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LEVIN v. KATZENBACH

October 25, 1966

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



The opinion of the court was delivered by: MATTHEWS

 MATTHEWS, District Judge.

 Following the grand larceny conviction of Milton M. Levin (Levin), the affirmance of his conviction by the United States Court of Appeals, *fn1" and the denial by the Supreme Court of certiorari, *fn2" Levin petitioned for a writ of habeas corpus and alternatively asked for an order vacating his conviction and granting a new trial. The District Court held that he had failed to prove his allegation as to perjured testimony by a government witness and as to evidence deliberately suppressed by the trial prosecutor, and, accordingly, dismissed his petition. Levin v. Katzenbach, 249 F. Supp. 225 (D.C. 1965). He appealed.

 By an order of the Court of Appeals filed December 23, 1965, the order of the District Court dismissing Levin's petition was reversed, and the case remanded to the District Court with direction to afford a hearing after the filing by the Court of Appeals of an opinion or opinions. On May 19, 1966, majority and minority opinions were filed. *fn3" Thereafter, on September 12, 1966, the District Court held the hearing directed by the Court of Appeals. It consisted of argument of counsel and a brief filed by Levin's counsel on September 7, 1966.

 Before taking up the matters dealt with by the Court of Appeals in its order of December 23, 1965, and its opinion of May 19, 1966, a little background is necessary.

 The charge against Levin of grand larceny by trick reads as follows:

 
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 wilfully 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. *fn4"

 If believed by the jury, as it evidently was, the government's evidence was sufficient to support the charge. *fn5" For present purposes, one aspect only of such evidence requires comment. It concerns the alleged date of transfer to Levin of $10,000 (one of two payments totaling $35,000). Landriscina testified that he gave Levin ten $1,000 bills on February 12, 1959; that at noon the same day Levin returned them and asked for smaller bills; that about an hour later the witness gave Levin $10,000 in $20 bills; that the rest of the money - $25,000, in $20 bills, was given to Levin the following day, February 13, 1959 at 5 p.m. Olson, the Union Treasurer, testified that he drew a $35,000 check under guise of a strike donation to be used to fix Cross' perjury trial, and cashed the check at a Bank on February 13, 1959 receiving therefor thirty-five $1,000 bills. Both Olson and Ashby, another Union officer, testified that Landriscina was given ten of these $1,000 bills on the morning of that same day, February 13, 1959. Ashby further testified that Landriscina on the same morning returned the ten $1,000 bills; that he (Ashby) then went to the Bank and had all thirty-five $1,000 bills exchanged for $20 bills; that he delivered $10,000 in $20 bills to Landriscina,that thereafter, in the afternoon, on the same day he delivered the remaining $25,000 in $20 bills to Landriscina. The evidence included the Union's cancelled check for $35,000 dated February 12, 1959, but cashed February 13, 1959. In light of the evidence that Landriscina did not receive the $10,000 until the morning of Friday, February 13, 1959, the Court of Appeals held:

 
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. *fn6"

 When Levin filed his petition for a writ of habeas corpus and alternatively asked for a new trial, the sole ground alleged for relief was that the government in its brief in opposition to certiorari had made an admission "to the effect that at least half of the testimony relied upon by the government is untrue." *fn7" By amendment to his petition Levin alleged as an additional ground for relief that the trial prosecutor suppressed bank records which would have shown that the thirty-five $1,000 bills obtained from the National Savings & Trust Company by Mr. Olson of the Bakery and Confectionery Workers' International Union were never changed into $20 bills, "the denominations allegedly required by petitioner" (Levin) and that the trial prosecutor "made the Bank give him its records and suppressed them." The findings of fact of the District Court, as reported in Levin v. Katzenbach, 249 F. Supp. 225 (1965), do not sustain Levin's allegations.

 The order of the Court of Appeals of December 23, 1965, reversing the District Court's order dismissing Levin's petition reads in pertinent part:

 
"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 * * *.

 The foregoing order of December 23, 1965 was followed on May 19, 1966 by a majority and minority ...


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