United States ex rel. Hart v. Davenport, 72-1287.

Decision Date27 April 1973
Docket NumberNo. 72-1287.,72-1287.
Citation478 F.2d 203
PartiesUNITED STATES of America ex rel. George HART, Appellant, v. Frank DAVENPORT, Sheriff of the State of New Jersey of Passaic County, and Howard D. Yeager, Warden, New Jersey Prison.
CourtU.S. Court of Appeals — Third Circuit

Stanley C. Van Ness, Public Defender, Herbert I. Waldman, Newark, N. J., for appellant.

Joseph D. J. Gourley, Passaic County Prosecutor, John P. Goceljak, Paterson, N. J., for appellee.

Before STALEY, GIBBONS and ROSEN,* Circuit Judges.

Before STALEY, ALDISERT and GIBBONS, Circuit Judges.

Argued Oct. 19, 1972.

Before STALEY, GIBBONS and ROSEN,* Circuit Judges.

Submitted on Briefs Jan. 31, 1973.

Before STALEY, ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from the denial of a petition for habeas corpus challenging a New Jersey sentence. Appellant Hart was convicted of unlawful possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), working for a lottery operation, N.J.Stat.Ann. § 2A:121-3(a), and bookmaking, N.J.Stat.Ann. § 2A:112-3. The district court denied the petition on the basis of the State court record, without an evidentiary hearing, but, pursuant to 28 U.S.C. § 2253, granted a certificate of probable cause for appeal. Two issues, as to both of which State remedies have been exhausted, are raised by the petition. Hart contends, first, that he was deprived of the effective assistance of counsel in his criminal trial because in that trial a single defense attorney, retained by his codefendant employers, represented him, the two employers, and three other codefendants. His second contention is that in the criminal trial the State introduced evidence obtained in violation of the fourth amendment. Since no timely motion to suppress was made on his behalf, the second contention is closely related to the effective assistance of counsel argument.

Hart and five others were indicted for gambling offenses alleged to have been committed at Whitey's Bar and Grill in Paterson. That business was owned by the codefendants John and Grace Battersby. Hart was employed by them as a bartender. The Battersbys lived in an apartment above the business premise. Hart and the Battersbys were charged with maintaining a gambling resort, N. J.Stat.Ann. § 2A:112-3, bookmaking, N. J.Stat.Ann. § 2A:112-3, possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), and working for a lottery, N.J.Stat.Ann. § 2A:121-3(a). Three patrons of the bar, Wolcott, Stewart, and Chambliss, were charged with possession of lottery slips. All six were represented by the same retained attorney and were tried together. No pretrial motions for severance or for suppression of evidence were made on behalf of any defendant. The record discloses no inquiry from the State trial court either to counsel or to the defendants as to any possible conflict of interest among the defendants. See Government of the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir., 1973); Government of the Virgin Islands v. John, 447 F.2d 69, 74-75 (3d Cir. 1971).

At the end of the State's case it consented to the dismissal of the charge that Hart had maintained a gambling resort. N.J.Stat.Ann. § 2A:112-3. All other charges went to the jury. In the defense case Wolcott, Stewart, Chambliss, and John Battersby took the stand. Hart and Mrs. Battersby did not. Wolcott and Stewart were acquitted. Chambliss was convicted of possession of lottery slips, but did not appeal. The Battersbys and Hart were convicted on all counts except the one charge against Hart which had been dismissed. Following the conviction Hart arranged for separate representation by the New Jersey Public Defender. An appeal on his behalf raising the same issues presented here resulted in an affirmance by the Appellate Division. State v. Hart, No. A-935-69 (N.J.Super., App.Div., Mar. 26, 1971). The New Jersey Supreme Court denied certification. State v. Hart, 58 N.J. 339, 277 A.2d 396 (1971). A separate appeal by the Battersbys resulted in an affirmance, and the denial of certification. State v. Battersby, 57 N.J. 140, 270 A.2d 42 (1970).

The indictments were the result of a raid conducted by the anti-gambling squad of the Paterson Police Department on March 18, 1969, in execution of a search warrant. Hart asserted on appeal that despite the failure of the common counsel to make a suppression motion admission of evidence seized in the raid should have been noticed as plain error. In rejecting this contention the Appellate Division, quoting from the disposition of the Battersbys' appeal, State v. Battersby, No. A-891-69 (N.J. Super., App.Div., July 2, 1970), said:

"This point lacks substantial merit. This is not a situation where a defendant may have suffered a manifest denial of justice by reason of some palpably inept performance by an assigned attorney. The present case involves a hind-sight attack upon the professional handling of the defense by an attorney of one\'s own choosing. There is nothing in the record to support the conclusion that a pretrial motion to suppress the incriminating evidence found upon defendants\' premises by the police in their execution of a search warrant, obtained upon the basis of a supporting affidavit, would have been granted."

There was in the record, however, the affidavit upon which the search warrant issued, which in relevant part reads:

"3. That the facts tending to establish the ground for this application and the probable cause of my belief as aforesaid, are as follows:
Tues. March 11, 1969 received from a confidtential informant, information regarding taveren in question that there was a bartender by the name of George taking horse and number action in the taveren and turning it over to owner who reside upstairs over the taveren with his wife.
Tues. 10:45 A.M. till 1:35 P.M. stood in area of taveren and went in there for lunch and then returned to office.
All the time this date I observed from my private car eleven men run in and run right out none of above stood in for any legth of time. Plus when I was in ther having lunch I observed two men come into establishment and talk to George and then he went upstairs at which time owners wife was downstairs with patrons. On this date I was in taveren from 12:p.m. till 12:50 p.m. the rest of time I spent riding around watching traffinto taveren and out.
3-13-69 Thurs.
I det. Tribio Verrone again took up a vantage point where I could not be detected from 11:30 till 3 P.M. and watched to see traffic into taveren At 12:p.m. I observed two railroad men after eating there lunch walk over two the taveren at which time I went in right behind them one man order a beer but the other went to George and had the Daily News in his hand I could see them in plain sight but at no time did this man give him a slip of paper he just talked to him and the went upstairs. Leading me to believe information recieved that owner is stationed upstairs taking action on horses I left after having lunch and several other men came into taveren and talk to George but on this occasion thrre men came in but he didn\'t go right upstairs until the third man was done with him but at no time did I see him write anything down just talk with the patrons and then go upstairs.
3-13-69 I again contacted my informant to see if he could make a bet with George but he told me he won\'t take any slips refering to George he runs upstairs when he has all he can remember, only off of his steady customers does he take slips.
3-17-69 Mon. I Det. Tribio Verrone again went into taveren on this date and had a few beers it was this time I heard phone ring it was approx. 11:35 a.m. George went over to phone and spoke with someone for a minuet take care of things for me till I come back.
He returned shortly only when he came back down he was carring Daily News. On this date while I was in the taveren I again seen one of eleven men I had seen another day come into taveren he went directly to George talke with him and then they both went upstairs and a old woman came down approx. five minuets went by and down came both George and other gentleman and he left never havin a drink. It is in my belief that George is taking the bets upstair to whoever is there which my informant says is the owner of the taveren, It is my belief that a search warrant should be issued so this investigation can be brought to a close." sic.

This affidavit is palpably insufficient to support the issuance of the search warrant. The informant information is totally inadequate to establish his reliability. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The affiant's observations could have been made at noon outside and inside any bar and grill. They do not, independent of the informant's conclusions, establish probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The activities of "George" referred to are as consistent with innocent conduct as with bookmaking or maintaining a lottery. The district court opinion acknowledges as much, but sustains the seizure on other grounds:

"If the legal sufficiency of the warrant were to be tested solely by the adequacy of the informant allegation, the Court feels the validity of the warrant could not be sustained. But a finding of probable cause must take into consideration the facts recited by Detective Verrone relating his personal observation of activities occurring at Whitey\'s Bar and Grill on three separate occasions. The conclusion is reached that the seizure of evidence was not conducted in violation of petitioner\'s Fourth Amendment rights. Thus the failure of counsel to move to suppress does not constitute ineffective representation of petitioner at trial." United States ex rel. Hart v. Davenport, Civil No. 645-71 (D.N.J., Mar. 30, 1972).

The testimony of Detective Verrone referred to by the district court is...

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