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MOSIURCHAK v. SENKOWSKI

December 13, 1993

ALEXANDER MOSIURCHAK, Petitioner,
v.
DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This habeas corpus petition filed pursuant to 28 USC 2254 involves the interaction of substantive and implemental justice and the need to honor both, and to protect the public from large-scale criminal activity and its consequences, while assuring protection of the innocent. In order to be effective, law enforcement must be fair; equally in order to be fair it must be effective. *fn1" In order to fulfill its function law enforcement must protect both defendants and past or potential crime victims. *fn2"

 The petition also presents the question of the judicial response to a situation in which a plea agreement is negotiated *fn3" but the plea vacated, not at the instance of either party to it, but by a state court over the objection of the prosecution, and the defendant is thereafter tried and convicted on more serious charges. *fn4"

 II

 The underlying issue in every habeas corpus case whether articulated as such or not, is whether there may have been a miscarriage of justice leading to conviction of the innocent, or to a sentence grossly disproportionate to the underlying conduct. Imprisonment of the innocent or those punished harshly for minor infractions, or failure to protect the public from major orchestrators of large-scale crime both equally constitute miscarriages of justice. See Preamble, Constitution of the United States (to promote "domestic Tranquillity").

 Procedural missteps are critical to the extent that they may have led to any of these evils, or go to the core of reliability of the judicial process; otherwise they are, like virtually all procedural matters, *fn5" subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991); Clemons v. Mississippi, 494 U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990); Delaware v. VanArsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986); Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946).

 III

 The event leading to the petitioner's ill-fated plea agreement and subsequent conviction was discovery on May 28, 1986 of a large quantity of narcotics production material and devices amounting to an ongoing factory-like operation in a house purchased by petitioner and his wife on April 25, 1986. *fn6" No one was living in the house and no other activity occurring there was found.

 Suspicion was aroused by odors and greatly increased power usage leading to outages at the house. It was bought in an empty condition for $ 55,000 paid at closing, including $ 11,000 in currency *fn7" and the balance in bank checks. All relevant papers in the house such as deed, routine bills and the like were in petitioner's name. No contract of sale was executed in connection with purchase of the house. *fn8" No explanation was provided by any defense witness with respect to actual use or intended use of the house.

 Such circumstances are far more powerful than frequently debatable eyewitness testimony *fn9" in permitting a jury to infer facts permitting it to find guilt beyond a reasonable doubt. See Direct Sales Co. v. United States, 319 U.S. 703, 87 L. Ed. 1674, 63 S. Ct. 1265 (1943); Holland v. United States, 348 U.S. 121, 99 L. Ed. 150, 75 S. Ct. 127 (1954). *fn10" In addition to other circumstances, as stated in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir 1990), ". . . large sums of ...


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