Kyle v. United States

• Decision Date: 29 November 1961
• Docket Number: Docket 26359.,No. 115,115
• Parties: Alastair KYLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

297 F.2d 507 (1961)

Alastair KYLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 115, Docket 26359.

United States Court of Appeals Second Circuit.

Argued October 31, 1961.

Decided November 29, 1961.

Eugene Feldman, New York City, for appellant.

Joseph J. Marcheso, Asst. U. S. Atty., Brooklyn, N. Y., Joseph P. Hoey, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., for appellee.

Melvin L. Wulf, New York City (Rowland Watts, New York City, of counsel), for American Civil Liberties Union, as amicus curiæ.

Before CLARK, HINCKS and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

This criminal case first came before this Court on appeal from a judgment convicting petitioner and others of conspiracy to violate the mail fraud statute, 18 U.S.C. §§ 371, 1341 and 1342, and of substantive violations thereof, 257 F. 2d 559 (2 Cir. 1958), cert. denied, 358 U.S. 937, 79 S.Ct. 327, 3 L.Ed.2d 308 (1959). It came here again on appeal from the denial, without an evidentiary hearing, of an application under 28 U.S. C. § 2255 to vacate the sentence, 266 F.2d 670 (2 Cir. 1959). Both appeals were unsuccessful. The case now comes to us on appeal from an order denying a second application under § 2255, again without an evidentiary hearing. Another panel denied a motion by the Government to dismiss the appeal as moot because appellant had served his sentence, 288 F.2d 440 (2 Cir. 1961).

The basis of this second § 2255 application was the Government's alleged suppression or loss of certain correspondence which petitioner claimed to have turned over to it, a claim which had also been asserted on the appeal and had constituted one ground of the first § 2255 proceeding, 266 F.2d at 671-672. We hold that new facts alleged in the second application, not previously knowable, put the matter in a sufficiently different aspect that a hearing should have been held.

The nature of the alleged mail fraud was, briefly stated, the taking of subscriptions for a toy-a-month club, under circumstances in which the defendants knew they could not make good. In June, 1956, before his indictment, petitioner turned over to the Government various books and records of his company, Toys of the World Club, Inc. — these including communications from European toy manufacturers, especially one H. Gessele of Salzburg, and, allegedly, copies of communications from petitioner to them, the copies being appropriately interleaved with the originals. In the proceedings before the Grand Jury, the Assistant District Attorney introduced only the letters from Gessele, without those from petitioner to him; petitioner alleges the Assistant made no answer to petitioner's claim that the Government had the rest of the letters and was acting in bad faith in introducing only those that had moved westward.

In September, 1957, the same Assistant United States Attorney opposed a motion by petitioner to take the depositions of Gessele and an Italian manufacturer, Maino, on the ground that "Upon information and belief all of the dealings of defendants * * * with Messrs. Gessele and Maino were reduced to writing and your deponent further informs the Court that copies of the same are in the possession of the United States Attorney's office having been furnished to it by the defendant Kyle." On the basis of this representation, which surely could have been understood to include the eastbound letters if those had been among the papers turned over, and of an offer by the Government to stipulate that Gessele and Maino would testify substantially as claimed, petitioner abandoned his motion and, at the beginning of the trial, entered into two stipulations with the Government, one that Gessele and Maino would identify certain communications from them, and the other that they would testify in a manner therein set forth, both stipulations making the usual reservation of the right of the parties to offer other relevant and competent evidence.

The trial took a turn somewhat surprising in the light of this background. When the Government first introduced some of the Gessele letters on November 7, Kyle's counsel suggested that in fairness copies of Kyle's letters evoking them should also be before the court — "I assume, I am sure, the District Attorney has the full correspondence." The Assistant United States Attorney replied, "No, I do not, your Honor." The court suggested that defense counsel ask formally for production of the letters, counsel did, and the Assistant United States Attorney said that what he had introduced was all he had — "At least, I know of no other." The next afternoon, Kyle's counsel complained again about the Government's failure to produce the east bound letters. The court said it had told counsel he could examine the documents in an adjoining room. Counsel answered, "I did." Minutes later, after the Assistant United States Attorney had remarked, "I never have seen any such letters," counsel again stated that he had searched the files and had found nothing. The colloquy continued intermittently for the rest of the day, counsel repeatedly asking the court to order the Government to produce the letters. The Assistant United States Attorney stated, inter alia, "I don't know about those letters, as I said. If there were those records, they were free to pull them out." Finally, the court said the best thing would be if everyone took another look. On November 18 defense counsel again demanded production of the eastbound letters, to which the Assistant United States Attorney replied, "I have no such correspondence" and the court said, "Apparently it is not here." The case was submitted to the jury on November 19, no further reference to the eastbound communications having been made.

Petitioner's brief on appeal referred to the alleged disappearance of the Gessele letters only as one item in a point relating to insufficiency of the evidence; the Government's brief sought to dispose of the matter in a footnote mainly to the effect that if the eastbound correspondence "was helpful to appellants, they presumably would not have stipulated only part of the correspondence," an argument ignoring the rather obvious point, presented in petitioner's reply brief, that "the defendants did not feel it necessary to stipulate that their own letters had been written by them." This Court did not discuss the issue in its opinion. This was natural in view of the rather slight emphasis petitioner had given to the point, and also because, on the basis of what the Court then knew, it was quite as reasonable to think that the copies of Kyle's letters had never been in the file, or that, if they had been, Kyle's own attorney had removed them, as that the Government had lost or suppressed them. The only new material added by the first § 2255 motion was an offer to furnish testimony of petitioner's office manager that the letters had been in the file when turned over to the Government. There was also an affidavit of an attorney for a co-defendant that the letters had been seen at the District Attorney's office as late as September, 1957 — a claim of which the judge had been apprised at the trial. Even with this testimony, there was still no substantiation of the claim that the letters were in the Government's possession rather than in petitioner's at the time of the trial; and in any event the testimony had been equally available then. This Court affirmed the denial of the motion primarily on the latter ground, 266 F.2d at 672.

The instant motion brought forward further facts. Mrs. Kyle averred that, at the time of the trial, then being Kyle's fiancée, she, on November 13, assisted his attorney in searching the files made available by the Assistant United States Attorney, observed the attorney examine the files without finding the letters to Gessele, herself looked under the letter "G" without finding a Gessele folder, and then "went slowly through every single paper in the whole file," with a similar negative result. An attorney associated in the first § 2255 motion swore that, with trivial exceptions, none of petitioner's letters to Gessele were in the file in December, 1958. These affidavits alone would not have advanced petitioner's cause; for, although more specific on the issue of the absence of the letters from the file at the time of trial than anything presented theretofore, Mrs. Kyle's evidence was surely available at the trial and on the first § 2255 motion, and the attorney's on the latter. However, and this is the heart of the case, the second motion also alleged the following: After his release on parole, Kyle discovered a memorandum decision, 20 F.R.D. 417, 419 (E.D.N.Y.1957), which, in denying a motion for the return of the papers Kyle had given the Government, had directed the United States Attorney to deliver a receipt specifying the documents being held by it; Kyle sought to have the United States Attorney and the Assistant adjudged in contempt for failure to do so. Thereupon, the chief of the criminal division invited Kyle to reinspect the files. Mr. and Mrs. Kyle did this in the District Attorney's office and in the presence of two of his secretaries. "The missing folder, containing in all 105 papers, was prominently and correctly filed under the letter `G' in such a way that no one who was looking for it could fail to find it almost immediately," and some of the papers contained notations in the Assistant United States Attorney's handwriting.

The Government opposed the motion on the grounds that petitioner should have "raised and pushed" the issue earlier, that the copies of the letters would not have helped him in any event, and that if he had deemed them essential, he could have obtained the originals from Salzburg. Chief Judge Bruchhausen denied the motion with an oral opinion, rendered after argument but without an evidentiary hearing. He relied primarily, although not solely, on the Government's argument as to...