Lev v. United States

PETITIONER: Lev
RESPONDENT: United States
LOCATION: U.S. District Court for the Southern District of New York

DOCKET NO.: 435
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 360 US 470 (1959)
ARGUED: Apr 27, 1959 / Apr 28, 1959
DECIDED: Jun 22, 1959

Facts of the case

Question

Media for Lev v. United States

Audio Transcription for Oral Argument - April 28, 1959 in Lev v. United States
Audio Transcription for Oral Argument - April 27, 1959 (Part 1) in Lev v. United States

Audio Transcription for Oral Argument - April 27, 1959 (Part 2) in Lev v. United States

Earl Warren:

Mr. Eben, you may proceed.

Anthony Bradley Eben:

Thank you, Your Honor.

Shortly before the Court recessed, I had alluded to the fact that the state of the record, one of the first that went up on appeal, was that there had been a prior statement given by the witness Carlin, concerning the events to which he had testified upon the trial, and I submit, of course, at this point that on that state of the record, at that particular time in view of the fact that the Jencks case followed shortly thereafter, in the Court of Appeals, a reversal would have been required, probably with a remand.

Undoubtedly, the Government was aware of that particular circumstance because, as I also said a short time ago, about a year later, they filed this memorandum to which I have made reference and a -- an affidavit in support of the memorandum.

That memorandum, among other things, established -- it believed the following, that Belavan and Pool, the Senate investigators, had had an interview with Carlin in March of 1955, some three years prior.

That, according to Belavan, this was the only interview that he quote “recalls”.

He then stated that, on information and belief, he did not believe that Mr. Pool had -- had any other interview with Carlin but that he did not know Pool's whereabouts at this particular time.

Of course, 3500, Title 18 U.S.C. 3500 had come down prior -- and had been passed by Congress prior to the time that this particular affidavit was filed.

So, Mr. Belavan, in preparing his affidavit, then, said in the words of the statute that he had summarized generally what Carlin had told him during the course of this interview, that this was not signed or adopted by Mr. Carlin but that he had prepared it purely for Chief Counsel Kennedy of the Committee, before whom Carlin was subsequently, some six months after the signing of the statement or the giving of the statement, before which Committee he testified.

He then said, also in the words of the statute, according to his affidavit, that the memoranda was not a substantially verbatim recital.

So, I say this are the words of the statute adopted in the affidavit and, undoubtedly, with an eye on the statute.

Of course, I point out to the Court immediately that these are merely conclusions of the witness or the affiant in this particular case as to what the memoranda showed.

Now, when the Government filed that particular memoranda supported by this affidavit, a number of questions of fact, as we view it, arose in the Court of Appeals, one, there was certainly an issue as to whether or not there was a signed statement.

And, according to Carlin, there was.

Two, even if there had not been a signed statement had there been a statement which had been adopted or accepted in any fashion by Mr Carlin.

And, thirdly, was it a substantially verbatim recital of what -- of an oral statement of the witness.

The Court of Appeals, this we are most critical, decided, one, that there was no other statement and it did that purely by reference to the ex parte affidavit of Belavan without any cross-examination or inquiry being permitted into the matter whatsoever, by petitioner or any of the other defendants.

It also decided that the statement had never been adopted in any fashion by Mr. Carlin and, I submit most respectfully to this Court that the only way that the court below could have reached that conclusion would be by a full and complete 100% reliance upon what Mr. Belavan said in his ex parte affidavit, again, without having it tested by cross-examination of anyone.

Then -- was there anything --

Anthony Bradley Eben:

Third --

Did -- did Carlin say anything in his testimony as to whether he had adopted it or seen it?

Anthony Bradley Eben:

No, sir.

No, sir, he did not.

The record is silent on that.

Anthony Bradley Eben:

His -- his testimony -- his testimony only was that he believed he had signed it.

Yes, I --

Anthony Bradley Eben:

That was all.

Yes.

Anthony Bradley Eben:

And, Judge Kaufman, the trial judge at the particular time for the very fast finish to the question, he said that there was nothing there that would require him to -- to look into the nature of the document and the trial and procedure from there on.

And, no other request, I might add, that, because of that, ruling were made for the statements of any other witness who testified during the course of the trial, a matter which would be eluded to by counsel who'll follow me.