*1 1209 postponements in this case ever some LEVIN, Appellant, Milton M. defense counsel.4 to accommodate
And the defendant failed to invoke v. him in voice calendar limited available to Ramsey CLARK, Attorney General of the by moving expedite trial, or control States, Appellee. United the denial of for dismissal view of No. 20682. speedy ex- serves to trial —which often Appeals United States Court of laggard pedite on the calendar. District Columbia Circuit. Perhaps the decisive considera April Argued 20, 1967. significant tion in this case is lack 15, Decided Nov. prejudice claim of to the de basis Rehearing Petition for En Banc Denied presentation fendant in the case.5 16, Dec. intervening time ob While between of events and narration of servation likely generally them in court dim memory handicap the
the observer’s truth, possibil no search ity appears substantial that the this case was weakened due either to unavailabil ity or diminished recollection of witness only eyewitness homi es.
cide, himself, other than defendant estranged deceased, wife of the Ma keeping Renfrew, company ble who was defendant at the time of both offense the trial. did not recall She evening all events of the in vivid detail, was in it is clear that she key light position issue to shed on transpired between defendant what By the time she observed the victim. already quarreling them defendant left the knife deceased. drawn She police presence and her to call for Burger, Judge, dissented. Circuit most brief. the scene was at unlikely her item in material passage memory bank erased time.
Affirmed. securing pre-cleared purpose of ad- tactical sioner were as convenient although vantage, prosecution, of course such de- while even a short de- delay lay would undoubted- to avoid liberate or willful defense counsel needed establishing ly required denial be decisive in conflict motion. States, rights. fendant’s Smith v. United Ewell, v. 5. See United States 383 U.S. U.S.App.D.C. 38, F.2d 784 118 331 (1966) ; 116, 773, 15 86 S.Ct. L.Ed.2d 627 banc). (en (Philson v. United v. United Evans States States) Hedgepeth States, U.S.App.D.C. 114, 125 4. See v. L.Ed.2d United 19, 21, (May 1968) ; U.S.App.D.C. F.2d Wilkins United v. (1966). States, Again a waiver —es- these are not 395 F. pecially calendaring system, Hedgepeth (Apr. 11, 1968) ; 2d 620 since the applied, operated supra States, so that least as then note 125 U.S. United Assignment App.D.C. Commis- dates set 365 F.2d at *2 1210 Arnold,. Washington,
Mr. Thurman C., appellant. D. Wieseman,
Mr. Theodore Asst. U. S. Atty., with G. whom Messrs. David Q. Bress, Atty., Frank U. S. Nebeker Altshuler, Attys., Oscar Asst. S.U. brief, appellee. on the Siena, Washington, D. James V. C., filed a brief on behalf of Na- Capital Union, tional Area Civil Liberties as amicus curiae. Judge, Edger- Before Chief Bazelon, Circuit Senior
ton, Burger, Judge. Circuit
Judge. BAZELON, Chief grand lar- After affirmed we Levin’s
ceny conviction,1
petition
filed
alleging
corpus
prose-
habeas
cutor did not
would
reveal evidence which
helpful.
have been
Court
District
petition,
denied
reversed
remanded so that
the District Court
govern-
could
“the
determine whether
ment
evidence which
failed
disclose
* * * might
en-
have led
appel-
tertain a reasonable
doubt
guilt.
may be clas-
lant’s
Such a failure
negligence.”2
sified
now
Levin is
appealing from
Court’s find-
the District
ing,
remand,
the evidence would
that
jury
guilt.3
have led the
to doubt his
prosecutor’s
constitutional
duty
defendant
to reveal evidence to the
recognized Mooney
v. Holohan4
Pyle
Pyle,
State of Kansas.5
v.
Supreme
Court said:
*
**
papers
forth
Petitioner’s
set
allegations
imprisonment re-
that his
testimony,
perjured
know-
sulted from
ingly
used
authorities
the State
conviction, and from the
obtain his
suppression by
deliberate
those same
of evidence favorable
authorities
sufficiently
allegations
These
him.
States,
U.S.App.
Katzenbach,
F.Supp.
1. Levin v. United
119
Levin v.
156,
(1964),
(1966).
D.C.
Writ intend of habeas which was jus injustice, ed to not frustrate correct hearing After a and extended consider- ; lays to tice it down unworkable and an judge ation on remand found tally specious requirement. a fact negligent not that the Government had been failing persuade this Court After had the even been told of Supreme officer’s non-recall of the his con bank Court disturb events, re- it would not have affected the viction, Appellant sought on release a 52, Rule re- Fed.R.Civ.P. limits our sult. petition corpus claiming “new for habeas narrowly determining view ly evidence,” arguing discovered clearly findings District Court knowingly perjured had used erroneous. changed testimony; petition later reaching analysis of Before what was con had claim that the Government majority does, it done and what the now cealed certain evidence. Both important not make clear what is totally and the claims were without basis dispute prosecutor’s in this case. The majority agrees so; first this is duty evidence disclose favorable claim abandoned and division Supreme was defined rejected claim.1 the second Court Brady Maryland, 373 Court in v. State of majority perhaps we now hints U.S. L.Ed.2d S.Ct. reject the when contention second (1963), presented are here the issues petition corpus remanded habeas governed holding.2 cursory Court, District but even opinion, Katzen reading of our But in this that rule is not issue bach, F. case, notwithstanding belated and (1966), that at 2d will show to make tortured effort only possibility appear this: most the remand found so. What is involved is “negli preparing the Government side the case for trial еach gently” officer, been McCeney, failed to disclose what one a bank interviewed potential interviewed concerning stated witness check drawn funds; $35,000 paid both sides. union this was the *8 Indeed, accused, “the the remand order recited at able to the 373 U.S. prosecution, complete good no doubt I would as 10 L.Ed.2d S.Ct. faith, government posi did not disclose to has sume where the defense exculpatory plainly of or trial” the fact that a bank before evidence which tive chang defense, govern stated “could recall” ficer a constitute ing large duty into denominations. to it without a re ment has a tender Katzenbach, majority quest. Levin v. here stretches But concept Brady 363 F.2d to cover sound Surely (emphasis added). peripheral made clear this material which no stretch “suppression” imagination regarded or “concealment” that no have been of could evidence involved. as It is for this reason “evidence.” theory majority spin must out its fanciful Brady “upon request” decided that government “negligence.” favor- furnish evidence must claim to on his fraudulent that he interview with a common witness? Can against lawyers could “fix” a case one James it be that expect want or Cross, “Big G. then under indictment for em- this kind of Brother” treatment so long they bezzlement of union funds. as know of the and existence whereabouts of the and ac- witness light background factual of this him, to cess as the defense here? not-very-subtle majority quotation in the pre-trial processes Even were civil avail- opinion inap- from other which are cases able, unlikely it is most the bank inflammatory posite, using as such terms officer’s non-recall would have been not- “shocking” “lawless” to and describe con- ed. prosecutor, duct aof is an affront to Having registered my facts of That these lurid allu- case. previously dis- purport tracing part “negli- sions to be sent and novel nebulous development subject gence” is concept majority, the law of the relied on very being a tactic and thin excuse but bound it law of this suggest poorly that, hint case, try veiled device to a I shall to demonstrate even darkly assuming wrongly act of validity nefarious Govern- some con- supported by ment ref- which cannot be ceived and undefined law-for-this-case guidelines erence to The remand decision majority, District facts. suggested “clearly that the Government Court was erroneous” in finding infor- negligently failed to disclose ques- the “new evidence” received; mation had even en- tion would not “have led the fragile as- claim reed of an Appel- rested on tertain a reasonable doubt about duty sumption guilt.” had a lant’s say in effect: legal utterly an To absurd standard Counsel, in- look, prosecutorial negligence-without-duty, Now Mr. Defense McCeney majority applies here terviewed now a review stand- He remembеrs what he said to us: ard which is ridiculous and^anticlimatical^ cashing but cannot aspect check in the extreme. The second changing Judge, recall into small the bills remand was District have the passing “negligence” aspect, to make nominations. We want sure after on the gave gives you alleged newly information he the same decide discov- whether the impact us. ered detail had an would have defense called standard, apply any To remarkable such developed recollection. We his lack of surely have the Government must first more must a tried remember this is that the informa- reason believe some years ago now nine than three on events way tion of is relevant non-recall years past. in the of “evidence.” so that rises to the level proposition, To recite which is sim- Having for a sent the case back factual thesis, ply majority’s apply perhaps be- determination the — has no basis in the demonstrate that it result —now cause do not relish the litigation. realities of discovery this is not a makes is, course, elementary to re- too legal issue all matter. factual authority quire are that there citation of suggest transparent device to this is a negligence: first, predicates two impossible of demonstrat- avoid task duty second, failure existence of a “clearly ing that the District duty. possible it be meet Can —ra- In a re- erroneous” under Rule 52. most tionally prosecutor possible has —that legerdemain, piece judicial markable guide duty and oversee monitor what was issue the trial once factual preparation the defense counsel’s *9 emerges judge trier, as fact a le- now re- of the extent of case to conduct his gal judges! question appellate Of for exchange information on quiring of an again course, an when case is tried derived from this statement non-recall of —as again it must—the Hooper issue will be emeshed the fact that did not Ash- know jury’s fact-finding by; (8) in deliberations. the fact two that witnesses— Ashby and Landriscina —testified un- jury how a Just could have been “in- equivocally $1,000 that the bills were fluenced,” decides, as the now exchanged bills; (9) for and $20 by piece peripheral of non-recall “evi- memory obvious deficit of by dence” available to aside brushed Hooper. dangling mid- defense counsel is left in ignoring majority, air. The of action Katzenbach, F.Supp. Levin v. firmly concepts appellate established of (D.D.C.1966). of review and the Federal Rules Civil case, presented The Government to the well, Procedure as the wis- demonstrates jury jurors beyond in satisfied 12 — imposed dom of historic limitations doubt—that Levin told reasonable reviewing courts. to hold on was in Landriscina, Cross and of the officers judicial by undisciplined re- action check Bakery Confectionery Workers’ Un- judges motely appellate situated ion, perjury could he “fix” Cross’ framed, those con- rules were $35,000; $35,000 trial at a cost of only today cepts even if are cast aside by Olson, Secretary- was raised Peter amake Rule-for-Levin’s-Case. embezzling Union, Treasurer by of the Judge, experi- whose District funds; Union that Landriscina delivered vastly mem- all ence exceeds of three money Washington Appellant panel lived with bers of and who Appellant money; kept and that observing many days, for wit- short, jury whole found that Levin’s alike, jurors best, if nesses and story simply a confidence scheme only, qualified person to make the not the by out concocted him bilk victims appraisal remanded. for Since $35,000. of upon improved appraisal cannot be A before the review of the evidence by paraphrasing, quote: by majority’s action is called for Ap- If, of as indicated Court Appellant’s since the central issue at significance fact peals, attaches trial was whether Levin had received officers re- of two Bank neither $35,000. he testified that Landriscina $1,000 exchanging the bills membered gave $10,000 o’clock at 11:00 cashing but did recall twenties morning February 12, 1959, and of significance check, Union of the such evening $25,000 of at 5:00 o’clockon the light vanishing point in dwindles to the Friday, February and his sub- 13. Olson (1) to re- of officers the failure disagreeing Ashby, Lan- ordinate cashing check the Union member detail, driscina also testified they years when the event two given $35,000in Landriscinа the it; (2) re- first asked about morn- on the two installments — reviving their recol- construction February ing $25,000that 13 and same regard rec- bank from lections afternoon. ; (3) lapse one and one- the time ords Although Landriscina’s version as of- years of the inquiry half between $10,000payment date was con- cashing the check ficers as to the exchange Ashby tradicted and Olson as inquiry them as to particular day, cor- transaction bills; (4) that this sec- the fact other roborated them all details. nearly inquiry four was made ond received (5) Landriscina testified that question; yéars after the event containing envelope ten disprove from Olson an records the lack bank gave Levin at bills them to $1000 bills Shortly meeting. Lan- thereafter first (6) bills; possibility smaller Levin, was contacted driscina other than said several tellers one of the reported “fellow who was thirty-five $1,- who that the exchanged Hooper jury” ac- Ashby; to take care into 000 bills *10 e., large case, cept delivery denominations. i. whether the of such first bills money place February bills took took the on 12 or then ten Landriscina Feb- arranged ruary 13, sought to and Levin to to show that Ash- back the Union office by money changed. telling He and Olson thereafter were the truth have the about cashing $35,000 $10,000 in smaller bills. to Levin since bank records delivered Then, meeting, undisputed, on this were he transfer- that Lan- at the second lying kept remaining $25,000 in driseina was small and had red the bills. mon- ey passed for himself оr it on to someone $35,000 that he cashed a Olson testified repeatedly else. Defense hinted counsel February gave 13 and Union check on jury to the in his cross-examination of $1,000 $10,000 “fix bills to Landriscina argument, Landriscina later in his and Ashby testified that Cross trial.” that Landriscina stood in line become and that Olson saw bills President of the if Cross were con- Union Ashby give Landris- then instructed indicating perjury, victed of that Lan- remaining $25,000 when he asked cina gain $35,- driscina had more to than the Ashby for it. confirmed Landris- by passing it on to Levin.3 Levin claimed the cina returned and said Levin sought impeach also Landriscina unacceptable were because demonstrating memory faults with large. Ashby took the entire too then respect February, 1959, events Savings $35,000 and the National including the fact that Landriscina had previously stated to Government investi- changed Company, bills into Trust gave $10,000 Landriscina twenties and gators delivery that the first had been on put rest in the safe. Later February 9, by showing that Landri- afternoon, returned for same Landriscina pled guilty conspiracy scina had to ob- gave on Levin later justice struct under another count of the February 13. Appellant same indictment on which introduced Government also tried.4 check which cashed obtain the Olson Notwithstanding great efforts of 12; $35,000, February bank mark- dated one-day exploit discrep- the defense to ings on it was on it indicate that cashed ancy between the Landriscina and Olson- February suрporting 13 thus the view Ashby versions, jury had little hes- currency passed those who said itancy believing essence agreed and Olson 13th. Both Landriscina transferring Landriscina’s account of that, day, whatever the was money eight-day trial, an Levin. After paid to installments. two jury guilty. promptly found Levin receiving any of mon- Levin denied jurors The verdict indicates consid- ey could that he not have claimed day ered the mistake of one variance —a diligent been all because as involved at of a kind found in lawsuits—was most observer of the Jewish Sabbath he time; passage natural result of the Long Island sun- been home on rejected also verdict shows the time fixed February down on impeach prosecu- various made to efforts delivery of sec- two witnesses of the tion evidence. payment $25,000. denial ond Levin’s The new “evidence” which the his de- on this the essence of score was professes might changed to believe fense. by Ben- statement verdict advantage one-day Taking jamin full MeCeney, Treasurer Assistant in the Government’s Savings Company, confusion in dates the National Trust receiving testimony 3. Levin admitted later fees from sub- was thus [Landriscina’s] lobbying ject impeachment on behalf Landriscina was in fact impeached. union. to date His and times other was contradicted Bazelon in his dissent from the prosecution witnesses. original of Levin’s affirmance conviction stated: F.2d at 277. *11 cashing pus hearing. attorney Olson The thаt he remembered while testified check, corpus hearing recall $35,000 did “not the he had he habeas that the trial, change Ashby coming the thousand learned from the Cross in advance large trial, be of It must ones.” the that the bills had to smaller dollar bills supposed changed piece emphasized been He into ones. had that smaller previously McCeney spoken the not evidence de- “new evidence” is any is termine prove any but there records fact if would be that tends to it sense McCeney’s cashing $35,000 state- of the really check and non-evidence. they not remember that had been retained. that learned not ment he exchange learning exchange the Ashby After in to of bills came attorney trial, say bills; remembered the the that he testified: he did not Cross again go Ashby change It “I did not to the bank because bills. that did not non-recall, previously made simply had reason to. been a had reflection Septem- they investigators people had no told two that to Government years logical ber, after records.” The is that inference and one-half three long the ha- that the bank officers was aware before the transaction and hearing remember without corpus “new evi- could and that on the not beas records he be inclined would not claim. dence” testimony. Apparently want their trial it was to inconceivable to me—as It is any non-recollection counsel believed that judge non- presiding trial —that significant de- would not seem to his any have had could now be said recall jury. fense tactics to the In other jury. are A reasons few effect immediately apparent: words, we new now reverse for a trial because “evidence” was available not reasonably (1) jury could .The apparently that would have been used not surprising that not it is concluded that if it were! large busy bank and officer bank counsel, That called trial corpus hearing, when Levin’s changing mon- some not remember could at the habeas believed years ey after and one-half three that so-called “evidence” would $1,000 involved.5 bills event even with undoubtedly not have influenced give totally majority fails to The from the that be- flows fact Appellant’s trial weight to the that fact testimony lieved Landriscina’s that counsel, experienced mat- in criminal gave money despite to Levin fact regard ters, he did not that indicated that Landriscina was contradicted as McCeney’s testimony important when his associ- details own and time documentary evidence, cor- and and ates at the habeas counsel testified destroyed by sig- majority been tions had time. to attach seems The McOeney wonder, then, three and could Is the fact nificance to years event, cashing Bank one-half after check remember exchange changing bills. officers could not remember not remember could they government when the reason could remem- in March of 1961 It was years McCeney cashing investigators and ber check after two first asked check; they cashing Hooper the event consulted about They majority’s suggestion, years their The the event. records? two after this was cou,ld significant therefore, Mc- the investi- not it. When remember Oeney cashing gators next but not bank the remembered returned MeCeney Hooper day, cash- baseless. did recall majority check; “at ing note 28 states that adduced the evidence McOeney Hooper hearing hearing corpus showed that the habeas habeas upon cashing recalled details of the transaction which check recalled consulting not contained records.” bank records. Sep- changing But until asked about description upon year half after relies is a bank of- tember 1962 —a procedures cashing bank con- being ficers of established the check asked cerning large course, years bill Of the event. transactions. after and a half three large needed recall this. no records were Bank’s bill records of transac- impeached by spite fading fact he was evidence and New memories. long occurred, conspiracy role in trials, his the criminal the events delivering place possible way motives for enormous obstacles in money. just very Can there be rational results. is on this basis *12 might jury to thаt that basis believe courts dismiss for lack indictments changed they speedy Compare if had of the verdict trial. Williams v. States, a a heard statement non-recall from United
subsidiary tangential (1957). participant prosecution F.2d 19 about a Here the other, re-try concerning important detail when the more must now a case events February, by sway them? time considerations did nearly years the new trial nine will have whatever, nothing except There is elapsed. fully record, On this I feel hindsight, suggest to the defense that charging warranted in with McCeney’s would have made use of appellate pick- another instance of “nit statement, hardly I and indeed can ing.” perversion kind of This imagine any experienced law- that judicial process gravely hampered has yer, had, such as Levin would have want- speedy justice juris- and certain in this ed to indicate the weakness of to diction. by calling McCeney its case as wit- its only say to him he ness “could not Judge, BAZELON, Before Chief DAN- Moreover, remember.”6 the thrust of AHER, BURGER, WRIGHT, McGOW- McCeney’s defense utilization of AN, TAMM, LEVENTHAL and ROBIN- argue non-recall have been to that would SON, Judges, in Chambers. Circuit of bills never occurred. that, Appellant But to demonstrate ORDER argue have had to that not PER CURIAM. lying, Landriscina but also Olson and Ashby, appellee’s since all three testified On consideration Petition exchanged Rehearing, Bane, appellant’s bills had been En pointed thereto, opposition smaller I out denominations. As my dissent, first it is more difficult by Court, Banc, ORDERED En persuade three men are appellee’s petition aforesaid is de- lying than, attempted as Levin to do at nied. trial, that one is. Judges DANAHER, BURGER Circuit regret the occasion to dissent grant peti- appellee’s and TAMM would terms, except it becomes rehearing en banc. tion for necessary glib to demonstrate the but Judge separate A statement Circuit assumptions fallacious underlie which MeGOWAN, concurred in Circuit majority’s the regret action. Even more ROBINSON, Judges LEVENTHAL repeated actions Court’s against rehearing why he voted as plainly prisoners, “jail-house” tell banc attached. en lawyers generally and the bar if they Judge way can find separate continue the war- A statement of Circuit society long enough they may against fare why re- he voted WRIGHT hearing finally reap the natural lost rewards en banc is attached. aspect majority opinion 6. One other not have at fense information majority’s deserves comment. is hinted that confusion time of trial? Hooper statement of in their the 1966 habeas is indicated the statement corpus hearing years they suggest opinion the trial “do not first —two required government —is somehow relevant to whether * * * evidence, should however have told the defense all its disclose defense,” insignificant, 1964 of the Levin v. statement. But U.S.App.D.C. 158, Katzenbach, the Government did not learn about hearing. (1966), fact until now the 1966 Can the F.2d exрected contrary. give Government be act to the Judge separate starting point proposition statement Circuit take as a A why up, he for re- DANAHER as to voted that the need not deliver hearing during trial, en attached. banc is either before or all that literally would be embraced” such Judge separate A statement of Circuit goes demand. But on to conclude why as to for rehear- BURGER voted that: ing en banc is attached. doubtful, however, It seems .that Separate Mc- of Circuit Statement post- there should be a blanket rule GOWAN, concurred Circuit poning the trial all disclosures of Judges LEVENTHAL and ROBIN- type question say, is to [that Rehearing Deny SON, on Votes beyond scope disclosures En Banc *13 Rules], example, Federal For where prosecutor the po- knows of witnesses Judge: McGOWAN, Circuit tentially defense, to the useful does deny rehearing voting to en banc In not intend to call such him- witnesses case, equally unpersuad- in remain I self, reasonably and knows—or should accuracy dissenting (1) the ed expected suppose be to —that judge’s characterization of the informa- knowledge by is not shared “non-evidence”, (2) question in tion as counsel, may the information come too majority’s generalization there preparation late for effective if it is resting duty upon a constitutional is not delivered until case is on trial. voluntarily any prosecution to disclose [Citations omitted] Other kinds of help- all “evidence be which would undoubtedly instances will arise where defendant”, to ful or Govern- the Government “has in its exclusive representation petition ment’s in its for possession specific, concrete evidence” rehearing panel’s en banc that requiring pretrial of a nature disclo- gives it cision no alternative but to turn exploration sure to for allow full ánd investiga- complete to the defense its over exploitation by the defense. every file in criminal case. tion prosecutor, words, In other like possible any I do not think it is one us, going rest to have to learn how to case write a definitive demarcation be shadowy to live in the world between tween the Rules relat Federal Criminal and the Fifth Rules Amendment. ing hand, discovery, to the one on sympathize but, plight, with his con- particular fair those situations where trary assumptions petition to the of his may significantly trial have been blurred rehearing, for cannot release him by comply failure to Government’s by pronouncement it from a broad request with a for information. any particular this or other ease. The Frankel, singularly perceptive, in a use panel wrong, decision have been but ful, problem, and recent discussion every panel not en we do banc decision al., et United F. States Gleason might gone which the other well that, Supp. (S.D.N.Y.1967), has said way. hand, may the other On it although process “the dimensions of due right. important beеn Its characteristic fully are not limited defined or present purposes not its individual ** * Rules of Procedure Criminal rightness wrongness, it is but whether practical it obvious and doctrinal makes general legal simply application one of a directly pertinent to sense consider the doctrine which existed before promulgated by highest rules Court which, event,. was decided and appraising meaning when Con essentially the continues to exist in same ultimately which is stitution form. Dealing expound.” mo Court with a following chronology prose- of this compel tion disclosure Govern weigh- will, believe, helpful in cution ment of evidence favorable to defense, ing “it question he said that seems safe decision so far out its facts as consti- corroboration. failed because Mc- departure Ceney apparently tute a from the doctrinal chan- response said to this (as what, nel. facts knew inquiry These who say that he would not my appraisal when) happen are essential did not but that he could not re- thing. of the case en bane. need to consider this member such alleged theft occurred Thus was that the Government knew in- March of key as the fall of 1962 its wit- vestigators inquire went bank going testify were nesses cashing about the union cheek the defendant had made them ex- They generated money. which the bribe change bills, $1000 McCeney, were told an As- first Mr. allegedly the bank officials who ef- Treasurer, only sistant transactions fected this could not corrobo- in- about were kind testimony. rate this The Government quiring normally handled could not have unaware been dan- Hooper, Head Teller. an Assistant ger case, particularly this involved its Hooper them that he remembered told one of this kind where check, cashing nothing immediately recognize agreed apparently but he to take a fur- operating atmosphere witnesses an *14 because, investigators ther look when the floating likely where cash around is as day, he that came back the next said up in pocket end someone else’s as in re- Olson a check and had cashed any that of the defendant. If shadow ceived bills. $1000 of could doubt be thrown on testi- the mony grand of these men the presented said to the Government The matter was actually eventually the handled cash de- of was in this in June It defendant, livered to the by the proceeding, of testi- means the Government Certainly Ashby, would be hurt. mony the of of failure the Government exchange the apparently bank officials to corroborate such first learned of the recog- transaction as one would have cast It bills into bills. $1000 $20 testimony such significance a doubt. the of this nized witness, of made an its own because January, 1963, In the defendant’s coun- Sep- it. earnest effort to corroborate discovery sel made his motions for investigators tember of its went particulars. a bill Item latter 7 of the аgain they to the interviewed bank where follows: as They McCeney. him if he asked could $35,- State denomination of the grand confirm had to the what been said allegedly money in which bills; took $20 defendant, If taken Levin. written from him on this occasion a unknown, exact denominations are in statement in which he said substance give approximate then denomina- exchange any (1) he did not recall tions. bills, Hooper would, (2) in for smaller event, it, Hoop- any have handled vigorously opposed The Government recall er had told him that did not giving regard of this information. With exchange. emphasiz- such Further particular, to Item in7 the Government ing importance which Govern- said: matter, particu- ment to this attached Paragraph is indicative of na- larly light in failure this initial ture of secure defendant’s motion —to witness, the As- to corroborate its own advance Government’s evidence in charge Attorney in sistant United States Proceeding trial. the fact from prosecution telephoned the denominations the bills promptly he read the written state- after larceny evidentiary, used de- brought in- ment to him his back suggest good can fendant reason as vestigators. telephone This call was seeming knowledge to elicit further effort how such aid him respect essentially upon functions a bill this is basis which
particulars
as enumerated above.
the Government seeks to sustain
con-
so,
view,
should,
my
To
viction.
do
course,
surprising
is,
not
light
in the
of its earlier
affirmative
not,
could
in the
defendant
Government’s
withholding,
be able to demonstrate
“suggest
[any] good
phrase,
reason as
the record that
the defense did
know
knowledge
him,”
to how such
would aid
bill
$20
trial.
advance of
appears
time the
since as of that
of the fact
known
Exactly when defense
first
counsel
bills,
initially cashed in
check was
$1000
learned of
facts
far
these
from clear.
immediately
much
these
less
corpus hearing,
At
the habeas
he testi-
changed into $20’s.1
fied that
exhibit
opposition
re-
innocent
Active
to an
him, apparently
long dis-
quest
as
the bill
information
covery
hearing,
His
check.
surely,
nominations would
under
suggests
may
also
circumstances,
create some sensations
during
first heard about
knowledgeable
discomfort
more
trial,
place April,
the Cross
took
perhaps
party.
are
as
instincts
Such
strong
1963. There
also a
intimation
guide
good
vol-
need for
first and
interview with
however,
untary
If,
such
disclosure.
trial,
McCeney came after
the Cross
feelings
successfully
resisted but
are
purpose
of that
since
interview was
upon the information
defense comes
“big
done;
means,
inquire about
records
bills.”2
no harm
other
importance
position
was of some
because
vis-a-vis
The Government’s
place
quote
request
took
the fol-
heard
Cross trial which
it useful
makes
lowing
I believe this
Frankel
in the
before
Levin trial and
comment
*15
my
(at p.
opinion
was mentioned.
It was
un-
check
derstanding
referred to hereinabove
F.Supp.)
that when a check is cashed
:
of 265
large
given,
are
where
bills
that some
Concluding
Pitkin statements
that
my
by
and,
kept
is
record
the bank
in
part helpful Karp,
may
be in
mind,
vague
I
notion of an
had some
proceeded
inquire
“re-
whether
regulation to
Internal Revenue
catch
spectable
of
Government’s
interest”
people
big
cashing
who
withholding
are
checks.
by
ma-
this
be served
you identify
MR. ARNOLD: Will
what
prosecutor
was asked
The
terial.
speak
you
you say
responded
“this
check
mean when
question.
He
on this
check”?
“the
that
defend-
with the observations
thinking
expedi-
THE
I
fishing
WITNESS:
am
of
engaging in a
ants are
bearing
discovery
Mr.
name in some
anytime
check
Olson’s
[sic]
and “that
tion”
way
other, the
Ash-
derogation
or
check which Mr.
in
of material
is ordered
by says
bank,
he took to the
that
is
Proce-
Federal Rules of Criminal
the
dure,
injured.”
I have in mind.
check
We
the Government
is
BY MR.
enlightenment
ALTSHULER:
not
in
have
pronouncements.
found
$35,000
Q. The
check?
Yes,
A.
the one that was introduced at
day
trial,
pre-
questions
is
the Govern-
that
the cheek.
2. In answer to
One
knowledge
myself
paring
trial,
seeking
I
his
went over
ment
to establish
McCeney
McCeney
telling
to Mr.
the latter’s connec-
see
and without
of Mr.
mind,
him,
cashing
I
I
him what
had
asked
tion with the
check,
him
what must have been to
a casual
counsel testified
follows:
defense
conversation,
kept
Mr.
had known
whether records
One. I
are
THE WITNESS:
large
given
and I knew
when
are
out
trial
bills
before
bank, I
I
in the
bank
believe he
me that
held an office
told
that he
kept
was,
forget
I
it was
are
but
de-
what
but
think
records
that
are
stroyed very shortly.
president.
Whether
vice
an assistant
fellow,
examining
I
Loops,
him in
then asked another
Mr. Fred
I
referred
unfortunately
dead,
I
who
now
a matter of record and
do
is
is
Olson
working
it,
I have never read
who was
at the Bank of
because
Com-
not recall
completed.
was
merce—
since the trial
the record
Thirdly,
case,
you spell
preparation
REPORTER:
do
THE
How
that name?
I recall
check
that
I knew
this
that
characterization;
preceded
of this
the trial
limits of accurate
Cross trial
The
certainly
five weeks.
short of the
about
demonstration
case
needed to
retrieve
effect of
Gov-
opinion
dissenting
states that
request
ernment’s
denial of the
initial
the habeas
“testified
counsel
fense
the bill denominations.
hearing
corpus
that he had learned from
trial,
Levin
in advance
the Cross
It
would be a reasonable evaluation
large
trial,
been
had
(and
corpus
the habeas
record
there
changed into smaller
The actual
ones.”
finding by
express
corpus
no
the habeas
answer was:
contrary)3
court
you
Q.
first
learn from
counsel did not
When did
know
bill trans-
$20
thirty-five
action until it first came out in
Gov-
source
orig-
during
bills, in
the cheek was
trial of his
which
ernment’s
February
is,
course,
inally
13th
he
cashed
client.
true that
made
might
request
havе been returned
recess
order
he
for a
Savings
matter,
might
investigate
and Trust
nor did
National
changed
telephone McCeney
Company to
into bills
He
about it.
even
corpus
denominations?
at the
trial
said
habeas
smaller
already
he had
learned from
was because
during
testimony
I
I heard
A.
think
records,
McCeney that
the bank had no
lines,
along those
Cross
his
also
in-
his
that.
I
but I am
sure
As
McCeney,
arguably
terview
saying before, I
a trial
was in
trial,
not occur
the Cross
until
during the
before
Walsh
asking
was confined to
bank
being
time that James Cross
any big
A
had
transactions
bill
records.
and I came into
court-
tried
might
teller at
bank
remem-
could,
intermittently
as I
room
bered,
records, an
even
incident
without
testi-
heard
believe that
involving
changing
thirty-five
cashing
mony
course,
And, of
bills into
$1000
$20’s.
during
trial which
check
Cross
corpus hearing,
Hooper, at
the habeas
preceded the
trial.
for the
time not
said
first
sought
prosecutor
then
establish
the one to have handled
would have been
beyond dispute,
questions what
that,
such a
if it
oc-
transaction but
namely,
came
bill
curred, he
have remembered it.
*16
trial;
Levin
out
in
investigation
scope
a
of
defense
conducting
prosecutor
ex-
this
during
days preceding
the trial
is one
it
“So
amination summed
wise:
in
thing. What,
pressure
of trial
under
probably
you
it
at the
knew about
Cross
itself,
about new
to do
counsel decides
certainly
you
at the
trial,
knew
**
me,
quite
For
me,
information
another.4
is
For
*.”
is,
where,
“probably”
a
of
uncertain-
is
the time the de-
because
record,
the outside
get
at least at
timely
in this
ties
made
effort
to
fense
Mr.
finding
L-o-o-p-s,
Loops,
THE WITNESS:
is
3. The
in terms
trial counsel
Mr.
in
conversation with
another
casual
prior
learned
of
bills “at or
the $20
attempting
I was
cheek
Loops,
“at,”
trial.”
was
or
But whether
got
I
from Mr. Mc-
information
“prior”,
critically
important.
Ceney
Loops
I
asked Mr.
Bank
where
4. The
in
loss of
they, at
of Commerce
difference
lies
banking,
privilege
pondering
I
records
invaluable
of
kept
was then
of
large
in
of
bills and he told
matters
the course of
reflectively
pre-
disbursement
thing
paring
did,
Mr.
McCeney
trial,
me the
and not
same
judged
are
his reaction
they keep
destroyed
the records
client
basis of
sum and
under
tensions
very quickly, and that was the
to new information
Mr.
my
with
relationship
pressures
substance
of trial.
this case.
in
******
Q.
you go
the denominations of
Did
to the
information about
bank with him
given
allegedly
the defend-
when
cashed it ?
the bills
it,
opposed
ant,
even
the Government
may
A.
I can’t
I
recall.
have.
charged
though
knowl-
it must
with
be
Q.
testimony,
bill-exchanging
You don’t remember ?
edge that
bank,
preg-
was
uncorroborated
vague. may
gone
A.
It
I
with
significance
for the defense.
nant with
just
him to cash the
I
check.
case,
setting
special
it is
of this
In the
can’t recall.
danger
enough
perhaps
to avoid
Q. What were
denominations of'
injustice
the Government
currency
which Mr. Olson re-
technically
accurate
said to have taken
ceived?
particu-
position
respect
a bill
lars.
A. That I don’t know.
therefore,
regarded,
aas
This can be
Q.
What
denominations
were
meaning
where,
situation
within
currency
gave you
that he
Maryland,
Brady
State of
373 U.S.
put in the vault?
(1963),
the Government danger prosecution to the conscious its Q. By “small,” you do mean less than inequality then existed bills? $100 terms in between recall, A. As were less than Falling knowledge. their relative bills. next line of back Government’s glean impossible defense, literally it is Q. bills, It it? was showing record a clear from this No, my A. not to the recol- best the information harm was done because lection. to the defense known event became prior to trial. Q. When, relationship to the date check, give you did he appeal, upon this the Gov- brief its money put in the vault? Ashby deposition to a ernment refers case, civil defense counsel used I don’t know if it A. same cross-examining Ashby at the Levin day day or a check was drawn part, pertinent deposition, That trial. days later later. two follows: proximity close the date of the
check. BY MR. DICKSTEIN: Q. *17 terday drawn officer of Local 3. Do Ashby, we to Peter of the check for Olson as speaking you re- paying yes- A. Q. [******] And did I counted —Yes. fore you put you it count the in vault? money be-
mеmber
that check?
Q.
highest
What
denomina-
you
tion of
that
noted
bill
while
Yes, sir.
A.
counting
money?
you
were
you
Q. Do
know whether Mr. Olson
A.
I can’t
the exact denomina-
recall
cashed that check?
tions
bills.
Yes,
it.
he did cash
A.
Q. Approximately.
you
Q. How
know?
do
quite
bills.
put
There were
a few
gave
A.
theme
cash
He
A.
may hundred-dol-
There
been
the safe.
the vault
ways
of a record
can
read in more
think there was
lar
I don’t
be
bills.
my view,
larger
in-
anything
than
the central
than hundreds.
one.
quiry
here is whether affirmance on
Q.
and 10’s?
most of them 20’s
Were
represents
such a de-
facts
this case
than
smaller
A.
of them were
Some
legal
parture from established lines of
that;
can’t
I think. But I
20’s
justify
banc
doctrine
en
considera-
as
was.
the breakdown
recall what
here,
Applying that
tion.
do
test
rehearing en banc is war-
believe that
deponent
Apart
from the fact
ranted.
light
be-
is,
later
of his
being
grand
trial,
and at
fore
Separate
on Vote to
Statement
scarcely
egregiously evasive, it
be
can
Rehearing
Deny
En Banc
pre-trial examination of this
said
acquaint
deposition
the defense
Judge:
WRIGHT,
J.
Circuit
SKELLY
dol-
35 one-thousand
with
fact
exchanged,
Levin’s in-
lar bills
After much initial and determined
sistence, into
bills.
judges
opposition
$20
practitioners
from
fact,
sporting
value
over
who
form
beyond peradventure
it clear
Neither is
theory
being
justice
slowly
elimi-
deposition
prior to the
seen
nated
trial
civil cases.
from the
Lib-
day’s interval
trial.
There
provision
discovery
eral
for
has made
examina-
direct
at that
between the
the search for truth a realistic enter-
Ashby
tion of
and his cross-examination.
prise rather than an
fes-
obstacle course
counsel,
record
that defense
shows
denying
tooned
devices for
evidence
cross-examination,
conducting that
while
unwary
and the unadvised. Much
only
in his hand
had
some written notes
apparent
the same movement
deposition
not the
itself. When ob-
although
cases,
trial of
criminal
circumstance,
jection
to this
was made
secrecy
arcane
reasons
air of
the trial so
the court recessed
competitiveness still
the criminal
attends
deposition
from the
could be obtained
trial.
court,
then re-
of this
it was
files
where
posing.
do not show
Our
records
Clerk’s
Both the
the dissent here
having
earlier.
it
withdrawn
recognize
discovery
been
principles
that the
before
been seen
doubtless
applied
should be
in criminal cases. See
when,
say
counsel,
one can
Rule
Indeed
dis-
Fed.R.Crim.P.
conceivably
might
not have
“superiority
sent notes
started.
the Levin trial
been
fact-gathering
prosecution’s
facilities
deposi-
not introduce the
duty
dis-
the basis for the
constitutes
corpus
into
at the
tion
evidence
habeas
exculpatory
for the
close
evidence and
hearing,
make
references
nor
by setting
of it
aside con-
enforcement
record ex-
еffort
in that
its
to establish
part
its
victions secured
because of
actly
learned of
trial counsel first
when
Katzenbach, 124
violation.”
Levin v.
exchange.
bill
158, 165, 363 F.2d
(dissenting opinion). Thus
rehearing
not to
Denial of
en bane is
po-
difference between
two
indicating
taken as
the Govern-
reading
sitions is in their
facts
general
required
ment
re-
honor
in this case.
help-
quest
all information
express-
approach
ful to defendant —an
Brady Maryland,
Since
373 U.S.
might
ly
disavowed
Frankel.
(1963), in
83 S.Ct.
S.Ct. make no prosecution any denied hands of sion such result. reason, the reviewing for whatever When Ross v. Sirica was cited court must decide whether Appeals Court of in the Second Circuit might reasonably have affected denial Judge Zampano,2 Hays in Sciortino v. and therefore the outcome of course pointed out that the of our court views panel the trial.1 That is tried what had not found favor in other cir- here, why to do I see no reason Indeed, continued, cuit. ing the reasоn- sitting upset court en banc should panel the Ross had relied on'which result reached. support lacked the of a even Rehearing Separate re judges State of this Circuit. Hays En appropriate Banc quite citations observed,
correctly
I had noted in
Ross,
Judge:
subject
discovery
DANAHER,
in
Circuit
great
criminal
deal
cases
received a
writing anything in
I had no
idea
of attention
of those re-
hands
my
despite
very
this case
real view
original
sponsible
preparation
for the
per-
should have been
the Federal
their
Rules and
recent
before,
press
mitted to
its contentions
very
Only
amendment.
limited dis-
to,
explain
position
its
the full
covery
available,
principles
court.
agreed
by
upon
the rule makers fall far
my colleagues
However, as various of
enlargement
sweeping
short of the
here
separate
now have submitted
statements
colleagues.
one of our
asserted
rehearing
exposition
of their denial of
Again,
aspect
respecting
another
banc, one,
particular,
would im-
en
Brady
discovery,
Supreme
Court
respecting “discovery”
part gloss
3
Maryland
holding
v:
has stated its own
impels my comment.
I would not have
thus:
acquiescence in
taken as
silence
area.
suppression
hold
We now
that the
prosecution
favorable
evidence
writing separately
place,
In the first
upon request
to an accused
violates due
Sirica,1I
v.
observed:
Ross
process
the evidence is material
where
sophistry
No amount of
can obscure
guilt
punishment,
ir-
either to
sitting
fact that the
divi-
ultimate
good
respective of the
faith or bad
hoped
engraft upon our
sion had
prosecution.
(Emphasis
faith of
discovery,
theory of
courts their own
4
added.)
notwithstanding
pro-
the Rules
by my colleague
duty
course,
4. The
is,
“focus” mentioned
affirmative
1. There
an
request.”
“upon
part
seems to have omitted
to disclose
on the
speaking only
One Justice
for himself
fact
the defense
such evidence. The
Maryland,
production
in Giles v.
386 U.S.
moved
not have
for its
793, 811,
(1967),
Obviously
87 S.Ct.
cannot
1229 going say.that on around him. rule makers what was Since is not to This experienced go way day Mr. is of the most may seem- Stein one the full not some lawyers bar, I, colleagues. my ingly and able trial of our desired course, reject Supreme say only that he Court and idea that the grasp yet Moreover, Advisory the facts. Mr. Stein’s have not Committee appraisal of the situation was sound done so.5 competent one advocate which reasonably reach. Rehearing Separate Statement important What more is that is En Banc tendency anyone to read “new rule” dispelled by into case is Mr. what Judge: BURGER, Circuit Maryland: v. Justice Fortas said in Giles majority I am satisfied that say is not to that convictions This entire court would never have reached ought ground to reversed on majority the result decided merely repetitious, information panel present time less at same embellishing cumulative, or facts judges1 panel than believe the has five pre- or known to the defense otherwise rule of such laid down a or doctrine new court, to or without im- sented scope importance that en it merits portance purposes to the defense for light, the in this banc review. Viewed preparation or for Katzenbach, holding in 124 U.S. Levin v. to coun- not disclosed defense 163, 287, App.D.C. 158, F.2d 292 363 say sel. It is not State (1966), is therefore confined its own obligation pre- has communicate an peculiar facts. challenged, speculative liminary, in- point refrain from cannot However But not that case this is formation. before,2 ing out, again, I have as 66, 98, 793, S.Ct. 809 386 U.S. conclusively the record before us shows— added). (concurring opinion) (emphasis beyond dispute the informa —that highest which can classification regards panel tion which fairly accorded “information” be Judges “newly evidence” which as discovered Edgerton which said Bazelon Edgerton Judges Bazelon and held prosecution have furnished should should have revealed “speculative” in an ultimate it is literally in the hands fact inwas degree. counsel he sat at counsel as of defense Perhaps to this case a “footnote” of wit conducted examination table and in relation not be out of order original in the trial. This nesses issues time court has taken resolve opinion McGowan’s shown commanding a new trial: which lead what Mr. Stein where he recites Jacob hearing alleged February, the remand testified 1959—date deposition acts; the contents of the also in criminal this cross-exami utilized in Stein 1, Appellant in- November 1962— nation. ; dicted rationally possible to recon- May by jury 10, 1963—conviction the no- cile Mr. Stein’s grand larceny; the trans- not aware of tion that he was 30, was af- unless are to assume June conviction action 1964—the Judges Washington asleep per unaware or otherwise firmed Stein U.S.App.D.C. Katzenbach, Judges Leventhal Levin v. McGowan and noted 1, (1966) ; supra 158, 163, Sirica, Lev note 363 F.2d Ross much Clark, U.S.App.D.C. at 562. 380 F.2d in v. 1967). (Nov. 15, F.2d During of the Government's consideration rehearing en 6ano this court motion judges. has 8 active *20 1230 dissenting), (Bazelon v. Levin Bastian 156, U.S.App.D.C. States, 119
United CLEMONS, Appellant, Malcus T. (1964); F.2d 265 338 v. February 1, petition writ 1965 —a America, UNITED STATES by the Su- of certiorari was denied Appellee. 999, Court, preme U.S. 85 S.Ct. 379 CLARK, Appellant, (1965); David E. L.Ed.2d 719, 13 701 v. 25, Appellant February filed 1965 — America, UNITED STATES of corpus petition for a writ habeas Appellee. by the District Court was denied which 11, 1965, F.Supp. 225 on June HINES, Appellant, Alvin C. (D.D.C.1965); v. 23, re court 1965 —this December America, UNITED STATES of case, Levin and remanded versed Appellee. 158, Katzenbach, 124 v. 19846, 21001, Nos. 21249. ex took the (1966), and 363 F.2d Appeals United States Court of traordinary step be never taken —one District Columbia Circuit. releasing prison him from fore —of 2, Reargued Aug. corpus claims the habeas while reconsidered; being Dec. Decided District Court 1966 —the October question and the remand
resolved again, here returned F.Supp. (D.C.C. Katzenbach, 262 ; 1966) again court 1967 —this November ordering trial and new reversed U.S.App. Clark, dissented, Levin v. (November 408 F.2d D.C. 1967) . ordering a of this court The action gross miscar- trial is —a new was —and riage puts justice on Gov- retrying a case
ernment burden February of on which occurred facts Understandably the Government banc rehearing en Janu- moved 1968; ary 10, on that action court’s approximately petition has added alone delay. year’s one confronte'd is now trying near- its case to reconstruct public years ly after the event. pardoned confidence if it loses should Judge, Skelly Wright, J. Circuit justice of criminal in the administration Bazelon, Judge, part. long judicial Chief dissented in when it takes this simple dispose criminal process new to order a then
case —and such trial will where in circumstances nearly place a decade take crime.