Levin v. Clark, 20682.

• Decision Date: 15 November 1967
• Docket Number: No. 20682.,20682.
• Citation: 133 US App. DC 6,408 F.2d 1209
• Parties: Milton M. LEVIN, Appellant, v. Ramsey CLARK, Attorney General of the United States, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 6, 408 F.2d 1209 (1967)

Milton M. LEVIN, Appellant, v. Ramsey CLARK, Attorney General of the United States, Appellee.

No. 20682.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1967.

Decided November 15, 1967.

Petition for Rehearing Denied December 16, 1968.

Mr. Thurman Arnold, Washington, D. C., for appellant.

Mr. Theodore Wieseman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellee.

Mr. James V. Siena, Washington, D. C., filed a brief on behalf of the National Capital Area Civil Liberties Union, as amicus curiae.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge and BURGER, Circuit Judge.

Petition for Rehearing En Banc Denied December 16, 1968.

BAZELON, Chief Judge.

After we affirmed Levin's grand larceny conviction,¹ he filed a petition for habeas corpus alleging that the prosecutor did not reveal evidence which would have been helpful. The District Court denied the petition, but we reversed and remanded so that the District Court could determine whether "the government failed to disclose evidence which * * * might have led the jury to entertain a reasonable doubt about appellant's guilt. Such a failure may be classified as negligence."² Levin is now appealing from the District Court's finding, on remand, that the evidence would not have led the jury to doubt his guilt.³

The prosecutor's constitutional duty to reveal evidence to the defendant was recognized in Mooney v. Holohan⁴ and Pyle v. State of Kansas.⁵ In Pyle, the Supreme Court said:

Petitioner\'s papers * * * set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody.⁶

From these cases two lines of decision emerged. The first line involved cases in which the prosecutor suborned perjury or knowingly used perjured testimony at trial.⁷ The rationale of these cases seems to have been that convictions must not be obtained through prosecutorial misconduct which violates civilized notions of fairness and thereby taints the entire criminal process. Lawless law enforcement should not be tolerated.⁸

The second line of decisions, which involved the duty to reveal evidence, had the same beginning as the first. In early cases, the suppression was so clearly unfair that it tainted the criminal process as much as if the prosecutor had suborned perjury.

The methods employed by the prosecution * * * represent as shocking a situation as ever before presented before this court. A society cannot suppress lawlessness by an accused through the means of lawlessness of the prosecution. A society cannot inspire respect for the law by withholding its protection from those accused of crimes.⁹

Soon, however, the courts began to recognize that even negligent suppression, though it was not "shocking" or "lawless," could violate the constitution.¹⁰ In Brady v. State of Maryland.¹¹ the Supreme Court confirmed this development.

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.¹²

As the focus of the cases shifted away from the prosecutor's misconduct, of necessity the constitutional rationale changed also. If the prosecutor acted in good faith and was merely negligent, he did not taint the criminal process. The new rationale focused not on misconduct of the prosecutor but on harm to the defendant. The Government's facilities for discovering evidence are usually far superior to the defendant's. This imbalance is a weakness in our adversary system which increases the possibility of erroneous convictions. When the Government aggravates the imbalance by failing to reveal evidence which would be helpful to the defendant the constitution has been violated.¹³ The concern is not that law enforcers are breaking the law but that innocent people may be convicted.

The question is what kinds of evidence must the prosecutor reveal? Various courts have talked about "favorable" evidence,¹⁴ "material" evidence,¹⁵ "pertinent facts relating to the defense,"¹⁶ "information impinging on a vital area in the defense,"¹⁷ evidence vital "to the accused persons in planning and conducting their defense,"¹⁸ and "evidence that may reasonably be considered admissible and useful to the defense. When there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful."¹⁹ Without excluding any of these relevant considerations, in the present case we focused upon the ultimate possibility of harm to the defendant — the possibility of erroneous conviction — and we stated the standard in terms of whether the evidence "might have led the jury to entertain a reasonable doubt about defendant's guilt."²⁰

This standard requires speculation because there is no sure way to know how the jury would have viewed any particular piece of evidence. Nor is it possible to know whether revelation of the evidence would have changed the configuration of the trial — whether defense counsel's preparation would have been different had he known about the evidence, whether new defenses would have been added, whether the emphasis of the old defenses would have shifted.²¹ Because the standard requires this kind of speculation we cannot apply it harshly or dogmatically. In Griffin v. United States,²² the Supreme Court directed us to consider "whether it would not be too dogmatic, on the basis of mere speculation, for any court to conclude that the jury would not have attached significance to the evidence favorable to the defendant had the evidence been before it."²³ We think it would be too dogmatic here.²⁴

Levin was convicted on one count of grand larceny. The indictment charged that on or about February 13, 1959, he stole $35,000 from the Bakery and Confectionery Workers International Union of America. The money was supposed to have been embezzled by various members of the Union and given to Levin on or about the 13th of February so that he could fix the pending perjury trial of James Cross, the President of the Union. Levin was supposed to have taken the money without performing the services.

The Government's brief describes a strong case against Levin. James Landriscina, Vice President of the Union, provided most of the background. He testified that he met Levin in January, 1959. Levin said he could fix Cross's case for $35,000 or $40,000. Landriscina arranged for Levin to meet Cross in Washington. To pay for the trip, Levin received a check for $600. Landriscina was present at two meetings between Levin and Cross at which the price for the fix was set at $35,000. Levin also requested that he be hired by the Union as general counsel. After some dispute, Cross agreed to hire Levin as a lobbyist for $17,500 a year.

During both days of the Cross trial, February 16 and 17, Landriscina saw Levin standing around the corner from the courtroom. After the trial, Levin submitted a bill for "Professional services rendered through February 28, 1959, $17,500," but he received no money. On April 8, 1959, Landriscina made partial payment of $2,500 from the funds of his local union. Ultimately the Union did pay Levin more than $17,500 during 1959. The Government exhibits documented payments to Levin in 1959 of $600, $2,500, $2,500 and $15,000. Also, it was shown that Levin performed almost no services for the Union in 1959.

The Government's evidence outlined above may have shown that Levin was engaged in some shady dealings with the Union. But he was not tried for, or convicted of, fixing or attempting to fix a perjury case. Nor was he convicted of fraudulently representing himself to the Union as a lobbyist. He was convicted of stealing $35,000 from the Union on or about February 13, 1959. The evidence outlined above serves only to set the background and show the circumstances of the alleged larceny.

Landriscina was the only witness to the larceny itself. He gave a very detailed account of the transaction. He testified to the following: On Tuesday, February 10, Levin asked Landriscina for $10,000. Levin said he needed the money to pay some jurors and court attendants. On Thursday, February 12, Landriscina received an envelope with $1,000 bills from Olson, Secretary-Treasurer of the Union, and at 11:00 a. m. handed it to Levin on a park bench. At 12:00 Levin met Landriscina again and said that the $1,000 bills must be changed into smaller bills. Landriscina took the $1,000 bills, returned to his office, had someone exchange the $1,000 bills for smaller bills, and returned the smaller bills to Levin. The next day, Friday, February 13, Landriscina gave Lavin $25,000, the balance of the promised $35,000, in small bills.

Peter Olson and Richard Ashby told a different story. Olson testified that on Friday, February 13, he cashed a $35,000 check at the National Savings and Trust Company and received the money in $1,000 bills.²⁵ At 10:45 a. m. he gave ten $1,000 bills to Landriscina.

It was Ashby who supposedly exchanged the $1,000 bills for $20 bills at the bank. He testified that he was in the Union's office on Friday, February 13, when Olson returned from the bank with thirty-five $1,000 bills.²⁶ He saw Olson give ten of the bills to Landriscina. Olson left the other twenty-five $1,000 bills with Ashby. Later Landriscina returned to the Union's office and asked Ashby to exchange the entire $35,000. Ashby went to the bank, dealt with a Mr. McCeney,²⁷ exchanged ...