The Bank Officers and Their Recollection
It is asserted by the Court of Appeals that the Bank officers clearly remembered the cashing of the Union's $35,000 check. If so, then a pertinent inquiry is as to when and how this remembrance came about.
The record shows that pursuant to a Labor Department investigation, Mr. Marzo, and another compliance officer of that Department, visited McCeney and Hooper on March 20, 1961, and made inquiry of them concerning the cashing of the $35,000 Union check for Mr. Olson on February 13, 1959. Although this interview with them on March 20, 1961 was the closest in time to the date the check was cashed, neither McCeney nor Hooper could recall cashing the check. Transcript, Habeas Corpus No. 95-65, pp. 208-211.
Not content with the failure of the recollection of McCeney and Hooper as to cashing the $35,000 Union check, the investigators returned to the Bank the next day, March 21, 1961. Obviously McCeney checked his Bank's records on that day or on the previous day after the investigators had gone. It is common knowledge that a bank keeps a microfilm or other photographic copy of each check drawn and cashed by its customer on an account in its bank. The Union check for $35,000 had on its face Hooper's teller number (25), and on its back McCeney's initials and Olson's endorsement. Such evidence undoubtedly suggested to the minds of McCeney and Hooper facts about the check cashing of which they had no recollection on March 20, 1961 at the time of the investigators' first inquiry. At the habeas corpus hearing Hooper admitted that McCeney called him in and told him that his teller stamp (25) was on the cashed check and, therefore, that he was the teller who had cashed the check.
However, Hooper failed to remember either of the March 1961 visits of the investigators and could not say whether they were present when McCeney called him in to tell him he had cashed the Union check. Marzo testified that on his second visit Hooper said he did recall the cashing of the Union check, and delivered to him copies of certain bank records, including the check which the bank drew on the Riggs Bank to replenish its supply of $1,000 bills. Hooper testified that a copy of the Union check was one of the records the Bank gave the government. If so, presumably it was delivered to Marzo on his visit of March 21, 1961 as the prosecutor had no bank records other than those obtained through the Labor Department investigators, and the record herein is quite clear as to the records they obtained from the bank on other occasions. On their first visit, March 20, 1961, they secured from Mr. McCeney only four settlement sheets relating to occurrences in 1960, more than a year subsequent to the date of the larceny with which Levin was charged. On their last visit in September 1962 they obtained only the undated McCeney statement heretofore quoted.
Once having had their recollections of the check cashing reconstructed or revived by corporeal evidence - the Bank records - McCeney and Hooper continued to keep that check cashing in mind, doubtless assisted by the trouble it brought the Union and by Hooper's appearance before the Grand Jury in early August 1961 - less than five months after the March 21, 1961 visit of the investigators.
The reason given Marzo by Hooper on March 20, 1961 for not remembering the cashing of the $35,000 Union check was that he "didn't regard this as too unusual." Transcript, Habeas Corpus No. 95-65, page 212. When, before the Grand Jury, inquiry was made of Hooper as to whether on February 13, 1959 there was "a specific purpose in maintaining a bank, if we may call it that, of $50,000," Hooper answered:
Oh, yes; we quite often have this come up - someone wants thousand dollar bills - thirty-five, forty, sometimes less or more. We have had one occasion where we had over one hundred thousand request. We had to go over to the Treasury to get the difference. But we do try to keep this, because $50,000 usually takes care of any demand of getting a check cashed. Government's Exhibit No. 3, pages 6, 7.
No inquiry was made of McCeney and Hooper in March 1961 as to any exchange of $1,000 bills for twenties. This was because it was not until the following year that information first reached the government of such an exchange. As a result of this information, Marzo in September 1962 questioned McCeney and Hooper about it, but they did not recall changing the thirty-five $1,000 bills into twenties. However, this was more than three and one-half years after the date the exchange allegedly took place, and one and one-half years after the time (March 1961) when inquiry was first made of McCeney and Hooper about the cashing of the Union check. Furthermore, the Bank had no records on the exchange of bills to which the Bank officers could refer to revive past recollection or which could corroborate or disprove Ashby's testimony that he changed the $1,000 bills for twenties.
The record is replete with recollection failures of the two bank officers. At the habeas corpus hearing, McCeney failed to recall the March 1961 visit of the Labor Department investigators who questioned him about the Union check transaction of February 13, 1959. "I don't recall it," "I don't deny it, I just don't remember it," he said.
He did not recall the visit of these investigators to him in September of 1962. "I don't deny it, I don't recall it," he said.
Asked if it would refresh his recollection of that visit that the investigators inquired about the changing of $1,000 bills for bills of smaller denomination, McCeney answered, "No."
Asked if he remembered these investigators inquiring of him about Olson phoning him on February 13, 1959 prior to the cashing of the $35,000 Union check, McCeney answered, "I don't recall it, No."
Questioned as to whether he remembered being asked by the investigators to supply them with a copy of Hooper's teller sheet of February 13, 1959 McCeney answered, "I may have, I don't recall it."
When asked whether he remembered giving a signed statement to the investigators, McCeney answered, "I don't recall it, I may have done it."
When asked if he recalled signing such a statement, McCeney said, "I don't recall it, I may have signed the statement."
Upon McCeney's undated written statement being exhibited to him, he said it was his statement but when asked to state the year he made it, he said, "I don't recall whether it was '61, '60, or what it was."
It is to be noted that Hooper in his testimony at the habeas corpus hearing said that he "never received the $35,000, ever, from Mr. Olson."
No one at Levin's trial testified that Olson exchanged the $1,000 bills. The evidence was that Ashby did, and Hooper did not even know Ashby.
Ashby was not asked at Levin's trial for the name of the teller who gave him $20 bills for the $1,000 bills. McCeney was not a teller, and Ashby could have gone to several tellers other than Hooper.
The exchange, according to Ashby, was made about noon, and at that time Hooper may have been at lunch.
One significant failure of recollection on Hooper's part concerned his teller settlement sheet for February 13, 1959.
The main thrust of Levin's amendment to his habeas corpus petition was that this teller settlement sheet was obtained and suppressed by the government prosecutor. Prior to the return of the indictment, the government investigators had tried to obtain from McCeney and Hooper a copy of the mentioned settlement sheet, and were informed that being an old record, it had been destroyed. Yet, Hooper, failing to remember this, made a searching examination in court of copies of records handed to him by Levin's counsel (which had been obtained from the prosecutor), and not finding his teller settlement sheet for February 13, 1959, Hooper said, "it isn't here," and "I don't know why that wasn't here, but it isn't."
Hooper testified also that when he was before the Grand Jury on August 3, 1961, he was asked about the changing of the thirty-five $1,000 bills for $20 bills.
However, this was a misrecollection as the transcript of his testimony before the Grand Jury shows that nothing was asked him about such exchange. Government's Exhibit No. 3. Hooper further testified that in response to a subpoena he produced certain records before the Grand Jury and gave them to the prosecutor.
This, too, was a misrecollection.
The only records the government had were copies obtained by the Labor Department investigators, but Hooper's memory failed him completely as to his contacts with the investigators.
The failures of recollection on the part of Hooper were numerous. The instances mentioned herein of such failures are not exhaustive.
A Footnote of The Court of Appeals and The Conclusions of The Bank Officers
The Court of Appeals in footnote 15 of 363 F.2d at p. 292 states: "Hooper also testified that the normal procedures of the bank would have been violated if another teller had made the exchange without [Hooper's] knowledge" (meaning the exchange of $1,000 bills for $20 bills). Apparently this is a misconception of the testimony.
The phrase "normal procedure" was introduced by Levin's counsel in putting a question to Hooper. Hooper began his answer by repeating counsel's words, "The normal procedure," and then broke off to say: "the chances are they would have come to me to make the exchange because I had the bulk of the money at that time." There was no evidence that it was the normal procedure for a customer desiring to obtain small bills for large bills to go to Hooper to make the exchange. This Bank had other tellers and each began his day with around $30,000 in cash and this would be increased during the day by his cash receipts and decreased, of course, by his outgoing cash.
The evidence was that any teller with the requisite currency could have made the exchange here involved, or if he did not have enough bills of the desired small denomination he could have obtained bills from a fellow teller or tellers so as to make up the number required by the customer. There was also evidence that any teller could have had a build-up (increase in cash receipts) sufficient to meet Ashby's request for $35,000 in $20 bills.
While there was evidence of a procedure of the Bank, it was to this effect: when tellers other than Hooper received $1,000 bills they were thereafter to channel the bills to Hooper as the keeper of the large bills, but this channeling was not required to be done immediately upon receipt of such bills. It might be done the following day. What Hooper said about the $35,000 in $1,000 bills was that he did not recall receiving them in one group on February 13, 1959. They could have gone, so he said, to "several windows" but whether they did or did not, he did not know.
When asked if he would have known if the thirty-five $1,000 bills were returned on the same day the Union's check was cashed Hooper said:
Well, the chances are, I would, because the chances are it would come back to me or Mr. McCeney to exchange them, and if he didn't he could have gone to several other tellers but I have no knowledge of him doing that.
Hooper was asked if it was a matter of "deduction" on his part that if the thirty-five $1,000 bills were returned it would probably have come through him and if it had come through him he probably would have remembered. To this he replied, "That is right."
McCeney's conclusion that the thirty-five $1,000 bills were not returned for exchange was based, so he said, not on personal knowledge but "just hearsay in talking it over * * *, because I don't handle the currency."
The Conclusions of the District Court
If, as indicated by the Court of Appeals, significance attaches to the fact that neither of two Bank officers remembered exchanging the $1,000 bills for twenties but did recall the cashing of the Union check, such significance dwindles to the vanishing point in light of (1) the failure of the officers to remember the cashing of the Union check two years after the event when they were first asked about it; (2) the reconstruction or reviving of their recollections in this regard from bank records; (3) the time lapse of one and one-half years between inquiry of the officers as to the cashing of the check and inquiry of them as to the exchange of the bills; (4) the fact that this second inquiry was made nearly four years after the event in question; (5) the lack of bank records to disprove the exchange of the $1,000 bills for smaller bills; (6) the possibility that one of the several tellers other than Hooper exchanged the thirty-five $1,000 bills into $20 bills for Ashby; (7) the fact that Hooper did not know Ashby; (8) the fact that two witnesses - Ashby and Landriscina - testified unequivocally that the $1,000 bills were exchanged for $20 bills; and (9) the obvious memory deficit of McCeney and Hooper.
By its order of December 23, 1965 the Court of Appeals directed this court to determine "whether the government was negligent" in not having disclosed to the defense "at or before trial certain information in its possession which had some bearing on the case," and in the event of a finding of negligence to grant the writ of habeas corpus. This certain information is identified in the majority opinion of May 19, 1966 as (1) the drawing by the Bank on February 13, 1959 of a check on the Riggs Bank to replenish its supply of $1,000 bills, and (2) the statement of McCeney heretofore set out which contains the assertions already discussed about the nonrecollection of McCeney and Hooper as to exchanging the bills. Neither McCeney nor Hooper was a witness at Levin's trial. This court finds that the information in question was not sufficiently probative or material to require disclosure to the defense, and that its nondisclosure by the government was not negligent. It was, when boiled down, only a matter of passive nonnegligent nondisclosure of a nonrecollection about an event almost four years past by persons who were available to the defense.
The other question the District Court has been directed to answer is whether the jury might have been led to entertain a reasonable doubt about Levin's guilt had the defense been able to show that McCeney and Hooper did not remember changing the $1,000 bills into smaller ones. In light of the "corroborating circumstances which bear out the Government's case,"
this court does not believe that the jury might have been led to entertain a reasonable doubt of Levin's guilt from the mere nonrecollection of McCeney and Hooper as to an event about which no inquiry was made of them until almost four years after the event. Accordingly, the answer of this court to the mentioned question is no.
In reading the majority opinion, it appears that the Court is suggesting that there might have been negligent nondisclosure in the instant case. The District Court finds that the nondisclosure involved falls short of negligence, and that the evidence in question was neither significant nor material.
Finally, this Court has considered the cases cited by the majority, all of which involve evidence which was either deliberately suppressed, entirely within the control of the State, or vital to the question of defense. Although these cases are excellent for the principles they represent, the case at bar does not fall within their orbit.
The petition of Levin for habeas corpus or alternatively for a new trial will be in all respects denied. This memorandum is to serve as the findings of fact and the conclusions of law of this Court. There is also included herein by reference the findings and conclusions heretofore made herein as reported in 249 F. Supp. 225. An appropriate proposed order is to be submitted by counsel for the respondent.