Milton M. Levin v. United States
338 F.2d 265 (1965)
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Rule of Law:
Larceny is an offense against possession, not ownership, so one may be convicted of larceny for stealing property from a person who had previously stolen it. Evidence of a person's general habits is generally inadmissible to prove conduct on a specific occasion, particularly when the habit is volitional, the evidence would be cumulative, and direct eyewitness testimony is available.
Facts:
- James G. Cross, the president of the Bakery and Confectionery Workers’ International Union of America (the Union), was facing a trial for perjury.
- The government alleged that Milton M. Levin represented to Cross and another union officer, James Landriscina, that he could bribe court officials to secure Cross's acquittal for $35,000.
- Cross directed that $35,000 in cash belonging to the Union be embezzled and given to Landriscina.
- Landriscina testified that he then gave the $35,000 to Levin in Washington D.C. in two installments.
- The final $25,000 payment allegedly occurred at approximately 5:00 p.m. on Friday, February 13, 1959.
- Levin denied receiving any money from Landriscina.
- Levin, an Orthodox Jew, claimed he was at his home in New York by sundown on Friday, February 13, 1959, in observance of the Sabbath, and thus could not have been in Washington D.C. at 5:00 p.m.
Procedural Posture:
- Milton M. Levin was charged with grand larceny in an indictment filed in the U.S. District Court for the District of Columbia.
- The case was tried before a jury.
- During the trial, the judge excluded proffered testimony from a Rabbi concerning Levin's religious habits and the requirements of his faith.
- The jury returned a verdict of guilty.
- Levin, the appellant, appealed his conviction to the United States Court of Appeals for the District of Columbia Circuit.
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Issue:
Does a trial court commit reversible error by excluding cumulative expert testimony regarding a defendant's religious habits when that testimony is offered to support an alibi defense?
Opinions:
Majority - Bastian, J.
No. The trial court's exclusion of cumulative expert testimony on religious habits was not a reversible error. The court held that evidence of a person's general habits is typically inadmissible to prove their conduct on a specific occasion. This rule is based on the policy of avoiding numerous collateral issues that can distract the jury and consume time. The court reasoned that religious practices, being volitional, lack the 'invariable regularity' of an automatic habit, which diminishes their probative value. Furthermore, since several other witnesses, including Levin and his wife, had already testified about his habit of observing the Sabbath, the Rabbi's testimony would have been merely cumulative. The court also affirmed the larceny conviction, stating that larceny is an offense against possession, and it is no defense to steal from a thief, as the money, though embezzled by Cross, still legally belonged to the Union.
Dissenting - Bazelon, C.J.
Yes. The trial court's rulings and charge to the jury regarding the habit evidence constituted prejudicial error. The dissent argued that the trial court incorrectly operated under the view that habit evidence is irrelevant to prove an alibi. This erroneous view led the court to make statements that vitiated the value of the habit testimony that was admitted. Specifically, the jury instruction that 'proof of such a habit or practice is not proof that the defendant is never elsewhere at that particular time' was misleading; it should have stated the evidence was not conclusive proof. Given that the prosecution's case hinged on the credibility of a single, impeachable witness, this error was prejudicial and required a new trial.
Analysis:
This decision reinforces the traditional judicial skepticism toward using habit evidence to prove conduct in criminal cases, especially when the habit is volitional rather than automatic. It establishes that a trial court has broad discretion to exclude such evidence if it is deemed cumulative or if its probative value is outweighed by the risk of jury confusion and collateral litigation. The case limits a defendant's ability to rely on patterns of religious or personal observance to establish an alibi, underscoring the preference for direct over circumstantial evidence of conduct. The holding on the larceny issue reaffirms the long-standing principle that a superior right to possession is not required of the victim in a larceny case.
