Levin v. United States

• Decision Date: 30 June 1964
• Docket Number: No. 18024.,18024.
• Parties: Milton M. LEVIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

119 US App. DC 156, 338 F.2d 265 (1964)

Milton M. LEVIN, Appellant, v. UNITED STATES of America, Appellee.

No. 18024.

United States Court of Appeals District of Columbia Circuit.

Argued December 16, 1963.

Decided June 30, 1964.

Certiorari Denied February 1, 1965.

Mr. Frederick Bernays Wiener, Washington, D. C., for appellant.

Mr. Harry T. Alexander, Sp. Atty., Department of Justice, with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges.

Certiorari Denied February 1, 1965. See 85 S.Ct. 719.

BASTIAN, Circuit Judge.

Appellant was tried, convicted and sentenced for the offense of grand larceny.¹ Count 1 of the indictment on which appellant was tried charged James G. Cross, James Landriscina and others not named as defendants, with conspiracy, in violation of 18 U.S.C. § 371 and § 1503 (1958), to effect a corrupt acquittal of Cross in his trial on a charge of perjury. It further charged that one co-conspirator paid Levin a total of $35,000, the property of the Bakery and Confectionery Workers' International Union of America, which property was entrusted to James G. Cross, its president.

Count 2 of the indictment charged Levin as follows:²

"On or about February 13, 1959, within the District of Columbia, and within the jurisdiction of this Court, defendant Milton M. Levin did unlawfully, feloniously and willfully steal, take and carry away the property of the Bakery and Confectionery Workers\' International Union of America, an unincorporated association, entrusted to James G. Cross, President of said union, the said property consisting of $35,000 in money in violation of Title 22, District of Columbia Code, Section 2201."

Count 3 of the indictment charged Cross with having embezzled $35,000 from the Union.

Levin was found guilty of grand larceny as charged in Count 2 of the indictment, and his appeal is now before this court for determination.

The trial was a lengthy one. While the testimony of Landriscina regarding Levin's receipt of the money was specifically denied by Levin, there are corroborating circumstances which bear out the Government's case. In her charge to the jury, the trial judge set out fairly the contentions of the Government and of the defendant, as follows:

"Briefly, I shall tell you what the government claims in this case and then I shall tell you what the defendant claims.

"The government contends that Mr. Levin, the defendant, represented to Mr. Cross, President of the Union and to Mr. Landriscina, another Union officer, that he, the defendant, Mr. Levin, could fix the Cross perjury case if he were given $35,000 to use in the fixing; that $35,000 in cash, of the money belonging to the Union, was by direction of Mr. Cross turned over to Mr. Landriscina, that Mr. Landriscina then turned over the $35,000 to the defendant, Mr. Levin, in order that Mr. Levin might use the money to bribe court officials, or a court official and jurors in a case in which Mr. Cross was the defendant and in which he was charged with perjury. And the government further contends that the defendant, Mr. Levin, just pretended that he would bribe people and that when he took the $35,000, it was with the intent of appropriating it to his own use. That, as I said, is what the government contends.

"On the other hand, Mr. Levin denies that he ever had any understanding with anyone to fix the Cross perjury trial and he denies receiving the $35,000 mentioned in the indictment, or any part of it. He concedes that he had conversations with certain Union officials and that he saw them, but he says these conversations were primarily about his employment as a lobbyist or as general counsel for the Union, and that checks he received from the Union were for services rendered."

Appellant concedes that the evidence on behalf of the government, if believed by the jury, as it evidently was, was sufficient to support the charge in the indictment; and unless the questions of law urged by appellant are well taken, the judgment of conviction must be affirmed.

I

Appellant first contends that there was no evidence showing that he committed larceny by trick of the Union's money. Reduced to its pertinent essentials, appellant's contention is that the essence of larceny by trick is a fraudulent inducement of the true owner to convey his property to the thief. Thus, inasmuch as the indictment charged appellant only with larceny of money belonging to the Union, the conviction cannot stand since Cross, from whom the money was received, had embezzled the money from the Union and thus was not its true owner.

We think this is a misconception of the nature of the crime of larceny, which is an offense against the possession rather than the ownership of property. As indicated by the statute, the gist of the crime is the felonious taking and carrying away of anything of value and, under the terms of our statute, as distinguished from those of certain other jurisdictions, the ownership of the property does not matter. Even granting that Cross was a thief, or embezzler, it would be no defense that the defendant stole from the thief, for it is well settled that one who steals money or property which itself had been stolen by another may be prosecuted notwithstanding the illegality of his victim's possession. This principle has been followed in a number of cases wherein it was held or recognized that stolen money or other property may be a proper subject of larceny or a crime involving larceny such as robbery or forgery.³

Appellant further contends that the essence of the offense of larceny here involved is a fraudulent inducement, the elements of which are: (1) false representation; (2) with reference to a material fact; (3) acknowledgment of the falsity; (4) intent to deceive; and (5) action taken in reliance upon the representation. In the trial proceedings, the judge so charged the jury. Appellant argues, however, that since the officers with whom he dealt had acted outside the scope of their authority in embezzling or conspiring to embezzle the money from the Union, any representations to them by the appellant, or reliance by them on such representations, were not those of the Union. As a result, since the essential elements of false representation and reliance were not present as against the Union, appellant could not be found guilty of larceny by trick with regard to the Union. In so arguing, however, appellant mistakenly assumes that under the indictment and the statute it would be necessary to show that Cross was authorized to conduct the transaction for the Union. However, the indictment reads that defendant did "take and carry away the property of the * * * Union * * * entrusted to James G. Cross." Emphasis added. There was no requirement that it be shown that the money was received from the Union, but rather (1) that the money was that of the Union, and (2) that it was the money "entrusted" to Cross.

That the money can be considered to have been "entrusted" to Cross, within the meaning of that phrase in the indictment, is clear. Granted, as it must be, that Cross was a faithless agent, nevertheless, he was at the very least a trustee ex maleficio. Moreover, with regard to the actual ownership of the money, appellant in his brief states:

"* * * and of course the money still belonged to the Union notwithstanding the circumstance that Cross had embezzled it from the Union the day before * * *."

Hence it seems clear to us that there was sufficient evidence by which the jury could find that appellant had committed larceny of the Union's money as charged in the indictment and appellant's argument on this point is without merit.

II

Appellant's second point is that reversible error was committed by the trial court in excluding Rabbi Isaacson's testimony as to appellant's religious habits and as to the requirements of the Jewish Orthodox ritual. A résumé of the evidence showing the significance of this point seems indicated.

At the trial, the Government introduced testimony by Landriscina that he gave $10,000 in small bills to appellant on the morning of February 12, 1959,⁴ and the balance ($25,000) of the agreed $35,000 at about 5:00 p. m. on Friday, February 13, 1959. These transfers, it was testified, were made in a park near the Statler Hotel in Washington, D. C. On the other hand, appellant testified that Landriscina did not give him any money in the District of Columbia on either February 12 or February 13, 1959, that he (appellant) checked into a hotel in the District of Columbia at 5:43 p. m. on February 12, 1959,⁵ that he was not in the District on the morning of February 12, that he left the District not later than 1:00 p. m. on February 13, and got to his home in Little Neck, Queens, Long Island, New York, somewhere "between four and five o'clock or before then," and that he was home on February 13, 1959, at five o'clock (p. m.). In response to the question "How do you fix that you were at home?" he stated:

"Friday afternoon is the Sabbath, which we observe quite diligently, and I never go away from home and my family on the Sabbath."

Upon inquiry by the trial judge, he stated that he remembered being at home on that Friday, February 13, 1959. His testimony in this respect was corroborated by his wife who testified that her husband was home on Friday, February 13, 1959, "after four, about twenty after four, four-thirty at the very latest" according to her best recollection.

Appellant testified further that "I would think I took the train" to come to Washington on February 12. He stated that he had no checks for February, 1959, evidencing any payment to a railway company and "when I take the train, if I were to take the train, I would pay by cash." Appellant's cancelled check in the amount of $13.81 dated February 11, 1959, payable to Eastern Airlines, representing the one way fare...