APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. C.A. 332-73)
Before ADAMS, ROSENN and WEIS, Circuit Judges.
This is a habeas corpus case having its origin in a state conflict of interest charge against a municipal official. The dismissal of an ensuing appeal by the United States Supreme Court, in the district court's view, was dispositive of an attack on the constitutionality of the relevant state statute. While granting that a probationary sentence was sufficient to establish federal jurisdiction, the court rejected other bases for relief. We agree and affirm.
Petitioner was convicted by the New Jersey state courts of violating a statute prohibiting an elected freeholder from being "directly or indirectly interested" in the furnishing of supplies paid for by the Board of Freeholders of a municipality.*fn1 He was sentenced to a one-year suspended jail term, a fine of $1,000, and probation conditioned upon the payment of $2,500 costs.
The appellate division of the Superior Court of New Jersey affirmed the conviction, and the state Supreme Court denied certification.*fn2 Petitioner appealed to the United States Supreme Court on the premise that the statute was unconstitutional because it was vague and it violated the Equal Protection Clause. The appeal was dismissed "for want of a substantial federal question."*fn3
The petition for habeas corpus brought in the district court was denied, and this appeal followed.
For some years before his election to the Board of Freeholders of Hudson County in November, 1969, petitioner Wojtycha had been a proprietor of the Mooney Surgical Company. Prior to taking the oath of office, he signed the necessary agreements to sell this company to the Helm Supply Corporation whose only stockholders were Wojtycha's son, daughter, and their spouses. The consideration recited in the contract was a cash payment of $32,031.41 and the cancellation of a debt owed by petitioner to Helm.
Petitioner's wife had maintained the books and records for both Helm and Mooney at petitioner's home without charge for some years. She continued to do so during the transition period, and, although not an officer of Helm, she signed documents and checks for the corporation with the apparent acquiescence of the stockholders.
On January 8, 1970, the Board of Freeholders, of which petitioner was then a member, awarded Mooney a contract to furnish the county's surgical supplies.*fn4 Five days later, Helm's checks in the amount of $32,031.41, payable to Mooney, were deposited in its still active account on which petitioner could draw. He then signed checks in blank and delivered them to his wife. After she filled out the checks in the total sum of $32,000, payable to Edward Wojtycha, petitioner's brother, the checks were deposited in Edward's account. He, in turn, gave a signed blank check to petitioner's wife, who completed the instrument to make the amount $32,000 and Helm the payee.
At trial in the state court, the defense contended that Helm had received a loan from Edward who, lacking funds, had previously borrowed the money from petitioner. The prosecution attacked the whole transaction, stating that it was a sham and that petitioner had retained his proprietary interest in Mooney. Alternatively, the state contended that, considering the size of the corporation and its assets, petitioner, as a substantial unsecured creditor, was "interested" in the company and his brother Edward was a mere "straw man."
The appellate division found it unnecessary to decide whether a debtor-creditor relationship constituted an "interest" under the statute. yit concluded that the proofs accepted by the jury established the fact of Wojtycha's beneficial ownership in Mooney despite the apparent transfer.*fn5
Petitioner contends that the statute is unconstitutional, that the indictment was defective, and that his waiver of immunity ...