Levin v. Katzenbach

Citation363 F.2d 287,124 US App. DC 158
Decision Date23 December 1965
Docket NumberNo. 19590.,19590.
PartiesMilton M. LEVIN, Appellant, v. Nicholas deB. KATZENBACH, Attorney General of the United States, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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

Mr. David W. Miller, Asst. U. S. Atty., with whom Messrs. John C. Conliff, Jr., U. S. Atty. at the time the brief was filed, and Frank Q. Nebeker and Oscar Altshuler, Asst. U.S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., also entered an appearance for appellee.

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

ORDER filed December 23, 1965

PER CURIAM.

This case came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

On consideration whereof, and

WHEREAS, the prosecution, no doubt in complete good faith, did not disclose to the defense at or before trial certain information in its possession which had some bearing on the case; and

WHEREAS, the District Court did not find whether this nondisclosure was or was not negligent; and

WHEREAS, if it was negligent, according to the test to be stated in an opinion or opinions to be filed by this court, it would follow in the view of the majority of this court that the defendant should be released on habeas corpus;

Now therefore, it is ORDERED by the court that the order appealed from herein is reversed and the case is remanded to the District Court with direction to afford a hearing and to determine whether the government was negligent and to grant or deny the writ in accordance with that determination, and it is

FURTHER ORDERED by the court that appellant be released forthwith upon the execution of a personal recognizance bond in the amount of $100 pending the hearing and determination of this matter below, and the Clerk is directed to issue a certified copy of this order to the District Court forthwith.

BURGER, Circuit Judge, dissents and will file a statement later.

BAZELON, Chief Judge:

After we affirmed appellant's grand larceny conviction in Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964), cert. denied, 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965), he filed the present petition for habeas corpus or a new trial. He alleges that he only recently discovered evidence in the government's possession which was not disclosed at trial. After hearing, the District Court denied relief and this appeal followed.

The indictment charged that appellant conspired with union officials "to effect a corrupt acquittal of Cross President of the Bakery and Confectionary Workers Union in his trial on a charge of perjury"; that in furtherance of that conspiracy appellant received $35,000 in union funds to be used to "fix" the necessary parties; and that he kept this money for himself, never carrying out his part of the "bargain." At trial, Landriscina, an officer of Cross's Union, testified that he gave appellant ten $1,000 bills on Thursday morning, February 12, 1959; at noon that day appellant returned the $1,000 bills and asked for smaller bills; an hour later, the witness gave appellant $10,000 in twenty dollar bills; arrangements were then made for the rest of the money to be delivered, in twenty dollar bills, at five o'clock the following afternoon; and this meeting and the delivery of $25,000 took place as planned.

Other government witnesses contradicted parts of Landriscina's story. Ashby and Olson, also Union officials, testified that the entire $35,000 — in $1,000 bills — was obtained by Olson from the National Savings and Trust Company on the morning of the 13th and that Ashby returned to the bank at noon on the 13th and changed the money into twenty dollar bills, which he gave to Landriscina to give to appellant. Olson's check for $35,000, drawn on the Union account, was in evidence at the trial. It was dated February 12, 1959, but markings showed it was cashed on the 13th.

To meet the government's case, appellant relied on these inconsistencies and sought to show that he was not in Washington the afternoon of the 13th. On appeal this court found that the jury could infer that the transfer of ten $1,000 bills took place on the morning of the 13th, not on the 12th as Landriscina testified.1

Appellant now seeks to nullify his conviction on the ground that the government failed to disclose two pieces of evidence.2 The first item by itself is not significantly probative. It is a check for $35,000, dated February 13, 1959, drawn on the Riggs National Bank by the National Savings and Trust Company to enable National Savings to replenish its supply of $1,000 bills after Olson had withdrawn thirty-five of them. Appellant claims that it would not have been necessary to draw this check if the $1,000 bills had been returned to National Savings and Trust for exchange into twenties. The habeas corpus hearing showed, however, that the bank's practice was to obtain additional $1,000 bills by delivering a check to another bank as soon as possible after a withdrawal, though no one remembered when the messenger left or when he returned on the 13th, and that once a messenger left there was no way to recall him. This makes it entirely possible that Ashby returned the bills after the messenger left. Thus the check of National Savings and Trust is inconclusive for present purposes.

But this check must be considered along with the second piece of evidence which the government failed to disclose: a statement obtained before the trial from one McCeney, an officer of National Savings and Trust. This statement, which the government did not reveal until after the institution of these proceedings, is as follows:

I hereby recall Mr. Olson coming in with a $35,000 check, dated February 13, 1959 to be cashed * * *. Mr. Olson came in and I took him to Mr. Hooper, who, at that time, was running one of the savings windows and handling the large cash, to cash this check which he did in thousand dollar bills. I do not recall Mr. Ashby coming in to change the thousand dollar bills to smaller ones. If he did I would have taken him back to Mr. Hooper because he was handling the large bills. Mr. Hooper says he does not recall cashing this money into smaller bills that day.

The prosecutor testified at the hearing that:

After having seen this statement and having received the Grand Jury testimony that Ashby had gone to McCeney to cash the $1,000 bills, I personally placed a telephone call to the National Savings and Trust Company and talked with the gentleman who identified himself as Mr. McCeney, and I asked him if it were true that he could not recall cashing thirty-five $1,000 bills for Ashby. He said that was true. We talked about the matter and he would never state that he remembered it, he did not recall the situation, he didn\'t say he did not do it, he just said he didn\'t remember doing it.
* * * * * *
As a result of that, I did nothing further.

The Judge's findings below state, in pertinent part:

16. * * * Neither Mr. McCeney nor Mr. Hooper was called as a witness at the Levin trial. * * * At the hearing herein both Mr. McCeney and Mr. Hooper were called as witnesses by the petitioner. But the bank transactions about which inquiry was made of them having occurred more than six years previously, their recollections were in the main vague and speculative.
* * * * * *
19. The evidence at the hearing did not show that Government counsel deliberately suppressed any evidence.3
WHEREFORE, the court concludes as a matter of law:
* * * * * *
2. Petitioner has failed to prove his allegation that trial counsel deliberately suppressed evidence.

Relief would be available, of course, had the government deliberately presented a false picture of the facts, either by knowingly using perjured testimony,4 failing to correct testimony when it became apparent that it was false,5 or actively suppressing evidence known to be exculpatory.6 But appellant urges on this appeal that the court below erred when it limited itself to findings on the question of deliberate suppression. He argues that his rights were violated if the government negligently failed to disclose that neither McCeney nor Hooper remembered exchanging the $1,000 bills for twenties.

A number of circuits have recently held that the deception that results from negligent nondisclosure is no less damaging than that which is a product of guile and that such nondisclosure entitles the defendant to relief.7 We find the reasoning of such cases persuasive and essential to the fair administration of criminal justice especially in view of the disadvantages facing the accused in the trial process. See Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 YALE L.J. 1149 (1960).

This court, too, at the behest of the Supreme Court, has granted relief in a comparable situation. In Griffin v. United States,8 after we had affirmed defendant's conviction of murder, he moved for a new trial on the basis of newly discovered evidence relating to his claim of self-defense. The prosecution conceded that it had had evidence in its possession before trial indicating that there had been an uncommunicated threat made by the deceased. The government justified its failure to disclose this evidence on the ground that it thought the evidence would be inadmissible. The District Court denied the motion for a new trial and this court affirmed without opinion. The Supreme Court reversed and ordered this court to rule on the admissibility of the evidence. If we ruled that the evidence was admissible, we were to grant a new trial if we found that it would "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...

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