counsel for Cerbo. Jabbour filed a brief with the Appellate Division alleging five points of error, including an allegation that the trial court had erred in denying the motion to suppress the tapes. The basis for the suppression argument, however, was not the alleged violation of the sealing requirements under the New Jersey wiretap statute, although Cerbo's trial counsel in a letter to Jabbour had recommended it as one of the grounds for appeal. Cerbo's conviction was affirmed by the Appellate Division on December 8, 1975. State v. Benevento, 138 N.J.Super. 211, 350 A.2d 485 (1975).

Cerbo's counsel thereafter petitioned for certification to the New Jersey Supreme Court but did not allege the tape sealing delay as a ground for review. The certification petition was denied on April 1, 1976. State v. Cerbo, 70 N.J. 276, 277, 359 A.2d 488 (1976). Cerbo then filed a pro se petition for habeas corpus relief in the federal district court pursuant to 28 U.S.C. § 2254 on April 28, 1976, asserting for the first time "the use and abuse of the original tape over one month contrary to the statute" as a basis for relief. Before the district court conducted a hearing on the petition, the Second Circuit handed down its decision in United States v. Gigante, 538 F.2d 502 (2d Cir. 1976), holding that under the sealing provisions of the federal wiretap law, 18 U.S.C. § 2518(8)(a) (1976), delays in sealing of eight to ten months were grounds for suppression of the tape recorded evidence. This decision was contrary to our holding in United States v. Falcone, 505 F.2d 478 (3d Cir. 1974) (Rosenn, J., dissenting), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975), that absent a claim of tampering, a sealing delay per se did not constitute a ground for reversal.

The district court ordered memoranda on the import of Gigante and on July 28, 1976, dismissed Cerbo's habeas petition for failure to exhaust the New Jersey post-conviction relief procedures on the tape sealing issue. Cerbo then returned to the state trial court and moved for post-conviction relief based on the violation of the sealing provision in the wiretap law. The trial court denied post-conviction relief based on its determination that the original trial court decision was sound in light of then-existing precedent. The trial court also questioned the propriety of raising the sealing issue for the first time in a post-conviction relief proceeding when the issue had not been raised on direct appeal, but did not base its decision on this ground.

Cerbo appealed the denial of post-conviction relief to the Appellate Division which affirmed the trial court in a two to one decision filed on October 18, 1976. State v. Cerbo, 152 N.J.Super. 30, 377 A.2d 755 (1977). The Appellate Division also noted that the sealing argument was not raised on direct appeal but affirmed on the ground that the trial court had not erred in denying the suppression motion.

After losing in the appellate court, Cerbo filed an appeal as of right with the New Jersey Supreme Court on September 6, 1977. The Supreme Court affirmed the dismissal of the post-conviction relief petition. State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979). The court indicated that failure to raise the sealing defense on direct appeal was fatal to Cerbo's case and the efficient and fair administration of criminal justice required the dismissal of the post-conviction relief petition. The court, nonetheless, commented that "(h) ad defendants raised this issue on their prior appeal from their judgments of conviction, a reversal would have been warranted." Id., 397 A.2d at 673. Thus, the court viewed the thirty-two day delay in sealing as warranting suppression of the tape evidence.

Although not raised by Cerbo in his appeal, the New Jersey Supreme Court, sua sponte, indicated that the failure of Cerbo's appellate counsel to raise the sealing defense on appeal did not constitute a deprivation of Cerbo's sixth amendment right to the effective assistance of counsel. The court noted that at the time of the original appeal, the leading cases had concluded that a sealing delay did not warrant suppression. Thus, any charge of ineffective assistance of counsel would be "a classic example of 'ineffectiveness by hindsight.' " Id., 397 A.2d at 676-77.

Cerbo then filed a second pro se habeas corpus petition under 28 U.S.C. § 2254 in federal court alleging that (1) the sealing delay warranted suppression of the evidence; (2) the "interests of justice" required the New Jersey state courts to grant his petition for post-conviction relief; and (3) the failure of appellate counsel to raise the sealing defense constituted ineffective assistance of counsel. Cerbo filed a memorandum in support of his petition in which he asserted that he had brought the issue of the sealing defense to the attention of his appellate attorney Jabbour, who, despite Cerbo's urgings, failed to raise the issue on appeal. The State in response filed an affidavit from Jabbour indicating that he had fully considered the sealing defense, but because of the adverse case law at the time, had decided not to pursue the issue for tactical reasons on...