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October 3, 1980

Eduardo CRUZ, Petitioner,
Robert ALEXANDER and Edward Hammock, Chairman of the New York State Departmentof Parole, Respondents

The opinion of the court was delivered by: SWEET


Eduardo Cruz was convicted in New York Supreme Court of possession of explosive substances in 1971. He was sentenced to a term of seven years imprisonment. That conviction was affirmed by the Appellate Division, People v. Cruz, 41 A.D.2d 1027, 343 N.Y.S.2d 786 (1st Dep't 1973), and by the New York Court of Appeals, People v. Cruz, 34 N.Y.2d 362, 357 N.Y.S.2d 709, 314 N.E.2d 39, mod., 35 N.Y.2d 708, 361 N.Y.S.2d 641, 320 N.E.2d 274 (1974). In 1977, he petitioned this court for a writ of habeas corpus, under 28 U.S.C. § 2254 (1976), basing his attack upon his state conviction on an alleged violation of the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. (1976) ("Title III"), and of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. The intervening years have been taken up with a slow but substantial crossfire of affidavits, exhibits, and correspondence, including numerous requests for extensions of time by the state defendant, the most recent of which was filed only the week before last. That request, based on pure speculation as to what further investigation might yield at this late date, is denied.

The petition itself is granted.

 The factual background is largely set forth in the opinion of this court dated September 12, 1979, and published at 477 F. Supp. 516 (S.D.N.Y.1979), appeal dismissed mem., 622 F.2d 573 (2d Cir. 1980). It will be chronicled only briefly here.

 During Cruz's trial, the Assistant District Attorney who handled the case, John Fine, twice referred to matters knowledge of which, Cruz contended then as he contends today, Fine could only have acquired, whether directly or indirectly, through electronic surveillance. As explained in my prior opinion:

In cross-examining one of Cruz's witnesses during the trial, the prosecutor questioned him about a book which was never mentioned on direct examination and which Cruz's counsel claimed had been discussed on the telephone by him two days earlier. During his summation, the prosecutor referred to the trial testimony of an individual who in fact had never testified at the trial. The individual had allegedly been discussed as a possible defense character witness the day before in a telephone conversation between Cruz's counsel and a third party.

 Id. at 524.

 At trial and since, Cruz has argued convincingly that there was little "likelihood that this information discussed by the prosecutor could have come from any source other than a wiretap." Id. Nonetheless, the trial court and two levels of state appellate courts refused to compel the state to make the showing required by 18 U.S.C. § 3504, which applies to the state as well as to the federal government, *fn1" that Cruz had not been the subject of illegal electronic surveillance. At trial, the court ruled that petitioner's claim was premature. Post-conviction, the court failed to reach the merits of Cruz's wiretap claim, and concerned itself only with allowing counsel to build a record on which an appellate court could rule. On appeal, the Court of Appeals concluded that the trial court had reached the merits of petitioner's claim, and therefore declined to remand the case for further proceedings. *fn2"

 At the time of my last decision in this matter, I had before me two statements by the Assistant District Attorney on the subject of wiretapping in Mr. Cruz's case. The first, an unsworn oral denial made during the trial, is as follows:

I have nothing no other statements by the witness on trial (the co-defendant), and nothing of an exculpatory nature of any kind, nor anything derived from any kind of surveillance of the nature (defense counsel) was talking about.

 The second was a post-conviction affidavit stating:

At no time before or during that trial did I employ any electronic wiretapping or eavesdropping devices of any kind in the office of Barbara Handschu (petitioner's trial counsel) or any other place in order to gather evidence for that case. Additionally, no questions asked of any witness during the trial was (sic) based in any way on information gleaned from any electronic surveillance. Had the situation been otherwise, defense counsel, as required by law, would have been so informed.

 In addition to failing to satisfy the requirement of being sworn and in writing, the first statement was uninformative. The second, which I analyzed in some detail in my previous opinion, satisfied the requirements of being sworn and in writing, but was nonetheless barely more useful than the first, laden as it was with ambiguities and negative pregnants. I concluded that it was legally insufficient to ...

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