Pugach v. Klein

• Citation: 193 F. Supp. 630
• Parties: Application of Burton N. PUGACH for a Writ of Habeas Corpus on behalf of Burton N. Pugach, Petitioner, v. Milton KLEIN, Warden of Bronx County Prison, Respondent. Application of Burton N. PUGACH, Petitioner, for an order of mandamus v. Hon. Morton S. ROBSON, United States Attorney for the Southern District of New York, Respondent. Application of Burton N. PUGACH, Petitioner, for Warrants for the Arrest of Frank Weldon, Alexander Scheer and Hon. Joseph Martinis, and for a Search Warrant for the premises occupied by Hon. Isidore Dollinger, Bronx County District Attorney, at 851 Grand Concourse, Borough of Bronx, City of New York.
• Decision Date: 11 April 1961
• Court: U.S. District Court — Southern District of New York

193 F. Supp. 630

Application of Burton N. PUGACH for a Writ of Habeas Corpus on behalf of Burton N. Pugach, Petitioner, v. Milton KLEIN, Warden of Bronx County Prison, Respondent.

Application of Burton N. PUGACH, Petitioner, for an order of mandamus v. Hon. Morton S. ROBSON, United States Attorney for the Southern District of New York, Respondent.

Application of Burton N. PUGACH, Petitioner, for Warrants for the Arrest of Frank Weldon, Alexander Scheer and Hon. Joseph Martinis, and for a Search Warrant for the premises occupied by Hon. Isidore Dollinger, Bronx County District Attorney, at 851 Grand Concourse, Borough of Bronx, City of New York.

United States District Court S. D. New York.

April 11, 1961.

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Frances Kahn, New York City, for petitioner.

Morton S. Robson, U. S. Atty., for Southern District of New York, New York City, for the United States. James McKinley Rose, Jr., Asst. U. S. Atty., New York City, of counsel.

MacMAHON, District Judge.

These applications by Pugach for habeas corpus, mandamus, and warrants for arrest and search raise once again the vexing question of whether a federal court ought to interfere at the preliminary stage of a state criminal prosecution allegedly resulting from wire tap evidence obtained in violation of the Federal Communications Act, 47 U.S.C.A. §§ 501, 605, but in compliance with the clashing law of the State of New York. N.Y.Const. art. I, § 12; N.Y.Penal Law § 738 (McKinney 1960); N.Y.Code of Criminal Procedure § 813-a (McKinney 1960).

In pertinent part, Section 605 provides: "* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *." Section 501 makes wilful violation a misdemeanor.

The problems involved here have their origin in statements made by the Supreme Court in Benanti v. United States, 1957, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed. 2d 126, and Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, to the effect that tapping coupled with divulgence, even when done by state agents pursuant to state law, was a violation of Section 605 enforceable by the United States under the penal provision of Section 501.

The impact of those cases on a state criminal proceeding was considered extensively, but in different context, in an earlier, but unsuccessful attempt by this petitioner to enjoin the use of such evidence on his long delayed, but now imminent, trial under an indictment by a Bronx County Grand Jury on serious charges based on the alleged lye-maiming of a young lady. See Pugach v. Sullivan, D.C.S.D.N.Y., 180 F.Supp. 66, stay granted sub nom. Pugach v. Dollinger, 2 Cir., 1960, 275 F.2d 503, affirmed 2 Cir., 1960, 277 F.2d 739, stay granted, 2 Cir., 1960, 280 F.2d 521, affirmed 81 S.Ct. 650, 5 L.Ed.2d 678.

Pugach is now a state prisoner lodged without bail in the Bronx County jail pending trial on April 11, 1961. He is a disbarred lawyer but appears here by counsel of his own selection. All of these applications, with minor variations, are based on the same allegations. It will serve convenience and avoid repetition to consider the petition for mandamus first.

Mandamus

Petitioner seeks, by original petition for a writ of mandamus, to compel the United States Attorney to prosecute an officer of the New York City Police Department, an Assistant District Attorney, and a County Judge.

The petition, largely by resort to conclusions, purports to allege violations of, and conspiracy to violate, Sections 501 and 605 of the Communications Act of 1934, 47 U.S.C.A., in that agents of the Bronx County District Attorney and the New York police obtained an order from the State Supreme Court authorizing them to intercept petitioner's telephone conversations, used information "resulting from such interceptions," caused tapes to be made and divulged their contents and meaning both to newspapers and to the Bronx County Grand Jury, thereby causing his arrest, indictment and detention. The Judge is accused of aiding and abetting, resisting arrest, withholding evidence and remaining a fugitive.

Asserting the imminence of the trial, open defiance by New York of the wire tap prohibitions of the Communications Act, and failure of the District Attorney and the United States Attorney to enforce violations, notwithstanding admonitions by Judge Waterman of the Court of Appeals for this circuit, Pugach contends that there is no existing state process to protect "his rights." He specifically alleges refusal of the United States Attorney to act on his complaints, made once on December 15, 1959 and again on March 20, 1961, when he asked him to appear in Bronx County to perform his duty to assist Pugach in effecting a citizen's arrest and impound the wire tapes and their fruits, and still again on March 21, 1961, when he asked him to take the persons "arrested" into custody and to impound the evidence. Finally, Pugach asserts that the United States Attorney has acted arbitrarily and capriciously thereby causing state officers openly to defy and flout the sovereignty of the United States, all to petitioner's great personal suffering.

The Court ordered the United States Attorney to show cause why a writ should not be granted. He appeared on the return day and moved to dismiss the petition on the ground that the Court lacks jurisdiction. The motion is well founded. It is clear beyond question that the Court lacks jurisdiction. District Courts derive their power and jurisdiction from the Judiciary Acts, 62 Stat. 869 (1948), 28 U.S.C.A. Congress has never seen fit to confer general jurisdiction upon the lower federal courts to issue original writs of mandamus.

As early as 1813, the Supreme Court held that the lower federal courts were not given the power to issue original writs of mandamus, but could grant such relief only in aid of jurisdiction otherwise acquired. McIntire v. Wood, 1813, 7 Cranch 504, 11 U.S. 504, 3 L.Ed. 420.

In 1906, the court said that neither the Judiciary Act of September 24, 1789, 1 Stat. 73, nor the Acts of March 3, 1875, 18 Stat. 470, and March 3, 1887, 24 Stat. 552, had conferred jurisdiction on the lower federal courts to entertain original suits in mandamus. Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111. Any lingering doubt as to lack of such power vanished with the adoption of Rule 81(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which specifically abolishes writs of mandamus. Nor does the 1948 revision of the Judicial Code, 28 U.S.C. A., enlarge jurisdiction in this respect.¹ United States ex rel. Vassel v. Durning, 2 Cir., 1945, 152 F.2d 455; Fredericks v. Rossell, D.C.S.D.N.Y.1950, 95 F.Supp. 754; Marshall v. Wyman, D.C.N.D.Cal. 1955, 132 F.Supp. 169.

Even if by some stretch of the imagination this petition were deemed to seek ancillary relief, the Court would still be compelled to deny it. With all deference to the concern of some over the lack of prosecutions against state officers for wire tapping in accordance with state law, it is, nevertheless, clear beyond question that it is not the business of the Courts to tell the United States Attorney to perform what they conceive to be his duties.

Article II, Section 3 of the Constitution, provides that "the President shall take Care that the Laws shall be faithfully executed." The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the Courts, nor in private citizens, but squarely in the executive arm of the government. Congress has implemented the powers of the President by conferring the power and the duty to institute prosecution for federal offenses upon the United States Attorney for each district. 28 U.S.C.A. § 507. In exercising his power, the United States Attorney acts in an administrative capacity as the representative of the public. His power, assuming arguendo the validity of the premise that criminal violations are shown here, is expressly reinforced by the Communications Act, 47 U.S.C.A. § 401(c).

It by no means follows, however, that the duty to prosecute follows automatically from the presentation of a complaint. The United States Attorney is not a rubber stamp. His problems are not solved by the strict application of an inflexible formula. Rather, their solution calls for the exercise of judgment. Judgment reached primarily by balancing the public interest in effective law enforcement against the growing rights of the accused.

There are a number of elements in the equation, and all of them must be carefully considered. Paramount among them is a determination that a prosecution will promote the ends of justice, instill respect for the law, and advance the cause of ordered liberty.² Here, respect for, and cooperative relations with, state law enforcement agencies weigh heavily in the scale.

Surely it is for the United States Attorney to decide whether the public interest is better served by prosecuting or declining to prosecute state law enforcement agencies and besmirch a Judge on the eve of a trial on the feeble complaint of an accuser infected with self-interest in escaping trial on a grave charge. The reason for leaving the choice with the United States Attorney is all the more compelling in an area such as this, riven with controversy, frought with friction, and confused by clashing law.³

Other considerations are the likelihood of conviction, turning on choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing, and the relative gravity of the offense. In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions, but, on solid evidence balanced in a scale demanding proof beyond a reasonable doubt...