The opinion of the court was delivered by: BRIEANT
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING HEARING ON MOTION PURSUANT TO RULE 33, F.R.CRIM.P.
On January 26, 1973, after a three-week jury trial before Chief Judge Edelstein of this Court, defendant Ostrer was found guilty on eleven counts which charged him with violation of various provisions of the federal securities laws, mail fraud and conspiracy so to do.
The trial court acquitted Ostrer of twenty-three counts upon motion, and the jury acquitted him on the six remaining counts in this forty count indictment. The conviction was affirmed on appeal sub nom. United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974).
Following the conclusion of his trial on these charges, Ostrer was arrested and indicted on unrelated state charges. In 1975, Ostrer's state indictment was dismissed when it became evident that the state's prosecution was founded upon electronic surveillance conducted pursuant to court orders, which, in turn, relied for their issuance upon the use of evidence later found to be tainted.
Ostrer now moves pursuant to Rule 33, F.R.Crim.P. for a new trial on these federal charges, based on newly discovered evidence, claiming that he was deprived of a fair trial and that his Fourth and Sixth Amendment rights were violated. An evidentiary hearing was held, during the course of which tapes of the electronic surveillance were received. For the reasons stated herein, defendant's motion for a new trial is denied.
Initially, we reject the Government's contention that defendant's instant motion pursuant to Rule 33, F.R.Crim.P. for a new trial should be treated by this Court as an independent action pursuant to 28 U.S.C. § 2255 in the nature of a collateral attack upon the judgment of conviction. The issues raised are properly before this Court as a motion based on newly discovered evidence, since the fact of the state's electronic surveillance and the extent of its claimed intrusion upon his rights were unknown to him at the time of trial. Although the issues raised here constitute an attack on the judgments of conviction on constitutional grounds, which would be cognizable also in a § 2255 action, there is a substantial overlap between the relief available pursuant to Rule 33 in the original criminal proceeding, and that available in a § 2255 action. See 2 Wright, Federal Practice and Procedure § 552 (1969). Defendant may elect to raise these issues, as he has done here, by motion for post-trial relief based on newly discovered evidence. In so doing, defendant assumes the burdens traditionally imposed on a defendant seeking such relief. See United States v. Slutsky, 514 F.2d 1222 (2d Cir. 1975). It must be observed that a court will not lightly refashion litigation seeking post-conviction relief. See United States v. Huss, 520 F.2d 598 (2d Cir. 1975). Where relief may be available under either Rule 33 or § 2255, defendant should be permitted to litigate the issues in such form as he chooses.
Accordingly, we proceed to a consideration of the merits of the issues as framed by the defendant in his motion.
The Unlawful Electronic Surveillance.
On October 25, 1972, while Ostrer was awaiting trial under this federal indictment,
New York City police officers assigned to the Rackets Bureau of the Office of the District Attorney, New York County (hereinafter "D.A.'s Office") began electronic surveillance of Ostrer at premises leased to Fringe Programs, Inc. and Louis C. Ostrer Associates, at 377 Fifth Avenue in this City. The surveillance was authorized initially by orders of Justice Harold Birns of the Supreme Court of the State of New York, New York County, signed October 24, 1972. The D.A.'s investigation, at this time, was directed at obtaining evidence of suspected violations of the state's criminal usury law.
The surveillance "monitoring plant" was staffed solely by New York City police officers on assignment to the D.A.'s Office, and not by federal law enforcement personnel. These police officers would eavesdrop, using bugging and telephone wiretapping devices, and would record selectively those conversations which they deemed relevant to their investigation. Most other conversations were summarized in written "plant reports" maintained by the surveilling officers. Pursuant to instructions of the District Attorney, and in order to preserve security, all such reports were made solely to persons affiliated with the D.A.'s Office and directly concerned with the investigation.
The orders authorizing the surveillance were renewed upon the order of Justice Birns, signed on November 22, 1972.
Among the conversations memorialized on tape or summarized in the written plant reports, are several in which the impending federal trial is mentioned, and matters pertaining to it are discussed. In these conversations, Ostrer and several of his associates discuss pre-trial developments in the federal case. Participants in these conversations include various associates of Ostrer, among them Julius November whose relationship with Ostrer will be discussed further infra, pp. 96-97.
Among the more significant topics discussed were, (1) whether Ostrer should seek a trial severance from his co-defendant John Dioguardi; (2) whether Ostrer should waive his right to a jury trial and testify in his own behalf; (3) the likely impact of Ostrer's testimony, considered in light of disclosure on cross-examination of his prior state felony conviction as impeachment; and (4) the tactical value of having Ostrer introduce certain cancelled checks.
Also mentioned was the name of Ostrer's private investigator, one James Lynch, formerly of the Federal Bureau of Investigation. None of the conversations were with Maurice Edelbaum, Esq., then Ostrer's counsel of record in the federal case, but at times the conversations included discussion by others with Ostrer of Mr. Edelbaum's comments and advice.
These conversations cannot properly be characterized as defense strategy sessions. News of pre-trial developments was discussed and treated conversationally, as a current development in the life of Ostrer, much the same as any other important event might have been treated or considered. In numerous conversations, no attorney is present, and, in some, Ostrer is only an occasional participant. The tenor of these conversations varies, ranging in intensity from casual conversation to shouting bouts. Taken separately or together, except for those noted below, the conversations are of little significance.
The November 21 and 30, 1972 Conversations.
On November 21, 1972, the surveilling officers overheard and recorded a conversation between Ostrer, William Kilroy and Julius November.
November is a New York attorney admitted to practice in this Court. He is a long standing friend and business associate of Ostrer. Since 1962 or 1963, November has represented Ostrer in various non-criminal matters, including civil litigation. Ostrer's trial counsel, Mr. Edelbaum, conferred with November on occasion prior to trial.
At trial, November was a spectator, who occasionally walked over to the defense counsel table during court recesses. He did not appear as an attorney.
We are persuaded that during the course of pre-trial preparation, Ostrer reasonably believed that November was extending legal counsel, rather than friendly advice. The testimonial privilege against disclosure of attorney-client communications is applicable where the client entertains good faith beliefs (even if erroneous) that the person consulted is a lawyer, and is acting as such on his behalf. Wigmore on Evidence, § 2302 (McNaughton rev.). Here, there is no doubt that November was an attorney, and that Ostrer knew that was his profession. In this context, we are concerned with more than a testimonial privilege. We are concerned with safeguarding a criminal defendant's constitutional rights to a fair trial and the effective assistance of counsel. We therefore conclude that, for purposes of this motion, November was acting as an attorney for Ostrer. Cf. United States v. Scott, 521 F.2d 1188 (9th Cir. 1975).
The November 21st conversation, which began with a discussion of certain loans owed by the participants, soon degenerated into a shouting match between Ostrer and November, liberally sprinkled with obscenities. November then showed Ostrer a typewritten statement he had prepared, signed by Susan Gold, an employee in Ostrer's office, and dated November 21, 1972 (Exhibit BB).
A discussion ensued concerning the contents of the statement and the use to which it could be put. From the conversation an eavesdropper could infer that the statement disclosed that Aubrey Moss, a married man whom Ostrer and November believed would be a Government witness in this case, was having an adulterous affair with Miss Gold.
November suggested that Miss Gold's statement was so potent and would tend to discredit Moss' reputation to such a degree that Moss could not afford to take the stand and risk its disclosure. November also suggested that Gold would be available as a witness to impeach Moss' credibility if he did take the stand, and that her written statement would be valuable if Gold were to recant. November advised Ostrer not to give his trial counsel, Mr. Edelbaum, a copy of the Gold statement, but to retain it for later use. Ostrer questioned November whether this was blackmail or intimidation of a witness and November assured him that it was not.
November testified that he had never tried a criminal case in federal court. I believe this to be true. Attorneys familiar with federal practice in criminal cases would realize the unavailability of this information for impeachment purposes. Indeed, Mr. Edelbaum testified (Tr. pp. 358, et seq.) that, under the then prevailing rulings on evidence, he did not believe that an accusation of adultery could be used in this District to impeach a witness. In this he was correct.
While Rule 608(b), F.R.Evid. might suggest a different rule, at the time of Ostrer's trial the rule was as explained in United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970):
"It is settled that in a trial a witness's acts of misconduct are not admissible to impeach his credibility unless the acts resulted in the obtaining of a conviction. It is also settled law that a conviction does not become a final conviction until sentence has been imposed and until the time for an appeal from the judgment has expired."
There are many cases to the same effect. They include United States v. Nuccio, 373 F.2d 168, 171 (2d Cir.), cert. denied 387 U.S. 906, 87 S. Ct. 1688, 18 L. Ed. 2d 623 (1967), affirming a conviction where defendant was precluded from cross-examining a witness as to homosexuality to impeach credibility. The Court held:
"Weighed against the rather slight probative value, the adverse effect of such evidence in improperly discrediting and embarrassing the witness justified the trial court in excluding it. See 3 Wigmore, Evid. § 951 (1940 ed.)."
See also, United States v. DeSapio, 456 F.2d 644 (2d Cir.), cert. denied 406 U.S. 933, 92 S. Ct. 1776, 32 L. Ed. 2d 135 (1972), [witness Itkin's subornation of perjury, absent a conviction, not admissible for impeachment of general credibility]; United States v. Bowe, 360 F.2d 1 (2d Cir.), cert. denied 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966), [witness called to testify that chief Government witness asked him to participate in plan to blow up Statue of Liberty]; United States v. Glasser, 443 F.2d 994 (2d Cir.), cert. denied 404 U.S. 854, 92 S. Ct. 96, 30 L. Ed. 2d 95 (1971), [prior criminal acts not resulting in a conviction may not be made the subject of direct proof]. In sum, we believe, with Edelbaum, that the trial judge would have precluded any inquiry on cross-examination as to Moss' adulterous relationship with Gold, and are certain that any direct proof, through testimony of Gold as to that misconduct would have been excluded. If the possible coercion inherent in delivery of Gold's statement to Moss' wife or children would have inhibited Moss, the prosecutor had adequate counter forces, including the power to confer use immunity on Moss (18 U.S.C. § 6001, et seq.), and compel him to testify truthfully by the power of civil contempt, and the threat of prosecution for false statements. 18 U.S.C. § 1623.
Even under the more liberal New York state practice, where such inquiry of the witness would be permitted for impeachment on cross-examination, instances of prior misconduct are collateral matters not provable by extrinsic evidence. See People v. Webster, 139 N.Y. 73, 83-85, 34 N.E. 730, (1893); Richardson on Evidence, § 510 (9th ed.).
Lastly, what good is the Gold statement? In these times of recorded and widely publicized Presidential and Congressional adulterers, massage parlors with neon signs, and street corner pandering, which claims constitutional protection, we suspect that many of our jurors selected within a fifty mile radius of Foley Square are licentious, or have friends who are. Moss neither raped nor seduced Miss Gold; the activities of these mature consenting adults would not, in our view, if known to the jury, impeach any witness. November cannot realistically have believed otherwise.
Subsequently, in a recorded telephone conversation on November 30, 1972, from Ostrer's office, Susan Gold told Moss that she did not want to "see" him until the federal trial was concluded. Miss Gold accused Moss of turning unfairly against his friend Ostrer, and a discussion of financial losses that Moss had suffered in transactions with Ostrer ensued. Toward the end of this conversation, Ostrer returned to the office, discovered that Miss Gold was on the telephone with Moss, and instructed her to hang up.
In other recorded conversations, Ostrer had voiced his concern that people with whom he was associated should be careful in their dealings with Moss, since he might be recording any conversations with them.
Subsequent Actions of the D.A.'s Office.
Detective Walter Finley, an officer who was on duty at the monitoring plant on November 21, 1972 and overheard the Ostrer-November conversation, concluded that he was listening in on preparations to commit a crime. Finley was not aware that November was an attorney, and there is little in the substance or tenor of that conversation to suggest to an eavesdropper that this was a conference between an attorney and client. Concerned that there might be an attempt afoot to commit the state crime of Coercion, Finley discussed this information with his fellow officer at the monitoring plant, and with his supervisor. They then reported it to Assistant District Attorney John Fine, who was in charge of the D.A.'s investigation. Fine was aware that November was an attorney, but nevertheless believed that the intercepted communication was evidence of preparation for a criminal act.
Defendant contends that the November 21st conversation does not demonstrate a plan to coerce Moss or to obstruct justice, and that subsequent intercepted conversations indicate, to the contrary, that Ostrer did not want any contact with Moss. Furthermore, defendant contends that the November 21st conversation must be understood as an innocent effort to prevent Moss from testifying falsely against Ostrer, and, rather than an ...