CLEARY v. BOLGER

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Argument of Irving Malchman

Chief Justice Earl Warren: Number 57, Michael Cleary, Petitioner, versus Edward Bolger.

Mr. Malchman.

Mr. Irving Malchman: May it please the Court.

This case is here upon a writ of certiorari to review a judgment of the Court of Appeals for the Second Circuit.

The order of the District Court in this case which was affirmed by the Second Circuit enjoins the petitioner who is an investigator for the Waterfront Commission of New York Harbor and who was therefore a state officer from testifying or producing any evidence against the respondent Bolger in one, a state criminal prosecution by New York against Bolger for petty larceny and in two, proceedings by the Waterfront Commission to revoke Bolger's license as the hiring agent and to revoke Bolger's registration as a longshoreman.

As shall appear, Bolger has no -- rather petitioner has no evidence to produce against Bolger therefore the only part of the order of the District Court which is at issue in this case is that part of the order enjoining the petitioner from testifying against Bolger.

Both New York's criminal prosecution and the Commission's revocation proceedings had been instituted and were pending at the time that the present action was commenced in the District Court.

The facts in this case are contained in the opinion of the District Court which was rendered after a trial.

On a Saturday morning in September 1959, when the piers along the New York Waterfront are not normally being worked, certain Customs officers were watching certain piers along the Hudson or North River in Manhattan on the lookout for thefts.

At about 8 o'clock that morning, these Customs officers saw Bolger enter a deserted pier, take from the pier a cardboard carton and placed the carton in a car, in Bolger's car, that have been parked in front of the pier.

The Customs officers searched Bolger in the car and they found some sparkplugs and some windshield wipers stamped marked in Eng -- stamped “Made in England”.

Also, Bolger told the Customs officers that he had some liquor at home that he had obtained from the ship's crew.

The Customs officers took Bolger into custody and they took him to an office of Customs in Manhattan.

At the office of Customs, Bolger told the Customs officers that he had some merchandise at home including some liquor that he had obtained from seamen according to him.

Bolger's home was in Keansburg, New Jersey about an hours drive from Manhattan.

Bolger signed a written consent to a search of his home by the Customs officers which however the District Court found to be invalid because Bolger had not freely and intelligently signed the consent in that the Customs officers had misrepresented to Bolger that they could sign his -- that they could search his house without his consent.

At about 11 o'clock, the Customs officers left with Bolger or Bolger's home in Keansburg, New Jersey.

In this connection, the District Court found that the United States Commissioner was in attendance nearby in the United States courthouse in Foley Square from 11 a.m. to 1 p.m.

The Customs officers search Bolger's home for about two hours and they turned up some apparently contraband merchandise including a Stenorette tape recorder that had been manufactured in West Germany.

The Customs officers returned with Bolger to the office of Customs in Manhattan taking back with them this apparently contraband merchandise.

It will be noted that the petitioner was not present here and therefore did not participate in any of these events.

However, Customs works in close cooperation with the Waterfront Commission and Customs had notified the Commission of the fact of Bolger's detention so that upon Bolger's return from his home in Keansburg, New Jersey the petitioner was present at the office of Customs.

The petitioner ascertained that Bolger had a key to a basement room in an apartment in Manhattan which Bolger said that he used as a tool room to repair pier equipment.

The petitioner decided to investigate this story and he -- a Customs officer and Bolger drove to this basement room which was searched.

However, nothing of any incrimination -- of any incriminating nature was turned up in this search and therefore this search of the basement tool room is not a factor in the case.

The petitioner returned with Bolger to the office of Customs at about 5:45 p.m.

Justice Byron R. White: Where in the record, do you know in the (Inaudible)

Mr. Irving Malchman: The opinion of the District Court is the record in this case, Your Honor.

Justice Byron R. White: You mean that's all there is.

(Inaudible)

Mr. Irving Malchman: The District Court found that the Customs had notified the Waterfront Commission of the fact of Bolger's detention.

When Bolger returned with petitioner to the office of the Customs, the Customs officers asked Bolger whether he would make a statement with respect to the merchandise that have been taken from his home by the Customs officers and apparently Bolger did not object.

The Customs officers thereupon took a statement from Bolger before a Customs shorthand reporter.

Although, the petitioner was present during the taking of this statement, he did not participate in it in any way.

The Customs officers concluded their questioning in about 7 p.m. and released Bolger at about 7:20 p.m.

About a month later, in October 1959, the New York City Police arrested Bolger upon a charge of larceny based upon the alleged theft of the Stenorette tape recorder.

As a result of this criminal charges by the State of New York, the Commission instituted proceedings, its proceedings to revoke Bolger's license as a hiring agent and his registration as a longshoreman.

Thereupon, Bolger instituted the present action in the District Court.

The District Court found that the Customs officers had illegally detained Bolger after 11 a.m. in violation of Rule 5 (a) of the Federal Rules of Criminal Procedure that the Customs officers had illegally searched Bolger's home in violation of Rule 41 (a) of the Rules of Criminal Procedure.

And that as a result of both the illegal detention and the illegal search and seizure, Bolger gave a highly incriminating statement with respect to the merchandise that had been taken from his home before the Customs shorthand reporter.

Based upon these determinations, the District Court enjoined the Customs officers from testifying or producing any evidence against Bolger in the state proceedings against him.

The District Court also enjoined the petitioner from testifying or producing any evidence against Bolger upon the ground that such an injunction was necessary in order to effectuate and as an incident to the injunction against the Customs officers.

An application by Bolger --

Justice John M. Harlan: What does that injunction do, enjoin in testifying either before the Commission or in the state court proceeding?

Mr. Irving Malchman: It does both, Your Honor.

Justice John M. Harlan: Both?

Mr. Irving Malchman: Yes, sir.

The District Court denied an application by Bolger for the return of the merchandise that had been taken from his home upon the ground that Bolger had apparently failed to establish that this merchandise were not -- was not contraband.

Therefore, the merchandise that has -- that was taken from Bolger's home has in effect been frozen in the custody of Customs, and therefore, the petitioner has no tangible evidence to produce against Bolger.

It is the peti -- petitioner's contentions first, that the order of the District Court enjoining him from --

Justice William J. Brennan: (Inaudible) through the Customs?

Mr. Irving Malchman: Yes, sir.

Justice William J. Brennan: And not available to Commission or to Bolger, is that it?

Mr. Irving Malchman: No, sir.

The order of the District Court in this case specifically --

Justice William J. Brennan: I see.

Mr. Irving Malchman: -- states that the merchandise --

Justice William J. Brennan: Oh, I see.

Mr. Irving Malchman: -- soon --

Justice William J. Brennan: Impounds it, is that, so that (Voice Overlap) --

Mr. Irving Malchman: In effect.

Yes, sir.

Justice William J. Brennan: I see, alright.

Mr. Irving Malchman: It is the petitioner's contentions first that the order of the District Court enjoining him from testifying against Bolger in New York's criminal prosecution and in the Commission's revocation proceedings constitutes an improvident exercise of federal equitable power.

It is also the petitioner's contention that the order of the District Court enjoining him from testifying in New York's criminal prosecution is prohibited by the provisions of Section 2283 of the Judicial Code.

First, the contention that it was improvident to enjoin the petitioner from testifying in New York's criminal prosecution; this injunction is contrary to the applicable decisions of this Court.

The landmark decision in this area is the decision by this Court in Stefanelli v. Minard.

In Stefanelli, a criminal defendant in a New Jersey prosecution brought suit in the District Court under the Civil Rights Act to enjoin the New Jersey Police from producing certain evidence against him in the New Jersey prosecution which allegedly had been obtained during an illegal search and seizure.

This Court in the Stefanelli case, refused to decide whether the complaints stayed as a cause of action under the Civil Rights Act.

Instead, this Court said that the issuance of such an injunction would result in an insupportable disruption of state criminal proceedings and this Court enunciated a broad principle of noninterference with state criminal proceedings.

There are two other decisions by this Court in this area which refuse injunctions against testimony or the production of evidences to state criminal prosecutions.

In Pugach v. Dollinger, this Court refused to enjoin New York law enforcement officials from producing New York wiretap evidence in a New York criminal prosecution.

And in Wilson v. Schnettler, decided the same day as Pugach, this Court refused to enjoin this time a federal narcotics agent from producing narcotics in a state criminal prosecution.

The narcotics agent, that is the federal narcotics agent, had arrested the state criminal defendant without a warrant and had found narcotics upon the defendant's person.

However, the court below, that is the Second Circuit, read this Court's decision in the Wilson case as resting solely and is exclusively upon the fact that the complaint in the Wilson case did not allege that there had -- that the arrest by the federal narcotics agent had been made without probable cause.

That is the Second Circuit read this Court's opinion in the Wilson case as resting solely and exclusively upon the defective nature of the complaint.

Of course, if this were so, the complaint in the Wilson would've been dismissible out of hand in the single paragraph and there would've been no need for this Court to discuss and to distinguish at length its other decisions in this area as this Court did in its opinion in the Wilson case.

Further, in its opinion in the Wilson case, this Court plainly and specifically stated that one of the alternative basis -- bases of its decision not to enjoin the federal narcotics agent was the principle of noninterference enunciated in Stefanelli.

This brings us to the decision by this Court in Rea v. United States which is the only case where this Court has sanctioned an injunction against testimony or the production of evidence in state criminal prosecutions.

This is the decision which the court below relied upon and this is the decision which is the bone of contentions in this case.

In the Rea case, a federal narcotics agent pursuant to a search warrant which had been defectively issue -- been issued in violation of the federal rules made an arrest -- rather, made a search and found narcotics.

As a result of this search pursuant to this defective search warrant, a federal narcotics prosecution ensued.

And in this federal narcotics prosecution and the defendant made a motion in the District Court to suppress the seized narcotics which was granted by the District Court.

In the Rea case, this Court said in its opinion with respect to the District Court's order of suppression that under 28 U.S.C. 2463 which was applicable, the narcotics “shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof”.

In other words, this Court itself in the Rea case specifically pointed out that the order of suppression therein had in effect an in rem effect with respect to the suppressed narcotic.

Notwithstanding this order of suppression by the District Court, the federal narcotics agent then cause a state narcotics prosecution to be instituted against the same person who was the defendant in the federal narcotics prosecution.

Thereupon, the defendant moved in the Federal District Court for an order enjoining the federal narcotics agent from testifying or producing this suppressed narcotics against him in the supre -- in the state prosecution.

This Court held that such an injunction should issue.

With respect to this injunction, this Court stated in its opinion in the Wilson case that the effect of the suppression order in the Rea case was that suppressed property “shall not be admissible in evidence at any hearing or trial”, and therefore, the motion to enjoin in the Rea case was made “to prevent the thwarting of the federal suppression order”.

In other words, the injunction in the Rea case rests upon a single of set of book facts involving the integrity of a District Court order; that is the order of suppression.

The Rea case is entirely congruent with the policy of noninterference with state criminal prosecutions that is unmistakably spelled out by this Court in its decisions in the Stefanelli case, the Pugach case, and the Wilson case.

The argument in favor of a federal injunction in these cases runs somewhat as follows that as a result of decisions at law by this Court, the evidence in question is clearly admissible that therefore there is no adequate remedy of law.

That therefore there is a need for the issuance of a federal injunction to protect the federal rights of the state criminal defendant.

Under this argument, result is had in effect to the equity side of this Court in order to overrule or circumvent the decisions made by this Court upon its law side.

Surely, this is an anomalous procedure.

If the decisions by this Court at law should for some reason no longer be followed or if they should for some reason be overruled, then this should be direct -- be done directly and forthrightly at law and upon a reconsideration of the merits and not as here by a flanking attack which not only obscures the consideration involved in the merits but which creates a needless conflict between the state and the federal courts.

Beside, it is not even clear in this case that the result at law would actually be adverse to the respondent Bolger here.

This is particularly true in view of this Court's decision in Mapp v. Ohio holding that due process requires the exclusion of illegal state search and seizure evidence from state criminal prosecutions.

The court below, however, thought that there was some doubt with respect to the applicability of the Mapp decision to this case and therefore thought that the Mapp case did not provide inadequate remedy at law.

However, if the mere uncertainty of the result at law as opposed to and if a conclusively established adverse result is to be a sufficient basis for equitable jurisdiction then the basis for federal piecemeal interference with state criminal prosecutions has been immeasurably expanded.

It will mean, for example, that every peripheral question in this area in every variant that may arise under the Mapp case may be permissibly litigated in the first instance that by an interlocutory appeal from the state courts to the federal courts.

The unsupportable disruption of state criminal prosecutions which was referred to by this Court in the Stefanelli case has become a harsh reality in this case.

Both New York's criminal prosecution and the Commission's revocation proceedings were instituted in October 1959.

That both New York's criminal prosecution and the Commission's revocation proceedings have been required to mark high for over three years pending the outcome of this litigation which is essentially an interlocutory appeal from the federal courts to the state courts.

Justice John M. Harlan: Are the merits of Judge Bryan's order in suppressing this evidence before us?

Mr. Irving Malchman: No, sir.

The question --

Justice John M. Harlan: Simply the injunction --

Mr. Irving Malchman: The (Voice Overlap) --

Justice John M. Harlan: -- by the injunction?

Mr. Irving Malchman: Yes.

The only question before this Court --

Justice John M. Harlan: What did Judge Anderson mean when he -- when his des -- he dissented, as I understand it --

Mr. Irving Malchman: Yes, sir.

Justice John M. Harlan: -- in the Court of Appeals.

He said he agreed with the Court of Appeals as to the affirmance of Judge Bryan's order or somewhere as to that effect.

What it -- wouldn't that -- what does that mean?

Mr. Irving Malchman: I'm not entirely clear myself.

I think that Judge Anderson would've voted with the majority except for this Court's intervening decision in the Mapp case --

Justice John M. Harlan: Is that the way you --

Mr. Irving Malchman: -- and in view of this Court's decision in the Mapp case he thought that the matter should be remanded to the state courts.

Petitioner's second contention --

Chief Justice Earl Warren: We'll recess now, Mr. Malchman.

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Argument of Irving Malchman

Chief Justice Earl Warren: Michael Cleary, Petitioner, versus Edward Bolger.

Mr. Malchman.

Mr. Irving Malchman: May it please the Court.

Yesterday, I discussed the petitioner's contention that it is an improvident exercise, a federal equitable power to enjoin the petitioner, been testifying in New York's criminal prosecution against the respondent, Bolger.

It is also --

Justice William J. Brennan: Mr. Malchman, may I ask you?

Is this injunction restraining Bolger from testifying at the proceedings before the Waterfront Commission which goes to the suspension or the revocation of the privileges?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: (Inaudible)

Mr. Irving Malchman: Yes it does.

Justice William J. Brennan: What is that decision?

Is that an administrative procedure of some kind before the Commission?

Mr. Irving Malchman: Yes sir, it's an administrative hearing.

Justice William J. Brennan: An administrative hearing?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: And is a judicial review?

Mr. Irving Malchman: Yes, that's exactly the point that I was coming to that there are explicit provisions -- in other words -- I was next going to say that it is also improvident to enjoin petitioner's testimony before the Commission particularly were there are specific provisions in the Waterfront Commission compact providing for judicial review of a “final decision or action”.

Justice William J. Brennan: And that review I take it is at what, in the New York state court?

Mr. Irving Malchman: It's in the appropriate state court.

Justice William J. Brennan: That it could be in New Jersey or New York depending upon what?

Mr. Irving Malchman: Depending upon where the action was brought, depending upon the residence of the respondent essentially.

Justice William J. Brennan: Now, an administrative hearing, is this before a hearing examiner or what?

Mr. Irving Malchman: Its before a hearing examiner who renders proposed findings and recommended conclusions of law which then goes before the Commission who makes the final deter -- which makes the final determinant --

Justice William J. Brennan: The Commission was a two-member Commission.

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: Two-member Commission.

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: One from each state.

Mr. Irving Malchman: One from each state.

Justice William J. Brennan: And then it makes the decision, is that it?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: What's the scope of judicial review?

Mr. Irving Malchman: The scope of judicial review is similar to judicial review in the federal administrative agency and that is if the findings are supported by substantive evidence the determination will be affirmed.

Justice William J. Brennan: Well, now, suppose the injunction were lifted, could the contention made be raised as a federal question before the hearing examiner?

Mr. Irving Malchman: Absolutely sir.

The respondent --

Justice William J. Brennan: Would it be a federal question?

Mr. Irving Malchman: Well, the respondent claimed that it was in violation of his federal rights that Cleary's testimony that if it were received by the Commission, violated his federal rights, he could -- if the Commission ruled against them, he could take that contention to the state court and if the state court ruled against them he could ultimately come to this Court.

Justice William J. Brennan: But it is not as a federal -- or is it or is it the federal claim a constitutional or not?

Mr. Irving Malchman: Well, I would assume that the -- Bolger would contend that his statement after the illegal search and seizure came within the fruit of the poisonous tree brought to him.

Justice William J. Brennan: Well, I know but as a fruit of poisonous tree for a violation of any constitutional provision which is the Fourth Amendment or what?

Mr. Irving Malchman: Well, it would be -- he would claim a violation of the Fourteenth Amendment which was incorporated into the --

Justice William J. Brennan: Yes.

Mr. Irving Malchman: -- into the Due Process Clause.

Justice William J. Brennan: You mean, it would depend upon a claim of violation of federal rules of criminal procedure?

Mr. Irving Malchman: Well, both of course -- I cannot speak for him, he could make any claim that he -- being appropriate, he could claim that there had been a violation of the federal rules and that by virtue of this violation of the federal rules, the petitioner's testimony should not be received.

Now the Commission may or may not accept that contention and if an adverse determination were made against Bolger, he could then go to the state courts which may or may not accept the contention and if assuming an adverse determination all the way through, he could then come to this Court.

Justice William J. Brennan: Do you think it would be sufficiently a federal question even though arrested on the violation of his federal criminal rule --

Mr. Irving Malchman: Well --

Justice William J. Brennan: -- that that went on to the Constitution.

Mr. Irving Malchman: I think that's a question which should be determined in the appropriate manner that is in the proceedings at law.

Our objection -- our contentions does not essentially go to the admissibility of the evidence.Our contention goes to the time and place that the respondent has chosen to raise this question.

Justice William J. Brennan: Well, do you think it bears on whether he has an adequate remedy at the law in the state courts whether or not the question is when he'd have to assert under the federal rules of criminal procedure rather than under the Constitution?

Mr. Irving Malchman: No sir, I do not.

And I would like to explain why I believe that.

The claimed inadequacy of the remedy of law is that once the petitioner speaks then the state determination cannot -- will not be reversed by this Court.

Justice William J. Brennan: Not reviewable or not reverse it.

Mr. Irving Malchman: (Voice Overlap)

Justice William J. Brennan: Not reviewable by this Court, is that the argument?

Mr. Irving Malchman: Well, that -- in other words, that by virtue of prior decisions by this Court particularly before Mapp v. Ohio that the evidence and the question was admissible that therefore, the state criminal defendant or the state criminal respondent did not have an adequate remedy at law that therefore, it followed that a federal injunction was necessary if the defendant's or respondent's federal rights were to be protected.

Now, under this argument, resort in effect has had to the equity side of this Court in order to circumvent or overrule the decisions of this Court rendered at law it is a completely anomalous procedure.

Our contention is that there's nothing magical about a proceeding in equity that a state criminal defendant or respondent does not transmute his federal rights simply by becoming a plaintiff in equity in the United States District Court that if for some reason, the decisions of this Court should not be followed or it goes -- a dissatisfaction with those decisions then -- or if those decisions should be overruled, this should be done directly in Fort Riley at law by this Court upon a reconsideration of the merits.

But this Court should not allow this to be done indirectly by a flanking attack which not only really obscures the considerations involved in the merits but which creates a needless and gratuitous conflict between the state and the federal courts.

Justice Byron R. White: Could you tell me as a matter of fact what the New York rule is?

Is the evidence admissible?

Is it -- has obtained by a state officer in violation of the federal rule or federal statute?

Mr. Irving Malchman: Well, as a result of this Court's decision in Mapp v. Ohio, the Court of Appeals of the State of New York which is the highest court in New York has gone further than this Court has gone and has held as we set forth in our reply brief that even an omission after an illegal search and seizure by a state officer that is an omission by a state criminal defendant, comes within the poisonous tree doctrine and therefore is inadmissible under Mapp v. Ohio.

Justice Byron R. White: Yes but the question I asked, I mean the Mapp -- there is a constitutional issue involved, a violation of the Constitutional right involved here.

My question was the -- if the violation by the state officer or by some officer to whom he gets this information, a violation of a federal statute or a federal rule or procedure.

Mr. Irving Malchman: Well, this would be the case Your Honor.

This would be -- I don't know of any other case where that question has arisen.

Justice Byron R. White: So the -- this is really an unsettled question in the --

Mr. Irving Malchman: Yes sir.

Justice Byron R. White: -- New York courts.

Mr. Irving Malchman: Yes sir.

Justice Byron R. White: That the admissibility of this evidence.

Mr. Irving Malchman: Yes sir.

Justice Byron R. White: And you contend that if that question were ruled upon, adversely to the defendant in the criminal proceedings in the New York courts that that question could be reviewed here.

Mr. Irving Malchman: Yes sir.

In other words, what we're saying is that there's nothing magical about a suit in equity that there's no reason why this defendant --

Justice Byron R. White: Well, that is -- that isn't really the question.

The question is how did the -- when the criminal proceeding is over and the man had been convicted, how does the case get here?

Mr. Irving Malchman: It gets -- it would get here on the petition for certiorari.

Justice Byron R. White: On -- alleging on what ground within the jurisdiction of this Court?

Mr. Irving Malchman: On the ground that his federal rights had been violated namely that the testimony had been obtained in violation of the federal rules of criminal procedure that the evidence rather had been maintained in violation of federal rules and criminal procedure and are to effectuate the policy of the federal rules of criminal procedure.

It is necessary to exclude the evidence.

Justice William J. Brennan: Well, there's nothing about Mapp is there which would require the New York courts to exclude evidence obtained in violation of the federal rules of criminal procedure or is there?

Mr. Irving Malchman: Well, insofar as the federal rule, its Rule 41 (a), I have difficult -- which is -- relates to search warrants.

There are two federal rules involved in this case, one is the Rule 5 (a) which is the illegal detention and one is Rule 41 (a) which is the illegal search and seizure.

I don't see much difference between Rule 41 (a) and the Fourth Amendment so that whatever claim --

Justice William J. Brennan: Well, as I understood what you said yesterday that Stenorette, whatever the name of that is, that recording machine, we're not concerned with that.

Mr. Irving Malchman: No sir.

Justice William J. Brennan: And that was the subject of the search and seizure, wasn't it?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: But what we're dealing with here as I understood it was, whatever Bolger, is that his name?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: May have overheard in the interrogation of Cleary by the Customs officer.

That's what we're concerned with here isn't it?

Mr. Irving Malchman: Yes.

What Cleary overheard --

Justice William J. Brennan: Would that -- well, whatever, yes.

Mr. Irving Malchman: -- of Bolger, yes.

Justice William J. Brennan: And the -- was not the rationale below that it was the violation of Rule 5 which required the exclusion in any federal proceeding of anything either that the state officer of the federal officer has heard?

Mr. Irving Malchman: Yes sir.

Justice William J. Brennan: And also, the violation of that rule which required the injunction against the state officer testifying in any state proceeding, wasn't that it?

Mr. Irving Malchman: A violation of both Rules 5 (a) and --

Justice William J. Brennan: 5 and 41?

Mr. Irving Malchman: 41 (a), yes sir.

41 (a) is -- I can see no difference in the practical matter between Rule 41 (a) and the Fourth Amendment so that he would have the constitutional claim with respect to the violation of Rule 41 (a).

Of course, there's no counterpart, constitutional provision with respect to Rule 5 (a).

My time is up.

Chief Justice Earl Warren: Mr. Aronstein.

Argument of Joseph Aronstein

Mr. Joseph Aronstein: Mr. Chief Justice, may it please the Court.

It seems to me that there are but two questions presented upon this matter before this Court as set forth in the brief of the petitioner.

The first is whether it is an improvident exercise of federal equitable power to enjoin the petitioner from testifying in either a state court or before the Waterfront Commission of the Court of New York.

It seems to me that my opponent has avoided the very question that was raised initially in the District Court and also decided by the Circuit Court and that is this; what position did Cleary assume once he came in and aided and abetted the federal officers in committing these unlawful acts.

There is no question that the federal officers did commit unlawful acts because even Judge Anderson who dissented in the Circuit Court from that part of the opinion that continued the injunction in effect because at page 23 of the petition for writ of certiorari, Judge Anderson says this, “There was a good reason at the time of the issuance of the injunction by the trial court before the Supreme Court's holding in Mapp v. Ohio, supra, to encode within its reach, Cleary, the state official, to prevent a violation of Bolger's constitutional rights”.

So Bolger then had no other recourse.

So I must assume that Judge Anderson found that for the purposes of this case at least, Cleary became a federal agent when he aided and abetted these federal agents in the Commission of this illegal act.

And it is my understanding of the law that one who aides and abet others in the Commission of any illegal act becomes a part -- possible (Inaudible) conspiracy and any acts committed during the conspiracy are chargeable, this person at the jury is before the completion of the conspiracy.

Now, while it is true that the District Court and the Circuit Court confined their opinion to the fact that Cleary by being invited in by the federal agents listened to and observed certain things.

But as Judge Bryan said in his opinion, Cleary did more than that.

He became an active participant in these acts of the Customs officers.

Because when they brought Bolger back to 201 Varick Street, New York City at which time Cleary had been called by the Customs officers, both Cleary and Lockland, one of the federal Customs officers, compelled Bolger to empty his pockets, questioned him about some keys that he had and when they discovered that one of the keys fitted a storeroom in some apartment building, I believe it was at 75th Street Western Avenue in Manhattan, compelled Bolger to accompany them in an automobile, took him into this house, compelled him to open the door and conducted a search in his premises.

Of course, the petitioner would like to dispose of that matter by saying, well, there was no contraband found there.

But that is not the important thing whether or not contraband was found there or not.

The important thing I believe is that when they forced Bolger to empty his pockets, when they forced him to accompany them to 75th Street, and they forced him to open the door, Bolger's (Inaudible) acts, it were clearly illegal acts.

The same as the other acts committed by the federal officers prior to the time they took Bolger to Keansburg, New Jersey.

Justice William J. Brennan: Mr. Aronstein, have you any comment about the suggestion Judge Anderson made at page 23 in effect that Mapp makes clear that the state courts are bound to protect Bolger against the violation of Rule 5 (a)?

Mr. Joseph Aronstein: I'm sorry, I don't agree with Judge Anderson, Your Honor, because if that's true then you might as well abolish 5 (a) because even if federal agents come in to a state court you can raise that question, I don't think he can.

I proceeded on the theory that Cleary became a federal officer for the pertinences of this case at least when he joined in with these other federal agents.

Now, it didn't make a better difference whether Cleary was a civilian or whether he was a state officer or an investigator for the Waterfront Commission or anyway.

Justice John M. Harlan: Does this record show anything that the federal officers did that was done at the request of Mr.-- of Cleary or was he just a passive acquiescent observer, that's what I'm --

Mr. Joseph Aronstein: Oh certainly, the record shows what Cleary did.

Justice John M. Harlan: No, whether the federal officers did something to Bolger at the request of Cleary.

Mr. Joseph Aronstein: No, it doesn't to my recollection but I don't believe that makes a better difference.

Justice John M. Harlan: Well, I'm just asking.

Mr. Joseph Aronstein: Because -- let's assume that there were A, B, C and D in the conspiracy to violate the law, A is the leader --

Justice John M. Harlan: Yes, but you put the word conspiracy in it.

Mr. Joseph Aronstein: Well, I assume that when more than -- when two people or more engage in an illegal enterprise, that could become a cons -- criminal conspiracy --

Justice John M. Harlan: Is it your --

Mr. Joseph Aronstein: -- whereas if one person did it, it might not.

Justice John M. Harlan: Is it your view that if Cleary had happened to stumble in there on this episode, had no req -- no information, he just happened to stumble in, did he have to walk away?

Mr. Joseph Aronstein: No, it is not but it is my view that in view of the fact that this was conducted within the private offices of the Customs officials, it would be very difficult for anybody to stumble in.

I mean that would be assuming something that would -- to my mind, it would be almost impossible because if anybody did come in there that wasn't permitted there, they'd be properly chased out.

That's a government building, the Customs office and this was upstairs in the building, it was a Saturday and they have guards there so that the probability of anybody just stumbling in on these proceeding which was conducted in private offices maintained by the Customs officials is a very, very remote possibility and I don't think could be considered at all.

Now, I believe that not only did Judge Bryan but the prevailing opinion in the Circuit Court disposed of that question very aptly and at page 17, the petition for writ of certiorari where there appears the opinion of Judge Clark who wrote the majority opinion.

He said, in the Rea case, a federal official was disabled from passing the fruits of his illegal activities on to the state through testimony at a trial.

In the present case, the federal officials attempted to pass the fruits of their illegal activities on to the state by calling in state officials at the time of the illegal detention.

Now there is evidence in the record that Cleary was called in by the federal official.

That's not disputed.

Justice John M. Harlan: I understand that.

Mr. Joseph Aronstein: So I say, so having him on -- invited there by the federal officials and haven't taken it -- taken an active part in this illegal act he at least for the purpose of the Rea case became a federal official and he is amenable to the federal rules of criminal procedure and he is also amenable to the provisions of the Constitution if he has violated any of these rules.

Justice Arthur J. Goldberg: Mr. Aronstein, the effect of the injunction is to prevent the -- Cleary from testifying as to Bolger's confession, is that correct?

Is that the effect of it?

Mr. Joseph Aronstein: Oh, it's more than that Your Honor because Cleary saw the -- Cleary saw the tape recording machine.

You don't have to have the tape recording machine present at a criminal prosecution to convict a defendant provided to have evidence.

The fact that they don't have the tape recording machine isn't going to prevent a conviction assuming that they could have sufficient legal evidence to establish guilt beyond a reasonable doubt.

Justice Arthur J. Goldberg: Now, the total effect of the law prevent the (Inaudible) in the states on Bolger from going into evidence, isn't that (Voice Overlap) --

Mr. Joseph Aronstein: Well, that's what they say in their -- in the opinion.

But I think you can go further, it goes further because if I view of something, I can testify that I observe this, I observed this machine, I looked at it and I saw certain numbers on them.

Now that evidence would be a link in the chain of evidence that could be adduced.

Justice Arthur J. Goldberg: That evidence would have no relevancy if the statement itself which had been reported was not admitted into evidence.

Mr. Joseph Aronstein: Oh yes, it was.

Because then Cleary -- all they'd have to do I believe would be to establish the corpus, the link that I was -- which would be that they own the machine.

They didn't give anybody permission to take it and it was taken.

And then Cleary had testified, “I saw that machine.”

Justice Arthur J. Goldberg: Now, that's a --

Mr. Joseph Aronstein: To getting a --

Justice Arthur J. Goldberg: Well, do I misunderstand but suppose he did whether the statement in the Court, in the statements by Bolger were held inadmissible on constitutional ground, this testimony inferred would be just in limbo itself, it would have no significance, would it?

Mr. Joseph Aronstein: Well, now you're asking me to answer the question.

I don't know what evidence is in the possession of the District Attorney of New York County.

They don't tell me what evidence they have.

I have to wait for trial so I don't know what other evidence they had in addition to this evidence.

All I know is that Bolger is charged for further time with petit larceny and the charge having been reduced from grand larceny.

Now the District Attorney doesn't tell me --

Justice Byron R. White: Is that a serious -- does that have a serious consequences for Bolger, is that his name, as the possible lifting of his license to work on the docks?

Mr. Joseph Aronstein: Well, even the -- even the making of the charge against him, Your Honor, resulted in the temporary lifting of his license so that now, Bolger has been deprived of work since I believe February of 1960, unable to get work in the Waterfront which was the only work he could do.

He spent frankly his entire life working as a longshoreman.

Justice William J. Brennan: You mean the pendency of the larceny indictment is enough?

Mr. Joseph Aronstein: They've lifted the -- by a temporary suspension.

He's been out of work since February of 1960 I believe which was several months after he was arrested on the charge because he was taken right off the job.

He has been working even after he was arrested on that charge.

He has lost his job as hiring boss but he is working as a longshoreman and then all of a sudden they come along and says, “You're out of work, give me your pass, its temporary lifted by an order of the Waterfront Commission”.

Justice William J. Brennan: Well, sustaining this injunction is not going to leave that situation, is it?

Mr. Joseph Aronstein: Pardon me Your Honor?

Justice William J. Brennan: Sustaining this injunction, if we sustain this injunction, that situation is not going to be relieved, I take it.

Mr. Joseph Aronstein: Yes it is because then I'm going to move for a dismissal of the charges or either of -- from trial.

Justice William J. Brennan: On the indictment?

Mr. Joseph Aronstein: On -- not on the indictment but on the proceedings.

After all, we're entitled to a speedy trial.

And that brings me to the point of the second point of my opponent's petition and that is that this injunction is stopping the State of New York from proceeding with this trial, stopping the Waterfront Commission from proceeding with the trial, well, that isn't the fact at all.

There's no injunction against a state criminal proceeding.

There's no injunction against the Waterfront proceeding.

Chief Justice Earl Warren: Then I suppose if Mr. Cleary had some evidence that was entirely disassociated from this particular conversation and his association with the federal officers that he is not enjoined from so testifying, is he?

Mr. Joseph Aronstein: Of course not.

The injunction only enjoined him of testifying with respect to the alleged admissions or confessions made by Bolger or with respect to producing any of the evidence illegally secured by the illegal search and seizure of the Customs agent.

So when my opponent said that Cleary is a very important witness and that as a result of him being enjoined, the state cannot proceed -- what if -- well, as far as the state is concerned just now.

I say, that's an assumption on his part that's unwarranted from any evidence in this case at all.

The District Attorney of New York County is the one who is charged with prosecuting crimes and he is the one who decides how important or unimportant anybody's -- any witnesses' testimony is.

And nowhere in this proceeding from the variant section as the District Attorney come in and asked to be made a party and said that I'm being stopped from prosecuting this case because of this injunction.

And therefore, I don't think that this question is properly before this Court, and the fact that this state prosecution is being stopped because, as I point out my brief, the law charges the District Attorney with prosecuting all criminal indictments or charges.

And it's always been my understanding of the law that not only from a theory but some practical purposes in my experience that it's the District Attorney decides who is dispensable and who is indispensable as a witness.

So the fact that my opponent alleges that this injunction is stopping the District Attorney from proceeding with this prosecution, that is not so at all.

Justice John M. Harlan: On the assumption that it had.

Do you think that would make any difference to your case?

Mr. Joseph Aronstein: Well, pardon me, I don't quite understand.

Justice John M. Harlan: The assumption, on the assumption that the injunction did prevent the state from proceeding because this man's testimony was necessary, would that have any bearing on your case?

Mr. Joseph Aronstein: No, it wouldn't.

Because I believe that the question of whether a person has secured evidence illegally is of far greater importance in the question of whether a case is going to be prosecuted or not because that involves not only the Constitutional rights but it also involves a violation of the federal rules which are -- have the same force of statute.

Now --

Justice William J. Brennan: Well, what's the violation of a constitutional right that (Voice Overlap) --

Mr. Joseph Aronstein: The illegal -- the illegal search and seizure of this property.

Justice William J. Brennan: I thought that was out of the case, am I wrong about that?

Mr. Joseph Aronstein: Oh, no, it is in fact --

Justice William J. Brennan: If we were to lift this injunction and they would have produced -- why is it I have this name confused -- Cleary.

If they would have produced Cleary say, before the hearing examiner on the proceeding before the Commission, you would object to his testimony on what ground?

Mr. Joseph Aronstein: Well, I would object to the testimony on the ground that the evidence with respect that the tape recorder was secured by an illegal search and seizure.

Justice William J. Brennan: But I thought the tape recorder was out of the case.

Mr. Joseph Aronstein: Oh, no.

That's the subject matter of the larceny case.

In the state prosecution, the tape recorder is solely the subject matter of the lawsuit.

Justice William J. Brennan: I see.

Mr. Joseph Aronstein: That is the -- that is what the larceny charge is based on.

The larceny of a tape recorder valued at a hundred dollars or less.

They reduced it to petit larceny from grand larceny.

And that prosecution is pending now in the --

Justice William J. Brennan: Well, with lifting this in -- that the tape recorder is presently impounded, isn't it?

Mr. Joseph Aronstein: That's right.

Justice William J. Brennan: And would lifting this injunction release it?

Mr. Joseph Aronstein: Well, of course it-- oh, wait, I may be wrong --

Justice William J. Brennan: I thought the state said that (Voice Overlap) --

Mr. Joseph Aronstein: -- on that.

But it's not necessary to have the tape recorder there.

They could prove that corpus delicti without even producing the tape recorder.

The company can show that they purchased this tape recorder, that they ordered it, it was shipped here and it was delivered at pier so and so in New York and that they discovered that the cartons were empty and the tape recorder was missing.

And they gave nobody permission to take it.

Justice Byron R. White: Mr. Cleary has got anything to do with that?

He wasn't on the -- he didn't go out from the search did he?

Mr. Joseph Aronstein: Pardon me Your Honor?

Justice Byron R. White: Did he go on the search?

Mr. Joseph Aronstein: No, he did not.

Justice Byron R. White: So Cleary's testimony -- they couldn't prove the tape recorder is with Cleary, did they?

Mr. Joseph Aronstein: Well, certainly they could have lifted the injunction.

Cleary can testify as to the converse -- as to the confession made by Bolger.

Justice Byron R. White: Yes but those are statements and it isn't the -- it isn't the property obtained as a result of illegal search and seizure, isn't it?

Mr. Joseph Aronstein: That's true.

Those are confessions made but those confessions violate the Fifth Amendment.

If the original search and seizure was illegal it is my understanding of the law that under the Fifth Amendment, any confessions made -- obtained are illegal also because they are the fruits of the poisonous tree.

They flow directly from the result of the illegal search and seizure.

Justice Byron R. White: But the statements before that are alright?

Mr. Joseph Aronstein: Pardon me sir.

Justice Byron R. White: Statements before the search are different?

Mr. Joseph Aronstein: Well, that would depend on some other factors Your Honor.

That would depend on the fact as to whether the arrest was illegal arrest or not.

If it was an illegal arrest then of course any confessions or statements made would become illegal because of the fact of the illegal arrest.

Justice Byron R. White: But do we know what Cleary heard?

Is that in the record what he heard or what he could testify to?

Mr. Joseph Aronstein: No, but it's in the record -- it's in the record in the Circuit Court, isn't it in the printed record in the Circuit Court?

Justice Byron R. White: But do we know that he knows that he could testify as to anything about the tape recorder?

Or we (Voice Overlap) --

Mr. Joseph Aronstein: I know (Voice Overlap) -- I know that he can.

Justice Byron R. White: Well, you know that he can (Voice Overlap) --

Mr. Joseph Aronstein: From the proceedings had in the lower courts, yes.

Justice Byron R. White: But is there a record here of what he -- actually could or would testify to?

Mr. Joseph Aronstein: I don't believe so except that the statement in the opinions of the -- of Judge Bryan and the Circuit Court.

Justice William J. Brennan: Well, I gather your point is Mr. Aronstein that if in the state criminal proceeding, Cleary would have testified that he heard Bolger say that he, Bolger had stolen the tape recorder that you'd object to the admissibility of that testimony on the ground that they know nothing about the tape recorder but for the illegal search and seizure at the home of Bolger.

And therefore, that the statement overheard as fruit of the poisonous tree and so forth, is that it?

Mr. Joseph Aronstein: I'd make that assertion (Voice Overlap) --

Justice William J. Brennan: As a constitutional (Voice Overlap) --

Mr. Joseph Aronstein: -- I'm sure the Court wouldn't go along with me.

That's for all the Court anyway.

Justice William J. Brennan: But if you do it -- you do that what, as a constitutional argument?

Mr. Joseph Aronstein: (Inaudible) yes, as a constitutional --

Justice Byron R. White: Why wouldn't the court go along with you?

I thought the New York courts have held that --

Mr. Joseph Aronstein: Oh, that is why I have so many appeals right now Your Honor in the state courts.

And I know that from my practical experience, I happen to do trial work and appellate work.

I could cite Court of Appeals cases and I don't know.

They just say motion denied, defendant is found guilty and so therefore I have to appeal.

And I have succeeded on appeal on reversing the lower courts but from my experience the lower courts -- the constitutional questions and even questions with respect to evidence.

Very difficult to put across to these lower court judges despite the fact that you may file on memorandum citing authorities which I assume they are bound to follow whether they like it or not, that's the law, that's what I've been taught at law school anyway.

And as a result, I -- has of great many appeals now pending involving constitutional questions about illegal search and seizure.

Now my friend said that this question should be presented in the state courts and that I should raise the question and as decided adversely, I should take an appeal.

That's a very nice talk.

But when you consider that New York State, the right to be released on bail, pending the termination of an appeal as a matter of discretion and not a matter of right, by the time I could come up to this Court if I ever got this far, could apply for a writ of certiorari, the answer to this Court would be the question is now moot.

He has served his sentence.

And therefore the Court wouldn't consider it.

Justice Potter Stewart: Well, that certain -- that wouldn't be moot, would it, if he lost his license to work in the Waterfront?

Mr. Joseph Aronstein: Well, Judge --

Justice Potter Stewart: That would last if I gather, how long does that last if you -- if a license is lifted in a case like this?

Mr. Joseph Aronstein: Oh, the -- within the discretion of the Waterfront Commission, maybe 5, 10 or 20 years later, they might reconsider and --

Justice Potter Stewart: It wouldn't take you 5, 10 or 20 years to get here wouldn't it?

Mr. Joseph Aronstein: Pardon me?

Justice Potter Stewart: It wouldn't take you 5, 10 or 20 years to get here.

Mr. Joseph Aronstein: Well, I'm practicing 40 years and this is the first time I've been here.

And I must say I've tried.

As a matter of fact, that $25 fee became mold, mildewed, I have it in the envelope, you know, waiting to be admitted.

Chief Justice Earl Warren: And you didn't get here in this case, did you (Voice Overlap) --

Mr. Joseph Aronstein: Oh, I like the man on his hotel, it is surely courtesy of the Court.

Well, I believe I have covered the question.

To me -- to my way of thinking rather, the question as it has been resolved both by Judge Bryan and by the Court of Appeals in their opinion has disposed of this and I believe that number one, beginning about Mapp against Ohio when Bol -- when Cleary joined this unholy alliance of the Customs officers, he became a federal officer and he was amenable to the federal rules and the provisions of the Constitution.

It brings to my mind the line of cases where I distinctly recall a New York City police officer acting solely on behalf of the United States Government come in to the federal court with the case, the fact that the New York City police officer didn't make any difference.

They are bound by constitutional provisions.

They are bound by the federal rules.

Though I say, that there's no question that Cleary for the purpose of this case became a federal agent and that is what in the essence or in effect the opinions of the lower courts hold.

And so far as the second point of the prosecutions here delayed, in my brief, I state very clearly, very carefully that they could proceed any time they want with the prosecution.

I have gone in to the formal court special sessions in New York County which is now the criminal court because I have demanded a trial that this case had been on 29 or 34 times now and I'm on a trial and the District Attorney said, “Well, we're not ready and under my objection the Court has adjourned the case again”.

Of course we have a case in the New York Court of Appeals called Prosser against the United States where I suppose, I could ultimately claim that I haven't been given a speedy trial and therefore move for a dismissal of the information.

But they might say to me, but it's your fault, you've got the injunction.

But that's the way the situation is now.

I say to this Court with all (Inaudible) that the Waterfront Commission could have proceeded with their hearing.

The state courts would have proceeded with their hearing and we're ready to go ahead.

The fact that they may not have sufficient evidence to convict the defendant in that proceeding or sufficient evidence to sustain the finding that they can lift his Waterfront privileges and they'll form a line.

Justice Potter Stewart: Incidentally, does the lifting of the license depend upon a conviction under the information or independently of a conviction even an acquittal under the information, might they still would be able to lift the license?

Mr. Joseph Aronstein: Oh yes, because in their allegations, they not only put the tape recorder in but it's my recollection that they put in every article that they took from Bolger's house, every article that they removed from Bolger's house.

Of course the subject matter in the state court is only the tape recorder.

Justice Potter Stewart: But may the Waterfront Commission lift the license without -- except on the basis of an actual conviction of a crime?

Mr. Joseph Aronstein: Oh yes.

Justice Potter Stewart: It may?

Mr. Joseph Aronstein: Yes, they could do it for conduct which in their belief is sufficient to undermine the morale of the arrest of the longshoreman.

They have a very, very broad policy, too broad I think, they and the Parole Board of the State of New York, in other words.

Thank you very much.

Chief Justice Earl Warren: Very well.