# Petition — Walker v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2262%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 890 ## Text 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. 52a 53a 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. - 69a 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. 70a 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 72a 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 73a 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. 74a 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 procedur [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2262%3A1. Public record. Not legal advice.