Petition — Walker v. United States
Supreme Court brief1977
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In The
Supreme Court of the ee
October Term, 1976
—>-
No.
DAVID WALKER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
ROY RAYMOND JOHN KULCSAR
SAXE, BACON & BOLAN, P.C.
Attorneys for Petitioner
39 East 68th Street
New York, New York 10021
(212) 472-1400
10929 LUTZ APPELLATE PRINTERS, INC.
Law and Financial Printing
South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.
(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288
ee
TABLE OF CONTENTS
Page
Summary Of Petition .......ccccccccccccccccccccccvcees 2
Orlane Belew 2c cccccccccccctcccccccccvcvccsccccscess 2
POI gv ccdecsd cerecccesccncccccepeseetssssestte 2
Consstings Prepemted 2. cc cccccccccceccscccsccecvecsecces 3
Constitutional and Statutory Provisions ..........+-++++: 3
Statement of the Case ....ccccccccccccccsccccescccccces 9
Reasons for Granting the Writ ...........cecececevevess 10
I. The prosecution’s knowing suppression of
exculpatory evidence, after demand, deprived
petitioner of a fair trial and due process. ........ il
Il. The prosecution's failure to turn over the primary
case agent’s grand jury testimony was grounds for a
san 6c kde s kgeadaweceeheabweenenshabe ons 20
SUE 0c Cinbs cava ehOUSd dhe bb cde beatecbevadbadeess 26
TABLE OF CITATIONS
Cases Cited:
Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L.
BG. G26 (IDS1) wp ncccccccccvied cocecscvcsccdcuceecese 26
Banks v. United States, 348 F.2d 231 (8th Cir. 1965) ....... 25
Contents
Page
Brady v. Maryland, 273 U.S. 83 (1963) .........cecececees l
Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d
DEED kn6de bos d0 dnc ciaedapaebadalekaameeste 26
United States v. Agurs, _ U.S. ___, 96 S. Ct. 2392, 49
ww 8 FOF Per rrr 15, 16, 17, 18, 19
United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) ..... 20
United States v. McCarthy, 292 F. Supp. 937 (S.D.N.Y.
a Jaéh cnkwh ehed pease Giseteous 25
United States v. Miller, 411 F.2d 825 (2nd Cir. 1969) ...... 18
United States v. Morell, 524 F.2d 550 (2nd Cir. 1975)
snk dcdae deat edas bbe nedd eee eed 17, 18, 19
United States v. Ramirez, 482 F.2d 807 (2nd Cir. 1973),
OE, Ge CE GE ee hewuboccuavakbecamadcins 25
Statutes Cited:
NE sc nden ncn cuh pauenmnblaned auceae nanos 2,4
I I igi io dnc pieces, saad oe 2, 5
dk EMR NEP Nel ae tt ha A pap Ar eae 1, 5
I in i a ee ie 3
United States Constitution Cited:
Pe HD ec syed sence bhbcdiuwdescisbetuhn 3
iii
Contents
Page
Bie AGMOMETIONE occ coccccceseccccccenssvecccesesecees 4, 26
Rules Cited:
Federal Rules of Evidence:
PE ecu bbs Su cdeesendeebueesteesendeeeoes 8, 19
APPENDIX
Order of the United States Court of Appeals for the Second
Cope GRRE FD Fe, TGF cc ccccccccccccccvccccess la
Order of the United States Court of Appeals for the Sec-
EE. b0kn04nceen dts enecusenses.dnsseséovevess 2a
PE. ce ccvddccceseducccscasccucescssessceocecdcce 3a
Judgment and Commitment ...........00ccceeeeeeeeeees 6a
Excerpts of Trial Transcript Dated January 4-5, 1977 ...... 7a
Grand Jury Testimony of Edmond Mullins Dated August
SUG SEE NUS ob cebdRededeouddapivccdccdverctestésccone 10la
Government Exhibit 19 — IRS Form 4789 ..........00055 120a
Sentencing Minutes Dated March 11, 1977 ..........2006. I2la
IEE GE FUE cccvevccncvccsccconccccecssccseccess 138a
In The
Supreme Court of the United States
October Term, 1976
>
No.
| DAVID WALKER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
The petitioner, David Walker, respectfully prays that a writ
of certiorari issue to review the order entered in this proceeding
on June 22, 1977 by the United States Court of Appeals for the
Second Circuit. This case presents important questions of the
petitioner's rights under the Fifth Amendment to the United
States Constitution and the doctrine of Brady v. Maryland, 273
U.S. 83 (1963) as well as the Jencks Act (18 U.S.C. §3500) and
the Federal Rules of Evidence.
2
SUMMARY OF PETITION
This petition seeks review of the Second Circuit's
affirmance of the petitioner’s conviction before the Honorable
Jack B. Weinstein, United States District Judge for the Eastern
District of New York, and a jury, which verdict was returned on
January 7, 1977. The petitioner was convicted of both counts of
a two-count indictment charging violations of 18 U.S.C. §§371
and 1709. This Court is asked to issue a writ of certiorari to the
Second Circuit Court of Appeals in consideration of two basic
issues:
(1) Whether the prosecution’s knowing suppression of
exculpatory evidence, after demand, deprived petitioner of a fair
trial and due process; and
(2) Whether the prosecution's failure to turn over the
primary case agent’s grand jury testimony constituted sufficient
grounds for a mistrial.
OPINIONS BELOW
The Second Circuit issued no opinion below but rather
affirmed the conviction upon completion of oral argument. The
order of affirmance is unreported and reprinted in the Appendix
hereto (la)'. On July 8, 1977, the same panel of the Second
Circuit (Mulligan, Gurfein and Van Graafeiland, Justices)
denied petitioner's application for a stay of the issuance of the
mandate pending filing of this petition (2a).
JURISDICTION
This petition arises from the judgment of conviction of
petitioner in the United States District Court for the Eastern
1. References denoted “a” refer to Appendix, infra; references denoted
ow refer to Trial Transcript; references denoted “GJ” refer to Grand Jury
Minutes; references denoted “SM” refer to Sentencing Minutes.
——— ——
3
District of New York. A timely appeal was taken to the United
States Court of Appeals for the Second Circuit. The judgment of
conviction was thereafter affirmed by the Second Circuit. This
petition is being filed within 30 days of the affirmance of the
judgment of conviction.
The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether the intentional withholding of clearly
exculpatory material by the government from the defense
resulted in a deprivation of due process.
2. Whether the court erred in refusing to consider
statements of eleven jurors which support the petitioner’s claim
of materiality of the withheld Brady material.
3. Whether the petitioner’s right of confrontation and the
search for the truth were impeded by the government’s
suppression of relevant Jencks Act material of its witness, Postal
Inspector Edmond H. Mullins.
CONSTITUTIONAL AND STATUTORY PROVISIONS .
Amendment V to the United States Constitution
“No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of
War or public danger; nor shall any person be
subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in
4
any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.”
Amendment VI to the United States Constitution
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining witnesses
in his favor, and to have the Assistance of
Counsel for his defense.”
18 U.S.C. §371.
“Conspiracy to commit offense or to defraud
United States.
If two or more persons conspire either to
commit any offense against the United States, or
to defraud the United States, or any agency
thereof in any manner or for any purpose, and
one or more of such persons do any act to effect
the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more
than five years, or both.
If, however, the offense, the commission of
which is the object of the conspiracy, is a
misdemeanor only, the punishment for such
5
conspiracy shall not exceed the maximum
punishment provided for such misdemeanor.”
June 25, 1948, c. 645, 62 Stat. 701.
18 U.S.C. §1709.
“Theft of mail matter by officer or employee.
Whoever, being a Postal Service officer or
employee, embezzles any letter, postal card,
package, bag, or mail, or any article or thing
contained therein entrusted to him or which
comes into his possession intended to be
conveyed by mail, or carried or delivered by any
carrier, messenger, agent, or other person
employed in any department of the Postal
Service, or forwarded through or delivered from
any post office or station thereof established by
authority of the Postmaster General or of the
Postal Service; or steals, abstracts, or removes
from any such letter, package, bag, or mail, any
article or thing contained therein, shall be fined
not more than $2,000 or imprisoned not more
than five years, or both.” As amended Aug. 12,
1970, Pub. L. 91-375, §6(j)(19)(A), 84 Stat. 778.
18 U.S.C. §3500.
“Demands for production of statements and
reports of witnesses.
(a) In any criminal prosecution brought by
the United States, no statement or report in the
possession of the United States which was made
by a Government witness or prospective
Government witness (other than the defendant)
shall be the subject of subpoena, discovery, or
6
inspection until said witness has testified on
direct examination in the trial of the case.
(b) After a witness called by the United
States has testified on direct examination, the
court shall, on motion of the defendant, order the
United Siates to produce any statement (as
hereinafter defined) of the witness in the
possession of the United States which relates to
the subject matter as to which the witness has
testified. If the entire contents of any such
statement relate to the subject matter of the
testimony of the witness, the court shall order it
to be delivered directly to the defendant for his
examination and use.
(c) If the United States claims that any
statement ordered to be produced under this
section contains matter which does not relate to
the subject matter of the testimony of the witness,
the court shall order the United States to deliver
such statement for the inspection of the court in
camera. Upon such delivery the court shall excise
the portions of such statement which do not
relate to the subject matter of the testimony of
the witness. With such material excised, the court
shall then direct delivery of such statement to the
defendant for his use. If, pursuant to such
procedure, any portion of such statement is
withheld from the defendant and the defendant
objects to such withholding, and the trial is
continued to an adjudication of the guilt of the
defendant, the entire text of such statement shall
be preserved by the United States and, in the
event the defendant appeals, shall be made
available to the appellate court for the purpose of
determining the correctness of the ruling of the
7
trial judge. Whenever any statement is delivered
to a defendant pursuant to this section, the court
in its discretion, upon application of said
defendant, may recess proceedings in the trial for
such time as it may determine to be reasonably
required for the examination of such statement
by said defendant and his preparation for its use
in the trial.
(d) If thé United States elects not to comply
with an order of the court under subsection (b) or
(c) hereof to deliver to the defendant any such
statement, or such portion thereof as the court
may direct, the court shall strike from the record
the testimony of the witness, and the trial shall
proceed unless the court in its discretion shall
determine that the interests of justice require that
a mistrial be declared.
(e) The term ‘statement’, as used in
subsections (b), (c), and (d) of this section in
relation to any witness called by the United
States, means—
(1) a written statement made by said
witness and signed or otherwise adopted
or approved by him;
(2) a stenographic, mechanical,
electrical, or other recording, or a
transcription thereof, which is a
substantially verbatim recital of an oral
statement made by said witness and
recorded contemporaneously with the
making of such oral argument; or
(3) a statement, however taken or
recorded, or a transcription thereof, if
any, made by said witness to a grand
”
jury.
As amended Pub. L. 91-452, Title 1, §102, Oct. 15,
1970, 84 Stat. 926.
Federal Rules of Evidence—Rule 606(b)
“Competency of Juror as Witness
(b) Inquiry into validity cf verdict or
indictment. Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as
to any matter or statement occurring during the
course of the jury’s deliberations or to the effect
of anything upon his or any other juror’s mind or
emotions as influencing him to assent to or
dissent from the verdict or indictment or
concerning his mental process in connection
therewith, except that a juror may testify on the
question whether extraneous prejudicial
information was improperly brought to the jury’s
attention or whether any outside influence was
improperly brought to bear upon any juror. Nor
may his affidavit or evidence of any statement by
him concerning a matter about which he would
be precluded from testifying be received for these
purposes.”
9
STATEMENT OF THE CASE
On September 22, 1975 the petitioner, David Walker
(“Walker”), Helen Helton (“Helton”) and Rosario Marchione
(“Marchione”) were employees of the United States Postal
Service assigned to Building 179 of the Airport Mail Facility,
John F. Kennedy International Airport. They worked the 12
a.m. to 8 a.m. shift.
Walker and Helton were at that time romantically involved.
Walker, who had been employed by the Postal Service for
approximately 17 years, held the position of foreman of the
Foreign Section, but on September 22 was reassigned to the
Registry Section to cover a co-worker who was on leave that
morning.
Helton was assigned to the Registry Section which was
enclosed by a floor to ceiling fence. Within the Registry Section
was a valuable cage to which Helton went to retrieve incoming
registered parcels that she was to assemble and place in sacks to
be ultimately dispatched to the addressees. When a sack was
filled she placed a “rotary lock”? on the sack to secure it.
Helton testified that Walker had previously spoken to her
about removing a mail sack from the Registry Section.
According to Helton some time after 5:00 a.m. on
September 22, 1975, Walker asked her if she had “heart”. She
testified that she took this to mean whether she was prepared to
steal a bag of mail. She said she then placed twelve parcels of
registered mail into a sack, placed a padlock-type lock on the
sack (rather than the conventional rotary lock), placed the
completed sack at her feet, nodded to Walker and turned her
back on the sack. That was the last time she saw the sack. She
2. A rotary lock was described as a lock that registered its openings and
closings in consecutive numerals.
10
did not see Walker remove the sack, nor did she know what was
in the parcels.
Marchione testified that between 4:00 - 5:00 a.m. that
morning he was in the “swingroom” (lunchroom) one floor
above the work floor. Walker approached him and asked, “Do
you have balls?” Marchione testified that he answered in the
affirmative and then Walker said that a bag “came in on tour 3”
— the shift prior to Marchione’s shift? — and that Marchione
was to go “downstairs”. Marchione went directly downstairs and
Walker walked back to the swingroom. Marchione went to the
foreign dispatch section, where he was regularly assigned, and
busied himself with his normal duties. He then “turned around”
and saw Walker emerging with two dollies (“skids”) containing
mail sacks from the Registry Section and went over to assist
him. Marchione helped Walker load the sacks onto a postal
truck. Marchione could not testify as to the contents of any
sacks. Walker and Marchione had not previously discussed the
theft of any mail.
Helton testified that the next morning she received a large
amount of cash from Walker. Similarly Marchione testified that
on the following day he received $30,000 in cash from Walker.
Heiton and Marchione each testified that they did not know the
other was involved in any theft or conspiracy.
REASONS FOR GRANTING THE WRIT
The record herein demonstrates that substantial issues
having far-reaching effects are contained in this case. The
petitioner was denied his right to due process and to
confrontation as guaranteed by the United States Constitution.
Furthermore, the doctrines of exculpatory evidence and the
Jencks Act are also raised. Finally, this Court is now presented
with one of the few opportunities to examine and interpret the
new Federal Rules of Evidence.
3. Marchione’s shift was from 12 midnight to 8 a.m.
LE —
Any one of these points would be proper for the
consideration of this Court. When taken together, we submit
that the issuance of a writ of certiorari is all but mandated.
The prosecution’s knowing suppression of exculpatory
evidence, after demand, deprived petitioner of a fair trial and
due process.
It became apparent at the outset of the trial that the
government could not prove that the twelve parcels Helton said
she put in the sack contained money — much less that there was
$800,000 contained therein as charged in the indictment. Thus,
the court ordered the prosecutor to refrain from mentioning to
the jury any specific sum of money. It was thus the government’s
theory that it would seek to establish that there was a substantial
sum of money in the parcels by showing that after September 22,
1975 (the alleged date of theft), Walker spent large amounts of
cash.
The defense objected to the court’s allowing proof of this
type on the grounds that (1) absent any proof that there was
currency in the parcels, it was speculative and not probative and
(2) that it forced the defense to put in proof that Walker was a
man of substance and would have the capacity, without resort to
stealing, to spend substantial sums of money.
The court, however, allowed the prosecutor to show that
Walker made substantial cash purchases including a $100,000
down payment on an apartment house in Queens.‘ The
4. The seller testified for the government that Walker came to the closing
with a valise containing cash. The seller's attorney would not accept all that
cash and requested that they go to a bank to convert the cash to a bank check.
Walker and the others went to the Chase Manhattan Bank and Walker
converted $100,000 in cash for a bank check. The bank provided Walker with
its form which requires that such a large cash transaction be reported to IRS
(Exhibit 19, 120a).
12
prosecutor then argued that it would be suspect for a $17,000 a
year postal employee to make such a large purchase, i.e., he
must have stolen the money from the mails on September 22,
1975.5
One of the government’s witnesses was Postal Inspector
Edmond H. Mullins, who was the Walker case agent® and sat
alongside the prosecutor throughout the trial. Mr. Mullins
testified about his activities relative to the investigation of
Walker and the theft of September 22 (Tr357-372, 391-421).
On cross-examination the following occurred:
“Q. Did you receive any information from
any of the banks that Mr. Walker did business
with? A. Yes, I did.
MR. ROSEN (defense counsel): May have
that, please, Mr. Scotti?
MR. SCOTTI: Do you want the
information?
MR. ROSEN: I want whatever you've got,
yes.” (Tr398).
The prosecutor did not turn over to the defense the
bank/IRS form reporting the $100,000 cash transaction to IRS
(Exhibit 19 for iden. 120a).
5. “Where did he get the money, ladies and gentlemen?” (Prosecutor's
summation, Tr532).
6. Mullins testified on direct examination that the “case agent is the postal
inspector to whom the investigation is assigned, the person responsible for
coordinating the entire investigation” (Tr357).
13
For the sake of continuity we will set forth, in sequence, the
following events which led to the discovery of Exhibit 19, id.
During the jury’s two day deliberation the prosecutor
informed defense counsel that Inspector Mullins’ grand jury
testimony was not turned over to the defense (Tr419).’ Upon
reading the material it was discovered, among other things, that
Inspector Mullins had testified before the grand jury concerning
his investigation of Walker’s $100,000 cash purchase of the
apartment house. The defense moved for a mistrial based on the
nondisclosure, but the motion was denied (Tr699). Instead,
outside the presence of the still deliberating jury, the court
directed defense counsel to “cross-examine” Inspector Mullins as
if he were still on the stand and with defense counsel now in
possession of the Inspector’s grand jury testimony (Tr641).
Inspector Mullins was confronted with the following grand
jury testimony:
“Q. [by Mr. Scotti] Now, was there any
record that you discovered during the course of
your investigation which would indicate the
amount of cash which David Walker brought to
the bank? A. [by Inspector Mullins] Yes, there
was an IRS form filled out by David Walker
indicating the amount of cash” (GJ15-16).
The following then occurred during the “cross-examination”
of Inspector Mullins before Judge Weinstein:
“Q. [by Mr. Rosen] Did you ever see that
[IRS] form? A. [by Inspector Mullins] Yes.
MR. ROSEN: I would have certainly gone
7. The nondisclosure of this 3506 material is the subject of a separate
point discussed, infra, in Point II.
14
into that, your Honor, and argued most
strenuously.
THE COURT: Yes, you would have.
[Addressing the prosecutor:] Where is that IRS
form? Why wasn’t it turned over as Brady
material?” (Tr673).
The prosecutor immediately produced the form from his files
and it was marked Exhibit 19, for identification. The form
(Tr673-674) contained Walker’s correct name and address and
social security number except for a questionable last digit. The
prosecutor argued that the form was not Brady material because
of the alleged erroneous last digit in the social security number.
Judge Weinstein rejected that argument stating:
x
“No, it does not take it out of Brady. It should
have been turned over.” (Tr678).
The court’s unequivocal finding that the document was
Brady material is revealed in the following exchange:
“MR. SCOTTI: I don’t see how it’s [the]
Brady. I don’t see how it excuipates this
defendant.
THE COURT: I believe it does.” (Tr681).
Nor can there be any question that the prosecutor was aware of
the fact that he had the form in his file at trial:
“THE COURT: How come you didn’t use it
[the form]?
MR. SCOTTI: Pardon me?
THE COURT: Why didn’t you use it?
15
MR. SCOTTI: Why didn’t I use what?
THE COURT: This evidence.
MR. SCOTTI: Well, your Honor, some
things I was hoping to save for cross-
examination.” (Tr678).*
It is respectfully submitted that the IRS form was
exculpatory, was known by the prosecutor to be in his file at
trial and was knowingly not disclosed after defense counsel had
made a demand for any information from any of the banks that
Walker dealt with (T1398).
The United States Supreme Court in United States v.
Agurs, —U.S.—, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) sets
forth various tests to be employed in determining whether there
has been a denial of a fair trial where a prosecutor fails to turn
over Brady material.
The court held that:
“Because we are dealing with an inevitably
imprecise standard, and because the significance
of an item of evidence can seldom be predicated
accurately until the entire record is complete, the
prudent prosecutor will resolve doubtful
questions in favor of disclosure. But to reiterate a
critical point, the prosecutor will not have
violated his constitutional duty of disclosure
unless his omission is of sufficient significance to
result in the denial of the defendant's right to
trial.” 49 L. Ed. 2d at 352
8. If defense counsel is held to be bound by what is commonly referred to
as “defense strategy” why should the prosecutor not be similarly bound by his
“tactics”?
16
“On the one hand, the fact that such evidence
was available to the prosecutor and not
submitted to the defense places it in a different
category than if it had simply been discovered
from a neutral source after trial. For that reason
the defendant should not have to satisfy the
severe burden of demonstrating that newly
discovered evidence probably would have
resulted in acquittal.” 41 L. Ed. 2d at 354.
* * >
“... we conclude that there is no significant
difference between cases in which there has been
merely a general request for exculpatory matter
and cases, like the one we must now decide, in
which there has been no request [for Brady
material] at all.” 49 L. Ed. 2d at 351-352.
* * od
“It necessarily follows that if the omitted
evidence creates a reasonable doubt that did not
otherwise exist, constitutional error has been
committed....if the verdict is already of
questionable validity, additional evidence of
relatively minor importance might be sufficient to
create a reasonable doubt.” 49 L. Ed. 2d at 355.
Furthermore, the Second Circuit Court has stated:
“If the prosecutor has intentionally suppressed
evidence whose high value to the defense could
not have escaped his attention, a new trial is
warranted if the evidence is merely material or
favorable to the defense. E.G. United States v.
Kahn, 472 F.2d 272, 287 (2nd Cir.); cert. denied,
17
411 U.S. 892 (1972); United States v. Keogh, 391
F.2d 138, 146-147 (2nd Cir. 1968). If, on the
other hand, the government’s failure to disclose is
merely inadvertent or negligent, a new trial is
required only if there is a ‘significant chance that
this added item, developed by skilled counsel as it
would have been, could have induced a
reasonable doubt in the minds of enough jurors
to avoid a conviction.’ United States v. Rosner,
516 F.2d 269, 273 (2nd Cir. 1975); United States
v. Scijo, 514 F.2d 1357, 1364 (2nd Cir. 1975);
Grant v. Alldredge, 498 F.2d 376, 380 (2nd Cir.
1974); United States v. Miller, 411 F.2d 825, 832
(2nd Cir. 1969).” United States v. Morell, 524
F.2d 550, 553 (2nd Cir. 1975).
We are faced with a situation wherein the prosecutor
knowingly failed to disclose material in his possession which was
unquestionably favorable to the defense. Utilizing the teachings
of Agurs and Morell, supra, the conclusion is inescapable that
constitutional error was committed which warrants a new trial.
The value to the defense of presenting the IRS form to the
jury must be noted here.’ While the defense portrayed Walker’s
actions in the post-September 22 period as being open rather
than surreptitious, it would have been strenuously urged that his
reporting of the $100,000 cash transaction to IRS displayed such
a total lack of consciousness of guilt that the government's
hypothesis that the cash had been stolen from the mails would
have been seriously undermined.
Had defense counsel been able to argue this to the jury, we
9. Despite the court’s expressed findings before the verdict that the form
should have been turned over (Tr678) and that it was exculpatory (Tr681),
immediately after the verdict was returned, Judge Weinstein,
uncharacteristically did a complete turn around and held that the Brady
argument “was without any substance at all.” (Tr699).
submit that this Court could clearly find that a different verdict
would have been reached in that a reasonable doubt would have
been created. United States v. Miller, 411 F.2d 825 (2nd Cir.
1969).
Defense counsel reiterated this argument in the post-trial
motion to set aside the verdict. Furthermore the statements of
eleven jurors were presented to the trial court (136a-148a).'° These
statements revealed that had the IRS form been made known to
them, even the stricter test of Agurs would have been met in that
the evidence would have been of such substance as to create a
“reasonable doubt” as to the appellant’s guilt. 49 L. Ed. 2d,
supra, at 354-355. It is to be noted again, however, that under
the authority of the Second Circuit, “a new trial is warranted if
the evidence is merely material or favorable to the defense,”
(Morell, supra) if the prosecutor was aware of such highly
probative material.
The jurors’ statements indicated that had they known of the
form, (a) it would have made a difference in the deliberations
and verdict of six jurors; (b) it might have made a difference in
the deliberations and verdict of four jurors; and (c) it could have
made a difference in the deiiberations and verdict of one juror.
In Agurs, this court held that:
“if there is no reasonable doubt about guilt
whether or not the additional evidence is
considered, there is no justification for a new
trial. On the other hand, if the verdict is already
of questionable validity, additional evidence of
relatively minor importance might be sufficient to
create a reasonable doubt.” 49 L. Ed. 2d at 355.
In the instant case, the entire testimony took three trial days
10. In order to insure openness an application had been made to Judge
Weinstein to examine the jurors.
19
while the jury deliberated two days.'' Clearly the jury was not
overwhelmingly convinced of the petitioner’s guilt. We submit
that had the defense been able to present the IRS form to the
jury whether the court applied the “reasonable doubt” standard
of Agurs or the “material and favorable” standard of Morell, the
result would have been different.
As stated above, the statements of eleven jurors were
presented to Judge Weiristein who rejected them under the
theory of Rule 606(b) of the Federal Rules of Evidence:
“(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the course
of the jury's deliberations or to the effect of
anything upon his or any other juror’s mind or
emotions as influencing him to assent to or
dissent from the verdict or indictment or
concerning his mental processes in connection
therewith, except that a juror may testify on the
question whether extraneous prejudicial
info: mation was improperly brought to the jury’s
attention or whether any outside influence was
improperly brought to bear upon any juror. Nor
may his affidavit or evidence of any statement by
him concerning a matter about which he would
be precluded from testifying be received for these
purposes.” (Emphasis supplied.)
We submit, however, that consideration of these statements
by the jurors is in no way violative of Rule 606(b). The rule is
directed toward preventing an invasion into the jury room to
ascertain on what basis a defendant is convicted or what may
have led a jury to convict. As the rule states, a juror may not
11. in Agurs, the jury was out about 25 minutes.
20
testify as to his “mental process” in arriving at a verdict. There is
nothing in this case to suggest that this is what the appellant is
trying to do. What in fact was shown was that the failure of the
government to provide the form to the defense did result in a
denial of due process and that the petitioner, in all likelihood,
would not have been convicted had this information been
imparted to the jury.
“The purpose of the duty is not simply to correct
an imbalance of advantage, whereby the
prosecution may surprise the defense at trial with
new evidence, rather, it is also to make the trial a
search for truth informed by all relevant material,
much of which, because of the imbalances in
investigative rescurces, will be exclusively in the
hands of the government.” United States v.
Bryant, 439 F.2d 642, 648 (D.C. Cir. 1971).
The failure to disgorge the IRS form was constitutional
error which denied petitioner a fair trial.
The prosecution’s failure to turn over the primary case
agent’s grand jury testimony was grounds for a mistrial.
On the morning of the second day of jury deliberation the
prosecutor delivered to defense counsel for the first time a copy
of Agent Mullins’ grand jury testimony (GJI-19). Mullins, the
case agent, had been called as a government witness. We submit
that the prosecutor’s failure to properly turn over such testimony
and the trial court’s refusal to grant a mistrial constitutes
reversible error. The court sternly rebuked the prosecutor,
stating that such procedure was to gain “tactica! advantage” and
evidenced “sharp practice by the Government.” (Tr634).
21
Instead of granting the mistrial, the court directed counsel
to cross-examine Agent Mullins outside of the presence of the
jury to see of what use the 3500 material could have been. Had
counsel been able to employ this material before the jury, the
following would have been shown:
A. At GJll-12 of Mullins’ grand jury testimony, he
testified that the parcels came to rest in the registry room at
“4:30 in the morning of September 22, 1975.” Without question,
the defense would have brought before the jury the fact that the
exact arrival time of the parcels was ascertained to be 4:30 a.m.
Records of the post office revealed that Walker had gone to
lunch between 4:00-4:30 a.m. on September 22, 1975; Helton
and Marchione between 4:32-5:02 a.m.
Marchione testified that Walker came up to the swingroom
“between 4:00 and 5:00 in the morning” apparently to elicit
Marchione’s aid in committing the theft. Helton testified “Dave
came over to [me] in the morning, after lunch and asked me if I
had heart, this was some time after 5 o'clock” (Emphasis
added.)
Had the defense been apprised of the fact that Inspector
Mullins had ascertained the exact time the parcels arrived in the
registry room, the defense would have argued to the jury: (1) the
parcels came in at the time Walker was returning from lunch
and Marchione and Helton were leaving for lunch; (2) Walker
could not have known that Helton would have been able to
make up her bag until after she returned from lunch at 5:02, thus
it would be improbable that Walker went up to see Marchione
in the swingroom while Marchione was on his lunch hour
between 4:32-5:02. In other words, until he knew that Helton
“had heart,” he wouldn’t enlist Marchione’s aid; (3) additionally,
the defense would have argued to the jury that since the parcels
did not arrive until 4:30 it would have been impossible for the
crime to have been committed as Marchione testified. He said
22
Walker went up to the swingroom between 4-5. Since Marchione
was in the swingroom on his lunch break (4:32-5:02 a.m.) the
documentation shows that Walker could not have been upstairs
during that period of time.
The record reveals that when employees go to lunch they
punch in and out. Marchione testified that when anybody on the
first floor goes upstairs to the swingroom, they have to punch
out. The records of time worked show clearly that Walker did
not punch out after he returned from lunch at 4:30. In other
words, if the parcels came in at 4:30 (the exact time Walker
returned from lunch) and if he in that instant discovered their
arrival, he would have had to punch out to go upstairs to the
swingroom to enlist Marchione’s aid.
Thus, the defense would have projected these arguments to
the jury in an attempt to strike directly at the witness’ story of
how the crime occurred. We submit that those arguments are
sufficient to raise a reasonable doubt as to petitioner’s guilt.
B. At p. GJ10 of Inspector Mullins’ testimony before the
grand jury the following occurred:
“Q. [by Mr. Scotti] Were these registered
parcels? A. [by Inspector Mullins] These were
insured parcels coming into the United States.
The procedure at Kennedy Airport is that insured
parcels from Italy are entered to the registry
section.” (Emphasis added.) See, also, GJ10 of
grand jury testimony of Inspector Mullins of
August 17, 1976.
After the grand jury testimony had been furnished to the
defense and the court directed cross-examination of Inspector
Mullins it was established that in fact we were not dealing with
registered parcels at all, but with insured parcels. It then became
23
known that a Mrs. Samuels was the postal employee specifically
assigned to open insured mail bags (Tr640):
“Q. [by Mr. Rosen] Let me ask you this,
again, Inspector. Isn't it a fact that the person in
Kennedy Aijrport, building 179 who handles
insured parcels of high value ... makes up his
own mail sack as opposed to somebody in the
registry room like Helen Helton? A. [by
Inspector Mullins] It can be done if it’s
recognized as high value. Sometimes they do not
make these dispatches.” (Tr642).
Although Inspector Mullins insisted that insured parcels of
high value from Italy are treated like registered mail — a fact
which we would have contested — the record reveals that: (1)
the trial concerned the handling of registered mail; (2) Helton
testified that she would obtain insured parcels “at a certain time
of day”; (3) postal employees Horowitz and Campbell were the
only veople who determine valuables.
Thus, had Inspector Mullins’ grand jury testimony been
furnished to the defense during the trial, instead of after the
trial, the defense would have called Mrs. Samuels to contradict
the government’s argument and witnesses in their position that
registered and insured mail from Italy are handled in the same
way and the defense would have argued to the jury:
(1) Helton did not make up the parcels allegedly stolen;
(2) These insured parcels allegedly from banks would have
gone to Mrs. Samuels, not employees Horowitz or Campbell;
(3) Insured parcels determined to be of high value would
have been dispatched by Mrs. Samuels out of the vault area
directly to a convoy and not passed on to Helton; and thus
24
(4) Helton’s testimony was false and should have been
known to be such by the government.
We respectfully submit that the above arguments would
have been vital to the defense to have impeached Helton’s
testimony and to have argued that the crime charged could not
have happened. The failure to disclose that information which
was contained in Mullins’ grand jury testimony deprived Walker
of a fair trial.
It also bears repeating that had Mullins’ grand jury
testimony been turned over after his direct examination, the
defense would then have learned of the existence of the IRS
form.
The court found that the failure to turn over the testimony
was not inadvertent. !?
Upon motion for a new trial at the time of sentencing, the
court found that the post-summation cross-examination of
Agent Mullins revealed nothing helpful to the defense primarily
because the petitioner was an “extremely experienced
supervisory employee” (SM7), thus reasoning that Walker knew
what Mullins had unearthed in his investigation. There is
nothing in the record to support this conclusion. Walker, it must
be noted, on the morning in question, was not assigned to his
12. “MR. SCOTTI: For the record, there is no question
about the fact that | should have given Mr. Rosen the
Grand Jury testimony of Mr. Mullins. There is no question
about that. | was wrong... . I do take exception to your
Honor’s characterization of it as a tactic. It was not done
intentionally. It was not done willfully. It was not done with
any intent to gain any kind of advantage. It was completely
inadvertent because of the circumstances of what was going
on at the time.
THE COURT: I don't z gree.” (Tr684-685).
25
normal post, but had replaced the supervisor in the Registry
Section, who was absent on annual leave.
A new trial should have been granted to permit defense
counsel to cross-examine Agent Mullins as to his grand jury
testimony and to allow Mrs. Samuels to be called to show that
insured mail could not have been removed the way the
government suggested.
In effect, the trial court withheld the 3500 material by
denying defense counsel the opportunity to employ it before a
jury. The trial court may not withhold 3500 material by
determining that statements contained therein are consistent
with a witness’ testimony. Whether such statements tend to
impeach a government witness is within the province of the
defense to decide. Banks v. United States, 348 F. 2d 231 (8th
Cir. 1965); United States v. McCarthy, 292 F. Supp. 937
(S.D.N.Y. 1968). The law in the Second Circuit is clearly
inapposite of what Judge Weinstein determined at the time of
trial.
“The 1970 amendment to the Jencks Act, 18
U.S.C. §3500(e)(3), which codified this Court’s
holding in United States v. Youngblood, 379
F.2d 365 (2nd Cir. 1965), entitles a defendant to
the grand jury testimony of a government trial
witness without any preliminary inspection for
usefulness by the trial judge.” United States v.
Ramirez, 482 F.2d 807, 813 (2nd Cir. 1973), cert.
denied., 414 U.S. 1070.'3
By requiring trial counsel to demonstrate what he might
13. Although defense counsel did not move for the delivery of 3500
material as the direct testim’ y of each government witness was concluded,
because of the practice *’ . this material was automatically delivered
throughout the trial, Judge “einstein absolved defense counsel of the motion
requirement (SM9-10).
26
have done with the 3500 material before a jury, not only was the
trial court imposing its own mind into what a jury might have
found, but also, by not permitting such information to go before
the jury, severely limited the petitioner’s right to confrontation
as guaranteed by the Sixth Amendment.
“It is the essence of a fair trial that
reasonable latitude be given the cross-examiner
even though he is unable to state to the court
what facts a reasonable cross-examination might
develop. Prejudice ensues from a denial of the
opportunity to place the witness in his proper
setting and put the weight of his testimony and
his credibility to a test, without which the jury
cannot fairly appraise them .. . [citations] to say
that prejudice can be established only by showing
that the cross-examination, if pursued, would
necessarily have brought out facts tending to
discredit the testimony in chief, is to deny a
substantial right and withdraw one of the
safeguards essential to a fair trial. [citations]”
Alford v. United States, 282 U.S. 687, 692, 51
S.Ct. 218, 75 L. Ed. 624 (1931), see also Smith v.
Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d
956 (1968).
CONCLUSION
For these various reasons, certiorari should be granted to
review the judgment of the Second Circuit.
Respectfully submitted,
s/ Roy Raymond John Kulcsar
SAXE, BACON & BOLAN, P.C.
Attorneys for Petitioner
APPENDIX
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT DATED JUNE 22, 1977
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Terrh of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the twenty-second day of June one
thousand nine hundred and seventy-seven.
Present:
HON. WALTER R. MANSFIELD
HON. MURRAY I. GURFEIN
HON. ELLSWORTH A. VAN GRAAFEILAND
Circuit Judges,
United States of America,
Plaintiff- Appellee
Vv.
David Walker, Helen A. Helton,
Rosario H. Marchione,
Defendants
David Walker,
Defendant-Appellant. 77-1176
Appeal from the United States District Court for the
Eastern District of New York.
2a
Order of the United States Court of Appeals for the Second
Circuit Dated June 22, 1977
This cause came on to be heard on the transcript of record
from the United States District Court for the Eastern District of
New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgment of said
District Court be and it hereby is affirmed.
A. DANIEL FUSARO
by Clerk
Arthur Heller
Deputy Clerk
\
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
Second Circuit
At a Stated Term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York. on the 7th day of July, one
thousand nine hundred and seventy-seven.
United States of America,
Plaintiff-Appellee
Vv.
David Walker, Helen A. Helton,
Rosario R. Marchione,
Defendants
David Walker,
Defendant-Appellant.
3a
Order of the United States Court of Appeals for the Second
Circuit
It is hereby ordered that the motion made herein by counsel
for the appellant by notice of motion dated June 24, 1977 to stay
issuance of the mandate pending application to the Supreme
Court of the United States for a writ of certiorari pursuant to
Rule 41(b) of the Federal Rules of Appellate Procedure be and it
hereby is denied.
s/ Wm. H. Mulligan
William H. Mulligan
s/ Murray I. Gurfein
Murray I. Gurfein
s/ E. Van Graafeiland
Ellsworth Van Graafeiland
Circuit Judges
INDICTMENT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
-against-
DAVID WALKER, HELEN A. HELTON and ROSARIO R.
MARCHIONE,
Defendants.
Weinstein, J.
Cr. No. 76 CR 547
(T. 18, U.S.C., §§1709, 371 and 2)
8/25/76
4a
Indictment
THE GRAND JURY CHARGES:
COUNF ONE
On or about September 22, 1975, at the Registry Section,
Building 179 of the Airport Mail Facility, John F. Kennedy
International Airport, within the Eastern District of New York,
the defendant DAVID WALKER, while employed as a
Foreman of Mails, United States Postal Service, the defendant
HELEN A. HELTON, while employed as a Clerk, United States
Postal Service and the defendant ROSARIO R. MARCHIONE,
while employed as a Transfer Clerk, United States Postal
Service, did knowingly and wilfully embezzle twelve (12) parcels
of mail which came into their possession intended to be
conveyed by mail, ten (10) of said parcels addressed to the Irving
Trust Company, New York, New York and two (2) of said
parcels addressed to the Chase Manhattan Bank, New York,
New York, which parcels contained approximately Eight
Hundred Thousand Dollars ($800,000.00) in United States
Currency, (Title 18, United States Code, Sections 1709 and 2).
COUNT TWO
From on or about and between September |, 1975 to May
31, 1976, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants
DAVID WALKER, HELEN A. HELTON and ROSARIO R.
MARCHIONE did knowingly, wilfully and unlawfully conspire
and agree to commit an offense against the United States in
violation of Title 18, United States Code, Section 1709 by
conspiring to embezzle, steal, abstract and remove a registered
mail bag containing twelve parcels of mail from the Registry
Section, Building 179 of the Airport Mail Facility, John F.
Kennedy International Airport, which had been entrusted to
them as Postal Service employees and had come into their
possession intended to be conveyed by mail.
Sa
Indictment
In furtherance of said unlawful conspiracy and to further
the objects thereof, the defendants DAVID WALKER, HELEN
A. HELTON and ROSARIO R. MARCHIONE did commit the
following:
OVERT ACTS
1. On or about September 22, 1975, at the Registry Section,
Building 179 of the Airport Mail Facility, John F. Kennedy
International Airport, the defendant HELEN A. HELTON
prepared a bag of registered mail containing twelve parcels.
2. On or about September 22, 1975, at Building 179 of the
Airport Mail Facility, John F. Kennedy International Airport,
the defendants DAVID WALKER and ROSARIO R.
MARCHIONE took the bag of mail described in paragraph |
above and placed it in a mail truck with empty mail sacks.
3. On or about September 22, 1975, within the Eastern
District of New York, the defendant DAVID WALKER gave
approximately Two Hundred Thousand Dollars ($200,000.00) to
the defendant HELEN A. HELTON.
4. On or about September 22, 1975, within the Eastern
District of New York, the defendant DAVID WALKER gave
approximately Thirty Thousand Dollars ($30,000.00) to the
defendant ROSARIO R. MARCHIONE.
5. On or about May 17, 1976, the defendants DAVID
WALKER and HELEN A. HELTON drove from Queens, New
York to Granville, New York. (Title 18, United States Code,
Section 371).
A TRUE BILL
6a
Indictment
S/ David G. Trager by TPP
DAVID A. TRAGER
United States Attorney
Eastern District of New York
JUDGMENT AND COMMITMENT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Docket No. 76CR-547
Defendant: DAVID WALKER
In the presence of the attorney for the government the defendant
appeared in person on this date: 3/11/77
With Counse!: Michael Rosen
There being a verdict of: Guilty.
Defendant has been convicted as charged of the offenses of
violating Title 18 U.S.C. §§ 371, 1709 and 2, in that from on or
about and between Sept. 1, 1975 and May 31, 1976, both dates
being approximate and inclusive, within the Eastern District of
New York and elsewhere, the defendant and others did
knowingly conspire to embezzle a registered mail bag which had
been entrusted to them as Postal Service employees, and that on
or about Sept. 22, 1975, the defendant and others did knowingly
and willfully embezzle twelve parcels of mail.
The court asked whether defendant had anything to say why
judgment should not be pronounced. Because no sufficient cause
to the contrary was shown, or appeared to the court, the court
adjudged the defendant guilty as charged and convicted and
ordered that: The defendant is hereby committed to the custody
7a
Judgment and Commitment
of the Attorney General or his authorized representative for
imprisonment for a period of: 3 years on each of counts | and 2
to run concurrent — and fined $2,000 on count | and fined
$10,000 on count 2 to run consecutive for a total fine of $12,000
to be paid within 30 days. Stay of execution of sentence granted
pending appeal.
FILED
in Clerk’s Office
J.S. District Court E.D. N.Y.
Mar 11 1977
s/ Jack B. Weinstein
U.S.D.J.
3/11/77
EXCERPTS OF TRIAL TRANSCRIPT DATED JANUARY
4-5, 1977
[Commencing at page 357]
“EDMUND H. MULLINS, called as a
witness having been first duly sworn by the Clerk
of the Court, testified as follows:
DIRECT EXAMINATION
BY MR. SCOTTI:
Q. Mr. Mullins, you are a postal inspector
employed by the U.S. Postal Service, are you
not, sir? A. Yes, sir.
Q. Do you have any particular duty
station? A. I am stationed at the airport mail
facility at Kennedy Airport.
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Do you specialize in any particular kind
of postal investigation? A. | am an internal
theft specialist.
Q. Please explain what internal theft
specialist means? A. | investigate crimes alleged
to have been committed withing [sic] the post
office.
Q. Now, you are the case agent on this case
before this jury on trial, is that right? A. Yes.
Q. Will you explain to us what a case agent
is? A. A case agent is the postal inspector to
whom the investigation is assigned, the person
responsible for coordinating the entire
investigation.
[358] Q. Did there come a time, Inspector
Mullins, when you met Anthony Shortt or Tony
Shortt? A. Yes.
Q. When was that, sir? A. I met Anthony
Shortt cn September 7, 1975.
THE COURT: I would like counsel to come
to the side bar. I don’t know where this is going.
(Side bar discussion out of hearing of the
jury as follows)
THE COURT: What do you expect to
prove?
9a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: After he met Shortt, what
action he took to explain the surveillance, to
explain, Mr. Rosen is mentioning cameras,
surveillance camera that nobody was surveilling
THE COURT: No.
MR. SCOTTI: I can’t bring out the fact that
the cameras were not working on September 22?
THE COURT: No.
MR. SCOTTI: Will he be precluded in
making that argument on summation?
MR. ROSEN: I will ask him if he saw
someone.
THE COURT: You can ask him if the
cameras were in operation. What else?
MR. SCOTTI: Let me get my notes. When
they [359] received notificaition [sic] of the losss
[sic] of these parcels.
THE COURT: No. What else?
MR. SCOTTI: It is not hearsay, it is a
document kept in the normal course of business.
THE COURT: It is not reievant.
MR. SCOTTI: It is. He will argue in
summation they watched him all during this
10a
Excerpis of Trial Transcript Dated January 4-5, 1977
period of time. We didn’t know there was a loss
unitl [sic] January.
THE COURT: Are you going to argue that?
MR. ROSEN: | will argue that he was
under surveillance in September.
THE COURT: You can introduce that.
What else?
MR. SCOTTI: As to the fact why there was
no surveillance on September 22, 1975, the day in
question.
THE COURT: Why?
MR. SCOTTI: There was no surveillance
because Walker was the supervisor and was only
shifted over to the department because the
supervisor was sick and number two, Tony
Shortt was not working at the time.
THE COURT: All right. Make it brief.
MR. SCOTTI: I couldn't ask him about the
surveillance?
THE COURT: No.
MR. SCOTTI: Just by way of explanation?
[360] THE COURT: Yes, just what I said.
(In hearing of the jury as follows)
Excerpts of Trial Transcript Dated January 4-5, 1977
BY MR. SCOTTI (Cont'd):
Q. Inspector Mullins, with regard to the loss
of the 12 parcels of mail that has been discussed
during this trial, when did the postal service
receive notification that any of these parcels were
missing? A. The case was jacketed for
investigation on January 8, 1976.
Q. When — does that indicate that the
postal inspectors service was notified on that
date? A. It may have been notified a day
earlier, but that was the date the case was
jacketed. We received our notifications of losses
from the Claims and Inquiry Section, then we
jacketed a case.
Q. Now, were there cameras in operation,
surveillance cameras in operation with the
registry section on September 22,
1975? A. There were no cameras in operation at
that time. The cameras were placed, but they
were not in operation.
Q. Were they in working order? A. They
were in working order. They required to be
manually operated.
MR. ROSEN: They were or were not?
[360a] A. They were in working order. They
required to be operated manually, but nobody
was there operating them.
Q. Did these cameras have video taping
capability? A. No.
~
12a
Excerpts of Trial Transcript Dated January 4-5, 1977
[361] BY MR. SCOTTI:
Q. So they could not be set on
automatic? A. They have no automatic
capabilities.
Q. Was any kind of surveillance being
conducted of the registry section or Mr. Walker
on September 2, 1975? A. No, there was not.
Q. Was there a reason for that,
sir? A. The reason was that I was short of
manpower and I was only conducting
surveillances on the date Mr. Short [sic] and Mr.
Walker were both working at that time.
Q. Was Mr. Short [sic] working on
September 2nd? A. No, he was not.
Q. By the way, was Mr. Walker—where was
Mr. Walker supposed to be working on
September 2, 1975? A. The duty schedule
called for him to be the foreman of the foreign
dispatch area.
Q. Which would be outside the registry
section? A. That’s right.
Q. How did it come to be he was working as
foreman for the registry section? A. The
regular foreman of the registry section received
annual leave for that day.
MR. SCOTTI: Thank you, I have no
further questions.
13a
Excerpts of Trial Transcript Dated January 4-5, 1977
[362] CROSS-EXAMINATION
BY MR. ROSEN:
Q. Mr. Mullins, you’re the agent in charge
of this investigation, right? A. Yes.
Q. All steps taken with Mr. Scotti and
pursuant to this investigation have been done
through you, is that correct? A. No, not all
steps. It was a two-week period of time when I
was not on the case.
A. You were on vacation? A. I was in the
hospital
Q. You're stationed at Kennedy Airport,
this building 159 that should be familiar to you
MR. SCOTTI: 179.
Q. Building 179. A. It’s familiar to me.
Q. You were sitting here during Mr.
Marchione’s testimony about the fence, am I
right, that’s in the yard. You see this fence
(indicating)? A. Yes.
Q. How tall was that fence? A. The fence,
I believe, is six feet tall, topped with three strands
of barbed wire, | believe.
[363] Q. How high is that barbed wire; do
you have any idea, sir? A. It’s taller than the
fence.
l4a 1Sa
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Excuse me, sir? A. It’s taller than the
fence.
Q. The barbed wire is taller than the
fence? A. The barbed wire is on top of the
fence.
Q. So what are we talking about, !2 feet up
in the air? A. I’m talking about approximately
& feet high.
MR. ROSEN: Would you mark this, sir?
THE CLERK: Photo marked as Defendant
Exhibit H for identification.
(So marked.)
THE CLERK: Photo marked as Defendant
Exhibit I for identification.
(So marked.)
THE CLERK: Photo marked as Defendant
Exhibit J for identification.
(So marked.)
MR. SCOTTI: Your Honor, I have
absolutely no objection to these questions, but at
this point the witness is Mr. Rosen’s witness. I
would respectfully request to cross-examine when
he’s through.
[364] MR. ROSEN: Might I be heard, your
Honor?
THE COURT: You'll be permitted.
MR. SCOTTI: Thank you.
MR. ROSEN: Either way.
BY MR. ROSEN:
Q. Inspector, | show you what has been
marked Defendant’s Exhibit J for identification
(handing witness). Can you tell us what that
picture depicts? A. The picture depicts the
fence which you pointed out to me in blue before
on the diagram, a portion of that fence.
Q. That’s the fence at the airport that you're
familiar with? A. That’s a portion of it, yes.
Q. is that a portion — would you say it’s a
portion of the fence that’s represented by this
diagram right here where the witness drew the
truck and put the work “truck” on _ the
diagram? A. 1 can’t tell from the picture
whether it’s the same spot or not.
Q. How about Exuibit I (handing) for
identification, sir? A. Exhibit | is the portion of
that fence, again, drawn on the diagram looking
towards the old supervisors’ [365] parking area
into the corner of it, the upper right-hand corner.
Q. Is the fence visible in these two
pictures? A. Yes, it’s visible.
16a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: I wouid like to move them
into evidence. I'll show them to Mr. Scotti.
1 would represent the pictures were taken
just a couple of weeks ago. They're not back in
“ta
MR. SCOTTI: I have no objection.
THE CLERK: Defendant’s Exhibits J and I
for identification, marked in evidence.
(So marked.)
Q. Inspector, | show you what has been
marked Defendant’s Exhibit H in evidence
(handing). Is that a closer picture of the fence
that surrounds the parameter of the airport or —
the parameter, yes.
THE COURT: Perimeter.
Q. I'll represent to you that was taken at the
airport. | want to know if that’s the fence? A. I
can’t recognize from that angle. I think you're
taking it by the exit guard booth over there, but
I'm not certain by the angle of the picture.
Q. Is the fence uniform around the entire
facility? A. To the best of my knowledge,
except for the [366] gates.
MR. ROSEN: I'll move to offer that in
evidence.
17a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: Mark it.
MR. SCOTTI: Might I see it?
(Handed to Mr. Scotti.)
THE WITNESS: I would add, that photo
you're showing me is taken from a low angle.
MR. ROSEN: Ill accept that.
Q. To make it look higher? A. That's
correct.
MR. SCOTTI: Might I have a voir dire,
your Honor.
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. SCOTTI:
Q. Inspector Mullins, are you able to tell
where this fence is located from this photograph
(handing)? A. I don’t recognize the ramp, but I
haven’t been at Building 179 in a couple of
weeks. I have been here in Brooklyn in the
process of building a new express mail unit there
that may be the ramp to the new unit. I’m not
certain.
THE COURT: Was that the situation at ihe
time in question?
[367] THE WITNESS: There was a fence
18a
Excerpts of Trial Transcript Dated January 4-5, 1977
there, your Honor, but I don’t recognize the
ramp.
MR. ROSEN: I'll withdraw that one.
THE COURT: Withdraw the offer?
MR. ROSEN: Ill withdraw.
Q. Is it fair to say, Inspector, that the fence
that had the barbed wire go straight up from the
ground and then that barbed wire goes off at an
angle? A. Yes.
Q. That’s to discourage, I guess, people
from climbing over that fence. A. That’s right.
MR. ROSEN: With your Honor’s
permission, | would like to pass these two
exhibits to the jury.
THE COURT: You may.
(Said photographs were given to the jury.)
Q. Inspector, you told us on your direct
examination that there were cameras that were
working at this facility on September 2, 1975, am
1 right? A. 1 believe what I told you the
cameras were in operating condition, but they
were not working.
Q. Were there cameras up on the
wall? A. There were cameras on posts within
the registry room.
19a
Excerpts of Trial Transcript Dated January 4-5, 1977
[368] Q. On posts. This is the registry
section, right? (Indicating). A. That’s right.
Q. There are posts in this section,
right? A. Yes.
Q. How many posts? A. I can’t tell you
the number of posts in there.
A. About half a dozen?. A. About half a
dozen.
Q. On the top of each of those posts were
cameras? A. That’s not correct. I had four
cameras in the registry section.
Q. In this entire — A. In the entire
registry section.
Q. Four cameras? A. One of them is on
the wall. The other three are on posts.
Q. Did you have any cameras in the vault
room? A. Ill be happy to show you where the
cameras are if you like.
Q. That’s all right, you can answer my
question. A. I have one camera in the registry
vault room mounted on the wall facing toward
the door of the vault room.
Q. That’s a total of five cameras? [369]
A. No, that’s a total of four cameras.
20a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Four cameras?
At these two — you say they were
operational? A. They were operational.
Q. At the openings to the registry section
that you see here on your diagram with the little
dots here (indicating), the two exits, there were
guards there, isn’t that correct, on September 2,
1975? A. That’s correct.
Q. Isn’t it a fact, sir, that Mr. Walker was
under surveillance by you and your colleagues
starting in early September of 1975? A. Only
during those periods of time when he worke* in
Building 179 at that particular time.
Q. I see. Did David Walker work in places
other than 179? A. At that time? No.
Q. While he was in that building, 179,
Starting in early September, he was under
surveillance? A. Until what period of time?
Q. Let’s say until September 21. A. He
was under surveillance during those periods of
time when his schedule and that of Anthony
Short were on.
Q. He was under surveillance at least, for
some [370] period of time when he and Mr. Short
were working from early September to the 21st of
September? A. Yes.
2la
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. And then he was under surveillance at
least some period of time after the 2Ist of
September to, let’s say, when,
November? A. He was under surveillance
longer than that.
Q. How long was he under
surveillance? A. He was under surveillance
until the time he was arrested, not under
continuous surveillance, but under surveillance.
Q. By you personally? A. No, not by me
personally.
Q. Did you supervise this surveillance of
Mr. Walker? A. 1 supervised it at times.
Another inspector supervised at other times.
Q. Was he under surveillance when he was
not in the post office facility as well? A. Not at
that particular period of time.
Q. What particular period of time was he
under surveillance by you and your
colleagues? A. 1 would have to see the
documents.
MR. ROSEN: Let me _ withdraw that,
please.
[371] Q. You put bugs in his car,
sir? A. No, there were no bugs in his car.
Q. Did you put a little homing device so you
could trail him? A. Yes, I did.
22a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Did you have a mail cover on
him? A. Yes.
Q. Did you trail him up to the house where
the money was buried? A. Yes, I trailed him to
Granville, New York.
Q. When did you trail him? A. I went up
in April and I believe I went up in May.
Q. Of what year, sir, "76? A. 1976.
Q. Did you open up safe deposit
boxes? A. His safe deposit box was opened by
Court order.
Q. Were you there? A. No.
Q. One of your associates were? A. Yes.
Q. Did you go into his house in Granville,
you or your associates, sir? A. I entered his
house in Granville with a search [372] warrant.
Q. I know you did. I’m not saying there’s
anything wrong. Did you search the
house? A. Yes, I did.
Q. Were walls taken apart? A. The only
item in the entire house taken apart was the
ceiling of one closet.
Q. Were drawers opened? A. Yes, they
were.
23a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Were holes dug? A. Holes were dug —
THE COURT: Excuse me, I have a
conference.
Can you break now?
MR. ROSEN: Surely.
THE COURT: 9:40 tomorrow. Good night,
have a pleasant evening.
Don’t discuss the case.
(Jury leaves Courtroom.)
(Time noted: 4:30 o’clock p.m.)”
[Commencing at page 391]
“EDMUND H. MULLINS, having been
previously duly sworn, resumed the witness stand
and testified further as follows:
MR. ROSEN; May I have a minute? Some
papers were turned over to me by the
Government.
THE COURT: What papers?
MR. SCOTTI: Three very brief xerox
papers of some notes that he hadn’t found until
24a
Excerpts of Trial Transcript Dated January 4-5, 1977
early this morning which I just turned over to
Mr. Rosen.
CROSS-EXAMINATION
BY MR. ROSEN: (continued)
Q. Good morning, Inspector
Mullins. A. Good morning.
Q. When we left off yesterday I was asking
you about various activities by the postal
inspectors regarding the surveillance of Mr.
Walker; do you recall that? A. Yes.
Q. And just to get us back to where we
were, | was also asking you about certain
activities regarding the investigation of Mr.
Walker? Do you recall that? A. Yes.
Q. All right. Now —
MR. ROSEN: Your Honor, I am prepared
to stipulate, to save time, that what the inspectors
did [392] was under Court order, so that we don’t
have to — the opening of Mr. Walker’s safe
deposit box, | will concede was done with Court
order; the putting in of a bug in the car, | will
concede —
MR. SCOTTI: It was not a bug, your
Honor. It was a tracking device.
MR. ROSEN: I am sorry. A transmitter.
That was with a Court order. The mail cover was
done with a Court order. And the entrance into
25a
Excerpts of Trial Transcript Dated January 4-5, 1977
Mr. Walker’s home upstate and the search was
done with a Court order.
MR. SCOTTI: For the record, your Honor,
the mail cover did not involve a Court order. The
regulations of the Postal Service and the law does
not require a Court order for a mail cover. But it
was obtained in the normal course with the
normal authorization and approval.
THE COURT: That’s just making a record
of the mail he received.
MR. SCOTTI: What it entails is the
Postmaster at the Post Office just records the
sender of the letter and reports that and then
sends the letter on. He doesn’t open the letters or
anything like that.
THE COURT: All right.
[393] Q. Inspector, when you — when you
and your agents or associates hit Mr. Walker's
safe deposit box, did you find any money in
there? A. There was nothing in the safe deposit
box when it was opened.
Q. Did you open it? A. No, I did not.
A. One of the people under your command
opened it? A. Yes.
Q. And reported to you that there was
nothing in the safe deposit box? A. That’s
correct.
26a 27a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT; Excuse me. It was literally
empty?
THE WITNESS: It was empty.
Q. Did you make a report of that? A. The
warrant was returned to the U.S. Magistrate that
» issued it.
Q. There are no reports of that, are there to
your knowledge? A. I don’t understand.
Q. Well, did somebody make a report to
you as the agent in charge of the
investigation? A. 1 was told by _ Inspector
Renzulli that the box was empty.
[394] Q. There’s no written report? A. It’s
a matter of written record on the search warrant.
Q. I don’t understand that. Is there a written
report? A. I don’t know if it’s in any written
reports.
Q. To your knowledge there is no written
report? A. | don’t know if it’s in any written
report.
Q. Well, if there was a report, it would go to
you as the case agent; am I right, sir? Asif there
was a report written on it, | would have written
it. | don’t remember.
Q. Okay. What was found in the house
upstate in Granville when you and your
.*
associates broke into the house?
MR. SCOTTI: Excuse me. | have two
objections.
Number one, the question is too broad. And
1 object to broke into the house after Mr. Rosen
said it was done with a Court order.
THE COURT: All right.
MR. ROSEN: I will withdraw it.
Q. Let me ask you this. Were you up in
Granville at Mr. Walker’s house to search the
house? A. Yes, I was.
Q. Did you forcibly enter the house by
breaking a [395] lock? A. I did not.
Q. How did you get into the
house? A. The lock was picked.
Q. Oh, picked the lock. But you had a
Court order to do that, I understand; is that
correct? A. That’s correct. I had a search
warrant.
Q. You have a search warrant.
By the way, were photographs taken by you
or your associates of what Mr. Walker’s house
looked like before you started to search it and
what it looked like after you started to search
28a
Excerpts of Trial Transcript Dated January 4-5, 1977
it? A. There were photographs taken of the
house prior to the search. The reason the
photographs were taken was that there had been
what appeared to be an attempted forced entry.
There was a shovel on the deck of the house
below a window next to the door. And it
appeared as though someone had attempted to
pry the window off the house with a shovel. It
was an open window on the side of the house and
for this reason the photographs were taken.
Q. I didn’t ask you why. But there were
photographs? A. There were photographs
taken.
Q. May I have the photographs? A. The
photographs were taken by the New York State
[396] Police and I do not have the photographs.
Q. Well, were you in the house? A. Yes, I
was.
Q. Were you outside the house? A. Yes, I
was.
Q. Did you supervise the search? A. Yes, I
did.
Q. Did you supervise the taking down of the
ceiling panels? A. 1 took down the ceiling
panels myself.
Q. You took it down yourself.
29a
Excerpts of Trial Tre ascript Dated January 4-5, 1977
Did you do any digging in the
house? A. Yes.
Q. Around the side of the
house? A. There was digging done around the
outside of the house.
MR. ROSEN: I'm afraid I'll have to mark
these, your Honor, for identification.
THE COURT: Well, what are they?
MR. ROSEN: Pictures of the house. |
represent they are pictures of the house.
THE COURT: All right. Put them all in one
envelope. Mark them in evidence.
Q. After the search —
[397] THE COURT: You understand, we
are not trying the agents here to determine
whether they conducted the search in a proper
way.
MR. ROSEN: I am not making any claim
that they didn’t your Honor. I am not making
that claim.
THE CLERK: Defendant’s Exhibit V
marked in evidence and placed in a brown
envelope.
(So marked.)
Wa
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: Marked in evidence, your
Honor?
THE COURT: Yes.
MR. SCOTTI: May I see them, please?
THE COURT: Certainly.
Q. What I am — what I am trying to do is,
determine the extensiveness of the search. | am
not claiming that you did anything illegal, but
how extensive was the search of Mr. Walker’s
house and the surrounding land. Would you say
it was an extensive search? A. It was an
extensive search of the house. The search of the
land surrounding the house was not extensive.
Q. What did you find in the house that
would be pertinent to your investigation of this
theft? A. I found nothing in the house pertinent
to this theft.
Q. As a matter of fact, Inspector, under
your [398] supervision bank records of Mr.
Walker were subpoenaed; isn’t that
correct? A. That's correct.
MR. SCOTTI: Excuse me. For the record, I
would object to the introduction of these
photographs into evidence. We don’t know when
they were taken or what it relates to.
THE COURT: Well, it was taken of the
house.
3la
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: I don’t know when, by
whom.
THE COURT: After the search.
MR. SCOTTI: Or what the circumstances
were.
MR. ROSEN: Could I have —
Q. Did you receive any information from
any of the banks that Mr. Walker did business
with? A. Yes, I did.
MR. ROSEN: May I have that, please, Mr.
Scotti?
MR. SCOTTI: Do you want the
information?
MR. ROSEN: I want whatever you ve got,
yes.
Your Honor, now receiving material for the
first time. May I?
MR. SCOTTI: I object to this. I object to
this. Mr.Rosen has never made any request for. it.
He waits until he’s in front of the jury to make
the request. The Government has made repeated
requests for [399] reciprocal information which
he has refused.
THE COURT: Excuse me. What are these?
32a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: Records of information
turned over by the Government from Mr. Walker
and bank accounts.
MR. SCOTTI: Your Honor, this is a
summary which was prepared by the
Government’s auditor, the postal inspector
auditor of the information we received from
banks. That is a Government work product. If
Mr. Rosen wants the raw files, I will have to dig
through each one of the bank files and give it to
him.
[400] CROSS EXAMINATION
BY MR. ROSEN: (Continued.)
THE COURT: Mark it for identification. It
seems to me to be essentially work product
information otherwise available to the defendant.
Return it to the Government.
MR. ROSEN: Thank you, your Honor.
THE CLERK: Government Exhibit 18
marked for identification.
(So marked.)
Q. Did there come a time, Inspector, that
you took the box Mrs. Helton gave you, that
metal box, and submitted it for fingerprint
analysis? A. The box was submitted for
fingerprint analysis. However, I didn’t bring it
down.
33a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Did you also submit the $144,000 Mrs.
Helton gave you for fingerprint and palmprint
analysis? A. Yes, I did.
Q. How about the cardboard box Mrs.
Helton gave you, is that also submitted for
fingerprint and palm print analysis? A. I
believe the cardboard box was also submitted.
Q. Were requests made to the laboratory to
compare prints with those of David
Walker? A. The request was made to compare
the prints of [401] David Walker, Helen Helton
Q. Would you please answer my question,
Inspector? A. I'm trying to answer your
question.
MR. ROSEN: Let me withdraw it and ask it
again.
Q. Was any request made by you to the
laboratory to compare the prints found on any of
those three items with the palm prints and
fingerprints of David Walker, yes or no,
please? A. I can’t answer that with a yes or no.
Q. Inspector, how long have you been with
the Post Office? A. Approximately 6 years.
Q. How long have you been an
Inspector? A. Approximately 6 years.
34a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Can you tell this jury whether you made
a request that David Walker’s palm prints and
fingerprints be compared to those which were
found on the metal box, the carboard [sic] box or
the money; did you make any such
request? A. Limiting it to David Walker?
Q. Including David Walker. A. Including
David Walker?
Q. Yes, sir. A. Yes.
Q. Tell His Honor and the jury whether any
of the [402] prints found on any of those items
compared to those of David Walker, yes or
no? A. They did not.
Q. They did not compare? A. They did
not compare.
Q. Did you or any of the agents working
under you seize Mr. Walker’s white
Jaguar? A. Yes.
Q. And conduct a search of the
Jaguar? A. Yes.
Q. Did you find any of the money allegedly
missing in that Jaguar? A. No.
Q. Do you still have the Jaguar under your
control? A. Yes
Q. Did you take sets of keys from David
Walker when you arrested him? A. Yes.
35a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Were any of those keys the keys of a
safety deposit box? A. I don’t recall without
looking at the inventory. I believe one was a
safety deposit box key.
Q. Did you find the safe deposit box which
that key represented? [403] A. No, I did not.
Q. Did you look? A. Yes, I did.
Q. Do you have the key here? A. I believe
I do, yes.
MR. ROSEN: Might I have those keys that
were seized from Mr. Walker at the time of his
arrest?
MR. SCOTTI: The agent would have to
come down.
MR. ROSEN: I'll pass on that now.
Q. In all of the searching through boxes,
through the house, the car, did you ever locate
any money which you claim was stolen from
Kennedy Airport, building 179, on September 22,
1975? A. No.
Q. | believe you told His Honor and the
jury at the very beginning of your testimony that
you were in charge of investigating crimes in the
Post Office? A. At Kennedy Airport.
Q. At Kennedy Airport.
36a
Excerpts of Trial Transcript Dated January 4-5, 1977
Maybe we can save time by asking you these
questions, Inspector. Do you know of your own
knowledge as, I guess, a criminal investigator at
the Airport, how many security personnel were
on duty at or around building 179 on September
22, 1975, let’s say between the hours of 5:00 and
[404] 7:00 in the morning? A. On actual post or
including the control room?
Q. Including everybody that was a security
guard who reported for work that day. A. I can
look at the documents and tell you.
Q. | would appreciate that. A. I have —
Q. You have no idea, is that what your
testimony is, that you have no idea — A. My
testimony is I'll look at the documents and tell
you exactly how many.
MR. ROSEN: With the Court’s permission
THE COURT: Are they here?
THE WITNESS: Yes.
MR. ROSEN: That will save a _ whole
witness, your Honor.
THE WITNESS: Yes.
(Witness leaves stand.)
(Witness resumes stand.)
ponee ee ee
37a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Do you need some time to look at
it? A. Just a few seconds.
Q. Yes, sir? A. There were 18 security
officers on duty at JFK including all of the
buildings.
Q. There are four buildings? [405]
A. Well, three buildings.
Q. Let’s reconstruct it, if we might,
Inspector, to this chart which is Government
Exhibit 5. Will you tell His Honor and the jury
how many of those 18 were working in or about
the registry section, this flight deck, or any other
place represented by this chart on September 22,
1975 at approximately 5:00 in the morning to
7:00 in the morning? A. Ill show on this chart,
but I also have to use the other chart.
MR. ROSEN: Would your Honor mind if
the witness came down, without seeking to
destroy the chart further, perhaps put a mark
where the security personnel are?
THE COURT: Take a red pencil or other
color.
(Witness leaves stand.)
THE COURT: What are you using?
THE WITNESS: A red felttip pen.
A. This is one security force post located
38a 39a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
here at the exit from the registry room. On
September 22, 1975, there was also a security
police officer assigned to this exit (Indicating.).
THE COURT: The witness is marking the
chart with X’s.
A. There is a security police office assigned
to the airline platform. There is a security police
officer [406] that has an assigned post outside
this portion indicated as the receiving unit
(Indicating). That’s all | can show on this chart.
Q. On that cliart. So there would be four on
that chart? A. That’s correct.
Q. Inspector, | don’t want to get picky with
you, but you kept marking X’s by exits. See these
two exits here? Actually you mean there’s a
security officer right by the exit, not the way
down here? A. What I mean, he’s not required
to — his area may include this area. He’s free to
walk around in the area if he wishes.
Q. With the Court’s permission, would you
show us on Exhibit 15 in evidence where other
security personnel would be positioned or would
be assigned on September 22, 1975 at
approximately 5:00 to 7:00 in the morning? A.
There’s a fixed security booth located at the exit
at the airmail facility. There’s another fixed
security booth located at the entrance to the
AMF; another fixed security booth located at the
employee’s entrance from the parking lot into the
AMF. In addition to the fixed positions, there
are two other positions referred to as roving
positions. These roving positions would include a
post in this area, [407] (Indicating.)
Q. Sir, could you do that a little darker so it
would remain there, with the Court’s
permission? A. A roving position for a security
officer in this area (Indicating). The officer who is
assigned in that particular area is responsible for
relief of the other security police officers on their
break, on their lunch hour; if they have to take a
personal, he would relieve that particular post.
At any particular time there’s no way of telling
whether or not a man is at a location or whether
he’s somewhere else.
Q. I didn’t ask you that, but would you
please — A. You asked me to explain the
posts.
Q. Tell us who else is on duty. That’s one
roving man. How about another
rover? A. There’s another roving man in the
employee's parking lot. This is not a fixed post.
This is utilized when we have to send a jeep for
gas or send it through the lot on the way out. Ifa
man is coming back from escorting, a flight, we'll
bring him through the parking lot be.ore he
comes into the building.
Q. Just to summarize quickly, there are four
inside and we see here one, two, three, — two
rovers, that’s five, okay, on duty at the facility,
right? A. No response.
40a
Excerpts of Trial Transcript Dated January 4-5, 1977
[408] Q. That’s 5 outside? A. Three
outside permanently and two _ outside
occasionally.
Q. That would be 5, 3 and 2,
right? A. That’s correct.
Q. The 4 inside would be 9? A. That’s
correct.
Q. Are these trained security
personnel? A. Yes, they are.
Q. Are there any laymen like myself or
members of the jury allowed to rove around this
facility?
(Witness resumes the stand.)
A. No, they are not.
Q. The security force is there to secure the
postal employees? A. Security force is there to
protect the plant facility and make sure outsiders
don’t gain entrance.
Q. Or things that shouldn't go out don’t go
out? A. That’s correct.
Q. One last area, sir. Again, based on your
responsibility as the criminal investigator at this
security, — I don’t know if we can all see this,
but let me try. This area here is called
“Supervisor’s Parking,” am I right? A. Yes.
4la
Excerpts of Trial Transcript Dated January 4-5, 1977
[409] Q. No question Mr. Walker was a
supervisor on September 22, 1975, am I
right? A. That’s correct.
Q. You here here [sic], were you not when
Mr. Marchione drew this picture of a truck on
this diagram? A. Yes, | was.
Q. Trucks are parked adjacent to this
supervisor's parking, am I right? A. Yes.
Q. That’s all still within the fenced-in
area? A. Yes, it is.
Q. The supervisors park within the fence
and so do the trucks park within the
fence? A. Yes.
Q. Are you aware, Inspector, that —
withdrawn.
Mr. Marchione indicated the trucks park up
against the fence, am I right, they back in up
against the fence? A. Yes.
Q. With the front of the truck pointed away
from the fence and the back of the truck up
against the fence, am I right? A. They’re in the
direction of the fence. I don’t know whether he
said up against the fence or not. The back [410] is
towards the fence, yes.
Q. The back of the truck is up against this
fence, am I right? (indicating.) A. The back is
towards the fence, yes.
42a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Trucks, the tractor-trailers are forty foot
trucks? A. Tractor-trailers come in _ various
lengths.
Q. The big ones are forty foot? A. I
believe they're forty feet.
Q. If we had all forty foot trucks they would
all be lined up in a row against that fence with
the fronts pointing away from the fence, okay,
you accept that? A. If you had all forty footers
I would accept that.
Q. The truck in question that Mr.
Marchione told us about yesterday, that was a
smaller truck, was it not? A. I don’t remember
whether he said it was a smaller truck. He said it
was a silver truck.
Q. We'll have to ask him, I guess.
Hypothetically, if it was a smaller trailer,
tractor-trailer — let’s say a twenty foot tractor-
trailer, okay, you’re with me? A. I’m with you.
Q. And that was parked in that same area,
based on [411] your experience, would the fronts
be all lined up together even though the trailer is
20 foot shorter than the big ones? A. No
response.
Q. The fronts would all be in the same line,
would they not?
MR. SCOTTI: ['m going to object to this
43a
Excerpts of Trial Transcript Dated January 4-5, 1977
line of hypothetical questions. I don’t see the
relevance. It would depend upon how the trucks
are parked. | don’t know if the witness can
answer that.
MR. ROSEN: Might I expand?
THE COURT: It’s not helpful. You can
argue to the jury.
MR. ROSEN: I want to know, based upon
his experience and physical observations, whether
he’s seen the frnts [sic] of those trucks always
lined up together when it’s required to line up the
front of the trucks.
THE COURT: Very well.
Q. Do you know based on your physical
experience, visually at the Airport, whether those
trucks are always lined up with the fronts all
together in a row ehen [sic] they are parked
there? A. I can only tell you from what I’ve
seen.
Q. Okay. A. And my experience has been
as they park them, [412] some trucks, the backs
of some trucks are closer to the fence than others.
What the requirements are for parking trucks, I
don’t know.
Q. You don’t know, okay.
MR. ROSEN: I have no further questions.
I'm sorry, Judge, | do -have one more question.
44a
Excerpts of Trial Transcript Dated January 4-5, 1977
CROSS-EXAMINATION
BY MR. ROSEN: (Continued.)
Q. | was handed this document.
MR. ROSEN: Ill have to mark it.
THE CLERK: Defendant’s Exhibit W
marked fer identification.
(So marked.)
Q. Mr. Mullins, have you seen this
document before? (Handing.) That was just
handed to me, Defendant’s Exhibit W for
identification? A. Yes.
Q. Is that a surveillance report of David
Walker? A. Yes, it is.
Q. Did you make this or supervize [sic] it
being prepared? A. Did I make a photocopy or
did I make the original?
Q. Did you have anything to do with the
preparation of that? A. No response.
[413] Q. Was it under your
command? A. No response.
Q. Are we having trouble? A. 1 think
we're having trouble.
MR. ROSEN: Let me withdraw that.
45a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Were you the agent in charge of this
investigation in February of 1976? A. During
what portion of February?
Q. February 18th. A. It was right around
that time that — I told you the other day I was in
the hospital for two weeks. It was in February. I
don’t remember the particular ‘ime.
MR. ROSEN: Let me withdraw it.
Q. Were surveillances of Mr. Walker done
under your supervision, your direction, your
authority or anyone of these things? A. Yes,
they were.
7
Q. Certainly with your
knowledge? A. Yes, with my knowledge.
Q. Was a conversation overheard by one of
your operatives or one of your agents of David
Walker on February 18th, 1976? A. I don’t
know. I haven't read the notes that I gave you
this morning.
[414] Q. Take a look at this, please
(Handing.). See if there’s a conversation
overheard of David Walker on that
day? A. Would you give me the date?
Q. It’s right there, February 18, 1976.
MR. ROSEN: Might I approach and
perhaps direct the witness’s attention?
46a
Excerpts of Trial Transcript Dated January 4-5, 1977
(Mr. Rosen approaches the witness.)
Q. You see that? A. Yes.
Q. Was there a conversation overheard by
one of your operatives that when you hit big on a
number somebody goes out and buys a bottle of
champagne?
MR. SCOTTI: I’m going to object.
THE COURT: Did you overhear the
conversation?
THE WITNESS: | didn’t overhear any
conversation.
THE COURT: Next question. Go to
something else.
MR. ROSEN: I have no further questions.
[415] REDIRECT EXAMINATION BY MR.
SCOTTI:
Q. Inspector Mullins, Mr. Rosen asked you
if you had sent down for comparison the boxes
and things you got, the money, from Helen
Helton with the fingerprints of David Walker.
You said you had and that the result of that
laboratory analysis were negative, there were no
fingerprints or palm prints of David Walker’s on
any of those articles; is that correct? A. Yes, it
is.
47a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. You said the report you sent down
included David Walker. Were there other names,
other fingerprints that were submitted with the
same report? A. Yes, there were.
Q. Whose fingerprints did you also send
down for analysis to see if their fingerprints
appeared on the money or the box or the metal
box or whatever? A. I sent down fingerprints
from bank tellers in Milan that had handled the
money. I sent down fingerprints —
MR. ROSEN: I will object to that, whether
he knows who handled the money.
THE COURT: Ill permit it. Go ahead.
A. I sent down fingerprints, I believe, of
Anthony Shortt, Helen Helton, I believe, Rosario
Marchione. I’m not [416] certain whether that is
all the prints I sent down, but I either sent with
the report or requested that they obtain these
fingerprints and compare them.
Q. What was the result of the
comparison? A. They were not able to identify
any of the fingerprints developed on any of the
bills with any of the fingerprints that they were
comparing them with.
Q. What about the box? A. Or the box or
the metal box.
Q. In other words, they weren't able to
48a 49a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
identify anybodys fingerprints, Mr. Walker's or
anybody elses? A. That’s correct.
Q. You testified with respect to the security
personne! with regard to Government's Exhibit 5,
in evidence, which is the chart of the first floor of
building 179; that there were two security guards
who had posts around the exits to the registry
section; is that correct? A. Yes.
Q. You also testified that there was a
security guard on the airline platform and one
Outside by the receiving unit, is that
right? A. Yes.
Q. The guards on the airline platform and
the receiving unit, are they inside the unit or
outside the building? [417] A. The airline
platform and receiving unit guards are outside
the building.
Q. Outside the building of 179? A. Yes.
Q. So that instead of four guards being
inside, there are only two? A. Only two in the
building, yes.
Q. By the way, these guards on this side of
the building (indicating) — withdrawn.
Were these guards inside on this side of the
building by the airline platform, the receiving
unit have any way of looking through to the
flight deck area where it’s indicated that the skid
was wheeled out?
MR. ROSEN: I object to the form of the
question.
THE COURT: Overruied.
A. No, there is no way of looking through
two sets of walls.
Q. What about this guard over here by the
con-con desk entrance?
THE WITNESS: May I answer?
THE COURT: Yes.
A. You can’t see on to the flight deck from
inside the building at that location.
Q. Would this guard be able to see this area
[418] (indicating) — withdrawn.
Would he have a good view as this guard
over here (indicating)?
A. It would depend upon the mail or
equipment in the area. He might not be able to
see it at all.
Q. You testified that the defendant, Walker,
was under surveillance while he was inside the
building 179; is that correct? A. Yes.
Q. During the time that he was observed on
the surveillance, was he observed pushing or
pulling any skids or tubs? A. Yes, he was.
50a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: Could we find out when, if
your Honor please?
THE COURT: Yes, let’s try to pin it down.
Q. Can you tell us when, Inspector
Mullins? A. I don’t remember the exact date,
but | do remember that within the first two weeks
of the time the surveillance was initiated, in
September of 1975, on several occasions |
observed him myself to be handling equipment,
pushing mail.
Q. Inspector Mullins, we have heard much
about what Mr. Rosen calls a bugging device,
which I call a tracking device affixed to Mr.
Walker’s car. Would you please tell the [419]
ladies and gentlemen of the jury what that
is? A. The device we utilized as a wagon hut
bloodhound. It’s a system whereby we put a
transmitter on a vehicle which emits a signal and
we place a receiving unit in one of our cars which
receives that signal and from a determination of a
meter on the box in the car we are able to
determine the direction that a car takes. With
some accuracy we can tell how close we are to an
individual, but only in relative terms. We can tell
the direction of the signal.
Q. During the course of your investigation
in this case, Inspector Mullins, did you determine
where the 12 stolen parcels had been sent
from? A. Yes, I did.
Sla
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Please tell us where they were sent
from? A. Ten. of the parcels were sent from
Milan, Italy.
Q. From where in Milan?
MR. ROSEN: I'm going to object to this,
your Honor.
THE COURT: Sustained.
MR. ROSEN: Thank you. I move to strike
the answer.
THE COURT: Make your objection
promptly.
BY MR. SCOTTI (Cont'd):
Q. Did you determine where these parcels
were to [420] go?
MR. ROSEN: I object, if your Honor
please.
THE COURT: Sustained.
Q. Did you determine whether or not these
parcels were ever delivered in the ordinary course
of the mails?
MR. ROSEN: Objection to that.
THE COURT: Sustained.
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Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: I have no further questions. MR. SCOTTI: Thank you, Mr. Mullins.
RECROSS EXAMINATION ‘ THE COURT: Next witness, please.”
BY MR. ROSEN:
. 7 7
Q. You say you saw Mr. Walker pushing
mail around the facility on several occasion
[sic]? A. I saw him handle mail, yes.
[Commencing at page 630]
“(The following took place in the absence of
Q. What do you mean handling mail, the jury.)
pushing skids, tubs? A. Either pushing a skid
or tub. I don’t recall at this particular time. THE COURT: Yes?
Q. Where were you when you saw him, up MR. ROSEN: May it please the Court —
in the tower there looking through a
peephole? A. In the lookout gallery, building MR. SCOTTI: Your Honor —
179.
MR. ROSEN: I have an application to
Q. There is like a balcony where you guys make.
go through to watch the people downstairs,
right? A. Yes. MR. SCOTTI: No, let me —
+ ia ,
Q. When you saw David Walker pushing all THE COURT: Excuse me. | will hear you.
this mail, [421] did you go down and arrest
him? “A. No. MR. SCOTTI: Well, | was going to make a
4 - statement for the record before Mr. Rosen talks
to the Court. I was waiting for the Court — your
Q. Nothing wrong with him pushing mail, is
Honor to be through with the calendar.
it? A. No. It’s unusual for a supervisor —
THE COURT: Excuse me. THE COURT: He has an application. I will
| be happy to hear the application before me.
MR. ROSEN: Move to strike.
MR. ROSEN: Your Honor, at
THE COURT: Yes, you weren't asked approximately 10 o’clock this morning | called —
anything further. Strike that. Mr. Scotti handed me 3500 material of Agent
S4a 55a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
Mullins given to the Grand Jury on August 17,
1976, which material I have read through twice.
And I can tell your Honor there is substantial
material in here that I would have used on cross-
examination.
THE COURT: Mark it for identification.
What is your application?
MR. ROSEN: I have to move at this time,
most respectfully, for a dismissal of the
indictment.
[631] THE COURT: I am not going to
dismiss the indictment.
MR. ROSEN: And/or in the alternative
for a mistrial.
THE COURT: You are moving for a
mistrial?
MR. ROSEN: Yes.
THE COURT: Let me look at this material.
MR. SCOTTI: Can I make a statement?
THE COURT: Certainly.
THE CLERK: Jury note marked as Court
Exhibit 12.
MR. SCOTTI: There’s no question, your
Honor, that | forgot to give Mr. Rosen the
Grand Jury minutes of Mr. Mullins. Your Honor
will recall that at the time that Mr. Mullins was
called — | am not saying this by way an [sic] an
excuse. I’m saying it by way of fact. The
Government was putting witnesses on very
quickly. Your Honor called me to the Bench, to
the sidebar with Mr. Rosen to ask — for the
purpose of Mr. Mullins’ testimony. I explained to
your Honor the questions that I wanted to ask
Mr. Mullins and why I wanted to ask them. And
counsel acting — possibly as a defense strategy,
and your Honor allowed me to use Mr. Mullins
for a limited purpose. I think your Honor told
me to limit myself to the questions you allowed.
[632] At that point Mr. Mullins was put on
the stand. And I — Mr. Rosen, although he
asked me for material as to other witnesses
throughout the trial, and I, indeed, had given him
material as to other witnesses without his asking.
He did not ask me if there was any 3500 material
on Mr. Mullins. And I simply forgot to give it to
him.
Mr. Mullins testified to the very limited area
on direct. And then Mr. Rosen took Mr. Mullins
basically as his witness — I think the record
reflects that — and examined him on things
which went far beyond anything the Government
did in its direct examination.
In reviewing the Grand Jury minutes, I must
— before I get into that, I must state to your
Honor that the first time I realized I hadn’t given
56a 57a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
the Grand Jury minutes of Inspector Mullins was
last night. And when | came in this morning, |
got the minutes and gave them to Mr. Rosen.
In reviewing the Grand Jury minutes, | don’t
find anything in there — contrary to what Mr.
Rosen says -—— which would in any way have
affected the outcome of the presentation of the
evidence or could in any way possibly, let alone
beyond a reasonable doubt, affect any verdict the
jury may render in this [633] case. In fact, Mr.
Rosen has told me in the hallway that there is
one particular portion of the transcript
testimony, the Grand Jury transcript testimony
that he is very concerned about. I tried to explain
to Mr. Rosen what that Grand Jury testimony
relates to. And, in fact, if that had been gone into
by Mr. Rosen, it would have been detrimental to
the defense and very helpful to the Government.
Of course, the Government did not go into
that area with Inspector Mullins on its direct
examination. As your Honor recalls, the
Government was instructed to limit its questions
very severely with regard to Inspector Mullins.
1 don’t think that there is anything that can
be reasonably interpreted in the Grand Jury
minutes to warrant any of the relief sought by
Mr. Rosen at this time.
MR. ROSEN: May I be heard?
THE COURT: Well, let me say at the
outset, if this were an isolated instance it would
not be objectionable. But, Mr. Scotti, you have
consistently during this trial attempted to hold
up, in my opinion, these 3500 materials until the
last moment.
MR. SCOTTI: Your Honor —
[634] THE COURT: That's for tactical
advantage, at least in my opinion, rather than
giving them to the defendant in advance and in a
simple way so you got it out of your desk and on
to his, thus avoiding this kind of mistake that has
occurrred on a variety of occasions in this Court
during the hurly-burly life of the trial.
Now, this kind of tactic, although it is, as
you have properly pointed out to me, permissible
to the Government, seems to me constantly leads
to this kind of mistake. I have had it in my cases
a half dozen times. As a matter of fact,.in one
case I had a reversal for this silly thing. Because
when counsel gets involved in the trial, there are
a thousand things on his mind and he can’t
remember to do these things.
1 thought we had worked it out with Mr.
Trager so that this wouldn't be happening. If you
had turned it over in advance and you had a
check list — you knew the witnesses you are
going to call. You turn over the material.
Counsel for the defendant looks at them. We
don’t have to have a continuance and the trial
runs more smoothly. This is the result of this
kind of sharp — what I consider sharp practice
by the Government, although the [635]
58a
Excerpts of Trial Transcript Dated January 4-5, 1977
Government is properly and justifiably doing it
under the statute.
MR. SCOTTI: Your Honor, may | respond
to that.
THE COURT: Of course.
MR. SCOTTI: With all due respect — I
hope you appreciate, with all due respect —
THE COURT: Yes.
MR. SCOTTI: I take strong exception to
your Honor’s characterization of me and of the
Government's tactics as being a — with regard to
this 3500 material as being a tactic which is
calculated to gain some advantage. I think the
record will adequately reflect that throughout the
course of the pre-trial discovery in this case, |
have given everything to defense counsel. With
Mrs. Helton’s testimony, | gave him the 3500
material in the beginning of the day.
Now, Mr. Rosen said at lunch time that he
— after the luncheon recess that he hadn’t read
through it all. I gave it to him at the beginning of
the day.
With Mr. Marchione, he had it overnight. |
gave it to him in the beginning.
THE COURT: Why didn’t you give it to
nim at the beginning of the trial.
59a
Excerpts of Trial Transcript Dated January 4-5, 1977
[636] MR.SCOTTI: Your Honor —
THE COURT: A lot of time wasted. At the
beginning of the trial when we are getting jurors
together, while we are handling other things.
You've got a capable opponent on the other side.
It is not as though he were a member of the
Mafia that he couldn’t trust.
MR. SCOTTI: I respectfully submit — I
most respectfully submit that is beside the point.
The only —
THE COURT: Well, it’s exactly the point.
That's why this happens all the time.
MR. SCOTTI: Your Honor, the only time
that the 3500 material testimony was given to
Mr. Rosen at the time the witnesses were
testifying before the Government put the witness
on the stand were isolated instances. Lthink there
were two or three instances where the 3500
material consisted of one or two or three —
maybe three pages. And it certainly wasn’t any
burden to read through that 3500 material at that
time.
THE COURT: You don’t listen to what |
am saying. | am telling you that if you know the
witnesses, as you did in this case, who are going
to testify and you make a list of them and you
turn [637] over the material quietly and caimly
before the trial begins so you don’t have this on
your mind, we don’t have this kind of nonsense.
60a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: Your Honor —
THE COURT: But the Government — at
least some attorneys — doesn’t seem to be a
consistent practice in your office. Some attorneys
do that. And those cases go off like silk.
MR. SCOTTI: Well —
THE COURT: In this case I wasted at least
two hours of trial time because the defendant was
able to make the claim — whether justified or not
is not my concern — and he needed time to read®
the papers.
MR. SCOTTI: And that time was with
regard to Mrs. Helton. He was given the material
before she took the stand.
THE COURT: Well now, we have the
situation and you still apparently haven't learned
anything.
MR. SCOTTI: I still want to put on the
record, this was not a tactic by the Government
to gain any advantage. Certainly there would be
no advantage to be gained at all.
THE COURT: Yes, there is a tactic to be
gained. And the tactic is that you throw your
[638] opponent off balance. He uses the same
tactic and you use it. I saw it in Court. And |
understand it’s constant and I — a standard
tactic to get your opponent slightly off balance.
It’s done all the time.
6la
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: 1 don’t understand that
because he certainly could ask for an
adjournment, which he did, for the time to read
the testimony right in front of the jury. If
anything, it seems to me to be a disadvantage of
the Government —
THE COURT: Both of you are skilled at
using these witnesses, including Mr. Rosen with
his smile and ingratiating manner, which is all
part of the tactic. I don’t criticize him. And you
have the same tactic. I don’t mind it as long as it
doesn’t interfere with my getting cases tried and
out. This kind of tactic, I don’t like simply
because it slows me up. I am not concerned
about anything else but getting these cases
decided quickly and properly.
Now, I say in this case I lost two hours of
trial time and now I have this silly motion before
me while I have a jury that has been out for a day
and a half.
I don’t say “silly” in the sense that it’s not a
substantial motion. But it’s silly in the sense [639]
that I shouldn’t have to have it.
Go through this record and show me exactly
what you would have used and why it is
prejudicial.
MR. ROSEN: Yes, sir. I would have used
at page —
62a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE CLERK: Marked as _ Defendant’s
Exhibit AA for identification.
MR. ROSEN: Starting at page 9, your
Honor, if your Honor please, where Mr. Mullins
told the Grand Jury that the surveillance of Mr.
Walker continued until December, 1975, when
the foreign dispatch unit moved into another
building, Christmastime, because they get a
heavy concentration of mail, and he says here
that David Walker went with that dispatch unit
to the other building. The surveillance had to be
discontinued because of the new building. There
is no surveillance potential. That is absoluetly not
true.
Mr. Walker did not go with the unit. He was
specifically kept on in Building 179 to be kept
under surveillance. Mr. Walker did not get
transferred. And I would certainly be able to
develop that.
THE COURT: No. That is just on the
credibility of the witness Mullins. It’s go no [640]
substantial significance of any kind with respect
to guilt or innocence.
MR. ROSEN: On page 9, | would then be
able to show that Mr. Mullins testified that these
parcels were not registered parcels at all, did not
they would not have gone into that — registry
insured parcels do not — are not handled the
same way. They do not come through that
section.
63a
Excerpts of Trial Transcript Dated January 4-5, 1977
1 am not familiar with the exact
terminology, but when they are insured, this
Miska or Con-Con, they are not regular
registered mail, although he had said so in the
Grand Jury that they were. I would have been
able to prove that they were not — in any event,
they were not registered mail.
THE COURT: What difference does it
make /
MR. ROSEN: That these parcels were not
in that registry room. That is a very critical point.
Insured parcels rather than registered — they
were not registered.
THE COURT: Why didn’t you —
MR. SCOTTI: In the Grand Jury minutes
it really says at page 10 that these were insured
parcels coming into the United States, and the
procedure at Kennedy Airport is that they go
into the registered section.
[641] MR. ROSEN: I would dispute the —
INSPECTOR MULLINS: May I state —
THE COURT: Cross-examiné him now on
it. Let’s see what it is.
INSPECTOR MULLINS: Your Honor, all
insured —
64a 65a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: Excuse me. I don’t want to
Cross-examine him on that point right now
and let me hear what you would have developed.
MR. ROSEN: Okay.
EXAMINATION OF THE WITNESS,
EDMUND MULLINS,
BY MR. ROSEN:
Q. Inspector Mullins, is it a fact that you
testified before the Grand Jury that these were
insured parcels rather than _ registered
parcels? A. I testified that the ten of them were
insured parcels, yes.
Q. The ten which you claimed had $80,000
in each of them? A. That's correct.
Q. And isn’t it a fact that insured parcels are
handled differently than a regular registered
parcel, if you know? Do you know if insured
parcels are handled in any way differently than a
registered — A. They are handled differently,
yes.
Q. All right. Would you tell us in what way
[642] they are handled differently? A. I will be
glad to. All insured parcels are initially brought
into the registry section at Kennedy Airport, with
the exception of India, Italy, Germany, the
Netherlands and Switzerland. All parcels from —
all parcels from India, Italy, Germany,
Netherlands and Switzerland, since November
1974, by logistics order have remained within the
registry section at Kennedy Airport. Insured
parcels from all other countries are gone through.
Those valued at under $250 are sent to Annex
Number 3, and those valued at over $250 are
kept within the registered section.
Q. Thereafter, what is the movement of the
insured parcel over $250? A. With regard to
which countries?
Q. Looks like Italy. A. Italy, they are
handled as registered mail. Dispatched out as
registered mail by the logistics order and by
reaffirmation of postal bulletin.
MR. SCOTTI: Mr. Rosen was given that
information in discovery.
MR. ROSEN: What information.
THE WITNESS: He has the operations
order.
MR. SCOTTI: | gave it to him in
December.
MR. ROSEN: May I, Your Honor.”
* * *
66a
Excerpts of Trial Transcript Dated January 4-5, 1977
[Commencing at page 655]
we" o @ o
“(Whereupon, the jury retired from the
courtroom.)
MR. SCOTTI: For the record, | would have
objected to that charge, but it’s too laie now.
(Recess taken.)
THE COURT: All right, take the stand, Mr.
~~ Muliins. =
EDMUND MULLINS, having been
previously duly sworn, testified further as
follows:
EXAMINATION BY MR. ROSEN:
Q. Mr. Mullins, are you personally familiar
with how insured packages were handled that
came in from Italy to building 179 on September
22, 1975? A. Yes, I am.
Q. All right. Now, isn’t it a fact that there is
a person by the name of Mrs. Samuels, who was
the insured receiving clerk that day or that
morning at JFK Building 179? A. I think so.
You have the documents right now. I don’t
know. If her initials are on the bottom.
Q. Sir — No, I don’t have any document.
You heard of Mrs. Samuels, the insured receiving
clerk? A. She opens the insured bags, yes.
67a
Excerpts of Trial Transcript Dated January 4-5, 1977
Q. Right. When she opened the bags and
they are determined to be of her of high value,
she herself makes up the parcels; isn’t that true?
[656] A. No.
Q. Doesn’t she — doesn’t the insured
receiving clerk have the parcels stamped by a
Customs man, insured, valuable parcels, stamped
by a Customs man, sir? A. Anything that is
valuable that goes into the vault are stamped by a
Customs man in the vault. We don’t give them
to the Customs people.
Q. Any of these parcels here, any of the
packages here indicate that they were stamped by
a Customs man? A. I don’t have the parcels. |
don’t know whether they were stamped or not.
Q. Well, on your records — A. They
don’t. The records would not reflect it. The only
thing that would reflect whether or not they were
stamped is by the parcels.
Q. That’s a distinction between regular and
insured mail? A. No.
Q. All registered mail is stamped by
Customs people? A. Registerd mail. Parcel
type mail is examined by Customs people and
either stamped liable for duty or stamped pass
free.
Q. Is it your testimony that Helen Helton
would have made up parcels of insured valuable,
68a
Excerpts of Trial Transcript Dated January 4-5, 1977
non-registered on [657] that morning? A. I
believe | stated to your Honor before that all
insured parcels from Italy are handled as
registered mail at Kennedy Airport and from
Kennedy Aijrport throughout the domestic
registry system
Q. Would it include parcels of high
value? A. Any insured parcel.
Q. No. Couldn't it be a $250
parcel? A. All insured parcels from Italy are
handled as registered mail.
Q. And you are telling me that Helen
Helton would have made up a canvas sack of
insured parcels just like she did the registered
parcels? Yes, or no, please? A. Helen Helton
would have made up insured parcels in a
registered mail bag, because at that point they are
considered to be domestic registered mail.
MR. ROSEN: Just a monent, if your Honor
please.
Q. Let me ask you this, again, Inspector:
Isn't it a fact that the person in Kennedy
Airport, building 179, who handles insured
parcels of high value — okay — makes up his
own mail sack as opposed to somebody in the
registry room like Helen Helton? A. It can be
done if it’s recognized as high value. Sometimes
they do not make these dispatches. -
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Excerpts of Trial Transcript Dated January 4-5, 1977
[658] Q. Isn't it a fact that parcels coming in
insured directed to a bank would be deemed just
such a kind of high value parcels? A. No, it i
not.
Q. No? A. No.
MR. ROSEN: I have to go on to something
else, your Honor.
I don’t really know basically the procedure,
but I would represent to your Honor — I must
respectfully represent to the Court that I have
information that is not in accordance with that.
But that is not my problem.
THE WITNESS: Your Honor, I —
THE COURT: I do not want to hear —
With all due respect, I want you to indicate to me
how your examination would have been different
if you had this information. So go ahead and
examine.
MR. ROSEN: Okay, your Honor.
Q. Now, isn’t it a fact, Mr. Mullins, that
you testified before the grand jury that ten of the
parcels, ten of the twelve we are talking about,
the ones that came in from Italy, came in to
Kennedy Airport and were entered in that value
cage at 4:30 in the morning of September 22,
1975? Did [659] you say that before the grand
jury? A. If it’s in the record, I said it.
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Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: | most respectfully represent
that it is in there.
THE COURT: All right.
MR. ROSEN: | don’t think I have to
examine much more on that. It would have been
a critical thing for me to examine Mr.
Marchionni and the agents if the parcels came in
at 4:30, Judge, when Mr. Walker is already out
to lunch. It just couldn’t have happened the way
the testimony says it happened. They didn’t even
get into that value room until 4:30. Nobody knew
it was there until 4:30. And I think it’s a very
critical — most respectfully, based on the
testimony we have here, a critical thing, and |
could have developed through the inspector that
they didn’t even get there, because I asked Mrs.
Helton and she didn’t know when they got there.
There’s nothing on the documents.
I understand your Honor may be impatient
with me, but I would like to do it.
THE COURT: I am not impatient.
MR. ROSEN: You're shaking your head,
“no.” Maybe you disagree with me. There’s
nothing on either [660] exhibit 6, Judge, or that
vault log. And I asked Mrs. Helton very
specifically, could you tell me the exact time as
these things —
MR. SCOTTI: Your Honor, —
Tla
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: But that has nothing to do
with this. It’s quite clear through the entire
testimony that there was a target of opportunity.
It was just a chance. She went in and got some
stuff. It doesn’t make any difference whether it
was there 24 hours or 24 seconds.
MR. ROSEN: No, no.
THE COURT: And nobody else knew
where the specific parcels were coming from
Italy. It’s never been any part of the theory. This
is really all irrelevant.
MR. ROSEN: But at — between four and
five — Mr. Marchionni testified between four
and five Mr. Walker came up to that swing room
and already — starting at 4 o'clock in the
morning, Judge.
THE COURT: 4:30.
MR. ROSEN: No, your Honor. Most
respectfully, page 313 of the record, it says that at
between 4 o'clock and 5 o’clock Dave Walker
came up to that swing room and asked them,
does he have —
[661] THE COURT: What time did
Marchjone go out to lunch?
MR. ROSEN: Walker went from 4 to 4:30.
Marchioni from 4:30 to 5.
THE COURT: That’s exactly it. When
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Excerpts of Trial Transcript Dated January 4-5, 1977
Marchioni was out to lunch the packages had
already arrived.
MR. ROSEN: The packages arrived at 4:30.
Marchioni went out to lunch at 4:32, Judge. |
think it would have been important for me to
argue that what they are saying here, this whole
thing was crystallized in a two-minute period
between 4:30 and 4:32. And I think it would have
been most critical.
THE COURT: Nothing to do with
anything, with any point in the case.
MR. SCOTTI: Your Honor, as you have
already articulated, | would point out that
Government exhibit 6 in evidence, which Mr.
Rosen just referred to, is — does not indicate any
time. It does indicate that the parcel was made
up. The bag that was stolen was made up by Mrs.
Helton sometime after 5 o'clock. He had cross-
examined Mrs. Helton on that. It does state a
time.
MR. ROSEN: Judge, what I think is
critical, most respectfully, is that I could have
developed with [662] Mr. Mullins and argued to
the jury that now we know exactly when this
parcel came in, because there was testimony that
it was left over from 2 or 3 the day before. We
have that in the record. And it’s absolutely not
so.
Mr. Walker just couldn’t — could not have
— Mr. Walker could not have gone up there
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Excerpts of Trial Transcript Dated January 4-5, 1977
between 4 and 5 and say there is a bag from
Miami going to the West Indies. And the
testimony is it was left over from 2 or 3 and came
through that wind tunnel.
THE COURT: It’s clear what happened,
that the defendant Walker was telling Marchioni
something that was untrue in order to mislead
him, to come down with the hope that Mrs.
Helton would get a package together.
MR. ROSEN: I am not going to belabor it.
I submit that it would have been important for
me to argue to the jury that the inspector’s
investigation determined that the parcel didn’t get
to Kennedy, into that room, until 4:30.
THE COURT: Yes, | understand.
MR. SCOTTI: May I be heard?
THE COURT: But it’s really irrelevant to
anything in the case.
MR. ROSEN: 1 respectfully —
[663] MR. SCOTTI: For the record, Mr.
Rosen is incorrect as to the total number of
parcels. I agree that it’s irrelevant, but for the
record, exhibit 7 in evidence clearly shows that
the two Granda parcels did come in at 2:03 on
9/21, which is September 21st, which would have
been the 203.
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Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: It doesn’t make any
difference whether it was there a week.
MR. SCOTTI: I agree with your Honor, but
just for the record, the record does show it did
come in on 203.
MR. ROSEN: Shall I go on as if I had this
material?
THE COURT: Yes, please.
Q. Now, Mr. Mullins, did you answer —
this is page 12, before the grand jury:
‘In connection with this investigation, did
you determine who else was on duty the night or
early morning of September 22, 1975?
‘Answer: The foreman of the registry room
on that date was David Walker. | found all
twelve parcels listed on a bill for the Church
Street Station.”
MR. ROSEN: May I have that?
‘The next step in procedure in the registry
room [664] would have been for the bag itself,
which is identified by a rotary lock number, to be
listed on another bill going to GPO, New York.
We have searched ail of the records and there is
no record of that rota-y lock ever being listed on
the bill going anywhere from Kennedy Airport.’
THE COURT: That’s exactly confirmatory
of Mrs. Helton’s testimony.
. ee ee
Excerpts of Trial Transcript Dated January 4-5, 1977
75a
MR. ROSEN: Government exhibit 6, your
honor, has a rotary lock number on the record
which he says did not exist.
THE COURT: Well —
MR. SCOTTI: No, your Honor, that is not
the record. The witness will be able to explain
rather than Mr. Rosen making statements.
MR. ROSEN: I am sorry, Judge.
Q. Did you — I show you Government’s
exhibit 6. Is this an exhibit containing the parcel
numbers of the ten parcels that come in from
Milan and the two from Granda that we are
talking about in this whole case? A. Yes.
Q. Do you see in the top right hand corner,
lock number 445? Do you see that? Or 58, or
whatever the number is? [665] A. Yes, there is a
lock number.
Q. Is there a rotary number on there,
402? A. Yes, there is.
MR ROSEN: Your Honor, | would have
most respectfully —
THE COURT: What is the explanation?
THE WITNESS: Well, your Honor, I —
Q. What is your explanation? A. I said it
in the grand jury. There’s no record of this lock
I6a 77a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
number that is on this bill being listed anywhere
from Kennedy Airport. I mean the lock number
up here goes on another bill to be listed out. And
we have checked the records and it is not listed
out.
Q. Well — _ A. This is a content bill, your
Honor.
THE COURT: A what?
THE WITNESS: This is a content bill. This
tells you what is inside the rotary lock. Now, to
find out if this rotary lock goes anywhere, we
look at another set of bills like this one. Instead
of having registered numbers, we have rotary
numbers.
THE COURT: When the bags go out of
Kennedy with rotary locks on, they show the
rotary lock —
THE WITNESS: The rotary lock is listed
like the [666] registered numbers are listed. And
as I said in the grand jury, it is not listed out.
THE COURT: That is confirmatory.
MR. ROSEN: I would object to what he
said. There is no record of that rotary lock ever
being listed going anywhere from Kennedy
Airport. I don’t know what bill —
THE COURT: He just explained —
-
MR. ROSEN: Where is the bill? Where is
the bill that showed anything about these
packages after this?
THE COURT: There isn’t any.
THE WITNESS: There isn’t any.
MR. ROSEN: All right. Fine. Then I would
have certainly suggested to the jury that there
was a lock number put on at least this bill. |
mean his not being able to find any records, |
could have argued that there is a lock number on
the bill, talking about these parcels, and that part
of the procedure, the parcels coming out of
Kennedy Airport —
THE COURT: But this is. exactly
confirmatory of the Government’s case. | don’t
see how you would gain anything.
MR. ROSEN: Well, I — all right. | made
my [667] position on the record.
THE COURT: All right, what else?
MR. ROSEN: The next is on page 13.
Q. Mr. Mullins, were you asked this
question and did you give this answer with regard
to David Walker:
‘What kind of an investigation did you
conduct?
78a
Excerpts of Trial Transcript Dated January 4-5, 1977
‘Answer: | conducted an investigation into
his finances.’
Did you ascertain how much property he
owned? A. Yes.
Q. Did you ascertain the fact that he had
purchased certain stocks? A. Yes.
Q. Did you talk to somebody who — who
he purchased the stocks from ? A. Yes.
Q. Doyousayinyour grand jury testimony
when that purchase of 200 shares of Pan
American for $11,000 was made? A Without
looking at the transcript, | can’t tell you.
MR. ROSEN: I will submit that he — the
inspector does not give a date as to when this
purchase of 200 shares of Pan American was
made.
[668] THE COURT: You mean you would
have listed this before the grand jury?
MR. ROSEN: Well, your Honor —
THE COURT: To show more assets?
MR. ROSEN: On the same basis that he
could have contracted for this house prior to
September 22, 1975. He could have purchased —
it’s for cash, 11800 shares of Pan American prior
to September 22nd.
79a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: Your Honor —
MR. ROSEN: I would have developed that
fully. Yes, | represent to your Honor that I would
have.
MR. SCOTTI: Your Honor —
THE COURT: It seems to me not to have
any particular significance, since your own client
will tell you that. No.
MR. SCOTTI: For the record, this cash
purchase was made well after — Well, a couple
of months after the theft in question.
MR. ROSEN: That would be a big dispute,
Judge.
MR. SCOTTI: We have the records. If Mr.
Rosen wants to bring in the man who got the
cash from Mr. Walker, he’s free to talk to him.
We have the stock account records, all the
documents.
THE COURT: I can’t believe you would
have done [669] skillfully as you are, but go
ahead.
Q. Mr. Mullins, were you asked the
following question on page 15, and did you give
the following answer:
In regard to the closing of the apartment
house, you know what I am talking about?
80a 8la
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
‘Answer: Yes.
‘Question: Were the attorneys at the closing
for the sale of these apartment buildings? Were
they interviewed?
‘Answer; yes, they were.
‘Question: What, if any information was
related to inspectors Caldwell, Goren, which was
then related to you?
‘Answer: At the time of closing, when it
came time to produce a certified check or cash to
close the deal, David Walker opened up his
briefcase and dumped a pile of cash on the table
which was described as the biggest amount of
money that anybody had ever seen.’
MR. ROSEN: I most respectfully say or
suggest that that differs with what Mr. Kershaw
testified as to how the transaction occurred and
whether David Walker dumped it on the desk or
in the regular course of business opened up a
briefcase and handed legal tender to purchase
these houses. There is a [670] difference there.
THE COURT: That is all adverse to your
client. Certainly when he testified in this court he
knew | wouldn't permit him to put in such
objectionable terms. We don’t have the rules of
evidence applying in the grand jury room. That's
why.
Q. Did you continue to answer as follows:
‘He’ — meaning David Walker — ‘took the
cash to a bank and got a certified check for it.
The people at the bank who counted the money
were interviewed. They verified it was David
Walker who brought the cash in and received a
certified check.’
Did you tell the grand jury that Mr. Walker
- went with the attorneys and other people to the
bank?
MR. ROSEN: And I represent, your Honor
MR. SCOTTI: If he was asked, I don’t see
the relevancy of that at all.
THE COURT: Well, go ahead. Develop it.
Q. When you spoke to the lawyers or to the
man who sold the building to Mr. Walker, did
they tell you or did you ascertain that David
Walker with others went to the bank, the Chase
Manhattan Bank, to substitute the check for the
cash?
MR. SCOTTI: Your Honor —
[671] A. I never spoke to anyone.
Q. You never spoke to anybody.
MR. SCOTTI: I believe the testimony—
82a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: Excuse me. Let him develop
it.
Q. Did you say the attorneys at the — the
attorneys at the closing for this sale of these
apartment buildings, were they interviewed?
And you answered, “They were — they were
interviewed.”
MR. ROSEN: Upon those —
MR. SCOTTI: And the very next question
THE COURT: Excuse me. Let him ask the
question.
MR. ROSEN: But the witness states who
interviewed him.
THE COURT: Let him develop his own —
MR. SCOTTI: I am sorry.
Q. ‘What if any information was related to
inspectors Caldwell and Goring which was then
related to you”
Do you remember being asked that
question? A. Yes.
Q. Okay. Then you answered as I just read.
Okay.
a3
#j
83a
Excerpts of Trial Transcript Dated January 4-5, 1977
Was it related to you before you went into
the grand jury that David Walker didn’t go down
to the bank alone, but went with other people,
lawyers and actually people who [672] witnessed
the transaction? A. Yes, I think it was.
_ Q. Right. Does that appear before the grand
jury? A. You just read it. I didn’t say it.
Q. Okay. That’s all I am trying to develop.
MR. ROSEN: I would have used that to
show some sort of attempt, most respectfully, to
show the grand jury that this was some kind of
stealthy transaction where he snuck down to the
bank and tried to convert cash into the bank
check.
MR. SCOTTI: Your Honor, that’s
irrelevant. Any attack he wanted to make in the
grand jury proceeding, but not a trial —
THE COURT: I think it was irrelevant. It
wouldn't have any bearing on credibility.
[673] Q. Now, did you also testify as
follows, with regard to the purchase of these
buildings:
‘Did you yourself conduct the investigation
or did other postal inspectors do it?
MR. SCOTTI: Excuse me. Where are we?
| |
84a 85a
Excerpts of Trial Transcript Dated January 4-5, 1977 Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: Let’s go to page 15. Let’s go
over to page 15, to the bottom.
Q. ‘Question: Now, was there any record
that you discovered during the course of your
investigation which would indicate the amount of
cash which David Walker brought to the bank?
‘Answer: Yes. There was an IRS form filled
out by David Walker indicating the amount of
cash, which was $100,020.49.”
Did you ever see that form? A. Yes.
MR. ROSEN: I would have certainly gone
into that, Your Honor, and argued most
strenuously.
THE COURT: Yes, you would have.
Where is that IRS Form? Why wasn’t it
turned over as Brady material?
MR. SCOTTI: Because, your Honor, he
put the wrong social security number down. It is
the wrong social security number. It is not the
social security [674] number of the defendant.
THE COURT: All right. You would have
opened the door to that and it would have been
absolutely murderous.
MR. ROSEN: Let me see it.
THE COURT: Mark it for identification.
MR. ROSEN: All right, let’s see. I just
asked Mr. Walker what his social security
number was.
THE COURT: If you continue at this rate
the Government will join you in your application
for a mistrial.
MR. ROSEN: I am doing the best. You
will have to bear with me. I mean, you know —
THE COURT: All right. Continue while
they iook for the document.
Q. Did you testify —
MR. ROSEN: This may be academic.
THE COURT: Go ahead.
MR. SCOTTI: I am sorry. I have it right
here.
THE COURT: All right, mark it for
identification.
MR. SCOTTI: Mark it as a Government
exhibit.
THE CLERK: Government exhibit 19
marked for identification.
MR. ROSEN: I would only suggest that the
[675] transript —
86a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: I will write at the bottom,
these statements were not admitted into evidence.
MR. ROSEN: But portions of the
statement are in the transcript.
MR. SCOTTI: Now, your Honor, I was
specifically precluded from bringing this out on
direct and specifically precluded from bringing it
out on redirect.
THE COURT: That’s correct. Because of
the rule of hearsay.
MR. SCOTTI: No, not because of the rule
of hearsay. It is my understanding, your Honor,
of the rules, with all due respect, | thought your
commentary said that if the witness has made a
prior statement which was untrue the
Government has a right to bring that out on
direct examination and explain it and certainly
after defense counsel cross-examined it. The
Govenment has a right under rehabilitation to
explain that to the jury. The Government was not
allowed to do that.
THE COURT: Not in this case.
Prior consistent statement.
MR. SCOTTI: Not consistent. Not
consistent. All | wanted to do is bring out the
statements that were untrue. I didn’t want to
bring out prior [676] consistent statements. There
had been no attack yet.
87a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: I will write out the pattern,
these statements were excluded from evidence.
MR. ROSEN: Your Honor, I never offered
them in evidence. The word ‘excluded’ may give
the impression you didn’t like them or something.
MR. SCOTTI: Now Mr. Rosen is trying to
work this as a double —
MR. ROSEN: | am not trying to work it —
MR. SCOTTI: The Government is a party
in this prosectuion also.
MR. ROSEN: | am trying to get your
Honor to write to the jury that if they wish to
hear any cross-examination regarding —
THE COURT: Were not admitted in
evidence. You may — if you wish to hear the
testimony of the witness Marchione — do you
want to look at this?
MR. ROSEN: Yes
1 except it without looking at it.
THE CLERK: Jury note marked Court
exhibit 13.
MR. ROSEN: That’s fine, your Honor.
Regarding those statements, | would just — I
think it’s clear.
88a
Excerpts of Trial Transcript Dated January 4-5, 1977
THE COURT: I think it’s clear. Give it to
the marshal, please.
[677] MR. SCOTTI: I have the document
that Mr. Rosen was referring to marked as
Government — it should be for identification.
THE COURT: Yes.
MR. SCOTTI: 19
THE COURT: May I see it, please?
MR. SCOTTI: If it’s all right, I will put an
1.D. on here.
THE COURT: Yes.
MR. SCOTTI: | also hand up to the Court
11 in evidence which is the payroll sheet of Mr.
Walker with the social security number. You can
see the last digit is not the same.
THE COURT: Which is the correct — 075
22 3507 listed in the Post Office or 075 22 3505
listed when he turned over $100,000 in bills.
MR. ROSEN: The correct one, as
stipulated to by the defense, was the one listed on
the payroll records.
THE DEFENDANT: 075 22 3507.
MR. ROSEN: Let the record indicate that
89a
Excerpts of Trial Transcript Dated January 4-5, 1977
the defendant just stated his social security
number from memory.
That’s taken out of Brady because there
could be a possible —
[678] THE COURT: No, it doesn’t take it
out of Brady. It should have been turned over.
MR. SCOTTI: I am sorry. I never
considered it Brady. This doesn’t show that in
any way, number one. Number two, the
transaction involves, as your Honor instructed
the jury — it was not an illegal transaction, but
merely shows — merely brought out to the jury
to show the expenditures of cash.
THE COURT: How come you didn’t use it?
MR. SCOTTI: Pardon me?
THE COURT: Why didn’t you use it.
MR. SCOTTI: Why didn’t I use what?
THE COURT: This evidence?
MR. SCOTTI: Well, your Honor, some
things | was hoping to save for cross-
examination. | had what I thought to be a
sufficient amount of evidence.
THE COURT: The next time you will know
better.
90a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: Well, maybe if we had a
different jury we wouldn't be here.
MR. ROSEN: I most respectfully — it
looks like a 7. I most respectfully submit that this
is — the most clearest example of Brady against
Maryland that I have seen in the 12 years I have
been privileged to be in this courtroom. This is a
statement from a man [679] who the Government
claims stole $100,000 or $800,000 and here is a
statement he signed with his name to the Internal
ReVenue Service that he’s converting $100,000 of
his alleged hot money into a bank check. If that’s
not Brady —
MR. SCOTTI: I don’t understand how that
tends to extricate the defendant from the charge.
‘THE COURT: Excuse me.
Are you finished?
MR. ROSEN: I am almost finished, your
Honor.
Q. Did you also state under oath before the
Grand Jury, Mr. Mullins, that you were aware of
property that Mr. Walker had purchased in 1971
and 73 up in Granville and Mayfield, New
York? A. Yes.
Q. You told the Grand Jury all that?
Did you also tell the Grand Jury that during
your financial or your investigation into his
9la
Excerpts of Trial Transcript Dated January 4-5, 1977
financial affairs you discovered a purchase of
stock from a company called Advest? A. Yes.
MR. ROSEN: I represent to your Honor
that | would have brought out much more
financial — let me withdraw that. Because |
made a decision not to put Mr. [680] Walker on
the stand, | would have utilized the guts of the
inspector's investigation to back up —
THE COURT: You have the deeds. The
deeds were put into evidence.
MR. ROSEN: I have much more.
THE COURT: Don’t the deeds show the
dates?
MR. ROSEN: Not the stock certificates.
The deeds to [sic]. But there were stock
transactions and other transactions. I do most
respectfully state to your Honor that this
material was substantially useful to the defense. |
could have used it. | would have gone into it
whether your Honor thinks I would have hurt
myself. That’s a judgment for the jury.
THE COURT: Ceziainly.
MR. ROSEN: But I say I would — |
represent in good faith I would have gone into a
lot of these matters. And I think they are matters
directly in point to the Government's case.
THE COURT: I accept your statement.
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Excerpts of Trial Transcript Dated January 4-5, 1977
And I reiterate my statement to the Government
that the Government’s tactics in this case
involving this stuff, this kind of information until
the last minute, was in the Court’s opinion —
was not defenseable [sic]. However, based on my
analysis of the testimony, I| find [681] beyond any
reasonable doubt that this information could not
have affected the verdict except make a verdict of
guilty more probable.
MR. ROSEN: I most respectfully disagree.
Now, I renew my application on the basis of
the violation of Brady against Maryland on that
tax form which I say would have allowed me to
show the jury and have the jury take that with
them perhaps in deliberation, a matter which
indicates clearly a lack of consciousness of guilt
and could have — perhaps have made a big
difference here. If a man fills out a Government
form — and again that would bolster my
argument that this was not some secret,
clandestine transaction, but open and above
board at a bank and signing an I.R.S. form.
THE COURT: Yes, it’s a good argument.
MR. SCOTTI: I don’t see how it’s the
Brady. I don’t see how it exculpates this
defendant.
THE COURT: I believe it does.
MR. SCOTTI: I don’t. I would respectfully
disagree with your Honor in that regard, number
93a
Excerpts of Trial Transcript Dated January 4-5, 1977
one. Number two, even assuming for the sake of
argument that it did somehow under some stretch
of the imagination, come under Brady, this is
something certainly which was [682] not
exclusively known to the Government. Mr.
Walker certainly has prepared this trial with Mr.
Rosen. And | am sure Mr. Rosen is a very
capable attorney and he asked him about all
these things. He certainly knew about the extent
THE COURT: Are you aware of the fact
that he had made an I.R.S. —
MR. ROSEN: I believe I asked the witness
Kershaw, if I'm not mistaken.
[683] THE COURT: Did you ask your
client? Did you know from your client?
MR. ROSEN: I knew from my — not about
that IRS.
THE COURT: You didn’t know?
MR. ROSEN: I knew from my client that
forms were executed. And I think I asked Mr.
Kershaw — it was something given to the
Government. | asked Mr. Walker, did you have
to sign anything down at the bank. I believe I
was told that he did sign some papers. That was
the basis of my question.
THE COURT: Did you know that an
IRS form was —
94a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. ROSEN: I can’t say to your Honor
that I did. I am now standing here and I think |
had a basis for asking that question, and that
some form was signed. I am not sure it was this
IRS form. I have to be as candid as I can.
THE COURT: All right. Well, it’s a good
argument, I think. But on the whole, I think that
the evidence was so detrimental that it really
doesn’t make any difference.
MR. ROSEN: You mean the evidence —
the totality of the Government’s proof?
THE COURT: No. This piece of evidence
was [684] so detrimental to the defendant that |
can’t say that a violation of the Brady rule
warrants a mistrial.
MR. ROSEN: Is your Honor saying that
because the last digit may be a five or a seven?
THE COURT: Not maybe. Clearly a five.
MR. ROSEN: Is that why your Honor is
holding it detrimental to Mr. Walker?
THE COURT: Yes, I believe so.
MR. ROSEN: | don’t — I don’t understand.
1 most respectfully disagree with your Honor as
to the benefit I could have gotten out of this
document.
THE COURT: It’s debatable. It’s a more
debatable point than the rest.
95a
Excerpts of Trial Transcript Daied January 4-5, 1977
MR. ROSEN: Thank you.
THE COURT: And I reiterate that the
Government's tactics are holding back material
to the last minute and not revealing the full file
MR. SCOTTI: Well, your Honor —
THE COURT: — is not in the Court’s
opinion justified and leads to this kind of thing,
the Court’s time on hearings and retrials that are
intolerable.
MR. SCOTTI: For the record, there’s no
[685] question about the fact that I should have
given Mr. Rosen the Grand Jury testimony of
Mr. Mullins. There is no question about that. |
was wrong.
1 do take exception to your Honor’s
characterization of it as a tactic. It was not done
intentionally. It was not done willfully. It was not
done with any intent to gain any kind of
advantage. It was completely inadvertent because
of the circumstances of what was going on at the
time.
THE COURT: I don’t agree.
MR. SCOTTI: I am sorry.
THE COURT: The whole tactic of holding
things up to the last minute instead of opening it
up and showing it so the defendant can prepare
96a
_ Excerpts of Trial Transcript Dated January 4-5, 1977
the case, so we don’t have this nonsense — if you
have a case against the defendant as you did here,
there’s no reason for holding this.
MR. SCOTTI: Whether or not there is a
reason — whether or not there is a reason, the
law specifically provides that I do not have to
give anything —
THE COURT: I know what the —
MR. SCOTTI: Until after the witness
testifies. [686] 1 don’t understand how your
Honor can characterize it as a tactic with some
venal purpose.
THE COURT: Because I don’t believe that
a prosecutor should use the law to withhold
information, even though technically he is
entitled to do so.
MR. SCOTTI: Well, your Honor, that may
be true. That might be a philosophical point or a
point that Congress may want to change. But |
don’t see the proposition that if you abide by the
law you should be — or you can be held
accountable to it.
THE COURT: You continue to abide by
the law, Mr. Scotti, with your colleagues and we
will continue to have mistrials, reversals and
activities of waste of the Court's time such as
this.
Now, they want to hear Marchione’s
testimony.
97a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: The whole —
THE COURT: That’s what they say.
THE CLERK: Jury note marked Court
Exhibit 14.
THE COURT: Call the other case.
I think the oil people better go out to lunch.
I am sorry. 2 o’clock. I have to have this matter
straightened out. Make it 1:30. Maybe we can
start then.
[687] Try to pick out, gentlemen, if you
would, the testimony dealing with his statement.
MR. ROSEN: I am sure that’s what they
really want.
THE COURT: They may want the whole
thing.
MR. ROSEN: All right, we will pick out the
statements.
(Recess taken.)
[688] THE CLERK: U.S.A. versus Walker
THE COURT: Have you agreed?
MR. SCOTTI: I don’t know.
THE COURT: How much longer will you
98a
Excerpts of Trial Transcript Dated January 4-5, 1977
MR. SCOTTI: Mr. Rosen is in the
attorney’s lounge looking through it.
THE COURT: Let’s try to come to an
agreement shortly so we can move ahead, shall
we?
MR. SCOTTI: I don’t understand really the
jury’s note. It appears they want all of
Marchione’s testimony.
THE COURT: I will ask them when they
come in had they want all of it or just the point
relating to his statements to the Government.
MR. SCOTTI: Very well.
THE COURT: Pll ask them.
MR. SCOTTI: Very well.
(Pause)
MR. ROSEN: Might I take one more
moment to make an additional infinitesimally
brief argument if your Honor would admit
Goverment’s Exhibit 19 for identification as a
defendant's exhibit I? | would have been able to
point out, your Honor, that the instrument bears
Mr. Walker’s correct address and with great
specificity been able to show and argue that the
last digit which [689] apparently is error, the
number five, does not compare with the other
fives, | would be able to demonstrate that and
Excerpts of Trial Transcript Dated January 4-5, 1977
there is the same slant on the top of this five
which resembles the other sevens.
1 might have been able to argue the man
might not remember all the digits of the social
security number. | think it*would be extremely
helpful to me.
THE COURT: It’s possible. I think that is a
good argument. I'm almost persuaded by it. I
think it’s very sound; but let’s read the testimony.
MR. ROSEN: We have agreed on the bulk
of it. Mr. Scotti and I disagree on some areas.
MR. SCOTTI: Maybe we should come to
side bar so we can show your Honor what we are
talking about.”
[Commencing at page 699]
“ should not now be discharged?
MR. ROSEN: None.
MR. SCOTTI: None, your Honor.
THE COURT: Thank you, ladies and
gentlemen for all your help. Good night. You can
discuss this or not as you feel free with anyone.
19a 10la
Excerpts of Trial Transcript Dated January 4-5, 1977 GRAND JURY TESTIMONY OF EDMOND MULLINS
DATED AUGUST 17, 1976
(Whereupon, the jury retired from the , EASTERN DISTRICT OF NEW YORK
courtroom.)
UNITED STATES OF AMERICA
THE COURT: I have carefully
reconsidered the Brady argument and | -y-
find it without any substance at all. |
believe beyond any reasonable doubt that DAVID WALKER
it would not have any impact at all on
this verdict. That had that issue been 225 Cadman Plaza East
opened, it would have served only to Brooklyn, New York
reinforce the proof of the Government.
The issue was at best cumulative. The August 17, 1976
defendant was given full opportunity 10:00 a.m.
beyond the requirements of any rules of
procedure or evidence to bring to the APPEARANCES:
jury’s attention that these activities took
place in the open. And as to this very GAVIN SCOTTI, ESQ.,
instance, that was established fuliy with
the assistance of the Court. Assistant United States Attorney
MR. ROSEN: I respectfully except. ELLIS TREMPER
THE COURT: Yes. However, I would be Acting Grand Jury Reporter
happy to receive briefs on this and on the 3500
issue at the time of sentencing. [Commencing at page 2]
, ; ,; , -
Do you wish to make a motion to set aside
the ” “EDMOND MULLINS, called as a witness,
having been first duly sworn by the Foreman of
* * * the Grand Jury, testified as follows:
102a
Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
BY MR. SCOTTI:
Q. Please state your name for the
record. A. Edmond H. Mullins.
Q. How are you employed? A. Postal
Inspector, United States Postal Service.
Q. How long have you been a Postal
Inspector? A. Five and a half years.
Q. During the past several years, have you
been assigned to any particular location by the
Postal Service? A. For the last two years I have
been assigned to the Airport mail facility at John
F. Kennedy Airport.
Q. Does that cover Building 179 of the
Airport facility at JFK Airport? A. Yes, it
does.
Q. Explain or describe the duties of a Postal
Inspector to the ladies and gentlemen of the
Grand Jury. A. A Postal Inspector investigates
violations of Postal law as well as performing
audit functions within the Post Office.
Q. | take it that violations of Postal law
would include infractions committed by Postal
employees during the [3] performance of their
duties? A. That's correct.
Q. | direct your attention to the early part
of September of 1975. In approximately the first
103a
Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
week of 1975, during that time, did you have
occasion to meet one Antheny Short? A. Yes, |
did.
Q. Tell the ladies and gentlemen of the
Grand Jury how that came about. A. At the
request of an attorney, Mr. Allan Salzman, S-a-l-
z-m-a-n, Inspector Gerry Gaughran, G-a-u-g-h-r-
a-n, and myself met Mr. Short in the law office
of Mr. Salzman, located at 325 Broadway,
Manhattan, on September 7, 1975. At that time
Mr. Short related to me a conversation that he
had had with David Walker in which David
Walker had attempted to enlist, Mr. Short said,
in taking a registry mail pouch from the Airport
mail facility at JFK Airport.
Q. Did you know at that time who Mr.
Short was? A. At the time I walked into the
lawyer's office, | did not know who he was.
Q. Did Mr. Short in some way identify
himself? A. Yes.
Q. How did he identify himself? A. He
gave me his name and told me where he was
employed and what his duties were.
[4] Q. What was hat? A. He was an
assistant ramp clerk at JFK Airport, employed
by the United States Postal Service.
Q. Did he have any Postal Service
identification on him? A. No. he did not.
104a 105a
Grand Jury Testimony of Edmond Mullins Dated Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
Q. Subsequent to this meeting, did you
verify the fact that Mr. Short was and is in fact a
Postal Service employee? A. Yes, I did. An
assistant ramp clerk at Kennedy.
Q. Could you describe for the ladies and
gentlemen of the Grand Jury what an assistant
ramp clerk does? A. He would bring mail that
had missed a normal dispatch out to meet
various airlines for connecting flights. Also
driving around the ramp area and making sure
the mail is secure.
Q. What is the ramp area? A. The ramp
area is that portion of the airport that is not
runways, where the airplanes park and taxi into
buildings or terminals to unload passengers and
pick up baggage.
Q. To facilitate these duties would he have
to drive a vehicle? A. Yes, he would.
Q. In other words, is it accurate to state that
as a normal course of Mr. Short’s dutues [sic] he
would be in a vehicle driving literally all over the
airport? [5S] A. That is correct.
Q. Would his duties take him to Building
179? A. Yes, they would.
Q. You started telling us about the
conversation which Mr. Short related to you.
Would you please continue with that? A. Mr.
Short told me he had been approached by a
August 17, 1976
foreman at Building 179, David Walker, and that
David Walker had attempted to enlist his aid in
stealing mail from Kennedy Airport, that his job
would be to take a pouch of mail from Building
179 and meet David Walker at a predesignated
spot and give the bag to Mr. Walker. And for
these actions he would receive $100,000.
Q. Who was present on September 7th when
Mr. Short was telling you this? A. Inspector
Gaughran, Allan Salzman, Anthony Short and
myself.
Q. Did Mr. Short say anything with regard
to the — did he tell you where the conversation
took place with Mr. Walker? A. He told me the
conversation initially took place in Building 179
at Kennedy Airport. He then told me he had a
subsequent conversation with Mr. Walker over a
telephone, and he told me that he realized his
story seemed rather incredulous and that so that
somebody believed him, he made a tape [6]
recording of this telephone conversation.
Q. Did he tell you when this telephone
conversation took place? A. He told me that
the telephone conversation had taken place the
previous week.
Q. Was the telephone conversation the same
day that he had the face-to-face conversation
with Mr. Walker? A. I believe it was later on
the same day.
106a
Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
Q. Did Mr. Short have the taped
conversation with him on the 7th of
September? A. Mr. Short had a copy of the
taped conversation with him, and he furnished it
to me.
Q. Did there come a time when you received
the original taped conversation from Mr.
Short? A. Yes.
Q. Did there come a time when you learned
how Mr. Short made this taped conversation, off
what equipment? A. Yes, Mr. Short made the
original recording over a Phonemate which is a
recording device attached to a telephone.
Q. When you call up on the phone and
someone says, ‘Hello, this is X, I’m not here but
leave a message at the tone,” something like
that? A. That is correct.
Q. Did you listen to the original and the
copy — [7] A. Yes, I did.
Q. — of the tape? A. Yes.
Q. Do you have a tape for us here
today? A. I have a copy of the tape that
Anthony Short had given me on September 7th.
Q. In other words, this is a copy of the
copy? A. This is a copy of the copy that Mr.
Short gave me. I made the copy that I am going
Grand Jury
107a
August 17, 1976
to play, in my office the morning after | had
received the copy of Mr. Short’s tape.
Q. This tape, then, is a conversation
between Anthony Short and David
Walker? A. That is correct.
Q. Now, before you play the tape, could you
tell us if Mr. Short — or how it came to be that
Mr. Short called David Walker; did he explain to
you why he called him and made the
tape? A. He didn’t want — he told Mr. Walker
he didn’t want to discuss this type of thing in the
Post Office, there might be people listening or
people that could overhear.
Q. Would you please play the tape for the
ladies and gentlemen of the Grand Jury and
identify for them the voices of Mr. Short and Mr.
Walker? A. The voices should be self-
explanatory. They refer [8] to each other by
name, Dave and Tony.
MR. SCOTTI: Before the Inspector plays
the tape, it’s a small machine. If anybody can’t
hear the tape, raise your hand, and we'll try to
turn up the volume.
We'll put it in the middle of the room. I'll
start it out at the maximum volume. Sometimes |
may have to cut it back a little bit.
[Whereupon, a tape recording was played to
the Grand Jury.]
Testimony of Edmond Mullins Dated
108a 109a
Grand Jury Testimony of Edmond Mullins Dated Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
BY MR. SCOTTI:
Q. Inspector Mullins, did you listen to the
tape that you have just played for the Grand
Jury, on September 7, 1975? A. Yes, I did.
Q. What, if any, action did you take or
other Postal Inspectors take with regard to the
information and tape which Mr. Short gave to
you? A. We instituted a surveillance on the
days that Anthony Short and David Walker were
working in the Post Office at Kennedy Airport.
Q. This surveillance was instituted at
Building 179 at Kennedy Airport, that is your
surveillance was instituted only on days when
Mr. Walker and Mr. Short were assigned on
duty, is that correct? A. Initially, that is
correct.
[9]}Q. How long did this surveillance
continue? A. The surveillance continued until
December, °75, when the foreign dispatch unit
moved out of Building 179 to an aircraft hangar
that we get every Christmas because the mail
volume increases. .
David Walker was the foreman of the
foreing [sic] dispatch, and he went with it.
\
Q. He went with it? A. Yes.
Q. Now, why would that necessarily have to
curtail the surveillance? A. Because in the
August 17, 1976
building where the foreign dispatch was handled,
there is no facility for observation.
Q. Now, did there come a time when you
received information concerning the
disappearance or loss of certain parcels? A. In
January of 1976 I received a reclamation, which
is a tracer form and claim for ten insured parcels.
Initially, 1 received the reclamation for five
matured parcels, and about a week later !
received reclamations for another five insured
parcels.
Q. What was indicated on these reclamation
forms? A. The Bank Nazionale Del Lavaro in
Milan, Italy, had made ten insured parcels. The
numbers were: 42, 44, 46, 48, 50, 542, 544, 546,
548 and 550, to the Irving Trust Company [10]
on One Wall Street, New York, New York.
Q. Did the forms state what was contained
inside the ten parcels that had been
mailed? A. Each of the ten parcels contained
$80,000 in United States currency.
Q. Were these registered parcels? A. These
were insured parcels coming into the United
States. The procedure at Kennedy Airport is that
insured parcels from Italy are entered to the
registry section.
Q. Now, with respect to Parcels 42, 44 and
46, did the bank in Milan give you a breakdown
110a
Grand Jury Testimony of Edmond Mullins Dated
August 17, 1976
as to the kinds or type of United States currency
that was in each one of the parcels? A. Yes,
they did. 42, 44 and 46 each contained $80,000,
had an identical breakdown in United States
currency. One hundred $100 bills, one thousand
$50 bills, and one thousand $20 bills, for a total
of $80,000.
Q. In each one of the three
parcels? A. Yes.
Q. What about Parcel No. 48? A. 48
contained seven hundred $100 bills, five hundred
$10 bills, and one thousand $5 bills.
Q. What about Parcel No. 50? A. That
contained eight hundred $100 bills.
[11]Q. With respect to Parcel No.
542? A. 542 contained five hundred $100 bills,
eleven hundred $20 bills, one thousand $5 bills,
and three thousand $1 bills.
Parcel 544 contained five hundred $100 bills,
one thousand $20 bills, and two thousand $5
bills.
Parcel No. 546 and 548 contained the
identical breakdown, and 544 I have not recei
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.