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November 16, 1966

UNITED STATES of America ex rel. Frank DeFORTE, Relator,
Vincent R. MANCUSI, Warden of Attica State Prison, Respondent

The opinion of the court was delivered by: HENDERSON

HENDERSON, District Judge.

 Relator, co-defendants Joseph DeGrandis and Ernest Zundel, all officers of Local 266 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and twelve other defendants were indicted in Nassau County, New York, for conspiracy (Penal Law, McKinney's Consol. Laws, c. 40, § 580), coercion (Penal Law, § 530) and extortion (Penal Law, §§ 850, 851). The indictment involved alleged monopolization of the juke box industry in metropolitan New York City. Trial was held in the Nassau County Court, and the jury found defendants DeForte, DeGrandis and Zundel guilty, but acquitted the remaining defendants. Subsequently the relator was sentenced to from three to five years' imprisonment. He is presently serving that sentence in Attica State Prison.

 Appeals by the relator to the Appellate Division of the Supreme Court *fn1" and to the New York Court of Appeals *fn2" were unsuccessful, and certiorari to the United States Supreme Court was denied. *fn3" A previous application for a writ of habeas corpus, on other grounds, was denied and that denial affirmed on appeal. *fn4" It appears that the relator, with respect to the present issues, has exhausted his available state remedies as required by Title 28 U.S.C. § 2254.

 Relator's petition contains two claims (1) that evidence was received against him in the course of trial which had been seized in violation of his Fourth Amendment rights, and (2) that illegal wiretap evidence was also improperly received. The second claim has been withdrawn. Involved in the first claim is the manner in which certain books and records of Local 266 were obtained.

 It appears that these books and records were secured through the issuance, by the District Attorney's office, of a "forthwith" subpoena duces tecum addressed to Local 266. *fn5" The Local apparently did not surrender its books and records upon service of the subpoena but, without the consent of its officers, the books and records were taken by those serving the subpoena. The Assistant District Attorney, who has appeared in opposition to this application, has not attempted to justify this use of the subpoena.

 Initially, the relator concedes that he, as a union officer, can claim no Fifth Amendment privilege with respect to the production of union records. See United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944). He notes, however, that the Supreme Court decided Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) before his conviction became final and, accordingly, that the Fourth Amendment's proscription against unreasonable searches and seizures would apply to his state court trial. See Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). Under Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), particularly as that decision is interpreted by the Fifth Circuit Court of Appeals in Henzel v. United States, 296 F.2d 650 (5 Cir. 1961), *fn6" relator claims that he, as an individual, has standing to challenge the seizure and use of the aforementioned union records in his state court trial.

 In Jones, supra, the Supreme Court reviewed a narcotics conviction in which the defendant had been denied standing to move to suppress because he neither claimed ownership of the seized articles nor claimed a greater interest in the searched premises than that of an invitee or guest. Speaking in the context of Rule 41(e) of the Federal Rules of Criminal Procedure, the Court, at page 261, 80 S. Ct. at page 731, observed initially that:

"In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he 'belongs to the class for whose sake the constitutional protection is given.'"

 The Court went on to point out that:

"The exclusion in federal trials of evidence otherwise competent but gathered by federal officials in violation of the Fourth Amendment is a means for making effective the protection of privacy."

 The Court then concluded that:

"Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy."

 However, upon reviewing the tests which the lower federal courts had applied to determine if an individual had demonstrated that he possessed the requisite interest, the Court found those tests to be deficient. In effect, those tests had pinioned a defendant, either requiring that he risk loss of his Fifth Amendment rights or, in saving his defense, encouraging that he perjure himself in order to establish his standing to assert his Fourth Amendment rights.

 Finding this dilemma presupposed "* * * requirements of 'standing' which we do not find compelling," the Court found that two separate lines of thought effectively sustained Jones' claim of standing. The Court, 362 ...

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