Appeal from an order of the United States District Court for the Western District of New York, John T. Curtin, Judge, denying a petition for a writ of habeas corpus.
Anderson, Feinberg and Mansfield, Circuit Judges. Feinberg, Circuit Judge (dissenting).
MANSFIELD, Circuit Judge.
Petitioner Harry L. Sanney is presently serving a five to ten year sentence in the Attica Correctional Facility based on his plea of guilty in the Niagara County Court on May 25, 1970, to a charge of assault in the first degree. He challenges that conviction and the underlying indictment on the ground that they were the product of incriminating statements which he was compelled to make on the occasion of an interview for private employment. The district court denied a writ of habeas corpus, without evidentiary hearing.*fn1 We affirm.
The facts surrounding petitioner's conviction are undisputed. In December 1965 Sanney reported to the police that he had discovered the body of Charles Reynolds in a coal yard in Lockport, New York. Sanney admitted to the police that he and Reynolds had been together the night before; he naturally became a leading suspect in the murder case. The police questioned him at length, but did not arrest him.
In February 1966 Sanney applied for a position at the Reid Petroleum Corporation in Lockport and was hired. As part of the normal pre-employment testing, a company employee, John Bewick, on February 5, 1966, administered a polygraph examination. During this test Sanney stated that he had been a suspect in a murder case and moreover that he had not told the police the full story of his involvement, omitting the fact that he had hit or pushed the victim. According to the interrogator (Bewick) Sanney was nervous before this disclosure but appeared to experience a sense of relief at having made it, although he also seemed to be worried about losing his prospective job.
Bewick relayed this information to the police. At their request Bewick agreed to conduct a second polygraph session to explore further the role of Sanney in the murder. The district attorney and police also arranged with Bewick to carry a concealed transmitter so that they could in an adjoining room hear and record the conversation.
After Sanney had been on the job a day or two he was asked to submit to a second polygraph examination in connection with his qualifying for the position. On February 8, 1966, the second examination was conducted in Bewick's office, where Bewick pursued in depth the question of Sanney's involvement with Reynolds. Under Bewick's questioning Sanney admitted that he had dealt Reynolds a blow with a 2 x 4 piece of wood that lay about the coal yard. The police overheard the entire discussion and arrested Sanney shortly thereafter.
On the strength of his admissions to Bewick, Sanney was charged with manslaughter in the first degree. Sanney moved to dismiss the indictment on the grounds that his admissions to Bewick were the product of an interrogation that violated his Fourth and Fifth Amendment rights. The state court agreed and dismissed the indictment. On appeal the indictment was re-instated. The Appellate Division ruled that Miranda warnings were not required because Sanney was not in custody at the time of the polygraph test and that Sanney's Fourth Amendment rights had not been violated by the electronic transmission of his conversation with Bewick. People v. Sanney, 32 A.D.2d 737, 301 N.Y.S.2d 899 (4th Dept. 1969).
Eventually Sanney pleaded guilty to a charge of assault in the first degree in satisfaction of the manslaughter indictment. He also pleaded guilty to a charge of assault in the second degree in satisfaction of a second set of charges lodged against him while he was free on bail. In June of 1970 Sanney was sentenced to a term ranging from a minimum of five to a maximum of ten years on the first charge and concurrently to a maximum of seven years on the second charge.
Sanney appealed from his conviction on the first charge, again raising the argument that his admissions were the product of illegal interrogation. The conviction was affirmed by the Appellate Division without opinion and leave to appeal to the Court of Appeals denied. Certiorari was denied by the Supreme Court. Sanney v. New York, 404 U.S. 978, 30 L. Ed. 2d 294, 92 S. Ct. 344 (1971). Sanney then filed this petition for a writ of habeas corpus.
As a threshold matter the state maintains that Sanney waived any objection he might have to the admission of his confession by pleading guilty to the charge. See McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). However, under New York law an accused, despite his guilty plea, may challenge his conviction if he has sought to suppress the confession prior to his plea. N.Y. Crim. Pro. Law § 710.70(2) (McKinney 1971).*fn2 The district court reasoned that Sanney had in substance met the requirements of the New York law by his earlier motion directed against the indictment which "raised the claims upon which a motion to suppress would have been based," 352 F. Supp. 947, 948 (W.D.N.Y. 1973), and concluded that the state courts had rejected Sanney's later appeal on the merits and not for the failure to meet a technical requirement under the criminal procedure code, 352 F. Supp. at 948-49. We agree and hold that Sanney did not waive the constitutional claims asserted here.
Turning to the merits, petitioner first urges, principally on the basis of Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), and Spevack v. Klein, 385 U.S. 511, 17 L. Ed. 2d 574, 87 S. Ct. 625 (1967), that his incriminating admissions were the inadmissible product of economic coercion imposed by an agent of the state (Bewick), since Sanney's continued employment at Reid Petroleum Corporation was conditioned upon his submitting to the second polygraph test, during the course of which he furnished the damaging evidence. In Garrity the Court held that statements obtained by the State of New Jersey from police officers under the threat that, unless they waived their privilege against self-incrimination, they would be removed from office pursuant to a state statute, were involuntary and inadmissible in state criminal proceedings later instituted against them, since the statements had been obtained by unconstitutionally coercive means. Spevack extended the same principle to a state's threatened disbarment of a practicing attorney for refusal to furnish incriminating statements and documents. The district court held Garrity and Spevack inapplicable to the present case on the ground that they applied only to threatened "forfeiture of a governmental benefit, public ...