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June 11, 1965

Milton M. LEVIN, Petitioner,
Nicholas deB. KATZENBACH, Respondent

The opinion of the court was delivered by: MATTHEWS

 This matter having come on for hearing before the court, and upon consideration of the record herein, of the evidence adduced at the hearing, and of the records and proceedings in Criminal Case No. 913-62 (and argument of counsel having been waived), the court makes the following findings of fact and conclusions of law:


 1. On November 1, 1962 petitioner, Milton M. Levin was indicted for grand larceny by trick of $35,000 (22 D.C.Code 2201). He was subsequently found guilty as indicted by a jury on May 10, 1963 and on May 21, 1963, following denial of his motion for a new trial, he was sentenced to serve a term of six months to two years.

 2. The Court of Appeals affirmed the conviction on June 30, 1964. Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265; petition for rehearing en banc was denied on September 22, 1964; and the Supreme Court on February 1, 1965 denied certiorari, 379 U.S. 999, 85 S. Ct. 719, 13 L. Ed. 2d 701. There is now pending in the Court of Appeals a motion by petitioner for stay of mandate pending disposition of the present action.

 3. The petitioner is not in custody but on bond. On February 25, 1965 he filed through retained counsel the present petition seeking to have his conviction vacated. He claims it was obtained upon untrue testimony. The petition makes application for a Writ of Habeas Corpus pursuant to 28 U.S.Code 1651(a), 2255, or in the alternative for an order vacating the conviction and granting a new trial under Rule 33 of the Federal Rules of Criminal Procedure. An amendment to the petition was filed on March 8, 1965. Consideration will first be given to the petition as filed February 25, 1965, and later the amendment will be taken up.

 4. In the petition in a paragraph headed "Introductory Statement" on page 3 it is stated:

The ground for this petition is an admission made by the Government in its opposition to certiorari. That admission is to the effect that at least half of the testimony relied upon by the Government to obtain the conviction is untrue.

 5. The alleged admission appears as footnote 3 in the brief for the United States in the Supreme Court in opposition to Levin's petition for certiorari. It reads:

Landriscina testified, apparently incorrectly, that he made the first payment of $10,000 on February 12.

 6. The statement of the Government in footnote 3 in its brief in opposition in the Supreme Court is not newly discovered evidence. At the trial, the Government introduced testimony by Landriscina that he gave $10,000 in small bills to Levin on the morning of February 12, 1959, and the balance ($25,000) of the agreed $35,000 at about 5 p.m. on Friday, February 13, 1959. But as pointed out in footnote 4 in the opinion of the United States Court of Appeals in this case, 338 F.2d 265 at page 269:

Other witnesses for the Government through whom Landriscina got the $10,000 in small bills gave testimony indicating that Landriscina did not receive the $10,000 until the morning of Friday, February 13, 1959. The jury thus could infer, if it credited this testimony and that of Landriscina that he paid the $10,000 to the appellant [Levin], that Landriscina was mistaken as to the date and that the transfer took place on February 13 instead of February 12.

 7. The theory of counsel for Levin is that it would have been impossible for Landriscina and Levin to have met on February 13, 1959 as Levin could not have known where to meet Landriscina on that date. Endeavoring to sustain his theory, counsel refers to Landriscina's testimony that the place of his meeting with Levin for February 13 was fixed at their meeting on February 12, and then counsel states, apparently inaccurately, that the Government by footnote 3 to its brief referred to above in paragraph 5 conceded that Landriscina and Levin did not meet on February 12. From this he concludes that no meeting took place on February 12 or 13 and hence that neither $10,000 nor $25,000 was received by Levin.

 8. The Court under which Levin was convicted alleges that the larceny was committed "on or about February 13, 1959." At the trial there was testimony of a series of meetings and telephone conversations between Landriscina and Levin, both in New York and the District of Columbia. When Landriscina testified at the trial it was more than four years after these meetings and conversations. In the nature of things, his recollection may not have been exact in all particulars. However, the jury heard all the evidence, observed the witnesses, determined their credibility, drew reasonable inferences from proven facts, and found Levin ...

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