119 U.S. App. D.C. 156, 338 F.2d 265 (1964)
In 1963 and 1964, Milton M. Levin was tried separately on Count 2 of an indictment in the District of Columbia and convicted of grand larceny under D.C. Code § 22-2201.1 Count 2 charged that on or about February 13, 1959, Levin unlawfully took and carried away $35,000 belonging to the Bakery and Confectionery Workers' International Union of America, property that had been entrusted to its president James G. Cross.2 The indictment arose from a broader conspiracy count involving Cross's perjury trial, with co-conspirator James Landriscina alleged to have transferred the funds to Levin.3
At trial the government relied primarily on Landriscina's testimony that he delivered $10,000 in small bills to Levin on the morning of February 12, 1959, and the remaining $25,000 at approximately 5:00 p.m. on Friday, February 13, 1959, in a park near the Statler Hotel in Washington, D.C.4 Other government witnesses indicated Landriscina did not receive the initial $10,000 until Friday morning, and the jury could therefore infer the first transfer occurred on February 13 instead.5 Levin denied receiving any money from Landriscina in the District on either date.6
Levin testified that he checked into a Washington hotel at 5:43 p.m. on February 12, left the District no later than 1:00 p.m. on February 13, and arrived home in Little Neck, Queens, New York, between four and five o'clock that Friday afternoon.7 He and his wife both stated he was home by sundown on Friday, February 13, 1959, because he observed the Jewish Sabbath diligently and never left home or worked during that period.8 Levin also introduced a canceled check for an Eastern Airlines flight and hotel records supporting his travel timeline.9
Levin offered reputation testimony from seven witnesses, including Rabbi Irwin Isaacson, and sought to introduce the rabbi's testimony about Levin's fixed habit of being home on the Sabbath and expert testimony on when the Orthodox Sabbath commenced and what ritual required.10 The trial court excluded the rabbi's habit and ritual testimony.11 Levin further requested the transcript of Landriscina's grand jury testimony or an in camera inspection for inconsistencies; the court reviewed the transcript in camera, read selected portions aloud to counsel, and denied further access.12 The jury returned a guilty verdict after one and three-quarters hours of deliberation.13 Levin appealed his conviction to the United States Court of Appeals for the District of Columbia Circuit.14
Whether the evidence was sufficient to support Levin's conviction for grand larceny of the Union's money where the funds had been embezzled by Cross before transfer?15
Larceny is an offense against possession rather than ownership of property.16 The gist of the crime under D.C. Code § 22-2201 is the felonious taking and carrying away of anything of value, and the ownership of the property does not matter.17 One who steals money or property which itself had been stolen by another may be prosecuted notwithstanding the illegality of his victim's possession.18
Yes. The established facts demonstrate that the $35,000 belonged to the Bakery and Confectionery Workers' International Union of America and had been entrusted to its president James G. Cross even after Cross embezzled it.19 Landriscina transferred the funds to Levin, who took them with intent to appropriate them to his own use rather than to bribe officials.20 The jury could therefore find that Levin committed larceny of the Union's money as charged in Count 2.21
The evidence was sufficient to support Levin's conviction for grand larceny.22
Whether the trial court committed reversible error by excluding Rabbi Isaacson's testimony regarding Levin's religious habits and the requirements of Orthodox Jewish ritual?23
No. The established facts show that Levin and his wife both testified directly that he was home in New York by sundown on Friday, February 13, 1959.26 Seven reputation witnesses including the rabbi testified to Levin's general religious habits, and the prosecution did not dispute the general habit.27 Because the case required the jury to choose between the testimony of Landriscina and Levin, both participants in the alleged transfer, the court acted within its discretion in excluding the rabbi's additional cumulative testimony on habit and ritual requirements.28
The trial court did not commit reversible error by excluding the rabbi's testimony.29
Related opinions on this issue
Bazelon argued that the trial court took the view that habit evidence may not be used to prove alibi in a criminal case.30 This position has no support in reason or authority and its application here was highly prejudicial.31 He thought that in the circumstances of this case, where the central issue concerned an event four years before the trial and the testimony of the sole alleged eyewitness was open to suspicion, the defendant was clearly entitled to support his alibi with evidence of his religious habit.32
Exclusion of the rabbi's testimony of habit was probably not prejudicial in view of the similar testimony presented by other witnesses.33 But the value of their testimony was vitiated by the court's erroneous rulings and charge.34 Because the question of guilt was close, these errors require reversal of the conviction.35
Whether the trial court's instruction to the jury on the weight to be given to admitted evidence of Levin's religious habits was erroneous?36
No. The established facts show that the trial judge instructed the jury that proof of Levin's habit or practice of staying home from sundown Friday to sundown Saturday is not proof that he is never elsewhere at that particular time.39 This instruction was immediately followed by a full alibi instruction directing the jury to consider all evidence on whether Levin was present at the time and place of the offense.40 The charge as a whole was not prejudicial.41
The trial court's instruction on habit evidence was not erroneous.42
Related opinions on this issue
Bazelon dissented on the ground that the charge stated proof of the habit is not proof rather than not conclusive proof.43 In light of the court's earlier rulings discouraging habit evidence and its statement that it would instruct the jury that such evidence is no proof on a particular occasion, the instruction was likely to mislead the jury into not considering the habit evidence in relation to Levin's alibi.44 The trial lasted eight days and the transcript is 1076 pages long.45
Despite the effort and expense involved in a new trial, one is required because the closeness of the case is a crucial consideration in determining whether error was prejudicial.46
Whether the trial court erred in denying Levin access to the transcript of Landriscina's grand jury testimony after conducting an in camera review?47
When a trial court conducts an in camera inspection of grand jury testimony, reads selected portions aloud to counsel, and counsel expresses satisfaction without requesting further relief, there is no error affecting substantial rights.48
No. The established facts show that Levin requested access to Landriscina's grand jury transcript or an in camera inspection.49 The court reviewed the transcript in camera, found no inconsistencies, read the relevant questions and answers aloud to counsel, and Levin's counsel responded Thank you very much, Your Honor without seeking additional relief.50 Under these circumstances the procedure was adequate.51
The trial court did not err in denying Levin full access to the grand jury transcript.52