The opinion of the court was delivered by: LACEY
The relator seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Tried in Superior Court of New Jersey, Law Division, Essex County, he was found guilty by a jury on three separate indictments for (1) official misconduct in violation of N.J.S.A. 2A:85-1, (2) a conspiracy to extort in violation of N.J.S.A. 2A:98-1, and (3) extortion in violation of N.J.S.A. 2A:105-1. He was thereafter sentenced overall to 1-3 years and fined $5,000.
The conviction was affirmed by the Superior Court, Appellate Division, State v. Seaman, 114 N.J. Super. 19, 274 A. 2d 810 (1971), and the Supreme Court of New Jersey, on July 8, 1971, 279 A.2d 679, denied certification. On July 12, 1971, this petition was filed, and at the same time, an order was signed in this Court continuing relator on bail.
The relator raises in his petition one narrow constitutional question: were his rights under the Confrontation Clause of the Sixth Amendment,
applicable to the states through the Fourteenth Amendment,
abridged when the State placed before the jury hearsay statements made by one Stanley Broskie, an alleged coconspirator of relator, to various State witnesses who, with one exception, were also named as coconspirators, where Broskie himself, a severed co-defendant as well, was, while available, not called by the State to testify?
Secondary to, and as a part of this basic question, the relator strenuously asserts constitutional impropriety in the trial judge's having permitted the State to supplement and corroborate the incourt testimony of one of the coconspirator witnesses (Kortbowi) by recordings of telephone conversations between him and Broskie.
The broad confrontation issue was squarely raised at the trial level and again in the Appellate Division. However, it was not so precisely raised in the Petition for Certification addressed to the Supreme Court of New Jersey. Point I thereof is entitled "The admission of the tape conversation between Kortbowi (the witness) and Broskie, a defendant, whose case had already been disposed of, was reversible error." Thereafter, the emphasis in the ensuing argument is placed upon the recording, not upon the extensive hearsay now challenged. As put by the relator in the Petition for Certification: "The introduction of Kortbowi's testimony verbally relating his conversation with Broskie, even although [sic] it was out of the presence of the defendant, would have been one thing and might of [sic] itself been admissible without error." Thus the Petition for Certification does not complain of the admission of the hearsay testimony of Kortbowi, or others, allowed by the trial judge under the coconspirator exception.
Nonetheless, while relator's compliance with the comity doctrine of exhaustion of state remedies may fairly be questioned, Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), this Court may permissibly proceed, as hereinafter set forth, to resolve the posed substantive issue. United States ex rel. Speaks v. Brierley, 417 F.2d 597 (3 Cir. 1969); In re Ernst's Petition, 294 F.2d 556 (3 Cir. 1961). See United States ex rel. Turner v. Rundle, 438 F.2d 839 (3 Cir. 1971), notes 26, 28; cf. Williams v. Oriscello, 441 F.2d 1113 (3 Cir. 1971).
No detailed factual recital of all the testimony is required. Careful review of the record
and analysis of the state court appellate briefs indicate substantial, if not absolute agreement between counsel on the material facts as developed at the trial, and as ultimately embodied in the opinion of the New Jersey Superior Court, Appellate Division. See Opinion in the Petition for Certification (P-4), 1a-13a.
Nonetheless, for an understanding of the constitutional question raised by this Petition the following facts are deemed significant.
The relator, a Certified Public Accountant and practicing Attorney, as Secretary of the State Board of Certified Public Accountants ("Board") during the relevant period, had the sole and exclusive right to review and upgrade to passing marks examination grades of unsuccessful examinees applying for C.P.A. certification in the State of New Jersey.
The charges in the Indictment stemmed from relator's upgrading to passing the examination papers of Messrs. Pacca, Stern, Van Hook, Glick, Berr, and Cerny.
All had previously failed on several occasions at least one part of the four-part C.P.A. examination and thereafter had enrolled in the "cram" or "coach" course, conducted by Broskie, and designed to prepare enrollees for the Board examination.
Pacca, having failed two of four parts of the examination, was told by Broskie that he could get his paper regraded to passing for $1,500. cash, and, accepting the proposition, Pacca thereafter was upgraded to passing, paid $500. cash to Broskie, and, at Broskie's direction, $1,000. in cash to the relator at his office, telling the relator, as Broskie had directed, that the cash was for the Joseph J. Seaman Scholarship Fund. There actually was such a Fund, duly administered, which enjoyed tax exempt status and contributions to which were tax deductible. When the relator accepted Pacca's $1,000. he said, according to Pacca, that he thought "I would have passed the exam anyway next time and that he was kind of helping me out, going out on a limb, to kind of push me ahead." The relator accepted the cash, did not count it, did not inquire about how Pacca knew of the Fund, gave no receipt, and did not advise of the deductibility of the "donation", although the relator knew a bona fide gift to the Fund was deductible. Pacca, of course, never claimed a deduction on his own return. The Fund's records showed no contribution from Pacca.
Stern's testimony mirrored Pacca's. Having failed, he was told by Broskie he could be upgraded to passing for $1,500. in cash. Stern agreed to the proposition. He too was upgraded to passing, gave $500. to Broskie and, at the latter's direction, delivered $1,000. to the relator, again in cash. Stern testified he simply put the cash, in an envelope, on the relator's desk without saying a word. It was the relator who mentioned that it was for the scholarship fund. In all other respects, the transaction matched that in which Pacca was involved.
Van Hook was sent to the relator by Broskie to review a failing test paper, and at this meeting the relator promised him a review. Shortly thereafter Van Hook received word that he had been upgraded to passing. Broskie then told him: "I will tell you how much it is going to cost." The message was the same, $500. to Broskie and $1,000. to the relator, for the scholarship fund. Van Hook delivered the $1,000. cash to the relator, telling him "I appreciate the regrade. I want to contribute to the scholarship fund." The relator replied: "* * * be a credit to the profession." The rest of the transaction was similar to that involving Pacca and Stern.
Glick too had met with the relator at Broskie's suggestion and thereafter took the examination. A month later he called the relator to discuss his performance but was told he was premature. Thereafter he met with the relator who told him he had failed but that he, the relator, "would see what he could do."
Still later Glick received word he had been regraded to passing. He told Broskie of what had occurred and once again the direction to deliver $1,000. to the relator was given. Glick did in fact hand $1,000. in cash to the relator, telling him it was for his "favorite charity." Again, the relator did not issue a receipt, did not count the cash in Glick's presence, did not discuss his "favorite charity" or even ask whether or not there was any subjective connection between the regrading and the gift of cash.
Berr, following an examination, was told by Broskie that he had failed two parts of it but that Broskie could arrange for a regrading to passing for "two big ones." Berr then met the relator at Broskie's suggestion and told him he wanted to make a contribution to the scholarship fund. Berr thereafter got word he had been regraded to passing and subsequently, at Broskie's direction, delivered $1,000. cash to the relator, under circumstances substantially like those surrounding the other cash deliveries.
Cerny, unsuccessful in the November, 1965, and May, 1966, examinations, enrolled in Broskie's course just prior to the November, 1966 examination. At Broskie's suggestion, Cerny met the relator who told him his paper would be reviewed.
Cerny took the November, 1966, examination but failed it, then took the May, 1967, examination, and failed again, but Broskie told him he would arrange to have the paper reviewed. A few months later, even before Cerny got formal notice, Broskie called him to tell him he had been regraded to passing, and that it would be necessary for him to make a donation to relator's scholarship fund. Again, $1,000. in cash went to the relator, under the same circumstances as with the others.
Thereafter, at Broskie's suggestion, Kortbowi met with the relator and, following Broskie's instructions, said he wanted to contribute to the relator's scholarship fund. The relator said he would help him with or without a contribution. Kortbowi reported the matter to his superior and recordings were made of telephone conversations between Kortbowi and Broskie (See Factual Statement, State's Brief in Appellate Division, D-1, pp. 14, et seq.)
These telephone conversations were damaging to the relator's interests at the trial, as was Kortbowi's testimony.
Kortbowi had no further conversations with the relator and Broskie was arrested before Kortbowi received formal regrading. As stated, he never delivered any cash to the relator.
Each of the men who had delivered $1,000. to the relator, and Kortbowi, testified as to conversations they had had with Broskie. It is this testimony (and the Kortbowi-Broskie telephone recordings) which was admitted pursuant to the coconspirator exception, and admission of which the relator now claims violated his confrontation rights.
The relator does not claim that the hearsay statements of Broskie were not in furtherance of the alleged conspiracy.
Preliminarily, there is something that needs to be said, for the courts, for litigants, and for the people of this country who are distressed at the inability of our courts to discharge their business. This proceeding, commenced just a few days after the New Jersey Supreme Court denial of certification, dramatizes the recurrent utilization of federal habeas corpus for what is becoming, practically speaking, one more appeal. The Court of Appeals of this Circuit has recently stated in Williams v. Oriscello, 441 F.2d 1113, 1114 (3 Cir. 1971):
"* * * the Supreme Court made it clear * * * that federal habeas corpus may not be used in lieu of an appeal itself, since this would 'subvert the entire system of state criminal justice' and would permit the use of habeas corpus 'as a ...