Pobliner v. Fogg

• Decision Date: 19 October 1977
• Docket Number: No. 77 Civ. 438 (LFM).,77 Civ. 438 (LFM).
• Citation: 438 F. Supp. 890
• Parties: Jay T. POBLINER, Petitioner, v. Walter FOGG, Superintendent of the Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

438 F. Supp. 890

Jay T. POBLINER, Petitioner, v. Walter FOGG, Superintendent of the Green Haven Correctional Facility, Respondent.

No. 77 Civ. 438 (LFM).

United States District Court, S. D. New York.

October 19, 1977.

Gerald B. Lefcourt, New York City, for petitioner.

Denis Dillon, Dist. Atty., Nassau County, Mineola, N. Y., by Martin I. Saperstein, William C. Donnino, Asst. Dist. Attys., Mineola, N. Y., for respondent.

MacMAHON, District Judge.

Petitioner Jay T. Pobliner applies, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus from a conviction in New York state court for the murder of his wife on December 27, 1968. The Appellate Division affirmed without opinion, 39 A.D.2d 1018, 334 N.Y.S.2d 816 (App.Div.1972), the New York Court of Appeals affirmed in a written opinion, 32 N.Y.2d 356, 345 N.Y.S.2d 482, 298 N.E.2d 637 (1973), and the United States Supreme Court denied certiorari, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 (1974).

I.

Petitioner seeks federal habeas corpus relief, alleging deprivation of his constitutional rights because of wiretaps placed on two telephones at the home of his parents in Manhattan. Petitioner claims that the wiretaps violated (1) his Fourth Amendment right to be free from unreasonable searches and seizures, (2) his Sixth Amendment right to the effective assistance of counsel, and (3) the standards for electronic surveillance set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.

On December 27, 1968, Brenda Pobliner was found shot to death in the bedroom of the Merrick, Long Island home she shared with petitioner, her husband, and for sometime thereafter police investigators were unable to obtain evidence sufficient to name the murderer. It appears that during the period of the investigation, petitioner was staying at the home of his parents and that the investigators obtained a court order authorizing a tap on the telephones at the home of petitioner's parents. The surveillance was conducted from January 16 to February 5, 1969, and many conversations were intercepted, including some conversations between Pobliner or members of his family and his attorneys.

Pobliner was not indicted until March 28, 1969 after his friend, Joe Hall from North Carolina, contacted the police and told them that petitioner had admitted the murder to him and also that Hall had previously procured for petitioner an unregistered pistol, which was the same caliber as the murder weapon.

Petitioner's first trial occurred in February 1970, a year after the conversations were intercepted, and ended in a mistrial. Petitioner's counsel had moved prior to trial to suppress evidence resulting from the wiretaps, on the principal grounds that the affidavits in support of the application were insufficient and that interceptions were not minimized to eliminate overhearing of innocent or privileged conversations. Upon representation by the state that it would not offer any evidence derived from the wiretaps, the trial court ruled that the state would be precluded from using any of the tapes "either directly or indirectly during the course of this trial." The court went further, offering defense counsel the opportunity to object to the use of any evidence allegedly "tainted" by the wiretaps. The trial court stated that objection could be made "at any time you feel that you are approaching an area where the district attorney has used leads that he might have obtained from the tapes. . . ."

When petitioner's second trial began in September 1970, some seven months after the first, the district attorney specifically requested a hearing to establish the legality of the wiretaps. Petitioner's counsel strongly objected, and the trial judge denied the state's application. The court also explicitly offered defense counsel a hearing to inquire into the circumstances surrounding some blank tapes and/or inaudible portions of other tapes, but the offer was declined.

Defense counsel did subsequently object to the proffered testimony of Hall and one Eddie Gaines, on the ground that the police had been led to these witnesses by information gleaned from the wiretaps. The trial court conducted a hearing on the taint issue and found "by clear and convincing proof" that the state had adequate bases, independent of the wiretap evidence, to lead to Hall and Gaines.

During the course of the trial, petitioner offered the alibi testimony of Illis Jurisson, who testified that he had stayed at the Pobliners' home the night of the murder and had seen or heard nothing implicating petitioner in the killing. The state brought out on cross-examination that, shortly after the murder, Jurisson had been admitted to a hospital for mental treatments, with the assistance of Pobliner and Herbert Handman, who was both Pobliner's and Jurisson's attorney; that Jurisson had received "electrotherapy" while in the hospital; that Pobliner had paid $900 toward the hospital bill; that Pobliner and his father had lent Jurisson money in the past; that Pobliner's father had put up bail for Jurisson in connection with his detention as a material witness in the case; and that Jurisson was then on the payroll at a company owned by Pobliner's father. Petitioner complains that this information elicited on cross-examination was also obtained from the wiretapped conversations, although no such objection was made at trial.

II.

Fourth Amendment and Statutory Claims.

Federal habeas corpus relief is clearly unwarranted here on the claim that the wiretaps constituted an unreasonable search and seizure in contravention of the Fourth Amendment. As the Supreme Court ruled in Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976):

"where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."

In this case, not only did petitioner have a full and fair opportunity to litigate the legality of the wiretaps, he actually obtained the full relief available — a blanket order suppressing the wiretap evidence, plus carte blanche to convene a taint hearing whenever he "felt" the district attorney was using the fruits of the interception. In fact, petitioner did exercise this privilege in connection with the testimony of Hall and Gaines. Nor do we see in this case any justification under either 28 U.S.C. § 2254(d) or Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to conduct a hearing or otherwise to review the trial court's rulings, which were based on full, fair and adequate procedures and were supported by the evidence presented.

Similarly, petitioner's claim that the wiretaps were also illegal under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., must fail. Federal habeas corpus review of alleged violations of Title III is limited to the same extent as alleged Fourth Amendment violations under Stone v. Powell, supra. Zagarino v. West, 422 F.Supp. 812 (E.D.N.Y.1976). Furthermore, 18 U.S.C. § 2518(10)(a) provides that the remedy for violations of the wiretapping strictures of Title III is suppression, and, as we have noted, petitioner was granted suppression by the trial court.

III.

Sixth Amendment Claim.

Petitioner contends that the interception of attorney-client conversations violated his Sixth Amendment right to the effective assistance of counsel for his defense. There can be no doubt that private consultation between a defendant and his attorney is a vital element of that right. See United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973). However, the facts of this case and applicable law convince us that federal habeas corpus relief is not warranted.

Petitioner urges that interception of attorney-client conversations in a criminal case is per se unconstitutional and that his conviction must be overturned even without a showing that such interceptions in any way prejudiced the defense. This proposition was rejected by the Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 50 L.Ed.2d 30 (1977). In reviewing its earlier per curiam decisions in Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), both of which ordered new trials on the basis of post-trial revelation of eavesdropping on conversations with counsel, the Court in Weatherford commented:

"If anything is to be inferred from these two cases with respect to the right to counsel, it is that when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." 429 U.S. at 552, 97 S.Ct. at 842 (emphasis added).

The trial court in this case did grant suppression of all evidence resulting "directly or indirectly" from the tapes, thus affording petitioner all the relief available to him under Weatherford. If some evidence resulting from the eavesdropping was introduced during the trial, it could only have resulted from petitioner's failure to take advantage of the trial court's continuing offer to rule on taint questions whenever requested by counsel. Specifically, we note that counsel made no objection that the state's cross-examination of Jurisson was derived from the wiretaps, even though petitioner and his counsel had had full opportunity to listen to the tapes, to review transcripts and notes of the conversations, and to convene a hearing to inquire into the blank and inaudible tapes.

In Wainwright v. Sykes, ___ U.S. ___, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court ruled that where a state defendant failed to raise a federal...